' SARDAR MUHAMMAD DOGAR, J.--- This appeal is directed against the judgment, dated 30-5-1995 by Additional Sessions Judge, Bhalwal, District Sargodha, whereby the learned trial Judge convicted the appellant under section 302(b), P.P.C. And sentenced him to death plus to pay a fine of Rs,20,000 in default whereof to further undergo R.I. For one year. Half of the fine on recovery was directed to be paid as compensation to the heirs of the deceased. He was also convicted under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to undergo imprisonment for life plus to suffer thirty stripes.
2. Occurrence in this case had taken place at 2-30 p.m. On 3-1-1994 in the garden of Sikandar, in Haveli Diwan, Dakhali village Liliani at a distance of 10 miles from Police Station Kotmomin.
F.I.R. Exh.P.C. Was recorded at the police station by Hafeez-urRehman, P.W.8 the same day at 4-15 p.m. On the statement of Umar Farooq, P.W.3, brother of Mst. Kausar Parveen deceased.
' According to F.I.R. Mst. Kausar Parveen aged 24 years set out from her house for urination to the fields. Her brother, complainant, also was with her. On the way he stayed at the Baithak of Rao Aqeel, while Mst. Kausar Parveen went towards the fields. A short while later he heard hue and cry from the side of the garden of Sh. Sikandar. He ran towards that and saw Muhammad Mushtaq alias Dhutto committing Zina with Mst. Kausar Parveen forcibly and Mst. Kausar Parveen resisting.
Muhammad Mushtaq was also pressing the throat of Mst. Kausar Parveen with both hands. In the meantime Shaukat and Ghulam Hussain who were nearby also rushed to the spot and witnessed the occurrence. On seeing them Muhammad Mushtaq picked up his Shalwar and ran away. Mst.
Kausar Parveen by that time had expired due to pressing of her throat.
3. Hafeez-ur-Rehman, A.S.-I. After registering the case reached the spot. He despatched dead body for post-mortem after preparing inquest report Exh.P.E. And injuries statement of Exh.P.D. He prepared rough site plan of the spot and recorded the statements of the P.Ws. Last-worn clothes the deceased Shalwar P.1, shirt P.2, sweater P.3, Chaddar, P.4 two ear rings P.5/1-2 alongwith two sealed phials and one sealed envelope, produced before him after the post-mortem examination by Muhammad Ishaq Constable on 4-1-1994 were taken into possession by him vide memo.
Exh.P.B. He got prepared site plan Exh.P.A. And Exh.P.A./1 from Muhammad Latif Patwari. The appellant was arrested by him on 7-1-1994. He got him medically examined for potency on 8-1- 1994 and got the challan submitted to Court after completion of necessary investigation.
4. Statements of nine P.Ws. Were recorded at the trial.
' Dr. Akhtar Mahmood Chaudhry, who had performed autopsy on 4-1-1994 at 9-00 a.m. Appeared as P.W.9 and stated that the dead body was clad in red silky suit with a Chaddar and sweater.
Shalwar was torn and bloodstained at the private part. She was wearing ear rings. He noted following injuries:--
(1) Finger nails pressing marks were present on front and both sides of neck.
(2) Blood coming out of vagina, hymen was freshly ruptured.
' Under injury No,1 echemoses present in the muscles and hyoid bone was fractured in middle and both sides.
' Hymen was ruptured, vagina was swollen swabs were taken from the vagina and were sent to the office of the Chemical Examiner. According to his opinion death had occurred due to asphyxia resulting from injury No 1 which was fatal in nature, The injury was ante-mortem and was caused by throatling and was sufficient to cause death in the ordinary course of nature.
' Probable duration between the injuries and death was opined to be immediate while time that elapsed between death and post-mortem was opined to be within 24 hours. On receipt of positive report Exh.P.J. From Chemical Examiner, he opined that the deceased had been subjected to sexual intercourse as the swa bs were found stained with semen and blood. During cross-examination he stated that large intestines and the bladder were found empty.
5. The same doctor had medically examined Muhammad Mushtaq appellant for potency on 8-1- 1994 and had declared that he was physically and mentally fit to perform sexual intercourse.
6. Umar Farooq complainant while appearing as P.W.3 renarrated the facts given by him in the F.I.R.
Exh.P.C. He added that his father had died two months after the occurrence due to shock. During cross-examination he denied the suggestion that his father had died due to T.B. And that he had stated about his father having died due to shock to cause predjuce. He admitted that name of his grandfather was Faiz but expressed ignorance about his grandfather being brother of grandfather of Shaukat P.W. He also expressed lack of knowledge of about maternal-grandfather of Ghulam Hussain P.W. Being brother of his grandfather Faiz. However, he admitted that Ghulam Hussain and Shaukat P. Ws. Were living with him in the same village. He stated that his house was at a distance of I/1-2 acres from the place of occurrence. While the Baithak of Rao Aqeel was at a distance of 1/1- 4 acres from the place of occurrence. He admitted that there were residential houses around the Baithak of Rao Vakeel. He stated that he had seen the occurrence from a distance of 23/24 Karms.
