1. ' MAULANA MUHAMMAD TAQI USMANI, J.---The appellants Muhammad Aslam, Muhammad Ashraf and Mst. Riffat Jabeen were charged and tried by the learned Additional Sessions Judge, Jehlum under sections 302, 201, 109 and 419/34, P.P.C. And under section 10(3) of the Offences of Zina (Enforcement of Hudood) Ordinance, 1979 but after the trial the learned Trial Court acquitted Mst.
2. Riffat Habeen from all charges while Muhammad Aslam and Muhammad Ashraf were convicted only under section 201/34, P.P.C. And were sentenced to four years R.I. And a fine of Rs,10,000 with benefit under section 382-B, Cr.P.C. Half of the fine was ordered to be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. In default of payment of fine they were ordered to suffer three months S.I. They acquitted from all other charges.
3. ' Being aggrieved with the judgment of the Trial Court, Daulat Ali, petitioner in Criminal Petitoin No,36(s) of 1997 filed an appeal as well as revision in the learned Federal Shariat Court against acquittal of the three appellants under sections 302, P.P.C. Etc. As aforesaid. The learned Federal Shariat Court vide its judgment dated 8-7-1997 convicted Muhammad Aslam and Muhammad Ashraf under sections 302(b), 34 and 109 of Cr.P.C. And sentenced both of them to death.
4. Muhammad Aslam was also convicted under section 10(3) of the Offences of Zina (Enforcement of Hudood) Ordinance 1979 and sentenced to 10 years R.I. Mst. Riffat Jabeen, appellant No,3 was also convicted under section 302(b) and was sentenced to life imprisonment. She was further convicted under section 201/34, P.P.C. And was sentenced to four years R.I. With a fine of Rs,10,000 or in default to suffer further three months S.I. The amount of fine, if recovered, was ordered to be paid to the legal heirs of deceased Mst. Tahira. Both sentences of imprisonment were to run concurrently. M.
5. Aslam, M. Ashraf and Mst. Riffat Jabeen appellants in Criminal Appeal No,29(S) of 1997 have preferred this direct appeal against their conviction and ,sentences, while Criminal Petition No,36(S) of 1997 is filed by Daulat Ali seeking leave to appeal for the enhancement of the sentences of fine and the sentence of Rifat Jabeen under section 302(b) to death. Both these matters arising from the same Judgment of the Federal Shariat Court were heard together and are being disposed of by this single judgment.
6. ' The case of the prosecution is that Muhammad Aslam, Appellant-1 appeared on 23-4-1993 before Abdur Rauf A.S.I., P.W.1, in the P.S. Saddar Jehlum and stated that he had married his girl, Mst. Riffat Jabeen to his nephew Muhammad Mahmood. On the day of report he was away from home, and her daughter Riffat Jabeen was alone in the house. When he came to home back at about 10-00 a.m. He found that her daughter Mst. Riffat Bibi had died being burnt by fire. His brother Muhammad Ashraf, his wife Irshad Begum, the wife of his brother Maqbool Begum and his nephew were present there who told him that Riffat Bibi after locking herself in a room set herself on fire and committed suicide. He further disclosed that he had no enmity with any one nor he had any suspicion against any person. This statement of M. Aslam, the appellant-1, was included in Roznamcha on the same day. The police after preparing the injury statement sent the dead body to District Hospital for post-mortem examination. After the post-portem examination the dead body was brought back by the male accused persons who offered funeral prayer in the courtyard of their Haveli and buried it in their family graveyard. Since the father of Mst. Riffat Bibi did not suspect anyone in the case, the efforts of the police remained limited only to the completion of the formalities. On 29-4-1993 the investigation was handed over to Mubarak Ahmed, A.S.I., P.W.22. When he perused the post-mortem report Exh.PS he found that the dead body had some injuries apart from the signs of burn. Suspecting some foul play, he sought further explanation from the medical officer who conducted post-mortem examination through a written application Exh.P/V. The doctor clarified that the injuries found on the dead body were caused by some other person possibly by some sharp-edged weapon. It is from here that the case took a dramatic turn and Mubarak Ahmad P.W.22 felt it necessary to inspect the place of occurrence.
