' MUHAMMAD KHAYAR KHAN, J.--- This appeal is directed against the judgment, dated 16-8-1997 of the learned Additional Sessions Judge, Haripur, whereby the appellant was convicted under section 302(c) read with sections 306 and 308, P.P.C. And sentenced to 14 years' R.I. And to pay Diyat amount of Rs,2,10,000 to the legal heirs of the deceased. It was ordered that after undergoing the substantive sentence the accused will be kept behind the bar and will be serving simple imprisonment till Diyat amount is paid by him or on his behalf. He was also convicted under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to twenty years'
R.I. He was further convicted and sentenced under section 10(3) of the Ordinance to undergo 25 years' R.I. All the sentences were ordered to run consecutively. The benefit of section 382-B, Cr.P.C.
Was extended to him.
2. The convict-appellant has challenged his conviction and sentence by this appeal from jail.
3. The complainant Nisar Ahmad has filed Criminal Revision No,12/I of 1997 praying that sentence may be altered from 302(c) to 302(b), P.P.C. And accused may be awarded normal penalty of death and besides payment of Diyat additional fine under subsection (3) of section 544-A, Cr.P.C.
May be imposed for payment to the heirs of the deceased. He has also prayed for enhancement of sentence under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 from 20 years R.I. To life imprisonment and for imposition of fine.
4. The above two matters i,e, Jail Criminal Appeal No,101/I of 1997 and Criminal Revision No,12/I of 1997 are being disposed of by this single judgment.
5. The proceedings against the accused were initiated on the complaint of Nisar Ahmad Exh.P.A./1 made to Raja Ghulam Mehdi, S.H.O. Police Station Ghazi (P.W.10) on the basis of which F.I.R. Exh.P.A.
Was registered at Police Station Ghazi on 5-9-1995 at 16-45 hours. The complainant stated that he was resident of Ahmedpur Luma, Tehsil Sadiqabad, District,Rahim Yar Khan and was serving as Havaldar 2 Commando Qaid Company P.F.L. Colony Nishad Camp Tarbela Dam, Tehsil Ghazi. On 5- 9-1995 his daughter Mst. Shazia Nisar aged about 9/10 years was called out by Asif Ali accused from the house on the pretext that she was called by Qari Sahib in the mosque. She accompanied him to the mosque. Mst. Shazia Nisar did not return to the house till 1-30 p.m. Whereupon complainant went to the mosque and inquired from Qari Ghulam Muhammad Pesh Amam who denied having asked the accused to bring her to the mosque. The accused at that time was seen reciting Holy Qur'an in the mosque and on seeing the complainant left the mosque. The complainant started search of his daughter. During search dead body of Mst. Shazia Nisar was noticed lying behind the mosque. Meanwhile Raja Ghulam Mehdi, S.H.O. On receipt of information that a minor girl was murdered reached the place. The complainant made report to him which he recorded in the shape of Murasila Exh.P.A./1. He charged the accused for the murder of his daughter. Raja Ghulam Mehdi prepared injury sheet Exh.P.W.-6/2 and inquest report Exh.P.W.-6/3 and sent the dead body to Rural Health Centre Ghazi in the custody of Sultan F.C. (P.W.3) for post- mortem examination. He inspected the spot and prepared the sketch of the place of occurrence (Exh.P.W.10/1. He also prepared the site plan Exh.P.W.-10/2 wherefrom the dead body of the deceased was recovered. Blood-stained straw from the place was taken into possession and sealed into parcel vide memo. Exh.P.W.5/1. Knife, Exh.P.4, Darri Exh.P.5, Dopatta Exh.P.6 with blood stains were recovered on the pointation of the accused. The accused led the Investigating Officer to the library room of the mosque where he committed Zina with the deceased and at his pointation carpet, Dopatta, Knife, with blood stains were taken into possession vide memo.
Exh.P.W.-5/3. The cycle Exh.P.9 produced by the accused was taken into possession vide memo.
