' MUHAMMAD ILYAS, J.--- Naeem Akhtar son of Muhammad Din, aged 24 years, caste Kashmiri, and Ghulam Masood son of Ghulam Samar, aged 23 years, caste Gujjar, both residents of village Mehesian, Police Station Wah Cantt., District Rawalpindi, faced trial before Malik Ata Rasool Joya, Additional Sessions Judge, Rawalpindi, under sections 302 and 411 read with section 34 of the Pakistan Penal Code and section 11 of the Offence of Zina (Enforcement of Hudoozi) Ordinance, 1979. The learned Additional Sessions Judge convicted both of them under section 302 read with section 34 of the Pakistan Penal Code and sentenced each of them to death and also to pay a fine of Rs,10,000 or, in default of payment thereof, undergo rigorous imprisonment for one year. They were also convicted under section 411 read with section 34 of the Pakistan Penal Code and sentenced to suffer rigorous 'imprisonment for three years each. Learned Additional Sessions Judge further directed them, under section 544-A of the Code of Criminal Procedure, to pay Rs,15,000 each, as compensation to the legal heirs of Mst. Naheed Akhtar who was alleged to have been killed by them or in default of payment of compensation, undergo further rigorous imprisonment for six months each. The learned Additional Sessions Judge found that no cogent evidence had been produced against them in regard to charge under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance and, therefore, he acquitted them of the said charge. The convicts have filed this appeal against the judgment of the learned Additional Sessions Judge while the learned Additional Sessions Judge has made reference (Murder Reference No,5/I of 1992) for confirmation of the sentences of death imposed on them. This judgment shall dispose of both the matters.
2. Case against the appellants commenced with the filing of application Exh.P.C. By Abdul Malik (P.W.5), father of the aforesaid Mst. Naheed Akhtar. The complaint made by him in the said application was that he lived in village Mehesian alongwith his daughter Mst. Naheed Akhtar, aged 18/19 years. His Nikah with one Muhammad Ashraf had been performed but she had not been sent to her conjugal domicile before the incident, giving rise to the present case, had occurred. On 27th September, 1990, he (Abdul Malik) went to Wah Factory where he was employed and his wife,. Mst.
Sarwar Jan (P.W.10) proceeded to the fields to do work in connection with the crop of maiz grown therein. Mst. Naheed Akhtar and her sister, Mst. Shan= (as P.W.9 she mentioned her name as Shadmah Bibi and will hereinafter be referred to as such), aged 7/8 years, remained at home. At about 3-00 p.m., he came home from the Factory when his wife, who had returned there earlier, informed him that on her coming back home she saw Mst. Naheed Akhtar missing. On inquiry, she was informed by Mst. Shadmah Bibi that, at about 11-30 a.m., Ghulam Mustafa their co-villager, came to their house alongwith two persons and took away Mst. Naheed Akhtar. On this, he repeatedly contracted Ghulam Mustafa and asked him to return Mst. Naheed Akhtar which he promised to do, but, ultimately, on 2nd October, 1990, he refused to return her. He made the grouse that Ghulam Mustafa and others had seduced his daughter for the purpose of illicit intercourse.
3. Abdul Malik handed over his application, Exh.P.C. To Sub-Inspector Muhammad Taj (P.W.14) and on the basis thereof F.I.R. Exh.P.C./1 was drafted by Sub-Inspector Khaliq Dad (P.W.12). Both of them were then posted at the Police Station Wah Cantt.
4. Two days later, i,e., on the 29th September, 1990, Aziz Gul (P.W.1) saw dead body of a female in Nallah Sooka in the area of Police Station Bahtar, District Attock, and reported the matter to Sub- Inspector Shah Jehan (P.W.13). He was then posted as S.H.O. At the Police Station of Bahtar. Sub- Inspector Shah Jehan took into possession the dead body and sent it to T.H.Q. Hospital Fateh Jhang for post-mortem examination. Foot Constable Muhammad Riaz (P.W.4) escorted the dead body to the said hospital where Dr. Anwarul Haq Qureshi (P.W.16) performed autopsy on the dead body and found the following injuries thereon:--
(i) Lacerated wound, 10 x 2 c.m., bone deep, on the back of head. Occipital bone and both temporal bones fractured.
