ABAID ULLAH KHAN, J.--- Noor Muhammad, son of Muhammad Sharif, Wattoo by caste, aged 40 years, cultivator, resident of Chak Hakim Sadarkay, Tehsil Depalpur, District Okara, faced trial before the Court of Session, Okara, while charged first, alongwith Sher Khan, son of Muhammad Amin, caste Wattoo, aged 26 years, wagon driver, resident of Hakim Sadarkay, with the alleged commission of offence of enticing away Mst. Allah Maafi, were of Muhammad Shafi deceased, caste Kasab, aged 30 years, resident of Chak No.421/G.B., Kurpala, Police Station Tandlianwala, Tehsil Jaranwala, District Faisalabad; on the 3rd August; 1985, at about noon within the area of village Daula Pukhta, Tehsil Depalpur, District Okara, punishable under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and secondly, together with Mst. Allah Maafi, with the commission of murder of Muhammad Shafi, son of Bagh Ali, caste Kasab, aged 30 years, resident of village Daula Pukhta, deceased husband of Mst. Allah Maafi, in furtherance of their common intention on the 3rd August, 1985, at about 1-00 p.m. Within the area of village Bahawaldas, Tehsil Depalpur, punishable under section 302 read with section. 34 of the Pakistan Penal Code. By his judgment of the 30th March, 1988, the learned Additional Sessions Judge, Okara, convicted Noor Muhammad of the commission of offence of murder and sentenced him under section 302 of the Pakistan Pena---Code to suffer death and pay a fine of Rs.10,000 and in default of payment thereof to undergo rigorous imprisonment for two years. However, he acquitted Mst.
Allah Maafi of the charge levelled against her. Nevertheless, he did not record any finding touching the guilt or innocence of Noor Muhammad in respect of the charge of commission of offence of enticing Mst. Allah Maafi. His omission to pronounce any finding has been interpreted as acquittal of Noor Muhammad of the charge of enticing Mst. Allah Maafi. The learned trial Judge has referred to this Court the condemned prisoner's case for confirmation of sentence of death and Noor Muhammad has preferred appeal to assail the validity of the judgment of the learned trial Court.
This Court in exercise of its revisional jurisdiction under Article 203-DD of the Constitution of the Islamic Republic of Pakistan issued notices to Mst. Allah Maafi and Noor Muhammad as to why their acquittal be not set aside and they be not convicted and sentenced. Notice in respect of alleged commission of offence envisaged by section 16 of the Ordinance was also issued to Mst. Allah Maafi. Through this judgment we propose to dispose of the murder reference, Noor Muhammad's appeal and matters relating to notices issued to Mst. Allah Maafi and Noor Muhammad.
2. The events and circumstances leading to the involvement of the appellant, Noor Muhammad and his acquitted co-accused, Sher Khan and Mst. Allah Maafi, in the case, which resulted in the appellant's conviction, as furnished by the prosecution, may be described in the following words.
Mst. Allah Maafi was the were of Muhammad Shari deceased. She developed illicit intimacy with the appellant, Noor Muhammad and eloped with him. After keeping her with himself for some time the appellant restored her to the late Muhammad Shafi. A case relating to her abduction was registered against the appellant but it was later on cancelled ostensibly because of her restoration to her husband. After about a fortnight of her restoration she was washing clothes at a watercourse on the 3rd August, 1985, when at about 1-00 p.m., the appellant riding a red wagon, which was driven by Sher Khan, came over there. The appellant and Sher Khan gave a signal to Mst. Allah Maafi who rushed to and boarded the wagon. The wagon proceeded towards village Bahawaldas.
Habib Ahmad, P.W.1, brother of Muhammad Shari deceased, who was present at the nearby shop of his father's brother, Hassan, P.W.2, saw all this and raised alarm. Habib Ahmad, P.W.1, Hassan, P.W.2, Muhammad Shafi deceased, Muhammad Hanif and Liaquat Ali pursued the wagon on two motor- cycles upto village Bahawaldas and made the wagon stop at the bus stand of Bahawaldas. The appellant and Mst. Allah Maafi hurriedly alighted from the wagon and ran towards village Abadi.