He stated that Ghulam Nabi was not his relative but he belonged to his Baradari. He expressed ignorance about Ghaffar being maternal-uncle of Ghulam Hussain P.W. He expressed lack of knowledge about Ghulam Nabi, Ghaffar and Khushi Muhammad having outraged modesty of Ms:.
Shakooran mother of Musthaq (appellant) and of their having been convicted and sentenced to undergo R.I. For three months. He contradicted the suggestion that his sister had intercourse with her paramour who was someone else than the accused and that on coming to know of that, he had himself done her to death by pressing her throat out of Ghayarat. He denied the suggestion that he had involved the present accused falsely at the instance of abovementioned Ghulam Nabi, Ghaffar and Khushi Muhammad. The suggestion that paramour of his sister was relative of Siltandar Chairman of the Lilliani was also denied by him.
7. Shaukat P.W.4 corroborated the statement made by P.W.3 about having witnessed the occurrence. During cross-examination he admitted that his grandfather and grandfather of Umar Farooq were brothers. He stated that he was passing near the garden when the occurrence took place. He stated that they had not chased the accused. He denied the suggestion that Ghulam Nabi P.W. Was relative of Umar Farooq P.W. He expressed lack of knowledge about Ghaffar being maternal-uncle of Ghulam Hussain P.W. Similarly he expressed lack of knowledge about relationship of Khushi Muhammad with Umar Farooq. Like Umar Farooq he expressed ignorance about Shabbir, Ghaffar and Khushi Muhammad having outraged the modesty of Mst. Shakooran mother of Mushtaq and of their having been convicted for the said offence. The suggestion put to Farooq that Mst. Kausar Parveen had intercourse with a relative of Sikandar Chairman of her own consent and that Umar Farooq had having come to know that had done her to death by pressing her throat due to Ghairat was put to this witness also which he denied, like Umar Farooq. He denied the suggestion that accused (appellant) had been involved in this case at the instance of Ghulam Nabi, Ghulam Hussain and Khushi Muhammad.
8. Hafeez-ur-Rehman, A.S.-I. Who had registered the case, arrested the accused, recorded the statements of the witnesses and submitted challan to Court after completion of necessary investigation appeared as P.W.8 and gave the details of the investigation done by him. During cross-examination he stated that Mst. Kausar Parveen was a stout lady aged about 22 years of 5'-5" height. He stated that he had mentioned the age of the accused as 20/22 years. He denied the suggestion that he was aged about 14 years. He stated that according to site plan Umar Farooq had seen the occurrence from a distance of 25 Karams. He gave out that he had not observed any faecal matter near the place of occurrence. The suggestion that actually Mst. Kausar Parveen had intercourse with her paramour and that her brother on coming to know of that, murdered her by pressing throat due to Ghairat, was denied by him. He denied the suggestion that he had falsely challaned the accused in connivance with the complainant and P.Ws. As they were inimical to the accused.
' The statements of the remaining P.Ws. Are more or less of a formal nature.
9. The appellant during statement under section 342, Cr.P.C. Denied the prosecution case and pleaded innocence. He stated as follows in answer to the question "why this case against you and why the P.Ws. Have deposed against you?
"I have been involved falsely at the instance of Ghulam Nabi P.W., Ghulam Hussain P.W. And one Khushi who had enmity with me. They outraged the modesty of my mother and they were convicted for it. My mother is namely Mst. Shakooran, so Ghulam Nabi, Ghulam Hussain P.Ws. Who are relatives of Umar Farooq, complainant asked them to implicate me falsely in this case."
' He produced in defence school leaving certificate Exh.D.A. And declined to make statement on oath under section 340(2), Cr.P.C.
10. Learned counsel for the appellant after taking us through the evidence criticised the impugned judgment and contended that the eye-witnesses do not appear to have witnessed the occurrence, that no reliance can be placed on their testimony as they were inimical to the appellant and closely related to the deceased.
' Learned counsel contended that as the eye-witnesses had tried to hide their relationship inter se they were not worth of placing reliance upon.
' Learned counsel argued that as there were no marks of violence on other parts of the body of the deceased, it can be assumed that she had consented act of commission of sexual intercourse.
Relying upon school leaving certificate Exh.D.A. Learned counsel argued that as the appellant was a minor he could not have been convicted under section 10(3) of the Hudood Ordinance and that following the principle laid down in 1983 PCr.LJ 72 criminal cases, the sentence of death awarded to him to be altered to imprisonment for life.