Exh.P.W./5-4. The shirt having cut marks, Exh.P.1, Shalwar with stains of semen and blood of Shazia Nisar P.2, two phials Exh.P.3 containing swabs sent by the doctor through Muhammad Sultan, F.C.
(P.W.3) were taken into possession vide memo. Exh.P.W.-5/2. The shirt Exh.P.7, Shalwar Exh.P.8 with stains of semen, and blood, two sealed phials containing swabs of accused sent by the doctor were taken into possession and sealed into parcel vide memo. Exh.P.W.5/5. On 6-9-1995 accused was produced before Farrah Bin Moria, Magistrate (P.W.4) for recording his confession. The bloodstained items consisting of eight parcels were sent to Chemical Examiner for examination. On receipt of report of Chemical Examiner section 5/10 of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 were added in the F.I.R. The Investigating Officer recorded the statements of P.Ws.
And on completion of investigation challan against the accused was submitted to the Court.
6. At the trial the accused did not plead guilty to the charge. To prove the charge against the accused prosecution produced 10 P.Ws. Ghulam Mursaleen, A.S.-I. (P.W.1) registered the case vide F.I.R. Exh.P.A. On the basis of Murasila Exh.P.A./1 on 5-9-1995 at 5-30 p.m. Subedar Manzoor Hussain (P.W.2) identified the dead body of the deceased at the time of post-mortem examination. Sultan, F.C. (P.W.3) escorted the dead body of the deceased from the spot to the mortuary and brought shirt, Exh.P.1, Shalwar Exh.P.2 and two phials Exh.P.3 from the hospital and produced the same to the Investigating Officer. In the cross-examination he stated that he escorted the dead body from the spot to Civil Hospital Ghazi at about 4-30 to 4-40 p.m. And the distance between the place of occurrence and Police Station Ghazi was shown as 1-1/2 or 2 kilometers. Farrah Bin Moria, S.D.M.
Ghazi (P.W.4) recorded the confessional statement Exh.P.W.4/3 of the accused. She was cross- examined to show that she was not duty Magistrate and that she recorded the confession at her bunglow on a close day and the injuries on the person of the accused was neither noticed nor enquired as to how he received the injuries. Subedar Muhammad Aslam Saleemi (P.W.5) was on security duty when he came to know that deceased was missing and then he saw dead body of the deceased lying on the back side of the mosque. He informed his superiors. On the arrival of the police at 5-00 p.m. He accompanied the Investigating Officer and witnessed the recoveries. He deposed that the clothes of the deceased brought from the hospital were taken into possession by the Investigating Officer and sealed into parcel. He was cross-examined to show that mosque was managed by the Army while Muhammad Ishaq Khateeb/J.C.O. Was performing the duty of Imam of the mosque and Ghulam Muhammad LNK was employed as Qari who was the incharge of Library in the absence of Imam and that no person from the public was associated to witness the recoveries. He denied the suggestion to save the Qari. Dr. Muhammad Ayub, Medical Officer (P.W.6) conducted the postmortem examination of the dead body of Mst. Shazia Nisar deceased aged about 9 years on 5-9-1995 at 5-30 p.m. And found the following:-- External Examination ' An incised wound on front of neck. Stout, rigor mortis and P.M. Staining present.
' Injuries
(1) There was an incised wound on the front of neck in the centre. It was 1/3" x 1/4" x 3" deep.
(2) There was a bruise on the right side of forehead. It was 2" x 1".
(3) There was bruise on the right cheek; it was 2" x 1".
(4) There was an incised wound on the epigastrium of abdomen. It was 1/3" x 1/4" x abdominal cavity deep.
(5) There was two incised wounds on the front center and lower part of chest. 1" apart from one another. Each one was 1/3" x 1/4" x chest cavity deep. Vaginal swabs were taken and handed over to police for analysis.
