' This order will dispose of Criminal Appeal (No,57 of 1994) filed by Aish Muhammad against the judgment, dated 6-2-1994' passed by learned Additional Sessions Judge, Faisalabad, whereby the appellant was convicted under section 302-C; P.P.C., for 'catising the murder of Mushtaq Ahmad and Mst. Sheeman (the real daughter of the appellant), and sentenced to 20 years' R.I. Benefit of section 382-B, Cr.P.C., was also given. Co-accused Rashid Ahmad, Abdur Razzak and Muhammad Shafiq were acquitted. The complainant has also filed a Criminal Revision No, 152 of 1995 against the said acquittal order., which is also being disposed of with this judgment.
2. Briefly stated the background of the case is that on 1-1-1992 at 8-15 p.m. Complainant Khushi Muhammad son of Abdul Ghafoor, the real brother of Mushtaq Ahmad deceased was sitting in his 'Baithak'. Suddenly Mushtaq Ahmad got up and went to the village. He did not turn up after the lapse of considerable time. It perplexed the complainant. He began to make his search in the village. Despite his efforts he could not get the clue. He sought .Assistance of his maternal cousin Munir and Zulfiqar. When they reached near the house of Abdul Sattar son of Bagh Ali Khokhar in Bhattiwala Bazar of the village, they heard commotion from inside the house They entered therein and saw Mushtaq Ahmad and Mst. Sheeman daughter of Aish Muhammad present in the Kotha'.
Aish Muhammad son of Mohy-ud-Din armed with Chhura and Muhammad Shafique son of Muhammad Hussain and Rashid Ahmad alias Mehmooda son of Ibrahim both empty handed were also there. In the vision of witnesses, Muhammad Shafique and Rashid Ahmad caught hold of Mushtaq Ahmad, Aish Muhammad city neck with the Chhura. Thereafter, Aish Muhammad caught hold of Mst. Sheeman by her hairs, put her down to the ground and cut her neck with the said Chhurra. The witnesses raised alarm. The accused succeeded to decamp from the scene awarding threats to the P.Ws. Both Mushtaq Ahmad and Mst. Sheeman took their last breaths at the spot. The motive stated is that, Aish Muhammad after seeing Mushtaq and Mst. Sheeman in a blame-worthy state had slaughtered them with the facilitation of Shafique etc.
3. The matter was reported by Khushi Muhammad to Muhammad Ashiq, the then Inspector/S.H.O.
Police Station . Jaranwala (P.1v'.11), who came across to the complainant near to - Pull Dhaisian' at 7-30 a.m. On 2-1-1992 present on patrol duty there. After recording (Exh.P.A,) the Investigating Officer sent it to the police station for formal registration of case F.I.R. (Exh.P.A./1). F.I.R. Was recorded by Munir Hussain H.C. No,3544 (P.W.1) on 2-1-1992 at '8-30 a.m. The Investigating Officer proceeded to the place of occurrence and prepared inquest report (Exh.P.K.), injury statement (Exh.P.K./1) in respect of Mushtaq Ahmad deceased, inquest report (Exh.P.L.) and injury statement (Exh. P. L. /1) with regard to Mst. Sheeman deceased, sent both the dead bodies for autopsy examination in the escort of Muhammad Ali constable No,3850 to the mortuary, Jaranwala, collected blood-stained earth from the place of dead bodies of Mushtaq and Mst. Sheeman and made into sealed parcels vide memos. (Exh.P.F.) and (Exh.P.G.) respectively. These memos. Were witnessed by Munir Ahmad and Zulfiqar P.Ws. Recorded the statements of P.Ws. Under section 161, Cr.P.C., took into possession the last worn - clothes of the deceased vide themes. (ExhiP.D,).And (Exh.P.E.) respectively, got prepared site plans (Exh.P.B.) and (Exh.P.B./ I) from Draftsman and recorded notes in the red ink. The investigation was transferred to Khizar Hayat S.1. (P.W.12) on 10-1-1992 submitted report under the order of D.S.P./S.D.P.O., Jaranwala being In charge Circle Staff Jaranwala. He also visited the site, recorded statements of the P.Ws. Under section 161, Cr.P.C., besides the other persons produced before him by the parties, arrested accused Aish Muhammad, Shafique, Rashid and Abdur Razzaq on 26-1-1992, took into possession vide memo. (Exh.P.C.) from an earthen-bin lying in his residential room and was taken into a sealed parcel. Registered another case against Aish Muhammad under section 13/20/65, sent the crime weapon to the office of Chemical Examiner for analysis through Muhammad Ilyas constable, submitted the file to the S.H.O., Police Station Jaranwala. Who submitted the Report under section 173, Cr.P.C., to the Trial Court.
4. The accused were formally charged for offence under section 302/34, P.P.C., to which they pleaded not guilty and as such claimed trial.
5. To prove its case the prosecution examined. 13 witnesses, namely, Murur Hussain (F.W.1), Muhammad Ilyas (P.W.2), Aurangzeb (P.W.3), Muhammad lqbal (P.W.4), Muhammad Ali (P,W.5), Khushi Muhammad (P.W.6), Zulfiqar (P.W.7), Din Muhammad (P.W.8), Muhammad Ramzan (P.W.9), Dr. Muhammad Afzal (P.W.10), Muhammad Ashiq (P.W.11), Khizar Hayat ( P. W.I2 ), Mehrban ( P. W .13) and produced the statement of the complainant as (Exh.P.A.), F.I.R. (Exh.P.A./1), site-plan (Exh.P.B.),, rough site-plan (Exh.P.B./1), recovery memo. Of crime weapon (Exh.P.C.), recovery memo. Of last worn clothes of Mushtaq Ahmad deceased (Exh.P.D.), recovery memo. Of last worn clothes of Mst.