(ii) Abraded area, 5 x 1 c.m., on the middle part of nose. Nasal bone fractured.
(iii) Upper jaw separated into two parts from the centre.
' In the opinion of the said doctor, death of the lady, examined by him occurred due to injury No,1.
He was of the view that all the injuries on her person were caused by blunt weapon. Exh.P.L./1 is the post-mortem report recorded by the said doctor. Amongst other material, he took into possession vaginal swa bs of die dead body but there is no opinion of the Chemical Examiner in regard to these swa bs. Report of the Chemical Examiner is Exh.P.N. In which it has been simply recorded that no poison was detected in the articles sent to him.
5. Dr. Anwarul Haq Qureshi handed over the last worn clothes of the said lady to Constable Muhammad Riaz. These clothes were shirt Exh.P.1, Shalwar Exh.P.2, Buniyan Exh.P.3 and body (brassiere) Exh.P.4, which the said Foot Constable passed on to S.H.O., Shah Jehan who took them into possession vide memo. Exh.P.B. The S.H.O. Then got the dead body buried under the supervision of Chairman, Municipal Committee, Fateh Jhang.
6. On coming to know of the spotting of aforesaid dead body, Abdul Malik (P.W.5) and Mst. Sarwar Jan (P.W.10), who are the parents of Mst. Naheed Akhtar deceased, went to Police Station Bahtar where clothes found on the dead body were shown to them. They identified these clothes as these of Mst. Naheed Akhtar. Thereafter, the dead body was exhumed and shown to them. It was also identified by them as that of their daughter, Mst. Naheed Akhtar. Thereafter, the dead body was brought to their village and re-buried there.
7. Sub-Inspector Muhammad Taj (P.W.14) investigated the case and recorded the statements of witnesses. According to the prosecution version it was during the course of investigation that the appellants led to the recovery of ear-rings which were lying under a wall clock at the house Ghulam Masood appellant. These ear-rings were identified by Abdul Malik and Mst. Sarwar Jan as those of Mst. Naheed Akhtar deceased. After completing the investigation the said Sub-Inspector sent up the appellants to face trial on charges mentioned at the outset.
8. The appellants pleaded not guilty and claimed to be tried.
9. The prosecution produced as many as 16 witnesses and also produced a number of documents to prove its case. Thereafter, the appellants were examined under section 342 of the Code of Criminal Procedure. They stated that the prosecution evidence was incorrect and explained that the witnesses had deposed against them due to relationship with the deceased and enmity with them. While replying to the question as to why the case had been brought against them, each came up with the following plea:- "Due to enmity and false suspicion. The deceased was a lady of easy virtues. She gave birth to twin illegitimate babies and the same were in the fields. I and my co-accused gave applications to higher authorities and informed them. Though the matter was hushed up but the complainant and his relatives have grudge against us."
10. The appellants did not appear as their own witness and also did not like to produce any evidence in defence.
11. As stated earlier, the learned Additional Sessions Judge, who tried the appellants, came to the conclusion that charges under sections 302 and 411 read with section 34 of the Pakistan Penal Code had been established against the appellants. He, therefore, convicted and sentenced them on the said charges. According to the learned Additional Sessions Judge, charge under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance had, however, not been proved and, therefore, he acquitted them of the said charge.
12. We have heard learned counsel for the appellants, Sardar Muhammad Ishaq Khan, Advocate, and learned counsel for the State, Khan Mushtaq Ahmad Khan, Advocate, at considerable length.
13. Undoubtedly, there is no ocular evidence in the instant case. The prosecution case rests on the circumstantial evidence. It is now to be seen whether that evidence can sustain the conviction of the appellants.
