' AFRASIAB KHAN, J.-- The appellant Jaffar Hussain has appealed through jail against the judgment, dated 26-1-1986 recorded by the learned Additional Sessions Judge, Rawalpindi, convicting him under section 302, P.P.C. And awarding him death sentence plus a fine of Rs.10,000 or in default thereof to undergo R.I. For two years with a direction to pay a sum of Rs.5,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. Or in default to suffer further R.I. For six months.
' The matter pertaining to the confirmation of his death sentence is also before us vide Murder Reference No. 48 of 1986. Both the matters shall be disposed of together by this judgment.
' The first information report Exh.P.B./1 was recorded by Shaukat Ali Moharrar A.S.I. Police Station Ganj Mandi, Rawalpindi on 12-3-1985 on the statement Exh.P.B. Of Siddique Masih P.W.6. Siddique Masih who is a sweeper by profession was employed as such at the Lorry Adda Pir Wadhai, Rawalpindi.
His sister Mst. Rakhi deceased wife of Shaukat Masih P.W.5, an employee of the Municipal Corporation also worked as sweepress at the same Lorry Adda. Before the occurrence in question she had twice complained to her brother (Siddique Masih P.W.6) against the appellant who used to molest her. Siddique Masih asked the appellant to behave and refr in from his immoral activities.
2. On 12-3-1985 at about 9-00 a.m., when the complainant after performing his duties, was going towards his sister who was working in front of Shaheen Battery Works at a distance of 8/10 Karams, he saw the appellant holding a knife in his right hand, emerging from a nearby lane. He enquired from Mst. Rakhi as to why she made a complaint to her brother against him and declared that he would teach her a lesson and inflicted knife injury on her abdomen. On receipt of the injury she fell on the ground and died instantly. On the alarm raised by the complainant, Muhammad Sharif P.W.8 and Muhammad Bashir P.W.7 who were working nearby, reached the spot and witnessed the occurrence. They were able to apprehend the appellant alongwith his weapon of offence and later produced him before the police.
3. On receipt of information of the occurrence Ghulam Mustafa S.I. P.W.9 came to Police Post Pir Wadhai and examined Siddique Masih P.W.6 and Muhammad Bashir P.W.7. The appellant was also produced before him alongwith his blood-stained knife. He arrested him. Memo. Exh.P.E. Was prepared in respect of the knife. He also inspected the spot and prepared the injury statement Exh.P.H. And inquest report Exh.P.K. Of the deceased. The dead body was sent to mortuary under the custody of Muhammad Iqbal F.C. No. 462 and Zafar Hussain F.C. No. 975 for the post-mortem examination in Civil Hospital, Rawalpindi. The blood-stained earth from the place of occurrence was collected vide memo. Exh.P.F. He also took into possession basket P.7 and shoes of the deceased P.8/1-2 vide memo. Exh.P.G. Muhammad Iqbal F.C. Produced the last worn clothes of the deceased, shirt P.1, which had a sign of cut, Salooka P.2 bearing sign of cut, brazier P.3, Shalwar P.4 and Dopatta P.5, before him which he took into possession vide memo. Exh.PA. He also got the site plan Exhs.P.C. And P.C./1 of the place of occurrence prepared by Muhammad Akram Draftsman on 14-3-1985. The report of the Chemical Examiner Exh.P.L. Disclosed that the vaginal swabs of the deceased were stained with semen. The earth and knife were also found stained with blood. The report Exh.P.N. Of Serologist dated 12-3-1985 declared that the earth and knife were stained with human blood.
4. Dr. Nasir Mahmood P.W.4 conducted the post-mortem examination of the deceased on 12-3- 1985 at 1-30 p.m. And found the following on her person:- "An incised wound 1.2 c.m. x .5 c.m. In the centre of abdomen and 3.5 c.m. Above the umbilicus.
Omentum was visible through the wound."
' In the opinion of the Doctor, Mst. Rakhi died of shock and haemorrhage due to injury No.1 which was sufficient to cause death in the ordinary course of nature. The injury was ante-mortem and was caused by sharp-edged weapon. Time between injury and death was immediate while time between the death and postmortem examination was 4 to 8 hours.
5. Eve-witness account was provided by Saddique Masih P.W.6, Muhammad Bashir P.W.7 and Muhammad Sharif P.W.B. All the three eyewitnesses supported the case of the prosecution in its entirety.
' The appellant while making a statement under section 342, Cr.P.C. Denied the allegations levelled against him. He also made statement under section 340, Cr.P.C. On oath. While answering question No.8, the appellant stated that the prosecution witnesses are inter-related and they have deposed against him because they are police as well as Municipal Corporation employees. He further stated that he has been implicated falsely in the case at the instance of the prosecution witnesses because he was a helpless man. The appellant, however, did not produce any evidence in his defence. While making a statement on oath he pleaded his innocence and stated that he did not murder Mst. Rakhi and that he has falsely been involved in the case. In cross-examination he stated that he had been selling sun-glasses in Pir Wadhai Adda for the last about five to six years before the occurrence. He disclosed that he was linked with the deceased in love-affairs since his childhood. He conceded that the deceased was a married lady and that she had given birth to nine children.
6. Learned counsel has drawn our attention to the charge framed against the appellant on 18-12- 1985 and submitted that all the necessary particulars of the allegation against him were not contained in the said charge as required by the provisions contained in sections 221, 222 and 223, Cr.P.C. On this basis, the learned counsel stated that the appellant's case stands highly prejudiced and as such he is entitled to acquittal forthwith. It is next argued that from the evidence it is not established that the appellant had the intention to kill the deceased as alleged by the prosecution.