Habib Ahmad, P.W.1, Hassan P.W.2, Muhammad Shafi deceased, Muhammad Hanif and Liaquat Ali gave them a chase. The appellant and Mst. Allah Maafi entered the house of Allah Ditta and went up the roof. They started running over the roofs of the adjoining houses. Habib Ahmad and others also ran after them. Muhammad Shafi caught hold of the appellant on the roof of the house of Bahadur Ali. Mst. Allah Maafi pushed Muhammad Shafi and he fell down. She gave a Lalkara to the appellant to finish him. When Muhammad Shafi was getting up the appellant fired with .12 bore pistol and the shot hit the head and face of the former. Muhammad Shafi's companions tried to catch hold of the appellant who loaded the pistol again and fired another shot at Habib Ahmad but the latter escaped by moving to a side. When the appellant loaded the pistol third time Habib Ahmad and others overpowered him and Mst. Allah Maafi and snatched away the pistol from the' appellant. The appellant and Mst. Allah Maafi received some injuries during the course of their apprehension. Sher Khan is said to have made good his escape on the wagon, which he drove away. Leaving Muhammad Shafi in injured condition and the appellant and Mst. Allah Maafi in custody of the people Habib Ahmad proceeded to Police Station Depalpur for reporting the matter.
On the way to the police station he came across Abdul Karim, Sub-Inspector of Police, Police Station Depalpur, P.W.9, whom he narrated the facts of the occurrence and who at 2-30 p.m., reduced his statement into writing Exh. PA. Which constitutes the first information report. On its basis formal first information report, Exh.PA./1, was registered at Police Station Depalpur ten minutes later.
3. Abdul Karim, P.W.9, went to the spot and prepared the injury statement of Muhammad Shafi, Exh.
P.L. He collected blood-stained earth from the spot, made it into a sealed parcel and took it in his possession vide the memorandum, Exh. P.D. He took in his possession the pistol, Exh.P.1, containing the live cartridge P.2, produced by Hassan, P.W.2, after making them into separate sealed parcels, vide the memorandum, Exh. P.B. He also took in his possession two empty shells of .12 bore cartridges, Exhs.P.3 and P.4, lying at the spot, after having made them into sealed parcel, vide the memorandum Exh. P.C. The blood--stained Shalwar, Exh.P.5, worn by the appellant, was also taken possession of by him after having been covered into a sealed packet vide the memorandum Exh.P.E. He prepared injury statements of the appellant, Noor Muhammad and Mst. Allah Maafi, Exhs.
P.N. And P.O., respectively. He put the appellant under arrest. He formally arrested Mst. Allah Maafi the next day. The above memoranda were attested by Habib Ahmad, P.W.1 and Muhammad Hanif (not produced).
4. The police got the appellant, Mst. Allah Maafi and Muhammad Shafi examined by Doctor Nawab Din, Medical Officer, Tehsil Headquarters Hospital, Depalpur, on the 3rd August, 1985, at about 5-30 p.m. Doctor Nawab Din noticed the following injuries on the person of appellant:-- (1)A lacerated wound 2 c.m. x 1/2 c.m., muscle deep on the frontal lower part of the right leg.
(2)Multiple contusion marks in an area of 25 c.m. x 12 c.m. On the back of the right chest.
(3)Contusion mark 9 c.m. x 2 c.m., on the back and upper part of the left chest.
(4)Contusion mark 16 c.m. x 2 c.m., on the back and middle part of the left chest.
(5)Contusion mark 12 c.m. x 2 c.m., on the outer and upper part of the left forearm.
(6)Contusion 7 c.m. x 2 c.m., on the dorsum of left foot.
According to the opinion of the Medical Officer all the injuries had been caused with blunt weapon, were simple in nature and were of the duration of 5 hours. Exh. P.F., is the copy of the medico-legal examination report.
The examination of Mst. Allah Maafi revealed the existence of the following injuries on her person:-- (1)Lacerated wound 4 c.m. x 1/2 c.m., into bone deep on the left side of the head 8 c.m. Above the left ear.
(2)A swelling 3 c.m. x 2 c.m., on the back and left side of the head.
(3)Contusion mark 12 c.m. x 6 c.m. On the top and upper part of the left shoulder.
(4)A contusion mark 3 c.m. x 2 c.m., on the front lower part of right upper arm.
(5)She complained of pain on the right chest lower part.
(6)Abrasion 2 c.m. x 2 c.m., on the back of the left elbow.
(7)Contusion mark 4 c.m. x 2 c.m., on the back of the right thumb.
The injuries were the result of application of blunt weapon and were of 5 hours duration. Injuries Nos.1 and 7 were kept under observation for radiological examination while the others were declared simple. Exh. P.G., is the copy of the medico-legal examination report It seems that no X- Ray examination .Of injuries Nos.1 to 7 was conducted.
Muhammad Shafi was found to be unconscious his pulse rate was 72 per minute and blood pressure 135/80. The following injuries were found on his person:-- (1)4 fire-arms wounds with inverted margins and blackening around in an area of 10 c.m. x 15 c.m., on the front of the head each measuring 3/4 c.m. x 3/4 c.m., in diameter going deep backward (It was a wound of entry).