14. In the first instance, we would like to look into the circumstances in which Mst. Naheed Akhtar had allegedly left her house before falling into the hands of death. According to the F.I.R., Exh.P.C./1, which is based on the information supplied by Mst. Shadmah Bibi (P.W.9), the younger sister of Mst.
Naheed Akhtar, Mst. Naheed Akhtar was taken away from her house by Ghulam Mustafa and two persons (not known to Mst. Shadmah) and that when her father, Abdul Malik asked Ghulam Mustafa to return Mst. Naheed Akhtar he promised to do so but ultimately refused to return her.
According to this version, Ghulam Mustafa was the main culprit but in his statement as P.W.5, Abdul Malik stated that before he nominated the appellants as the culprits he had satisfied himself that Ghulam Mustafa was not at fault. In her statement as P.W.9, Mst. Shadmah Bibi did not adhere to the statement initially made by her before her father and said that Naeem Akhtar appellant alongwith another person. Who was not then known to her but subsequently turned out to be Ghulam Masood appellant, came to their house and forcibly took away Mst. Naheed Akhtar. She did not make any mention of the use of force in her initial disclosure. Another deviation made by Mst. Shadmah Bibi was that according to her initial disclosure, there were three persons (Ghulam Muhammad and two unkown persons) who took away Mst. Naheed Akhtar from her house but in her statement in Court she talked of two persons only, i,e. Naeem Akhtar appellant and one unknown person. Mst. Sarwar Jan (P.W.10), who is the mother of the deceased, did not say anything with regard to the information imparted to her by Mst. Shadmah Bibi although she (Mst. Sarwar Jan) was the first one who came back home after the exit of Mst. Naheed Akhtar and learnt from Mst. Shadmah Bibi that Mst. Naheed Akhtar had disappeared. All these factors create serious doubts with regard to the persons, if any, who were with Mst. Naheed Akhtar when she left her house for the death journey.
15. There is also evidence of last seen which was furnished by Ghulam Asghar (P.W.6) and Muhammad Ayub (P.W.8). They deposed that they saw Mst. Naheed Akhtar in the company of the appellants at the Suzuki stand of Taxila. Their plea is clearly an afterthought inasmuch as it does not find mention in the application. Exh.P.C., which constitutes the basis of the F.I.R. 'Exh.P.C./1. This application was made by Abdul Malik (P.W.5) after Ghulam Asghar and Muhammad Ayub had allegedly seen Mst. Naheed Akhtar in the company of the appellants and had imparted this information to Abdul Malik as well. According to Ghulam Asghar and Muhammad Ayub they saw Mst. Naheed Akhtar with the appellants on 27th September, 1990 and this was disclosed by them to Abdul Malik on the same day, in the evening. As noted earlier, the said application (Exh.P.C.) was made by Abdul Malik on 2nd October, 1990, i,e. About a week after receiving information supplied to him by Ghulam Asghar and Muhammad Ayub in respect of the presence of Mst. Naheed Akhtar with the appellants at the said Suzuki stand but in the application he did not say a word in this regard. Then, there is a material contradiction in the statements of Ghulam Asghar and Muhammad Ayub. Ghulam Asghar said that the appellants and Mst. Naheed Akhtar were standing at the Suzuki stand when they were sighted by them (witnesses) but according to Muhammad Ayub they (Mst. Naheed Akhtar, etc.) were sitting in a moving Suzuki van when they had spotted them. It may be noted here that both Ghulam Asghar and. Muhammad Ayub were related to Mst.
Naheed Akhtar but, strangely enough, they did not make any effort to find out as to where she was going; and if she was being taken away forcibly, they did not make any attempt to rescue her by making noise or otherwise. It is also to be pointed out that according to Muhammad Ayub, Mst.