It is maintained by the learned counsel that only three hours' time was allowed by the learned trial Court to the learned counsel for the appellant for the preparation of his case and on this basis, the learned counsel stressed that no proper opportunity of hearing was afforded to him to defend himself in the capital charge. Learned counsel further stated that although the waste basket was recovered and produced but the broom was not produced by the prosecution which definitely belies its version. Lastly, the learned counsel stressed that the prosecution has miserably failed to prove motive on the part of the appellant to commit the crime. The learned counsel in support of his contentions has relied upon the rule laid down in Ghulam Nabi v. The State 1982 SCMR 719, Muhammad Bashir v. The State PLD 1982 SC 139 and Allah Wasaya v. The State PLD 1982 SC 208.
' The learned State counsel submitted tint the appellant is named in the F.I.R. And that the prosecution case stands fully proved against him by trustworthy and reliable evidence.
7. We have heard the learned counsel for the parties and kive pet used the record. There are absolutely no merits in the contentions raised and argued by the learned counsel for the appellant.
We do not at all find any defects whatsoever in the charge as framed against the appellant. It was categorically mentioned in the said charge that the appellant is guilty of an offence under section 302, P.P.C. We, therefore, do not find any serious flaw in the charge and as such we proceed to repel the argument of the learned counsel. The provision contained in section 225, Cr.P.C. Is a complete answer to the contention of the learned counsel which reads as follows:- "No error in stating either the offence or the particulars required to be stated in the charge and no omission to state the offence or those particulars shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, as it has occasioned a failure of justice."
We have given our anxious thoughts to the contention of the learned counsel in the light of the law mentioned above and accordingly we are persuaded to hold on the basis of the evidence available on record and the law that the charge was A correctly framed and material particulars of the offence were put to the appellant. There are absolutely no material omissions in the charge which might mislead the appellant or which might occasion a failure of justice to him. The argument of the learned counsel being devoid of force is, therefore, discarded. There is also no substance in the contention of the learned counsel that the appellant was not I B given proper opportunity to defend him in the case. From the trend of cross- examination conducted by the learned defence counsel, it is apparent that he was fully prepared in the case and that he subjected the witnesses to lengthy cross-examination. Further we find that the appellant did not at all request the learned trial Court for the grant of some more time so as to enable his counsel to prepare his case further. Regarding motive of the commission of the offence, suffice it to say that the deceased Mst. Rakhi had informed the complainant that the appellant teased her off and on.
The motive has been proved by the evidence of the eye-witnesses beyond doubt. Siddique Masih P.W.6, Muhammad Bashir P.W. 7 and Muhammad Sharif P.W.8 have fully supported the prosecution case beyond any shadow of doubt. These witnesses were cross-examined extensively by the learned counsel and despite this their evidence could not be shattered. Siddique Masih P.W.6, Muhammad Bashir P.W.7 and Muhammad Sharif P.W.8 succeeded in apprehending the appellant red-handed and produced him alongwith the weapon of offence before the police. The presence of these eye-witnesses at the spot is established by reliable evidence. The deceased and the complainant were present at the spot in connection with their duty. Muhammad Bashir P.W.7, who is a waterman was employed in the Municipal Corporation, Rawalpindi. His presence too at the spot at the relevant time is quite natural because he was getting water from a nearby water tank.
Muhammad Sharif P.W.8 is employed as peon in Pir Wadhai office of the Municipal Corporation and was present on duty at the time when the occurrence took place. It is important to observe here that both Muhammad Bashir P.W.7 and Muhammad Sharif P.W.8 were doing their duties quite near the place of occurrence. The precise objection of the learned counsel is that P.W.7 and P.W.8 are the employees of the Municipal Corporation and that the complainant in the case is also an employee of the Corporation and because of this link they have deposed in favour of the prosecution and as such their evidence be not accepted. According to him no other witness from the public has been produced by the prosecution to corroborate the case. There is no substance in the contention of the learned counsel because, as observed earlier, the prosecution witnesses Muhammad Bashir P.W.7 and Muhammad Sharif P.W.8 were present at the spot in connection with their duty. This being so, we do not feel any hesitation in believing the statements of Muhammad Bashir. P.W.7 and Muhammad Sharif P.W.8. All the three eye-witnesses are natural and trustworthy and have given a consistent account of the occurrence. The learned counsel when confronted with the situation how and under what circumstances the appellant was apprehended at the spot by the prosecution witnesses and produced before the police, he had no explanation to offer. The medical evidence also fully supports the ocular account. There is overwhelming evidence on record to show that the appellant reached the spot armed with a knife and opened aggression upon a helpless woman and murdered her in a cruel manner. This is unfortunate that an innocent woman was done to death with full premeditation.
8. The upshot of the above discussion is that the prosecution case stands established against the appellant. He was, therefore, rightly convicted and properly punished. In the result the appeal fails and is dismissed accordingly.
' The death sentence awarded to the appellant is confirmed.
Death .
1989 P Cr. L J 1462 [Federal Shartiat Court] IS {{URDU TEXT}}
(a) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)- - {{URDU TEXT}}
(b) Qanun-e-Shahadat (10 of 1984)-- Art. 17- {{URDU TEXT}}
(c) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)--- S. 10(3)- {{URDU TEXT}}
(d) Offence of Zinn (Enforcement of Hudood) Ordinance (VII of 1979)--- S. 10(3)-{{URDU TEXT}} 1 "There was no marks of violence visible on any part of the body. Vagina was bleeding. PER VAGINAL FINDINGS : Hymen was irregularly torn. Blood was oozing from margins. Vagina admitted one finger easily.
Vaginal tears measuring 3 x l c.m. On left posterolateral wall of vagina. Profuse bleedings from the tear. Two vaginal swa bs were taken and sent to the office of the Chemical Examiner, Multan for detection of semen alongwith shlawar which was blood-soaked{{URDU TEXT}} {{URDU TEXT}}