(2)Two fire-arm wounds with everted margins 1-1/2 c.m. x 1 c.m. 1-1/2 c.m. x 1/2 c.m. On the right side of the head 5 c.m. Above right ear. It was wound of exit.
(3)3 fire-arm wounds with inverted margins, blackening was present around going deep backward 3/4 c.m. x 3/4 c.m., in diameter each in an area of 7 c.m. x 2-1/2 c.m. On the right side of the face with swelling around right eye and right cheek.
(4)A fire-arm wound with inverted margins going deep in diameter 3/4 c.m. x 3/4 c.m. On the inner side of right elbow going outside. It was a wound of entry and merging with wound with averted margins 3/4 c.m. x 3/4 c.m. And into the side of right elbow.
These injuries had been caused by fire-arm within 5 hours. They were kept under observation. Exh.
P.H. Is the copy of the medico-legal examination report.
5. In view of his precarious condition Muhammad Shafi was taken for treatment to General Hospital, Lahore, where he expired in the early hours of the 4th August, 1985. Abdul Karim, P.W.9, prepared inquest report, Exh. P.P., in respect of the death of the deceased. Autopsy on his deadbody was conducted by Doctor Saeed Ahmad, Demonstrator, Department of Forensic Medicines, King Edward Medical College, Lahore, P.W.7, on the 5th August, 1985, at 9-00 a.m. Hassan, P.W.2 and Haji Abdul Majid (not produced) identified the dead body before the Medical Officer at the time of post- mortem examination. Doctor Saeed Ahmad noticed the following injuries on the body of the deceased after removing the clothes and surgical dressings:-- (1)Circular wound with lacerated margins size 1 x 1.5 c.m., present on right cheek 1.5 c.m. Below right eye and 1.5 c.m. Right to nose.
(2)Circular wound with lacerated margins size 1 x 0.5 c.m. Present on the medial end of eyebrow.
(3)Circular wound with lacerated margins 0.5 x 0.5 c.m., present on the right glabella.
(4)Circular wound with lacerated margins size 0.5 x 0.5 c.m. Present in the centre of forehead 3.5 c.m. Above glabella.
(5)Circular wound with lacerated margins size 1 x 0.8 c.m. Left side forehead 5.5 c.m., above left eyebrow and 11 c.m. From left ear pinna.
(6-a)Circular wound with lacerated margins size 1'x 0.8 c.m., present on right side forehead 4 c.m., above right eyebrow and 10 c.m., above right ear.
(b)A lacerated wound size 2.8 x 0.8 c.m., present on right frontoparietal area of the skull 2 c.m.
Posterior to injury No.(a) and connecting to it.
(7-a) Wound with lacerated margins size 2 x 0.8 c.m., present on right frontal bone area 5 c.m., above right eyebrow and 7 c.m., from right ear.
(b)Wound with lacerated margins size 1.8 x 0.5 c.m., present 2.5 c.m., posterior to injury No.7-a and 6 c.m. Above right ear and in line to it.
Note--- Total area of the wounds stated above (1 to 7) was 11 x 8 c.m. All the wounds were stitched with nylon thread.
(8-a) Circular wound with lacerated margins size 0.5 x 0.5 c.m. Present on the outer side of right forearm 8 c.m. Below elbow and 18 c.m. From right wrist.
(b)Circular wound with lacerated margins size 0.8 x 0.5 c.m. Present on the inner side of elbow and connecting to injury No.8-A.
On explorations of injuries (1)Right maxillary bone was fractured and metallic pieces were recovered from the wound.
(2)One metallic piece (pellet) recovered from right eye-ball. Right eye-ball was injured and clotted blood was present in the posterior portion.
(3-4)Two metallic pieces (pellet) recovered from right side of the brain which was injured.
(5)Deformed metallic piece (pellet) recovered from the inner table of left frontal bone.
All the pellets were scaled in a bottle.
On opening the skull clotted blood was found present below the scalp and right and left frontal bones were having holes corresponding to injuries 3, 4 and 5. Right frontal bone was fractured.
Right side of brain was injured and its membranes were perforated as a result of injuries Nos.3 and
4. Left side of the brain was bruised due to injury No.5.
All the organs of the chest and abdomen were healthy. Stomach and urinary bladder were found to be empty. In the opinion of the Medical Officer death had occurred due to injury to the brain as a result of fire-arm shot which was sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem and had been caused by fire-arm. The probable duration of time between causing of injuries and occurrence of death was assessed by the Medical Officer to be about 10 to 15 hours and between death and post-mortem examination about 24 to 26 hours approximately. Exh.P.K./1 is the copy of the post-mortem examination report and Exhs. P.K./2 and P.K./3 are pictorial diagrams showing the location of injuries.