Sheeman deceased (Exh.P.E.), recovery memo. Of blood-stained earth of Mushtaq Ahmad (Exh.P.F.), recovery memo. Of blood-stained earth of Mst. Sheeman (Exh.P.G.), post-mortem report of Mushtaq Ahmad is (Exh.P.H.), and its rough sketch is (Exh.P.H./1), postmortem examination report of Mst. Sheeman is (Exh.P.1.) and its rough sketch is (Exh.P.I./1), inquest report (Exh.P.K.), injury statement (Exh.P.K./1), inquest report of (Exh.P.L.), injuries statement (Exh.P.L./1), Report of Chemical Examiner regarding Shalwar (Exh.P.M.), repoint of Chemical Examiner regarding swabs of Sheeman (Exh.P.N.), Report of Chemical Examiner regarding blood-stained of Mushtaq Ahmad and Mst.
Sheeman deceased (Exh.P.O.), Report of Chemical Examiner regarding blood-stained Chhura (Exh.P.P.), report of Serologist regarding blood-stained earth (Exh.P.Q.), and report of Serologist regarding blood-stained Chhura (Exh.P.R.). Statements of Khushi Muhammad (Exh.P.A.) and Zulfiqar Ali (Exh.D.B.) were brought on record.
6. TO sift the seed from chaff, the scrutiny and re-appraisal of the evidence on record is necessary which is made in the following paragraphs.
7. Khushi Muhammad (P.W.6) gave the eye-witness account, which finds reflection in the narration of the prosecution case. During the cross-examination he deposed that he recorded the name of Abdur Razzak accused in his complaint (Exh.P.A.) but was confronted that it was not so recorded there. He volunteered that the police did not record his natne. He stated before the police that Sheeman was caught hold by Shafique and Razzak - accused, confronted not ;a recorded. Again said that he did not name these accused, when he recorded (Exh.P.A.). In (Bech,P.A,) he stated that it was Aish Muhammad, who threw Mst. Sheeman the ground catching her from hairs and thereafter slaughtered her. He admitted that it is correct that in between his house and the house of accused residential houses are situated. Zulfiqar and Munir are residing at a distance of one !Hate from his house, Four/five minutes prior to 8-15 Zulfigar and Munir came to rook after his ailing mother. He did not state before the police that Aish had suspicions about the illicit relations between Mushtaq and Sheeman. He did not state before the police that Aish saw Mushtaq and Mst.
Sheeman in objectionable position and for that killed them. When confronted he volunteered that he stated about the suspicion of their illicit relations before the police, His brother Mushtaq deceased was a shop-keeper of Keryana and was married and father of four children. The daughter of Aish accused Mat. Sheeman was virgin. He denied the suggestion that Abdul Satter Khokhar is brother of Aish Muhammad accused. The witness further stated that they had no previous enmity with the accused. He also deposed that, earlier to it, if his brother separated from him, he was not used to search for him. He himself had been searching for about fifteen. Minutes.
Then he took in his company Zulfigar and Munir P.Ws. He searched .For Mushtaq at the Dera of Al Muhammad and Muhammad Ali Lohar. In the company of Zulfigar and Munir he searched for Mushtaq in the bazar of Bhattian. The alarm was not at its highest pitch, but it was only overheard by them. He admitted that it was correct that house of Se, witokhar was surrour residential houses.
None came at the spot hearing the alarm. He also admitted that it was correct that none of the deceased was murdered before their entrance in the house. Whole of the occurrence happened within 2/2-1/2 minutes, They did not make attempt to grapple with the accused. He informed the police about the murders of his brother Mushtaq and Mst. Sheeman, When police prepared the inquest reports pertaining to the dead bodies, they asked all the facts of this case from them and they narrated all the facts to them. The eye-witnesses Munir Ahmed and Zulfiqar thumb-marked under the statements.
8. He stated that this case was investigated by various police officers, The investigation was conducted by Muhammad Ashiq Inspector, Kinzer Hayat S.I. And thereafter, investigation was verified by D.S.A.
9. The witness admitted that, it was correct that Aish Muhammad accused is father of Mst.
Sheeman, Rashid alleged accused is Khalazad of Sheeman and Abdur Razzak is sister's husband of Mat, Sheeman and Shafique accused is not related to Aish Muhammad in any manner. He volunteered that Shafique is friend of Aish Muhammad. He further stated that it is correct that Shafique is like son of Aish Muhammad. He denied the suggestion that he was deposing falsely about the friendship of Shafique with Aish Muhammad. He also denied that at the time of occurrence he was not present there and was informed, about the murder of Mushtaq and Sheeman after a considerable time and for this reason the case was got restored by 111M in the following morning. Retie also denied that both Sheemao and Mushtaq were committing Zina with eveh other and they both per chance were seen h,' Aish Muhammad, accused. The with Nts statel that the honour of the daughter is the'. 1ionotir of her parents and that Zina in Islam 's major sin and that no one can ene:Jurages Zina activity.
10. In cress-examination, he ',who deposed that he did not state before the police in Exh.P.A. That Zulfiqar and Munir were sitting with him in his 'Baithak' along with Mushtaq. He did not state before the police while recording Exh.P.A. That Shaifque and Aish Muhammad were fast friends. He denied the suggestion that while going out of the village first comes the land of Shafique accused and then of Aish Muhammad, accused. While passing through the lands of Aish Muhammad, one can go to the land of Shafique after crossing a watercourse. If one have to go to the land of Shafique on a bullock cart he had to take round of the whole land and not through the land of Aish Muhammad.
He also denied the suggestion that one year earlier to the occurrence Shafique made an attempt to pass through the land of Aish Muhammad taking his bullock cart, for that they both confronted and have no speaking terms. He admitted that, he and Mushtaq used to alive in one Ihata. They took meals at 4/4-30 p.m. On that day. He appeared before Khizar Hayat Khan, In charge C.I.A. Staff Jaranwala. He narrated the whole story to him. It is incorrect to suggest that he made statement before Khizar Hayat that on the eventful night Mushtaq and Aish Muhammad were at the shop of deceased, Mushtaq. Electricity went on, when Mushtaq went outside leaving behind Aish Muhammad in his shop on the pretext to come back very soon. It is incorrect that he had stated before Khizar Hayat Khan that one child came after one and half an hour and asked Aish Muhammad to come out from his shop. He did not state that after departure of Aish Muhammad from his shop he closed the shop and went to his house. He denied the suggestion that he had stated before Khizar Hayat Khan that as Mushtaq did not turn up till 12-00 p.m. Then he went to search him in the company of Zulfiqar and Munir but he was confronted with Exh.D.A. Where he had so stated. He denied this suggestion that Razzaq was named as accused after 20 days of the occurrence wrongly and improperly.