7. ' Daulat Ali P.W.17 and Mst. Fazal Noor P.W.16 were missing their daughter Mst. Tahira, who according to these P.Ws., was last seen in the company of Mst. Riffat Jabeen. They approached the police on 30-4-1993 and expressed their suspicion that the girl who was set on fire was not Mst. Riffat Jabeen but she was Mst. Tahira, their daughter. Consequently, Mubarak Ahmad S.I., P.W.22 alongwith Daulat Ali and Mst. Fazal Noor and Ch. Zareen, inspected the place of occurrence. The results of this inspection are incorporated in the report Exh.PD/1 in which it is mentioned that when Mubarak Ahmad inspected the room in which allegedly Mst. Riffat Jabeen had committed suicide he found that the floor of the room appeared to have been dug and was tried to be levelled again, because some newly dug earth was visible. He removed the earth and traced a small pitch from where a pillow cover tilled with bloodstained earth was recovered. Moreover, one blood-stained dupatta, pieces of some broken bangles and a piece of shalwar and a pair of slightly burnt chappal were also recovered from the said room. He also found some blood stains on a wall of the room. He called the photographer Qadeer Ahmad P.W.10 who took photographs Exh.P5/1-26 and the photograph Exh.5 alongwith their negatives Exh.P6/1-26 which were secured by the police vide recovery memo. Ex.PS.
8. ' On the basis of this report Ex.PH/1 the case was formally registered against the appellants. On 25- 4-1993 by the order of District Magistrate Jhelum, Sayed Saghir Hussain Shah, Magistrate 1st Class, P.W.19, the dead body of the girl was exhumed from the graveyard, where Daulat Ali, the father of Mst. Tahira and Mst. Fazal Noor, her mother, identified that the dead body was of their daughter Mst. Tahira. Daulat Ali and Mst. Fazal Noor the appellants appeared as P. Ws. 17 and 16 respectively and Mst Fazal Noor sated that she alongwith her family members shifted to village Pakhwal during the course of flood in 1992. On 20-4-1993 when her husband went to Mirpur, she alongwith her deceased daughter Mst. Tahira left her home to get fodder. When they were passing through the courtyard of Muhammad Aslam, Mst. Riffat Bibi was sitting in the said courtyard and M. Aslam was lying on the cot. On the request of Mst. Riffat she and Mst. Tahira sat with her for a while. Mst. Riffat asked her to go to the field to cut fodder and told her that Mst. Tahira would follow her after a short while. She left Tahira with Mst. Riffat and proceeded to the fields. When she came back with fodder, Mst. Riffat told her that her daughter Tahira had already left for her house, but when Mst. Fazal Noor reached home she found her house locked as she had left it and her daughter was not available there. She started searching for her daughter. She enquired from Mst. Riffat Bibi again but her reply was the same. She kept searching for her daughter but in vain. On the next day when her husband Daulat Ali came to the house she narrated the incident to him. He also searched for her daughter but could not find her. Both of them again went to M. Aslam, Ashraf and Riffat Bibi but they showed their ignorance about the where about of Mst. Tahira Bibi.
9. ' On the third day they again went to the house of the appellants but their reply was the same. On the third day at about 10-00 a.m. They heard the alarm that the house of M. Aslam had caught fire.
10. They proceeded to the house where Aslam and Ashraf told her that the daughter of Aslam Mst.
11. Riffat Bibi had committed suicide by means of fire for the reason that they (i.e, Daulat Ali and Mst.
12. Fazal Noor) were blaming her for disappearance of Tahira Bibi. The. Inmates of the house insulted them and they did not allow them to enter into the room so they returned back. According to her they kept searching for their daughter and it was after 6/7 days that they came to know that Mst.
13. Riffat Jabeen was alive and M. Ashraf were absconding, then they reported the matter to the police.
14. Daulat Ali P.W.17 corroborated his wife in all material respects.
15. ' P.W.20 Dr. Ejaz Ahmad conducted the post-mortem and proved his report of his examination. His statement is as follows: "It was a dead body of a young female, very foul smelling and approximately 100% burnt and was wearing only Qameez (red silky having pattron on it). This Qameez was also burnt and sticking to the skin. She was found tied up at the back with the brown coloured Parna at right wrist and right elbow. Her features were not identifiable. Her face was balloted due to swelling of all the features of the face. Her skin at the limbs were seen cracked and deeply burnt. Riger mortis was present.