6. Earth collected from the spot and Shalwar worn by the appellant were found by the Chemical Examiner for the Punjab, Lahore, vide his report, Exh. P.W., to be stained with blood. The Serologist to the Government of the Punjab determined the origin of blood to be human per his report Exh.P.R.
7. The empty shells of the cartridges, Exhs.P.3 and P.4, gathered from the spot were found on examination by the Director, Forensic Science Laboratory, Punjab Police, Lahore, to have been fired with the pistol Exh.P.1. Exh. P.S. Is the report of the Director Forensic Science Laboratory, in this behalf.
8. The appellant as also his acquitted co-accused did not plead guilty to the charge. They described the case against them to be false. They denied their participation in any manner in the commission of crime as alleged by the prosecution. They gave no evidence in defence nor did they make any statement on oath.
9. The appellant, Noor Muhammad, did not admit development of illicit relationship with Mst. Allah Maafi, her elopement with him and her restoration to her husband. He stated that a false case of her abduction had been registered against him and as it had been found to be false it had been cancelled. He denied that he and Sher Khan had enticed away Mst. Allah Maafi while she was washing clothes at the watercourse in a wagon and that they had been given a chase by Habib Ahmad, Hassan, Muhammad Shafi deceased and others on two motor--cycles. When put he gave a lie to the facts pertaining to his going over to the rooftop of Bahadur Ali in village Bahawaldas in the company of Mst. Allah Maafi, his being caught hold of by Muhammad Shari deceased, giving of Lalkara by Mst. Allah Maafi and firing of fatal pistol shot at and causing injuries to the deceased, his apprehension at the spot by the prosecution witnesses, receipt of injuries by him and his production before the police. He said that he had been called by the police after the occurrence and had been given a beating for extracting confession of guilt but their efforts had proved futile and consequently they had falsely implicated him in the case. Not admitting the recovery of pistol, Exh.P.1, alongwith the cartridge, Exh.P.2, from his possession, he maintained that fake recovery had been planted upon him to lend support to the prosecution case. He did not own the pistol and the cartridge as also the blood-stained Shalwar which the prosecution claimed to have removed from his person at the time of his arrest. When the reports of the Chemical Examiner, Serologist and Director, Forensic Science Laboratory, Exhs. P.Q., P.R. And P.S., were put to the appellant, he replied that those reports had been maneouvred by the police and had been fabricated in order to support the prosecution case which was false and motivated. When asked why the case had been set up and why the prosecution witnesses had deposed against him his answer was that it was an unwitnessed occurrence, that Habib Ahmad and Hassan were close relatives of Muhammad Shafi, that they had implicated him in the case due to suspicion and enmity and that the whole case was a sheer concoction. .10. The examination of Mst. Allah Maafi before the trial Court was almost in the same vein as of the appellant. She did not admit her illicit relationship or elopement with the appellant and restoration to her husband. She stated that she had been enroped in a false case of abduction, which had later on been found to be false. She denied her going away with the appellant and Sher Khan in the wagon on the 3rd August, 1985, ox that Muhammad Shafi deceased, Habib Ahmad, Hassan and others had chased her on motor-cycles. She described the facts of going over to the rooftop of Bahadur Ali in the company of the appellant, catching hold of the appellant by the deceased, giving of Lalkara to the appellant by her and firing of the fatal shot by the appellant at the deceased with the pistol, Exh.P.1, put to her to be incorrect. Giving a lie to the question touching her apprehension at the spot and production before the police she said that she had been called from her house, had been given a beating by the police which had coerced her to confess the guilt and falsely implicated her after injuring her. She maintained that she had been implicated just on suspicion whereas the occurrence had been unwitnessed one. She added that none of the residents of Chak Bahawaldas, which was alleged to be the venue of the occurrence had been cited as a prosecution witness in the case. Pleading her innocence she emphasised that the case against her and her co-accused had been fabricated by the police in collusion with Habib Ahmad and Hassan, P.Ws.
11. Sher Khan did not admit the incident of his taking away Mst. Allah Maafi in her wagon alongwith the appellant, Noor Muhammad. He denied that Muhammad Shafi deceased, Habib Ahmad, Hassan and others had pursued him on motor-cycles and that Noor Muhammad and Mst. Allah Maafi had alighted from the wagon at Chak Bahawaldas. He stated that the prosecution witnesses had given false evidence against him due to enmity. He asserted that he was innocent.