11. Zulfiqar (P.W.7) deposed that, Khushi Muhammad complainant is his maternal cousin. Mushraq deceased was also his maternal cousin and brother of Khushi Muhammad complainant. One year and 11-1/4 months ago at about 8/8-1/4 p.m. Khushi Muhammad complainant was sitting with his brother Mushtaq when he and his brother Munir Ahmad-went there. They went there to ask for the ailing mother of Mushtaq, his aunt. Mushtaq got up and went to the village. He and Munir Ahmad also came back to their house. At 8-30 p.m. Khushi Muhammad came to them. And stated that Mushtaq Ahmad had not come back. They went along with him for his search. When they went in front of the house of Abdul Sattar Khokhar passing through the bazar of Bhattian, they heard the alarm of Mushtaq Ahmad deceased. They entered into the house of Abdul Sattar and saw in the electricity light Mushtaq and Mst. Shameen inside the room. Besides them Aish Muhammad armed with Chhurra, Shafique, Razzak and Rashid were also present thereby empty handed. Shafique, Razzak and Rashid caught hold of Mushtaq Ahmad. Aish Muhammad cut the throat of Mushtaq in their vision. Thereafter, Aish Muhammad threw his daughter to the ground catching her from hairs, Shafique and Razzak caught hold of her and Aish Muhammad cut the neck of Mst. Sheeman with Chhurra. Both' Mushtaq and Sheeman died at the spot. They raised alarm. Accused ran away from the site after threatening them. The occurrence was seen by him, Munir and Khushi Muhammad complainant. He joined the investigation when police came at the spot. Police took into possession in his presence the blood-stained earth of Mushtaq Ahmad deceased vide memo. Exh.P.F. This memo. Was signed by him and his brother Munir Ahmad. Thereafter, the police took into possession the blood-stained earth of Sheeman deceased which was taken into possession vide memo. Exh.P.G. This memo. Was also witnessed by him and his brother. During the cross- examination, the witness deposed that he narrated before the police that they went to the house of Khushi Muhammad to. Look after their ailing aunt, but he was confronted with Exh.D.B. Wherein it was not so recorded. He further deposed that he had stated before the police that after looking their ailing aunt, he and Munir Ahmad came back to their house, Where Khushi Muhammad came to call them. On this fact also this witness was confronted with Exh.D.B. Where it was not so recorded. He also deposed that it was not stated by them before the police that they remained sitting in the Baithak of Khushi Muhammad after some time Khushi Muhammad came there and they accompanied him therefrom to make search for Mushtaq, confronted with Exh.D.B. Where it was recorded that Khushi Muhammad and Mushtaq deceased were sitting in the Baithak and from there Mushtaq Ahmad went towards village suddenly and after passing sufficient time he did not come back. Khushi Muhammad complainant was worried and he went in his search but deceased could not be found. In that wordiness he along with Munir Ahmad brother went with Khushi Muhammad in search of Mushtaq. He stated before the police that Razzak was also an accused, confronted with Exh.D.B. Not so recorded, he stated before the police that Razzak, Rashid and Shafique caught hdld of Mushtaq deceased prior to his murder, confronted not so recorded, volunteered that he also named lqbal, Riaz, Shafique and Rafique before the police but police did not pay heed to his statement, because the accused party was backed by a Minister. He stated this volunteered fact before the police, confronted with Exh.D.B. Not so recorded. He stated before the police that Sheeman was caught hold of by Shafique and Razzak, confronted with Exh.D.B. Not so recorded. He did not state before the police that Aish Muhammad slaughtered Sheeman and Mushtaq seeing them in an objectionable posture, confronted with Exh.D.B. Wherein not so recorded. They came back to their house within 2/3 minutes after departure of Mushtaq therefrom.
They sat with their Khala for about 2/3 minutes. They came straight in front of the house of Abdul Sattar from their house passing through the Mosque Bhattian. They were not aware that Mushtaq had gone to the house of Abdul Sattar. It was alarm in high tone. As it was a winter season, hence the peoples were not over-hearing the same for their sleep in the early hours of the night after shutting their doors of the rooms. At the alarm none came from the neighbourhood and vicinity.
When they entered in the house of Mushtaq was being caught by the accused and he was raising alarm. He was killed after their entrance in the house. Aish Muhammad accused is not related to them. They were just at a distance of 10/12 feet away from the accused, when in their view Mushtaq Ahmad slaughtered. Mushtaq was not son of his step-aunt. They did not try to catch hold of the accused or tried to refrain them to commit this offence. At the time of occurrence they raised alarm and called the people of the village. At their alarm the residents of the, Mohallah came there.
He admitted that the statement of complainant was not recorded in their presence. Except the suspicion of illicit relations between Aish Muhammad and Sheeman there was no previous enmity between Aish Muhammad and the deceased. The case was investigated by three police officers.
He joined all the investigations. Aish Muhammad was arrested by the police after 24/25 days of the occurrence. He denied the suggestion that after the occurrence Aish Muhammad voluntarily appeared before the police and stated that there he had murdered his daughter Mst.. Sheeman and Mushtaq deceased, seeing them in Zina position, out of sudden and grave provocation. He denied the suggestion that the case was got registered in the following morning as they were not aware of the occurrence. He admitted that occurrence took place at about 8.00 p.m. And it was reported to the police at 8-00 a.m. In the following morning for the simple reason that we had no conveyance to the police station. They had no enmity with any other family in the village. In their village there is no tractor, motorcycle and cycle. He admitted that the population of the village is about 5000/6000 persons. There are tractors in the village which had gone to the Sugar Mills after loading the sugarcane. He made an attempt to get clue if any tractor was available in the village.