Naheed Akhtar was "wearing a veil" when she was seen in the Suzuki van. He did not say that the veil was on her face. The word "wearing", however, indicates that the veil was covering her face because veil is generally used for that purpose. If it was so, he could not possibly know that the lady in a veil was Mst. Naheed Akhtar. It may be added here that veil was not amongst the clothes which were found on her dead body and identified by her parents. Further, it is in the statement of Abdul Malik that Ghulam Asghar and Muhammad Ayub were present when he (Abdul Malik) made application, Exh.P.C., but it is amazing that there is no mention of the Taxila episode in the said application. We cannot, therefore, help taking the view that the evidence of last seen, which is comprised of the statements of Muhammad Asghar and Muhammad Ayub, was concocted at a very late stage so that it could serve as a prop for the prosecution story, but it is all useless. We are, therefore, not inclined to rely on their evidence.
16. There is also evidence of the alleged recovery of ear-rings, Exh.P.6/1-2 of Mst. Naheed Akhtar on the pointation of the appellants: Sub-Inspector Muhammad Taj (P.W.14) said that he effected the recovery in the presence of Abdul Malik (P.W.5), Ghulam Asghar (P.W.6) and Muhammad Siddique (P.W.7) who are witnesses of the recovery memo. Exh.P.6/1-2. It is clearly discernible from their statements that the appellants had jointly led to the recovery of ear-rings. Evidence of such recovery is not admissible. If any authority were needed for this proposition we would, with respect, refer to the cases reported as Khalas Khan and another v. The State 1975 P Cr. L J 172 and Abdul Ghani and 3 others v. The State 1976 P Cr. L J 1462.
17. Besides the above legal objection to the recovery of ear-rings, there are material discrepancies in the evidence in this behalf. According to the recovery memo. Abdul Malik (P.W.5) had also witnessed the recovery but it was stated by him, while under cross-examination, that he did not do so and remained at Police Post No,2 till the ear-rings were brought to the Police Post and were identified by him as those of Mst. Naheed Akhtar. As against this, it was deposed by Sub-Inspector Muhammad Taj that Abdul Malik had also gone to the place of recovery. Moreover, it was stated by Ghulam Asghar that he and Muhammad Siddique went to the police post at 2 or 2/3 p.m. For proceeding onward to the place of recovery but Muhammad Siddique said that they went to the police post at 8-00 a.m. Also, according to Ghulam Asghar time of recovery was about 6-30 p.m.
But in the words of Muhammad Siddique it was 9-00 or 9-30 a.m. Abdul Malik, the father of the deceased, did not make any mention of ear-rings in the application, Exh.P.C. He also did not produce any receipt or witness to establish that he got prepared or purchased ear-rings for use by the deceased. The evidence of recovery is, therefore, not only inadmissible but also unreliable. We would, therefore, like to discard it.
18. This brings us to the motive for the offences attributed to the appellants. No motive has been disclosed in the F.I.R. This has also not been done in the statement of the complainant or that of anybody else. The appellants talked of application made by them with regard to the alleged birth of illegitimate twin babies of the deceased but this substantiates the plea of enmity raised by the appellants and cannot constitute a motive for the murder, etc., of Mst. Naheed Akhtar by them. If the appellants' application was false the aggrieved party was the complainant party and, according to the normal human conduct, if law was to be taken into hands the complainant party should have done so in order to avenge the insult caused to that party by the appellants. In that case, the complainant party should have caused harm to the appellants or taken their lives but not vice versa. In the circumstances, we feel that there was no motive with the appellants to hack Mst.
Naheed Akhtar to death.
19. The medical evidence simply shows that Mst. Naheed Akhtar died of the head injury which appeared to have been caused by a blunt weapon. It is not the prosecution version that the appellants used any blunt weapon to kill her. Injuries found on her dead body could be caused by her drowning in Nallah Sooka which also contained water due to the falling of rain. In this connection, statement of Aziz Gul (P.W.1) deserves special attention. As indicated earlier, there is no opinion of the Chemical Examiner with regard to the vaginal swabs taken from the dead body of Mst. Naheed Akhtar. Initially, Dr. Anwarul Haq Qureshi, who performed post-mortem examination on the dead body of Mst. Naheed Akhtar, suspected it as a case of poisoning, but according. To the opinion of the Chemical Examiner no poison was found in the material supplied to him by the said doctor. In the circumstances, the medicalE evidence does not, in any way, connect the appellants with the death of Mst. Naheed Akhtar or the alleged removal of her ear-rings.