Internal Examination ' Thorax, walls injured, plurae injured, trachea injured, right and left lungs injured, pericardium and heart injured, blood vessel injured at the site of the injury. Abdominal wall injured, peritoneum injured, stomach healthy and empty, liver injured, hymen is ruptured. It admits two fingers.
' In his opinion, the death was the result of shock and hemorrhage on account of injuries to liver, lungs, heart, and blood vessels in the neck which are the vital organs of the body, caused by sharp weapon.
' He opined that as the hymen was ruptured so first rape was done and then she was killed. One post-mortem report, clothes Shalwar and Qamees and two vaginal swabs one internal and one external given to the concerned police constable Sultan No,3113.
' Clothes are blood-stained with faecal matter on the Shalwar, clothes having corresponding cuts on the Qamees.
' Probable time that elapsed between injury and death about 15 minutes and between death and P.M. Examination about 7 hours. He proved his P.M. Report Exh.P.W.6/1 as in his handwriting and bearing his signature correctly. The injury sheet Exh.P.W.6/2 and inquest report Exh.P.W.6/3 were signed by him).
' The doctor admitted apt there was a lady doctor in the hospital and that he found no strangulation marks or any signs of asphysia nor he had noticed any marks of resistance on the person of the deceased.
7. Dr. Muhammad Ayub also examined the accused on the same day at 8-00 p.m. And found the following:-- "There was abrasion On right cheek. It was 1/4" x 1/4" x skin deep. There was also abrasion on the front of chest which was 1" x 1" x 1/6". There were multiple abrasion on the left shoulder and back.
There was an abrasion on the right side of scrotum. It was 1/2" x 1/2" x skin deep. There were multiple abrasions on the right upper thigh on the front. There were also multiple abrasions on both buttocks.
' He was capable of performing sexual intercourse. Two swabs also taken one from external and one from internal of penus. Injuries were simple, caused by blunt means, duration 9-30 hours. The two phials containing swa bs, alongwith the report Exh.P.W.-6/4 was in his handwriting and bearing his signature correctly. The report of Serologist shows the swabs taken by him was in positive and semen was detected on the swa bs. The injuries on the person of Asif were possible by the struggle of the victim."
' In the cross-examination he admitted that injuries could be caused by a stick or by blunt means.
The injuries of the accused were caused in between 1-00 to 12-00 noon approximately and that he fixed the duration on the information supplied by the police and inquiry from the accused. His estimation about duration was not based on the visual examination. He denied the suggestion that he was deposing under the Army pressure.
8. Shahid Mehmood (P.W.7) was on duty from 7-00 a.m. To 2-00 p.m. He had seen the accused with the deceased at 10-00 a.m. Going towards the mosque of the colony. At 3-00 p.m. He came to know that Mst. Shazia Nisar was missing. He joined the search being made and found dead body lying in the grass behind the mosque. He admitted that he had not seen the accused going or leaving the mosque on bicycle. He admitted that mosque was approachable to everybody within the camp.
9. Nisar Ahmad (P.W.8) is the complainant. He was residing with his family in the colony area. At 1- 00 or 1-30 he was informed that his daughter was taken away by the accused on the pretext that she was summoned by Qari Sahib in the mosque. He came to the house and enquired from his wife Mst. Jameela Bibi about his daughter who told him that she was taken by the accused to the mosque on the pretext that Qari Sahib had summoned her. When Shazia Nisar did not return till 1- 30 p.m. He started search and went to Qari Ghulam Muhammad who told him that he had not summoned Mst. Shazia through Muhammad Asif. He became worried and started making search for the daughter. He went to the mosque where he noticed that accused was reciting Holy Qur'an who on seeing him left the mosque from the other door of the mosque. During search he noticed a path behind the mosque and went on that path where his daughter was lying murdered on the grass. He informed his superiors about the murder of his daughter and then at 4-45 p.m. On arrival of the police, he lodged the report Exh.P.A./1. He accompanied the Investigating Officer to the house of the accused where Asif was coming in the lane and on his pointation the Investigation Officer arrested him. He had no enmity with the accused. He was cross-examined to show that Qari and Khatheeb was the Incharge of the library of the mosque. He denied the suggestion that he suspected the Qari of the murder of his daughter and that under the pressure of the Army he forgave him and charged the accused.