Police Station is at a distance of eight miles from their village. There is no conga available in the village. He denied that he was imported as a witness and that they involved that accused in this case falsely after consultation.
12. P.W.11 stated that he recorded complainant's statement (Exh.P.A.), sent it to the Police Station and formal F.I.R. Exh.P.A./1 was recorded by Munir Hussain H.C. No,3544 Police Station Jaranwala, whose writing and signatures he identified. He proceeded to the place of occurrence and prepared the inquest report Exh.P.K. Of Mushtaq Ahmad deceased and his injury statement is Exh.P.K./1. He prepared the inquest report of Mst. Sheeman deceased Exh.P.L. And injury statement is Exh.P.L./1. The dead bodies were sent for autopsy examinations under the escort of Muhammad AU constable No,3850 to the mortuary Civil Hospital, Jaranwala. He collected the bloodstained earth from the place where the dead body of Mushtaq deceased was lying, sealed into a parcel and took into possession vide memo. Exh.P.F. Attested by Munir Ahmed and Zulfiqar P.Ws. The blood-stained earth was also took into possession after making it a sealed parcel from the place where the dead body of Mst. Sheeman was lying vide memo. Exh.P.G., duly attested by, and Zulfiqar P.Ws. He inspected the place of occurrence. The statements) of , the F,Ws. Under section 161, Cr.P.C., were recorded by him. On 3.1-1992 Muhammad Ali constable after post-mortem examination` of the deceased persona handed over, to him the last worn clothes of both the deceased which were taken into possession by hin vide memo. Exh.P.D. And Exh.P.E. Respectively. These memos. Are in his hails, and bear his signatures. He had been searching for the accused but could not traced them out. The investigation of the case was transferred from him on 10-1-1992 and entrusted to Khizar Hayat S.I. Who concluded the investigation and on 8-2-1922 he being S.H.O. Police Station Jaranwala submitted the report under section 173, Cr.P.C. In cross-examination he deposed that he had correctly recorded the statement Exh.D.B. And Exh.P.A. Without any addition or omission of his own. It is correct that according to F.I.R., inquest reports and his spot inspection notes, both the deceased were found in objectionable condition at the time of occurrence. When he visited the spot for the first time the respectable of the village were asked to join the investigation. He recorded their statements. The persons appearing on behalf of the complainant side were also examined by him. He sent the swa bs to the office of the Chemical Examiner and thereafter, positive report was received by him in that respect. He secretly and, openly investigated the case, then he came to the conclusion from the above said evidence that both the deceased persons were found committing Zina by Aish Muhammad. It. Is correct that as pet his investigation the injuries suffered by both the deceased were caused by Aish Muhammad and the other two were empty handed. He admitted that the P.Ws. Appearing before him also stated that they saw the deceased in an objectionable posture when they entered into the house i,e,, place of occurrence. He recorded the report under section 173, Cr.P.C., correctly. According to report under section 173. Cr.P.C. Abdul Sattar and his family members on the day of occurrence had gone to attend a marriage ceremony. He admitted that the modesty of a girl/daughter is the honour of her parents: He admitted that it is correct that till 10.1-1992 when the investigation, of this case was conducted by him none of the P.Ws. Named Razzaq as accused. The houses of Rashid, Razzaq and Shafique accused, are lying at a distance of about one acre froth the place of occurrence. However, he has not earmarked the houses of the accused in the unsealed or scaled site plans available on file. He has also not mentioned this fact in his case diaries.
13. The Medical Officer, Dr. Muhammad Afial (P.W.10) who conducted the post-mortem examination found the following injury on , the dead' body of deceased Mushtaq Ahmad:---
(1) An incised wound 15 c.m, x 4 c.m. On front of neck skin, muscles, blood vessels, treaches esophagus, thyroid cartilage and hyoid bone had been cut. Every thing , up to vertobrum had ,been cut. Clotted and dry blood was present, all around the injury. Injury was ante-mortem and grievous.
Deceased had passed faeces. Seminal discharge was. Also present. Injury had been caused by sharp-edged weapon.
' Skull had been opened and brain matter along with its membranes had been found healthy. Heart was found healthy and it contained negligible amount of clotted blood. Rest of all the organs in the thorax were found healthy except/ already described. Stomach contained 200 m.l. Of semi digested food and it was found healthy. Small intestine was found healthy, and it contained negligible quantity of fluid. Bladder was found healthy and empty. Rest of all the organs in the abdomen were found healthy except already described.
14. In his opinion the death was caused due to abovementioned injury, which caused bleeding and shock. Injury was ante-mortem and sufficient to cause death in the ordinary course of nature.
15. On the same date at 10-00 a.m. Dr. Muhammad Afzal, Medical Officer (P.W.10) also conducted the post-mortem examination on the dead body of Mst. Sheeman daughter of Aish Muhammad and found the following injury on her person:---
(1) An incised 10 c.m. x 5 c.m. On front of neck. Skin, muscles of .Neck, treachea, oesophagus, thyroid cartilage, hyoid bone, blood vessels had been cut up to vertebrum.. Injury was ante-mortem and sufficient to cause death in ordinary course of nature. Injury was fatal and grievous and caused by sharp-edged weapon.
' It was a pale looking dead body of a girl aged 18 years. Eyes and mouth were semi-closed and was wearing shirt, shalwar and Chadar. The articles were signed by him. Rigor mortis and post- mortem staining's were present. Clotted blood on shirt and all around injury was present. Some discharge on shalwar was present, which was sent to Chemical Examiner Lahore, Punjab for detection of semen or loukorrea, duly sealed.
' Skull had been opened and membrains along with brain matter were found healthy. Pericardium and heat were found healthy and empty. Rest of all the oraans in the thorax were found healthy, except those already described. Stomach was found healthy and it contained 250 m.l. Of semi- digested food. Small intestines were found healthy and it contained 200 m.l. Of fluid. Bladder was found healthy and empty. Organs of generation were found healthy, vagina admitted two fingers and hymen was absent. Two vaginal' swabs had been taken to send to Chemical Examiner, Lahore for detection of semen. Rest all other organs in the abdomen were found healthy except those already described.