12. At the trial of the case Habib Ahmad, P.W.1 and Hassan, P.W.2, supported the prosecution case.
Muhammad Hanif and Liaquat Ali, who had accompanied the deceased, Habib Ahmad and Hassan from Daula Pukhta to Chak Bahawaldas, were given up by the prosecution as they were stated to have been won over by the accused. The learned trial Judge believed the testimony of Habib Ahmad P.W.1 and Hassan, P.W.2, for the purpose of holding the appellant to be guilty of commission of offence of murder. However, he considered Habib Ahmad and Hassan to be inimical towards Mst. Allah Maafi and as against her he remarked that their testimony could not be formed basis for her conviction. Consequently, while convicting the appellant he acquitted Mst. Allah Maafi.
The learned Judge did not find anything incriminating in the prosecution evidence against Sher Khan and, therefore, concluded that the prosecution had failed to make out any case against him.
13. The ocular evidence against the accused consists of the depositions of Habib Ahmad, P.W.1 and Hassan, P.W.2. Apart from giving eye-witness account of the incident they bore out development and existence of illicit intimacy between Mst. Allah Maafi and Noor Muhammad, appellant and restoration of Mst. Allah War, after her elopement with the appellant, to her deceased husband.
Habib Ahmad said that she had been got restored to her husband about 20 or 25 days before the occurrence. Habib Ahmad testified that at about noon, on the day of occurrence, Mst. Allah Maafi had been washing clothes at the watercourse and he had been standing at the shop of Hassan, P.W.2, when the red coloured wagon (which was present outside the Court room when Habib Ahmad gave evidence) driven by Sher Khan and in which the appellant, Noor Muhammad had been sitting, had come over there. Habib Ahmad added that on Noor Muhammad's indication Mst.
Allah Maafi had boarded the wagon. He further stated that he had raised alarm, that Sher Khan, Noor Muhammad and Mst. Allah Maafi had gone in the wagon towards village Bahawaldas, that he (Habib Ahmad), Muhammad Shafi deceased, Liaquat Ali, Muhammad Hanif and Hassan, P.W.2, had chased the wagon on two motor-cycles, that reaching Bahawaldas bus-stop the appellant and Mst. Allah Maafi had entered the haveli of Allah Ditta and that they had followed them in the aforementioned haveli/house. According to Habib Ahmad the appellant and Mst. Allah Maafi had gone over the rooftop of the house and they had pursued them to the roof. He deposed that when the appellant and Mst. Allah Maafi had reached the roof of the house of Bahadur Ali, Muhammad Shafi deceased had held the appellant in his Japha and Mst. Allah Maafi had given a Lalkara to the appellant to fire at Muhammad Shari deceased and that on her Lalkara the appellant had fired at the deceased. He went on to say that Mst. Allah Maafi had dragged Muhammad Shafi deceased and thrown him on the rooftop. Continuing his statement he said that the shot fired by the appellant had hit the deceased on his face and forehead, He deposed that the appellant had also fired at him but he had stepped aside. He made mention of giving blows with Dandas, which they had picked up from the rooftop, to the appellant and Mst. Allah Maafi whom they had caught hold of and pinioned them. He confirmed that Hassan, P.W., had taken the pistol from the appellant. In the meantime, as stated by Habib Ahmad, Sher-Khan escaped in his wagon. As Habib Ahmad stated, he had handed over the appellant and Mst. Allah Maafi to Hassan P.W.2, Muhammad Hanif and Liaquat Ali and himself gone to Depalpur where he had come across Abdul Karim, Sub- Inspector of Police, in front of the Court of the Assistant Commissioner and reported the matter to him. Abdul Karim recorded his statement, Exh. P.A. On whose basis the case was registered against the appellant, Mst. Allah Maafi and Sher Khan.