10. Mst. Jameela Bibi (P.W.9) is the mother of Mst. Shazia Nisar deceased who deposed that accused had come to her house and on the pretext that Mst. Shazia was summoned by the Qari of the mosque took her to the mosque and when she did not return she informed her husband who then started making search and at Deeger time told her that Mst. Shazia was lying murdered in the grass near the mosque. She denied the suggestion that she concocted the story at the instance of police and Army Officers. Raja Ghulam Mehdi, A.S.-I. (P.W.10) is the Investigating Officer who conducted the investigation. He was cross-examined to show that investigation conducted by him was not fair as he had not given the time of occurrence in the Murasila. Time was given after receipt of post-mortem examination. He denied the suggestion that in Column No,3 in the inquest report he was forced to give timing about the death and that 16-45 hours is not the time of death.
He denied the suggestion that F.I.R. Was recorded after preliminary investigation. He found no trail of blood between points Nos.1 and 3 or at any other point in the site plan Exh.P.W.10/1. He admitted that accused was arrested from his house at 6-30 p.m. And was kept in custody till 10-30 a.m. He denied having tortured the accused.
11. After the prosecution evidence was closed the accused was examined under section 342, Cr.P.C.
Who denied all the incriminating circumstances appearing in evidence against him. He stated that Qari Ghulam Muhammad was of bad character. The deceased was of easy virtue and the medical evidence does not support the plea of rape. The recoveries were stated to be all planted and result of padding. About the confession he stated that it was not voluntary and was obtained by torture.
When questioned as to why he was charged, his reply was as under:-- "I am a young man of raw age, the only support and future of my parents. I am poor man. This occurrence allegedly taken place within the area guarded by the Army Centries. This occurrence is done by somebody who was mature person and belongs to Army Personnel. The Local J.C.Os. And N.C.Os. Who are responsible for the security of the area when learnt about the occurrence and probably one of their friend such as Qari who has easy access to the deceased was involved in this case. I was made a scapegoat. Reason is very obvious that it would have been serious army crime involving the army-securities and discipline. So, the J.C.Os. And N.C.Os. Whose names mentioned in the case or who appeared as witnesses gave a wrong story to their official and in hushash manner conducted the investigation of the case. The alleged confession was recorded on a close day. The medical examination was conducted by a male doctor and the case was not even properly investigated. The recoveries were manipulated in the case and the fact that I was available in the township shows that I had no guilty conscious. This whole case is concoction. There is change of venue, change in the manner of occurrence, change in timing, there is no eye- witness and the whole so-called circumstantial evidence is padded and it contradicts each other on each and every point. I am innocent young man."
' The accused neither produced any evidence in defence nor appeared as witness on oath.
12. On the appraisal of evidence the trial Court came to the conclusion that charge of murder, abduction and Zina-bil-Jabr was proved against the accused beyond doubt. Accordingly vide judgment, dated 16-8-1997 the Court convicted and sentenced the accused as above.
12-A. Mr. Saliheen Mughal, Advocate, for the appellant contended that circumstantial evidence is a weak type of evidence which can be believed when no other conclusion except that of guilt is made out. About the confession of the accused the learned counsel for the appellant argued that it is not voluntary and having been retracted cannot be made basis for conviction. 1992 SCM R 1983 was cited. The learned counsel for the appellant contended that investigation was dishonest. F.I.R.