16. In the opinion of the doctor the injury caused bleeding and shock. It was ante-mortem and sufficient to cause death in the ordinary course of nature. During the cross-examination, the witness deposed that the death was caused at about 9-00 p.m. On 1-1-1992 on both the deceased.
He further deposed that he found one injury each at the persons of both the deceased. No contusion or abrasion was found by hint at the persons of both the deceased during the post- mortem examination. He took the swabs from the vagina of Mst. Sheeman. Her Shalwar along with the swa bs were sent to the Chemical Examiner for analysis. The result of which was received in affirmative and both Shalwar and swabs were found stained with semen.
17. Munir Hussain (P.W.11) deposed that he was posted as Moharrir .At Police Station, Jaranwala. On receipt of complaint, Exh.P.A. Recorded by Muhammad Ashiq, Inspector/S.H.O. He recorded the formal F.I.R. Exh.P.A./1. On 3-1-1992, he received sealed parcels containing blood-stained earth for safe custody in Malkhana. On 7-1-1992, this parcel was handed over to Muhammad Ali, Constable for its onward transmission to the office of the Chemical Examiner. On 2-2-1992, a sealed parcel containing alleged crime weapon i,e, Chhurra was also handed over to him by Khizar Hayat, S.I. For safe custody in Malkhana. On that day, he gave this Chhurra made into a sealed parcel for its onward transmission to the office of Chemical Examiner, Lahore to Muhammad Illyas, Constable intact, In cross-examination, he deposed that it is incorrect to suggest that he has deposed falsely.
18'. Muhammad Ali (P.W.5) deposed that he escorted the dead bodies of Mushtaq and Sheeman deceased from Chak No,24/GB to the mortuary Civil Hospital, Jaranwala for post-mortem examination. On 3-1-1992 the autopsy examinations of the deceased were conducted by the M.O.
After the post-mortem examination the M.O. Gave him the last worn clothes of the deceased/shirt blood-stained P.1 , made of silk papal colour and a woollen Chadar of red colour P.2 besides post- mortem papers, which he handed over to the Investigating Officer who took into possession vide memo. Exh.P.D. He signed the memo. On the same day after the postmortem examination of the dead body of Mushtaq, the M.O. Gave him the last worn clothes of the deceased i,e,, shirt bloodstained P.3, Shalwar P.4, sweater P.5 and vest-P.6 all blood-stained besides the reports etc. These were also submitted by him to the Investigating Officer who took into possession vide memo.
Exh.P.E. In cross-examination he deposed that he received the information at the police station at 7 a.m. After being appraised of the murders, he along with S.H.O. Proceeded to the spot. They reached at the spot at about 8-00 a.m. It is not in his knowledge that who gave the first information of the murders at the police station. When he reached at the spot both the dead bodies were lying in one and the same room.
19. Muhammad lqbal (P.W.4) deposed that on 28-1-1992 he was posted at Circle Staff Jaranwala.
During the investigation Aish Muhammad accused in police custody disclosed that he could get recovered the crime weapon i,e,, Chhurra from the residential room of his house. He led to the recovery of the crime weapon which was recovered from an earthen bin, which was made into a sealed parcel and taken into possession by the Investigating Officer vide memo. Exh.P.C. The crime weapon was wrapped in a paper. Memo. Was witnessed by him. In cross-examination the witness deposed that he saw the accused in the premises of police station for the first time on 28-1-1992.
The wife, and the children and the inmates of the house were present wherefrom the crime weapon was recovered. He admitted that the population of the village, wherein the place of recovery is situated is compromised of 5/7000 persons. None from the villagers came at the place of recovery and witnessed the recovery memo. No one was called by the Investigating Officer to join the investigation. Chak No,24/GB is situated four miles away from the police station. It is correct that the Chhurras like crime weapon are usually available in the house of zamindars to peel of the sugarcane. It is incorrect to suggest that nothing was recovered at the pointation of the accused and he is deposing falsely.
20. Muhammad Ilyas (P.W.2) deposed that he was posted as constable at Police Station Jaranwala.
He received a parcel containing crime weapon from Moharrir of police station for its onward transmission to the office of the Chemical Examiner on 2-2-1992. He submitted the same in the said office on that day for analysis intact. On 4-2-1993 he submitted the sealed parcel of crime weapon to the Moharrir as it was returned by the Chemical Examiner. In cross-examination the witness deposed that he remained present on duty at Police Station Jaranwala from 2-1-1992 to 2-1-1992.
21. Munir Hussain (P.W.1) deposed that on 2-1-1992 he was posted at the Police Station Jaranwala as Moharrir of police station. On receipt of complaint Exh.P.A. Recorded by Muhammad Ashig, Inspector/ S.H.O., he recorded the formal F.I.R., Exh.P.A./1 which is in his hand and is signed by him.
On 3-1-1992 he received sealed parcels containing blood-stained earth for safe custody in Malkhana. On 7-1-1992, this parcel was handed over to Muhammad Ali constable for its onward transmission to the office of Chemical Examiner. On 2-2-1992 a sealed parcel containing alleged crime weapon i,e, Chhurra was also handed over to him by Khizar Hayat, S.I. For safe custody in Malkhana. On that day he gave this Chhurra made into a sealed parcel for its onward transmission to the office of the Chemical Examiner, Lahore to Muhammad Ilyas constable intact.