14. Supporting the version of the occurrence given by Habib Ahmad, Hassan, P.W.2, recounted that on the day of occurrence at about noon Habib Ahmad had been present at his shop and Mst. Allah Maafi had been washing her clothes at the watercourse when a red coloured wagon driven by Sher Khan and ridden by Noor Muhammad, appellant, had come over there. Hassan confirmed that on the indication of the appellant Mst. Allah Maafi had boarded and sat in the wagon. Hassan said that after the wagon had gone from there they (Habib Ahmad and Hassan) had raised alarm and on their alarm Muhammad Shafi deceased, Muhammad Hanif and Liaquat Ali had come over there. According to Hassan, Liaquat Ali and Muhammad Hanif were having motor-cycles with them and all the five (Habib Ahmad, Hassan, Muhammad Shafi deceased, Liaquat Ali and Muhammad Hanif) had chased the wagon on the motor-cycles, that the motor-cycles had gone ahead of the wagon which had been brought to a halt at the bus-stop of Bahawaldas and after alighting Noor Muhammad, appellant and Mst. Allah Maafi had started running towards the east and after running for about a Killa they had entered the house of Allah Ditta. Hassan added that they (the five chasers) had also entered that house, that the appellant and Mst. Allah Maafi had gone on to the rooftop of the house and they had followed them, that the appellant and Mst. Allah Maafi had gone to the roof of the house of Bahadur Ali and Muhammad Shafi deceased had caught hold of the appellant in Japha, that Mst. Allah Maafi had pushed Muhammad Shari who had fallen down, that Muhammad Shafi had attempted to stand up but Mst. Allah Maafi had exhorted the appellant to fire at him and the appellant had fired at him with his .12 bore pistol and the shot had hit his face and forehead and he had fallen down. Hassan disclosed that the appellant had fired second shot at Habib Ahmad but he had escaped, that the appellant had loaded his pistol for the third time but they had given Danda blows to the appellant and Mst. Allah Maafi and that he had snatched the pistol from the hands of the appellant. He further stated that they had apprehended the appellant and Mst. Allah Maafi on the spot, that Habib Ahmad had gone to the police station to get the case registered and that on the arrival of the police he had made over to the police the pistol, Exh.P.1, which contained the live cartridge, Exh.P.2.
15. The medical examination of the appellant, Mst. Allah Maafi and the deceased conducted by Doctor Nawab Din, P.W.3, confirmed that the duration of injuries found on the persons of the three was the same meaning thereby that they were caused at the same time. This fact negates the story put forth by the appellant and Mst. Allah Maafi that those injuries had been the result of beating given to them by the police who had called them (from her house as stated by Mst.-Allah Maafi) after the occurrence for the purpose of extracting from them confession of guilt. The fact of duration of the injuries found on the person of the appellant, Mst. Allah Maafi and the deceased being the same further confirms the apprehension of the appellant and Mst. Allah Maafi at the spot as borne out by the prosecution evidence. The presence of Habib Ahmad and Hassan at the latter's shop is quite natural and their witnessing the arrival of the wagon and boarding thereof by Mst.
Allah Maafi on the indication of the appellant cannot be said to be improbable. The appellant and Mst. Allah Maafi had no business to be there on the roof of Bahadur Ali's house. They did not belong to that place and gave no valid explanation, except bare denial, of their presence over there. The narration of their chase as given by Habib Ahmad and Hassan and adverted to above appears to be nearest the truth. But for the actual occurrence Habib Ahmad and Hassan would not have gone to the extent of implicating the appellant and Mst. Allah Maafi in the case because personally they had no axe to grind against them.
16. The learned counsel for the appellant, referring to the opinion of Doctor Nawab Din, P.W.3, that injuries found on the person of the deceased were the result of two or more shots, tried to criticise and dub as false the testimony of Habib Ahmad, P.W.1 and Hassan, P.W.2, who made mention of firing of only one shot by the appellant and hitting the deceased. Working on the assumption that the opinion of the Medical Officer was wholly true the learned counsel contended that Habib Ahmad, P.W.1 and Hassan, P.W.2, could not be said to have seen the occurrence as their evidence relating to firing of only one pistol shot by the appellant at the deceased did not synchronize and was actually at variance with the medical evidence which ruled out the possibility that the injuries caused to the deceased were the result of one shot. The learned counsel appearing on behalf of the complainant explained by making posture of his head, face and right elbow (the elbow and the arm being close to the face) that pallets of a .12 bore cartridge fired from a pistol could spread and hit the portion of the head, face and elbow causing injuries similar to those found on the person of the deceased and submitted that the opinion of the Medical Officer that the injuries had resulted from two or more shots was not at all correct. It seems natural and possible that the deceased might have raised his arm to provide a sort of cover to his face and in that process it was quite possible that the pellets, which after leaving the cartridge would have spread to an area of a larger diameter, would have hit the head, face and elbow. Therefore, the medical opinion that injuries were the result of two or more shots cannot be accepted at face value. In that view of the matter the ocular testimony of Habib Ahmad and Hassan that the deceased received only one shot rings true.