Was registered after preliminary investigation. The site plan at the instance of accused cannot be used as evidence against him. Dopatta and carpet on the pointation of the accused allegedly carried on bicycle and thrown in a ditch and that of knife from the Almirah of the library are not believable for, nobody had seen him on bicycle going towards that place. The recoveries of shirt and Shalwar of the deceased and the accused is a fabrication, and is the result of padding. Safe custody of the recovered articles from 5-9-1995 to 10-9-1995 and as to who had taken those articles to the laboratory is not proved. The place is a military area but nobody had heard any noise of the, victim when she was raped and killed. It is not clear how the accused could enter the mosque when keys were kept by the Qari of the mosque. The accused would not have kept blood- stained knife in the Almirah as he could throw it in the ditch with other incriminating articles. It was argued that offence of Zina under section 10(3) of Ordinance was not proved as grouping was not done. Alternatively prayer was made for taking lenient view as the accused is raw youth. 1991 PCr.LJ 574 was cited.
14. Malik Rab Nawaz Noon, Advocate, for the complainant in reply argued that there is uncontroverted last-seen evidence in this case. No enmity or was suggested to the P.Ws., venue of occurrence is not disputed, confession of the accused is according to law and finds corroboration from the recoveries of blood-stained knife, clothes of the deceased stained with semen. The Investigating Officer acted with utmost promptitude. Learned counsel further contended that substitution in place of real culprit is a rare phenomenon. He cited PLD 1996 SC 138. On the issue of sentence his submission was that there are no mitigating circumstances for taking lenient view.
The accused should have been awarded normal penalty of death as he committed brutal murder of a minor girl. Reliance was placed on the following case-law.
' 1991 SCM R 56 and 1995 SCM R 1668.
15. Mr. Aziz-ur-Rehman, Advocate, for the State supported the revision for enhancement of sentence.
16. We have heard the learned counsel for the parties at some length and with their assistance have perused the evidence on record. We find that it is a case of circumstantial evidence which can be believed only if no other hypothesis other than the guilt of the accused is possible. From the evidence on record on other conclusion except the guilt of the accused is possible. Mst. Jameela Bibi (P.W.9) is the mother of the victim. Her statement is that on the day of occurrence at about 10- 00 a.m. Accused came to her house and told her that Mst. Shazia was summoned by Qari Ghulam Muhammad in the mosque. She allowed her to go with the accused. Shahid Mehmood's statement is that on the day of occurrence at 10-00 a.m. When he was on duty he had seen Mst. Shazia accompanying the accused and going towards the mosque. Mst. Shazia was taken at about 10-00 a.m. From the house and was last-seen with the accused going to the mosque and when she did not return to the house till 12 noon, Mst. Jameela Bibi (P.W.9) informed her husband Nisar Ahmad complainant (P.W.8) who made search and found dead body of his minor daughter lying murdered behind the mosque. Raja Ghulam Mehdi (P.W.10) who was on Gasht nearby on receipt of information of the occurrence reached the spot, where he recorded the report of the complainant at 16-45 hours. He arrested the accused from his house at 6-00 p.m. And at his pointation knife P.4 Darri P.5, Dopatta P.6 all having stains of blood were recovered. The blood on these articles was opined as of human origin and of the same group by Chemical Examiner vide his report Exh.P.G.
Vide the same report semen of human origin was detected on violet coloured shirt and Shalwar and of the deceased, and on blue coloured shirt and Shalwar of the accused. The accused was produced before the Magistrate on 6-9-1995 for recording confession. The Magistrate proved the confession Exh.P.W.4/2 to be in her handwriting and signed by her. She stated that after observing all legal formalities confession was recorded. The accused in his confession has confessed his guilt.
The confession though retracted finds corroboration from the abovementioned recoveries and from the Chemical Examiner's Report, Exh.P.G. It is now settled that retracted confession can constitute sufficient basis for conviction of its maker provided it is true and voluntary though it is safe and usual to require corroboration. Merely because confession was recorded on closed day by the Magistrate at her bungalow is not a sufficient ground for its rejection. The case cited by the learned counsel for the appellant 1992 SCM R 1983 does not support him. While giving principle to Judge the evidentiary value of confession the Honourable Supreme Court held:-- "In or .0 judge the evidentiary value of a retracted confession, the Court to advert to the question, whether the same appears to have been made voluntarily, without any inducement, duress or coercion with the object to state the truth. If the Court is satisfied on the above aspect, the mere fact that there were some irregularities in recording of a confession, would not warrant disregarding of the same."