22. Aurangzeb Draftsman (P.W.3) deposed that on 3-1-1992, he visited the place of occurrence and took rough notes. As per pointation by the P.Ws. And directions of the police. On 4.1-1992 he prepared the she plan into scale 1" equal to 16 feet. All the figures, drawings and notes on Exh.P.13, and Exh.P.B./1 are in his hand and bear his signatures. In cross-examination the witness deposed that he did not make any addition or omission at his own in the she plan. Whatsoever was pointed out by the P.Ws. And directed by ,the police it was reduced into black and white in the site plan. The occurrence took place in the residential room of the house of Abdul Satter son of Bagh Ali. Ii is correct that he was not told that by which - accused the deceased were murdered, as such it was not detailed in the site plan. It is incorrect that he has falsely shown the presence of the alleged eye-witnesses. He further deposed that the width of the road in treat of the house of Abdul Satter is fifty From main entrance point No,1 is situated at a distance of fifty two feet. Main entrance was four feet wide. There is no entrance of this house except the door shown at point No,3. The rooms have windows. Windows contain shutters. The doors of the rooms were just common. He has not shown the house of Abdur Razzak in the site plan nor it was shown to him. The standing positions of the accused were not described to him by the P.Ws. As such it were not incorporated in the site plan,
23. Muhammad Ramzan (P.W.9) deposed that he identified the dead body of Mst. Sheeman at the time of post-mortem examination. The last worn clothes of the deceased were taken into possession by the Investigating Officer vide memo. Exh.P.D. Attested by him. In cross-examination he deposed that there are five/six tractors in their village. Five or six persons in his village have also their motor-cycle. There are five/six tongas in their village. There is no car in their village. In every house of the village the cycle is available. In the' morning .He was .Made known that Mst. Sheeman was murdered. He learnt that Sheeman and Mdshtaq were found committing Zina with each other, who killed them out of provocation and Ohairat.
24. Din Muhammad (P.W.8) deposed that he received the dead body of Mushtaq deceased after post-mortem examination.
25. The prosecution gave up Munir Ahmed P.W. Deeming him as unnecessary. Nocr Samand and Bashir Ahmed P.Ws. Having been won over by the accused and tendered in evidence Reports of Chemical Examiner about the Shalwar of Mat. Sheeman being stained with semen (Exh.P.N.), Report of Chemical Examiner about earth found stained with human blood (Exh.P.O.), Chhurra stained with human . Blood (Exh.P.P.) and Report of Serologist regarding blood-stained earth (Exh.P.Q.) and Report of Serologist regarding the bloodstained Chhura (Exh.P.R.) and closed the evidence of the prosecution.
26. The accused Rashid Ahmed, Abdur Runk and. Muhammad Shafique in their statements recorded under section 342, Cr.P.C., denied of the allegations and pleaded their innocence. They also denied of their presence at the time of occurrence at the spot.
27. Accused/appellant Aish Muhammad in his statement under section 342, Cr,P.C., stated-as under:- "The P.Ws. Have deposed against me falsely. None of them was present at the time of occurrence.
Both the deceased were found, by me while committing Ziaa with each other against the Hudood of Allah. Finding them in such situation, I lost my self's control and ,out of sudden grave provocation and Ghairat and for protection of me and my family honour.I injured both the deceased at the spur of moment. None from the remaining co-accused was present at the time of occurrence. I voluntarily appeared with Chhurra before the police after the occurrence."
28. Learned trial Court gave the benefit of doubt to three accused and passed the judgment on the confessional statement of Aish Muhammad accused and convicted him under section 302(c), P.P.C., and sentenced to twenty years R. I. The benefit of section 382-B, Cr.P.0 , was also given to him.
29. Learned counsel for the appellant has alleged that the prosecution has not proved its case beyond reasonable doubt and that the whole matter is based on confessional statement of Aish Muhammad accused which even if accepted as a whole as correct, the law laid down in the case of Muhammad v. Ali Muhammad and another" (PLD 1996 SC 274) is fully, applicable in this case and that after seeing her real daughter and her paramour committing Zina with each other it was natural that in such a grace and sudden provocation that he was justified to act in the manner he has acted. At any rate the learned counsel for the appellant has submitted that the sentence awarded in the circurristances of the case was harsh and excessive which may be reduced to one already undergone.
30. On the other hand learned counsel for the State has generally supported the conclusion made by the learned trial Court. He opposed and controverted the arguments of the learned counsel for the appellant.
31. I have given due consideration to the valuable arguments on both the sides and perused the record of the trial Court with their able assistance.
32. So far as the motive is concerned in Exh.P.A. It was that Mushtaq Ahmad and Mst, Sheeman were seen by Aish Muhammad in the house of Abdul Sattar in an inexcusable position. While appearing as P.W.6 the complainant changed the motive to the effect that Aish Muhammad had suspicion of illicit relation between the two deceased. No explanation has come for this change.
33. On the other hand the appellant/ accused Aish Muhammad stated that he found both the deceased committing Zina with each other against Hudood of Allah. He lost control and out of sudden grave provocation and Ghairat and protection of his and his family's honours injured both the deceased at the spur of moment. The.Motive as given by the accused is supported on the record as both the deceased were found committing Zina, the Investigating Officer also stated that when he inspected the spot both the deceased were found in objectionable condition. A secret and 'open! Investigation also concluded that both the deceased were found committing Zina.
34. As to the ocular account, the name of Razzak does not appear in Exh.P.A.. There is mention of electricity bulb which is also not believable, the presence of Munir Ahmad and Zulfiqar as stated by P.Ws.6 and 7 is also an improvement. Had P.Ws. Been present at the time of occurrence they would.
Have at least made an attempt to save Mushtaq Ahmad but there is no such thing on the record.
The occurrence as per P.Ws. Took place at 9-00 p.m. On 1-1-1992 and report was lodged on the next morning at 7-30 a.m. The police station was at a distance of only 7 miles. The village is a populated area but there was no alarm to call the people by the real brother which was highly unnatural and unbelievable. P.Ws. Were not certain about the time of occurrence. The names of Iqbal, Riaz and Razzaq were added later on. It has come on the record that the accused were waiting arrival of the P.Ws. At the spot and then to kill both the deceased are all circumstances which cannot be ignored easily. The accused-appellant has stated six things clearly in his statement under section 342.