17. The learned counsel for the appellant submitted that being close relatives of the deceased, Habib Ahmad, P.W.1 and Hassan, P.W.2, could not be described to be independent witnesses and in the absence of corroboration of their testimony from an independent source it would be highly unsafe to hold the appellant to be guilty of the commission of crime attributed to him. He pointed out that Muhammad Hanif and Liaquat Ali, who were not related to the complainant party, had not been produced by the prosecution nor the owner of the house, where the occurrence had taken place, nor any inhabitant of village Bahawaldas had been examined to support the prosecution version of the case. As mentioned earlier Muhammad Hanif and Liaquat Ali had been given up by the prosecution as they were stated to have been won over by the accused. The owner of the house, Bahadur Ali, as stated by Habib Ahmad in cross---examination, was not present when the occurrence took place. As is apparent from the evidence brought on the record no inhabitant of the village went up to the rooftop of the house of Bahadur Ali to witness the occurrence. That may be the reason why no person from that village was cited and produced as an eye-witness. Even otherwise, as discussed above, the testimony of Habib Ahmad and Hassan is reliable and worth believing. The ocular account of the occurrence given by Habib Ahmad and Hassan finds support from the medical evidence indicating simultaneity of receipt of injuries by the appellant, Mst. Allah Maafi and the deceased as also the report of the Forensic Science Laboratory affirming the firing of the cartridges, whose empty shells, Exhs.P.3 and 4, are, from the pistol, Exh. P.1, used by the appellant as weapon of offence, besides the fact of apprehension of the appellant and Mst. Allah Magi at the spot at the time of occurrence.
18. The learned counsel for the appellant, adverting to the finding of the learned trial Court that the first information report Exh. P.A., had been recorded by Abdul Karim, P.W.9 after visiting and holding preliminary investigation at the spot, contended that the report, in view of what has been laid down by the Lahore High Court in Abdul Sattar v. State 1974 P Cr. L J 208, was not reliable and inadmissible in evidence. As is well-settled the first information report does not constitute substantive evidence. The guilt of the appellant has been determined in the instant case on the basis of other evidence brought on the record without treating the report as a substantive piece of evidence. Therefore, the fact of reducing into writing the first information given to the Investigating Officer after his visiting the spot has not prejudicially affected the interests of the appellant.
18. It need hardly be mentioned again that illicit relationship existed between the appellant and Mst. Allah Maafi and her accompanying the appellant and running alongwith him could thus be not considered an unnatural event. The action of the appellant in enticing or taking away Mst. Allah Maafi, who happened to be the were of the deceased, constituted no less than a cognizable offence and the deceased as also his companions were well within their right to apprehend the appellant for being brought to book. The appellant had no justification to open fire at the deceased. The appellant can very well be said to have known the fact that his act of opening fire at the deceased was so imminently dangerous that it must in all probability cause death or such bodily injury as was likely to cause death. Therefore, the appellant by his act committed the offence of murder (of the deceased) punishable under section 302 of the Pakistan Penal Code.
Consequently his conviction recorded by the learned trial Court is in order and is maintained. No extenuating circumstance exists for awarding him lesser penalty ordained by law rather his action of enticing and taking away Mst. Allah Maafi which ultimately resulted in the murder of the deceased calls for imposition of major penalty of death. The sentence of death awarded to him by the learned trial Court is confirmed.
19. The case of Mst. Allah Maafi in regard to notice given to her for setting aside her acquittal may be taken up. The evidence against her coming from the mouths of Habib Ahmad, P.W.1 and Hassan, P.W.2, is confined to her pushing the deceased and asking the appellant to shoot him. However, it is noticeable that depositions of Habib Ahmad and Hassan having bearing on her role are not consistent rather they are somewhat at variance. Habib Ahmad, P.W.1 stated that Mst. Allah Maafi had given a Lalkara to Noor Muhammad to fire at Muhammad Shafi and on her Lalkara the appellant had fired at the deceased and that Mst. Allah Maafi had dragged the deceased and thrown him on the rooftop. Hassan, P.W.2, does not mention any Lalkara given by Mst. Allah Maafi.
What he said was that when the deceased had caught hold of the appellant in Japha Mst. Allah Maafi had pushed the deceased who had fallen down and when he had attempted to stand up she had exhorted the appellant to fire at him. Whereas according to Habib Ahmad she had dragged the deceased and thrown him on the rooftop after he had been fired upon. Hassan's evidence is to the effect that she had pushed the deceased when he had caught hold of the appellant in Japha, that is, before the deceased had opened fire. The proverbial Lalkara is well- understood by the people and Hassan P.W.2, would not have missed to say that Mst. Allah Maafi had given a Lalkara. Material discrepancies found in the statements of Habib Ahmad, P.W.1 and Hassan P.W.2, touching the small role said to have been played by Mst. Allah Maafi tend to exonerate rather than hold her guilty of the charge of committing murder of the deceased in furtherance of sharing common intention with the appellant.