A single accused is charged for the murder of the deceased. No or motive for false charge is either proved or alleged. Substitution is a phenomenon of rare occurrence. In the case of Irshad Ahmad v.
The State PLD 1996 SC 138 it is held:-- "Substitution is a phenomenon of rare occurrence, because even the interested witnesses would not normally allow the real murderers of their relations to escape by involving innocent persons."
The arguments that place is situated in a military area and that if Shazia was raped and murdered she must have raised hue and cry and somebody must have witnessed the occurrence is devoid of force in that the girl was hardly of the age of 8/9 years, who could not resist and when she was stabbed in neck how she could raise any hue and cry. There was no delay in the F.I.R. As soon as the Investigating Officer reached the place he recorded the report made by the complainant. We are of the view that prosecution has succeeded in proving the charge against the accused beyond doubt as required by law but the sentence awarded is not commensurate with the gravity of the offence. In the facts and circumstances of the case normal penalty of death sentence was required to be awarded to the accused under section 302(b) as Tazir instead of section 302(c) of Qisas and Diyat Ordinance, in that section 302(c) provides punishment of imprisonment of either description for a term which may be extended to 25 years, where according to the injunction of Islam the punishment of Qisas is not applicable. The learned Additional Sessions Judge in awarding sentence under section 302(c) read with section 306/308, P.P.C. Observed that from the record and the certificate produced at the stage of arguments the accused appeared below the age of 18 years. We have taken serious notice of the acceptance of school leaving certificate by the learned Additional Sessions Judge at the arguments stage. This was a document which was required to be produced in defence. The accused had closed his defence and also did not appear as witness on oath under section 340(2), Cr.P.C. Dr. Muhammad Ayub (P.W.6) gave his age as about 18 years. The accused while recording his statement under section 342, Cr.P.C. Showed his age as 20/21 years. The accused is an adult and not minor. Merely because he is young offender is no ground for not awarding normal penalty of death. In Fazal Hussain v. Suleman Khan 1991 SCM R 56 it is held that mere fact that accused was a young offender is no ground for not awarding him normal penalty of death. Similar view was taken in Zulfiqar v. The State 1995 SCM R 1668. In case Naseer Ahmed v. The State 1991 PCr.LJ 574 cited by the learned counsel for the appellant, sentence awarded under section 10(2) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was reduced in case of first offender and raw youth. In the present case accused was awarded punishment of Tazir under section 302(c). We are of the view that accused should have been awarded sentence under section 302(b) and not under section 302(c). He has committed a brutal murder of a minor girl after subjecting her to rape. He acted callously in a brutal manner and deserves no leniency. We, therefore, alter his sentence from section 302(c), read with sections 306 and 308, P.P.C. To that under section 302(b), P.P.C. And instead of 14 years' R.I. He is sentenced to death. The order of trial Court in respect of Diyat being not applicable in the instant case is set aside and instead accused will pay Rs, one lac as compensation under section 544-A, Cr.P.C. To be paid to the legal heirs of the deceased or in default of payment of compensation to undergo further imprisonment for six months' S.I. The benefit of section 382-B, Cr.P.C. As extended by the learned trial Court shall remain intact. The conviction and sentence under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 is set aside and accused is acquitted of that charge. The conviction and sentence under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 is maintained.
' In view of the above Criminal Appeal No,101/I of 1997 is dismissed except that conviction and sentence of the appellant under section 11 of the Hudood Ordinance is set aside and he is acquitted of the charge thereunder. Criminal Revision No,12/I of 1997 is accepted and disposed of as above.
Sentence enhanced.