20. Now, a few words about the site plans produced in this case. Site plan Exh.P.L. Was prepared by Sub-Inspector Muhammad Taj (P.W.14). The other site plan is Exh.PA. It was drawn up by Fazal Hussain (P.W.3), who is a Patwari. In the site plan Exh.P.L. a place has been shown where, according to the appellants, they had killed Mst. Naheed Akhtar. The fact that the accused pointed out the said place to the Sub-Inspector cannot said to be the discovery of a fact for the purpose of section 27 of the Evidence Act. It was so held by a learned Division Bench of the erstwhile High Court of West Pakistan in Muhammad Ramzan The State PLD 1957 (W.P.) Lah.
956. Provisions of Article 40 of the Qanoon-e-Shahadat, which is now holding the field, are similar to that of section 27 of the Evidence Act. Respectfully relying on the said precedent case, therefore, we would, exclude the site plan, Exh.P.L. From consideration. As for the site plan Exh.PA., prepared by Fazal Hussain Patwari, it was admitted by him, as P.W3, that it was not drawn up on the pointing out of any witness. This too is, therefore, of no consequence. The prosecution has not named any person who had witnessed the killing of Mst. Naheed Akhtar by the appellants. In the circumstances, the site plans do not advance the prosecution case.
21. As indicated in the beginning, there is a delay of about a week in the making of the F.I.R.
Although the complainant's village is at a distance of about two miles from the Police Station Wah Cantt. Explanation furnished in the F.I.R. For the delay is the negotiations with Ghulam Mustafa for the return of Mst. Naheed Akhtar but this explanation loses its force in the face of statements of Ghulam Asghar and Muhammad Ayub (who had allegedly seen her with the appellants on the day when she had left her house) and the deposition of Mst. Shadmah Bibi (in which Ghulam Asghar had been exonerated by her). We, therefore, feel that the lodging of the F.I.R was deliberately delayed. It is astonishing to see that none of the appellants had been named in the F.I.R. Despite the time thus gained by the complainant coupled with the fact that according to the statement made by Mst. Shadmah Bibi in the Court she knew Naeem Akhtar appellant when he alongwith his co-appellant had forcibly removed Mst. Naheed Akhtar from her house. All this does not reflect well on the prosecution case which has come up with conflicting versions with regard to those who had taken away Mst. Naheed. Akhtar and thrown her in the valley of death.
22. As already noted, there is no ocular evidence in regard to any of the offences attributed to the appellants. Material pieces of circumstantial evidence produced by the prosecution to prove its case have been discussed and found to be worthless. We are, therefore, constrained to hold that the prosecution has failed to connect the appellants with the death of Mst. Naheed Akhtar or the removal of her ear-rings. Case brought against them is highly doubtful. Therefore, by giving them the benefit of doubt, we set aside the conviction and sentences imposed on the appellants, under sections 302 and 411 read with section 34 of the Pakistan Penal Code and order their acquittal. This means that the sentences of death awarded to the appellants are not confirmed. The appellants shall be set at liberty forthwith if not required in any other case.
23. Murder Reference No,5/I of 1992 made by the learned trial Court is disposed of accordingly.
24. Before parting with this case we would like to express our displeasure over the manner in which the learned Additional Sessions Judge ordered that the two appellants be sent to the gallows. His Judgment mainly gives a narration of the evidence produced in the case. The learned Additional Sessions Judge has written about a page only to hold that the appellants had committed offences punishable under sections 302 and 411 read with section 34 of the Pakistan Penal Code. He has completely overlooked infirmities in the prosecution evidence which float on the face of the record.
We will not like to go into reasons behind his shortcoming in this regard. May be it occurred due to his inexperience in the field of criminal work. We, however, do expect him to be very careful in future in dealing with cases involving lives of the people. Any future lapse on his part will be dealt with severely.