' Learned counsel for the State defended the judgment of the trial Court.
11. The occurrence in this case had taken place at 2-30 p.m. The police station was at a distance of 10 miles from the place of occurrence. Report was lodged at the police station at 4-15 p.m. On the same day. Obviously, it is a case of prompt lodging of F.I.R. In the entire complainant had taken one hour and 45 minutes to lodge the report after covering a distance of 10 miles. Keeping in view the human psychology, it has to be granted that the complainant must have taken some time to compose himself and then made arrangements for conveyance for going to the police station.
That being so little time rather no time was at the disposal of the complainant to plan, consult, deliberate or hatch a conspiracy with anyone to lodge a false report against the accused. In fact the time was so short that if the witnesses named in the F.I.R. Were not actual witnesses he would have no time, to contact the witnesses, named the F.I.R., to obtain their consent to name them as P.Ws. We do not think anybody will take risk of naming any one as an eye-witness in a murder case without said person having either actually seen the occurrence or of his having offered to become a witness. In the circumstaces the argument of the learned counsel for the appellant that the complainant had lodged a false complaint against the appellant and had named persons as eye- witnesses who had not witnessed the occurrence does not appeal to reason at all.
The suggestion put at the trial to both the P.Ws. As well as to the Investigating Officer and the argument advanced before us that the deceased had illicit intercourse with her paramour of her free consent and that the complainant on coming to know had throttled her to death due to Ghairat and then lodged a false report against the appellant at the instance of Ghulam Nabi etc. Who were inimical to the appellant is self-contradictory for the reason that if the complainant was so Ghairatmand that on coming to know that his sister had gone with her paramour he murdered her, how come, that he would have chosen to go to the police station to lodge a report that he had seen his sister being subjected to Zina? He was a grown up person and he would have known it that lodging of report with such allegation, will bring colossal shame and dishonour to him and his family because the story will be widely known. The suggestion and the argument that he had involved appellant at the instance of Ghulam Nabi etc. As they were inimical to the appellant even otherwise does not inspire confidence because defence failed to bring anything on record to show that Ghulam Nabi etc. Were so closely related to the complainant, that he would go out for involving falsely their enemies leaving the real culprit, who had done a shameful act with his sister and had done her to death so cruelly.
12, For the abovenoted reasons we do not find anything to hold that the reye-witnesses who appeared at the trial were not reliable. In our assessment their lc testimony was confidence inspiring and worth reliance.
' Before coming to the above conclusion we had considered the contention of the learned counsel that as P.W.3 had tried to hide relationship of his grandfather with the grandfather of P.W.4 and maternal-grandfather of Ghulam Hussain (G.U.) P.W. He should be declared as unreliable. We noted that he had not stated that there was no relationship amongst his grandfather and grandfather of P.W.4. He had expressed ignorance about that, which in our view was possible as he was 20/21, when he appeared at the trial. It is quite possible that he may not have seen his grandfather and the grandfather of the other P.Ws. There is no evidence on record to consider that anyone or all of them were alive. It is not uncommon that people do not know the relationship of their grand-parents with the grand-parents of other relatives if they have not seen them alive.
13. According to post-mortem report Shalwar of the deceased was torn. Had she been a consenting party, the question of tearing of Shalwar would not have arisen. The fact that the doctor had found blood coming out of the vagina and hymen freshly ruptured also showed that the intercourse had not been done in a friendly manner with consent. In the circumstances, in our view, the ID medical evidence also fully corroborates the ocular account.
14. According to Exh.D.A. School leaving certificate appellant was 12 years and two days old on the day of occurrence. The deceased was a young unmarried stout girl aged about 22 years. We do not think that a boy of 12 years could have done all that which happened to the deceased.
According to the certificate of Shanakhat prepared by the police at the time of submission of challan appellant was 20/22 years old. The trial Judge while recording statement of the appellant under section 342, Cr.P.C. Had also noted his age as 20/22 years. No objection had been raised from the defence side about age at that time.
15. Another important aspect which attracted our attention was that the height of the appellant recorded in certificate Shanakhat was 5'-9/10". We have no doubt in saying that a boy aged 12 years could not have been of that height. Normally male person attain that height at 18/19 years and some time at the age of 20 years also. That being so, we neither find it plausible nor justifiable to believe the appellant to be of 12 years at the time of occurrence. The argument of the learned counsel in that regard, therefore, stands repelled, the same is rejected.
15. For all the reasons noted above, we are fully convinced that the prosecution has been able to prove the case against the appellant beyond any reasonable shadows of doubt. The appeal is, therefore, dismissed and the sentence of death is confirmed.