20. The learned counsel for Mst. Allah Maafi argued, and rightly so, that section 16 of the Offence of Zina (Enforcement and Hudood) Ordinance, 1979, as presently worded rendered liable to punishment only the person who took or enticed away any woman and that the woman so enticed or taken away, as in the instant case Mst. Allah Maafi was, could not be saddled with any criminal liability and as such could not be prosecuted. The language of section 16 no doubt exempts the woman being the subject of enticement from being tried and punished as an accused; it is the person who effects enticement who is booked for the commission of offence. Consequently Mst.
Allah Maafi cannot be held guilty of commission of offence punishable under section 16.
21. The action of the appellant, as brought out in the evidence, may be covered by section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979, but this Court, in exercise of its revisional jurisdiction, in face of the proviso to clause (2) of Article 203-DD of the Constitution, would not be in a position to record conviction of the appellant. To secure his conviction the entire case will have to be remanded for retrial to the Court of Session. However, as the appellant has already been visited with the capital punishment on the count of his conviction in respect of commission of offence of murder we feel that retrial of the case just for determining his guilt regarding commission of offence punishable under section 16 of the Ordinance, which entails a far lesser penalty, would not be desirable and in the interests of justice.
22. In view of what has been said above, the appeal is dismissed, the death sentence passed upon the appellant by the learned trial Court is confirmed and the notices issued to the appellant and Mst. Allah Maafi are withdrawn.
TANZIL-UR-RAHMAN, C.J.--- I find myself in complete agreement with the judgment proposed to be delivered by my learned brother Mr. Justice Abaid Ullah Khan. I would, however, like to add few words about an important aspect of the matter relating to Mst. Allah Maafi. It is established that she eloped and ran away from the lawful custody of her husband, Muhammad Shafi, the deceased, alongwith appellant with the intention that she may have illicit intercourse with him. But section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, as framed, renders liable to punishment only the person who takes or entices away any woman with the intent that she may have illicit intercourse with any person. The woman if eloped, on her own accord, cannot be prosecuted for elopement with intent to have illicit intercourse. There is also no provision in the Pakistan Penal Code to that effect. This is a manifest lacuna in the existing law.
2. The above lacuna was, for the first time, noticed by a Full Bench of this Court about ten years ago, in Criminal Appeal No.157/I of 1981 Abdul Sattar v. Muhammad Ashraf etc. PLD 1982 FSC 157 relevant portion whereof on the point at issue appears at page 167, which reads as under:--
3. The above lacuna was again noticed by this Court in Criminal Appeal No.8/P of 1982, Sardar v.
Government of Pakistan and connected Criminal Appeal No.15/P of 1982, Mian Gul Khan v. Sardar etc. Relevant portion of the judgment is reproduced as under:-- "Before parting with this case, I would like to observe that the conduct of the female appellants was, to say the least, very unbecoming as they had left their houses, in spite of the allegation of having been married, and had gone to the houses of the male appellants on their own accord and were actually arrested with them after about 24 days of their disappearance. Such conduct was grossly indecent and was quite likely to, lead to Zina and therefore, it is very harmful to the society, but unfortunately there is no law which punishes such conduct and, therefore, I have no option but to accept the appeals as the action of the appellants as proved on record was not covered by any provisions of either Penal Code or Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979.
Copy of this judgment may be sent lo Ministry of Law, Government of Pakistan, drawing his attention to the last para."
4. Furthermore, the above said two judgments on criminal reference came up for consideration before the Council of Islamic Ideology in its session held at Karachi during 13-18 November, 1982 and the following recommendation was made which reads as under--- For full discussion see Annual Report of the Council of Islamic Ideology for 1982-83 and Fifteenth Report of the Council of Islamic Ideology on Islamization of Laws, 1984, pp.89-90).
5. It, appears that no action has so far been taken by the Legislature in this regard. It is, however, expected that the Government will take due note of the above lacuna and take proper steps. To fill up the same, by inserting a provision of law in Ordinance VII of 1979 or the Pakistan Penal Code, 1860.
6. Perhaps, it will not be out of place to add that in Pakistan, law and morality have to play a special role. Therefore, the responsibility of law-making bodies is not only greater but also different from those of contemporary institutions in the West. It is the duty of our Legislature to see that our laws correspond exactly to Islamic moral values, particularly, after the insertion of Article 2-A in the Constitution of Islamic Republic of Pakistan, in 1985.