Cr.P.C., as under:---
(i) The P.Ws. Have opposed against him falsely;
(ii) none of them was present at the time of occurrence;
(iii) both the deceased were found by him while committing Zina with each other Much is against Hudood of Allah (Almighty);
(iv) finding them in such situation he lost his self-control and out of sudden and grave provocation and Ghairat and for protection of his own and his family honours he injured both the deceased at the spur of moment;
(v) none from the remaining accused was present at the time of occurrence; and
(vi) he voluntarily appeared with weapon of offence before the police after the occurrence.
35. The story as stated by the P.Ws. When kept into juxtaposition with the story as given by the accused-appellant seems to be false. As such the story as given by the accused-appellant is only taken as true. The medical evidence also shows that only one injury to each deceased was caused by the sharp-edged weapon to which also the statement of the accused confirms.
36. In this view of the matter, the learned trial Court has very correctly appreciated the whole evidence and came to the just conclusion that ocular account of prosecution case was unbelievable, Abdur Razzak was not named initially in the ,F.1.R. According to the P.Ws. Abdur Razzak, Shafique and Rashid were empty handed. There was no mark of grip and scuffle on the persons of both the deceased and that the confessional statement of Aish Muhammad was true and confidence inspiring.
37. The question is as to what offence is constituted in the above circumstances. A similar question was emerged for resolution in the case of Ghulam Yaseen and 2 others v. The State (PLD 1994 Lah.
392). In which my learned brother Khalil-ur-Rehman Ramday, J., observed as under:--- "The newly added section 338-F in Chapter XVI of the Pakistan Penal Code provides that in the interpretation and application of the provisions of the said Chapter, which Chapter includes Qatl and Hurt etc., the Courts were to be guided by the Injunctions of 41am as laid down in the Holy Qur'an and Sunnah. It is true that the provisions of this Chapter relating to Qatl do not make any allowance for Qatl committed under Ghayrat, nevertheless, in view of the abovementioned provisions of section 338-F of the P.P.C. The Courts are bound to apply the provisions of law in accordance with the injunctions of Islam.
' It was reported that when Sa'd bin Uba-dah mentioned to the Hof) Prophet (Sallallahu Alayhi Wasallam) that he would kill a person whom he saw near his wife, the Holy Prophet (Sallallahu Alayhi Wasallam) did not forbid him to take up such a course of action nor did the Holy Prophet (Sallallahu Alayhi Wasallam) objected to the same and instead declared that he was more Ghayratwala thap Sa'd bin 'Ubadah. This Hadith is reported in Volume III of Saheeh Bokhari Sharif published by Deeni Kutab Khana, Lahore, and is being reproduced hereunder along with certain other Ahadith on the subject for ready reference:-- {{ARABIC TEXT}} CHAPTER OF SENSE OF HONOUR "And Warrad reported on the authority of Al-Mughirahs(that) Sa'd Bin Ubada said: If I saw a man with my wife, I would strike him with the sharp-edge of the sword." The Prophet" (p.b.u.h.) said (to his companions), "Are you astonished by Sa'd's (Ghayrah) sense of honour? (By Allah) I have a greater sense of Ghayrah than he has, and Allah has still more greater sense of Ghayrah than I have."
(Sahih, Al-Bukhari, Kitab al-Nikah, Bab al-Ghayrah, (Ch.108); Arabic. English, Translation by Dr. Muhammad Mohsin Khan, Islamic University, Al-Madina Al-Munawwarah, Kazi Publications, Lahore, p.109) {{ARABIC TEXT}} ' To us reported 'LJmar bin Hafs, (who stated) to us reported my father, to us reported Al-A mash on the authority of Shah(' to whom narrated 'Abdullah (bin Mas'ud) that the Prophet (p.b.u.h.) said, "There is none having a greater sense of Ghayrah than Allah. And for that He has forbidden the doing of evil actions (illegal sexual intercourse etc.) There is none who likes to be praised more than Allah does."
(Sahih, Al-Bukhari, Kitab al-Nikah, Bab Al-Ghayrah, Hadith No,147, Vol.VII, Op.Cit. Page 110). {{ARABIC TEXT}} ' To us reported Abdullah Bin Muslamah on the authority of Malik to whom narrated Hashim to whom his father to whom narrated 'Aisha ( :#+.6t('d ) that Allah's Apostle (p.b.u.h.) said, "0 followers Of Muhammad! There is none, who has a greater sense of Ghirat (self-respect) than Allah, so He has forbidden that His slave commits illegal sexual intercourse or His slave girl commits illegal sexual intercourse. 0 followers of Muhammad! If you but knew what 1 know, you would laugh less and weep more!"
' Al-Bukhari, Kitab al-Nikah, Bab al-Ghayrah, (Ch.108) Hadith No,148 Vol.No,VII op-cit page 110). ' {{ARABIC TEXT}} ' To us reported Musa bin Ismail who stated that to us reported Hammam who got it from Yahya and he from Abu Salama and he from Urwah bin Al-Zubair and he got from his mother Asma who narrated: I heard Allah's Apostle (p.b.u.h.).. Saying, "There is nothing (none) having a greater sense of Ghayrah (self-respect) than Allah."
' And narrated Abu Huraira that he heard the Prophet (p.b.u.h) (saying the same).
(Sahih, Al-Bukhari, Kitab al-Nikah, Bab al-Ghayrah, (Ch.108) Hadith No,149 Vol.No, VII op-cit page 110/111). {{ARABIC TEXT}} ' To us this Hadith was transmitted by Abu Nairn, to whom it was transmitted by Shayban to ,whom it was transmitted by Yahya to whom it was transmitted by Abu Salama who heard Abu Ht eaira that the: Holy Prophet (p.bAi.h.) said, "Allah has sense of Ghayr.Ah and Allah's sense. Of Ghayrah is provoked when a believer does something which Allah has prohibited."
(Sahih, Al-Bukhari, Kitab al-Nikah, Bab al-Ghayrah, (Ch.108) Hadith No,150 Vol.No,VII op-cit page 111).
"This Injunction of Islam in the form of "AHADITH" does not find any reflection in the specific provisions relating to Qatl which now stands incorporated in the Pakistan Penal Code. The commission is understandable as the process of bringing the old provisions of the law on the subject in conformity with the Injunctions of Islam, is still in its infancy and attaining expertise about the law which has now been put into practice is likely to take some time. While I am the subject, I may also make mention that there is no dearth of Ahadith recognizing the right of an individual to defend himself against any aggression against him or his property or the right to defend other individuals but our law on the subject makes no , specific mention of giving any allowance to persons causing injuries or even Qatli in the exercise of such right. I have no doubt in my mind that by, the time the present legislation on the subject, which is presently only in .The form of an Ordinance, is Aid before the legislature, due notice will be taken of these' omissions and others in the law presently in force, ' Be that as it may, as has been mentioned above, the provisions of section 338-F of the P.P.C., do repose some authority in the Courts to notice the Injunctions of Islam on the subject and to take benefit of the same while dealing with the cases in hand.
' From the above quoted Ahadith, it is obvious, that a Qatl committed on account of Ghayrat is not the same thing as Qatl-e-Amd pure and simple and the persons found guilty of Qatl committed on account of Ghayrat do deserve concession which must be given to them. The least that can be done in the present state of law is to convict such-like persons, guilty of Qatl-e-Amd committed on account of Ghayrat, under clause (c) of section 302, P.P.C., as such, a Qatl cannot be said to be punishable with Qisas as per Injunctions of Islam."
38. In view of the recommendations made in this judgment; Bill No,V1I of 1998 called the Pakistan Penal Code (Amendment) Act, 1998 was introduced in the Senate on 24th of August, 1998.
39. In the case of Ali Muhammad v. Ali Muhammad and another (PLD 1996 Supreme Court 274) on which, the learned counsel ,for the appellant has relied was a case in which the learned counsel for the appellant had also appeared before the Honible Supreme Court of Pakistan wherein the question of quantum of sentence was also decided where a case falls under section 302(c), P.P.C., and does not fall within the ambit of Qatl-i-Amd liable to Qisas or Qatl-i-Amd liable to Qisas as Ta'zir. The relevant portion of the judgment' of the Honible Supreme Court of Pakistan as contained in paras.29 to 31 is reproduced for ready reference:- "29, The new section 302, itself divides Qatl-i-Amd, for purposes of punishment into three categories:
(1) Qatl-i-Amd which is punishable with death as Qisas;
(2) Qatl-i-Amd punishable with death or life imprisonment as Ta'zir; and
(3) Qatl-i-Amd punishable with imprisonment of either description for a term which may extend to twenty-five years, where according to the Injunctions of 'Islam the punishment of Qisas is not applicable. Section 302 of the P.P.C., therefore, itself contemplates plainly clearly a category of cases which are within the definition of Qatli-Amd but for which the punishment can, under the Islamic Law, be one other than death or life imprisonment. As to what are the cases falling under clause (c) of section 302, the law-maker has left it to the Courts to decide on case to case basis.
But keeping in mind the majority view in Gul Hassan case PLD 1989 SC 633, there should be no doubt that the case covered by the Exceptions to the old section 300, P.P.C.. Read with the old section 304, thereof, are cases which were intended to be dealt with under clause (c) of the new section 302 of the P.P.C. In this connection I should be content to refer to (translation by Manzoor Ahsan Abbasi), Volume V at page 582 which enumerates a large number of situations in which Qisas is not liable for Qatl-i-Arnd; one of the situations mentioned by the learned Author at page 584 is:-- {{URDU TEXT}}
(30) I can now return to the facts of this case. This was not a case of a mental condition described in picturesque, if inaccurate language, as the 'Othello syndrome' which is defined as morbid jealousy for which there is no cause. For the reasons given by the learned ,Judge in the High Court, which are based .Upon those stated by Justice Shafiur Rehman, as Chairman, of the Supreme Appellate Court, in Muhammad Hanif case 1992 SCMR 2047, the Courts below were entitled to accept the truth of the story in toto given by the accused. According to that story the deceased had intruded into the accused's home--his castle--at the unearthly trespass. As if that was not enough, the property and privacy and was criminal trespass. As if that was not enough, the deceased was found by the accused sleeping with his wife. In these facts, the accused was, in my, opinion, entitled to invoke the defence of grave and sudden provocation; he was also entitled to invoke the defence of self-defence based on verse 34 Sura Al-Nisa as interpreted by Justice Shafiur Rehman, J. In Muhammad Hanif case. In such cases, there is no duty to retreat.
(31) It appears however that in addition to the grounds stated in Muhammad Hanif case, the accused had also exceeded his right of self-defence. In that he had overpowered the deceased man by putting a 'Chaddar' around his neck but had pressed it so hard as to strangulate him to death. His case, therefore, clearly fall under clause (c) of section 302. It must follow, therefore, that the learned Judge in the High Court was not right in holding that the accused had committed no offence and was not liable to any punishment."
40. After making the above discussions on the new law, the Honourable Supreme Court of Pakistan convicted the accused in that case under section 302, clause (c), P.P.C., and held that the sentence of imprisonment already suffered will serve the ends of justice.
41. The present case is also in line with the above precedents. As such the appeal of the appellant is accepted to the extent of quantum of sentence. The accused appellant was arrested on 26-2-1992, was released on bail on 4-10-1992, his bail was cancelled on 25-1-1993 and he was again granted bail on 9-3-1994. Thus, the total period of detention comes to one year, eight months and twenty two days.
42. In my opinion, the sentence undergone by the appellant will serve the ends of justice. He is on bail. His bail as well as surety bonds stand discharged.
43. The complainant has filed a criminal revision bearing Criminal Revision No,152 of 1995 against the acquittal of Rashid Ahmad Abdur Razzak and Muhammad Shafiq. As discussed above, this Court has come to the conclusion that the Trial Court has given very valid and cogent reasons for their acquittal which could not be rebutted on record. As such Criminal Appeal No,152 of 1995 has no legs to stand. The same is hereby dismissed.
THE END