16. ' Following other injuries were found on the body
(1) A spinal shape wound measuring 10 c.m. x 3 c.m. Bone deep was found on the right parital area of the skull. The underlying bone was also found fractured which was linear in nature. Maggots were present in this wound.
(2) An extensive L shaped wound extending from right side of the chest and abdomen. And reaching left side of the body across the abdomen. Many loose of the intestines were found lying outside the body.
(3) A horizontal wound across left breast exposing decaying tissue of the breast.
17. ' On opening the scalp, right parital bone was fractured, brain matter was found liquified. A piece of the skin including area of injury No,1 was sent for Histopath studies.
18. Therax: ' In these therox soety particals were found in larynx and tracheae. Heart was found empty.
19. Abdomen ' In abdomen stomach was found healthy and contained digested food. Liver was found healthy.
20. Bladder was found healthy and contained no urine. Uterous was found non-gravid. External genetelia were found deeply burnt. Three swabs from the vagina were taken for chemical analysis.
21. A piece of abdomenal skin including edges of injury No,2 was sent for Histopath studies.
22. ' The final opinion about the cause of death and nature of injuries was deferred till the receipt of report from Bacteriologist and Chemical Examiner, Lahore.
23. Final Opinion ' After performing the external and internal post-mortem of the deceased and in the light of reports from bacteriologist and chemical examiner (Report No,909/BACT-ML, dated 24-5-1993 and Report No,919/S473/SA dated 30-4-1993 respectively). ' I was of the opinion that:
(1) The burning of the body was approximate 100% and was anti-mortem in nature.
(2) Injuries Nos.1, 2 and 3 are anti-mortem in nature and inflicted by some sharp-edged weapon.
(3) Sexual intercourse was performed by some male person on her.
24. ' In my opinion the cause of death in this case was due to burning, injury No,1 and injury No,2 individually and collectively, causing the compound fracture of skull, rupture of poritonius leading to profuse bleeding, result into Hypovolemic and neurogenic shock which were sufficient to cause death in ordinary course of nature. The probable time between injuries and death was immediate (within one hour) and the probable time between death and post-mortem was approximately one to two days, (injuries include burning). Exh.P/S is that correct carbon copy of my post-mortem report which is in my hand and bears my signature."
25. ' Mst Nasreen Akhtar P.W.15 is the sister of Tahira deceased who appeared as P.W.15 and stated that she identified the dead body of Mst. Tahira after exhumation and the burnt pieces of her shirt Exh.P/1 and the parna belonging to Riffat accused Exh.P/2. She also stated that her sister had disappeared on 20-4-1993 and she identified the clothes on 6-6-1993.
26. ' Sabir Hussain appeared as P.W.13 and stated that he was Chairman of Union Council Bokan.
27. Muhammad Aslam was previously known to him. He came to his house accompanied by his daughter Mst. Riffat Bibi and stated that he had committed repe with Mst. Tahira Bibi and, thereafter, murdered her with the help of his brother Muhammad Ashraf and his daughter Riffat Bibi, and that thereafter they had set the dead body on fire. He also said that the hand of Mst.
28. Tahira Bibi were tied up by them with a parna and he had inflicted chhuri blow and his brother gave hatchet blow to her and that after commission of murder they spread out a rumour that Aslam's daughter Riffat Bibi had committed suicide by burning herself for which they made report to the police.
29. ' Muhammad Khan P.W.14 stated that M. Ashraf, appellant-2 who was previously known to him came to his house and disclosed that his brother Muhammad Aslam committed rape with Mst.
30. Tahira and that Aslam and Riffat tied the hand of Mst. Tahira and he was also called at the spot.
31. Aslam inflicted churri blow whereas he himself had inflicted hatchet blow to Tahira Bibi, whereafter the dead body of Tahira was set on fire. He also stated that they spread rumour that Mst. Riffat Bibi had committed suicide.
32. ' Mumtaz Ali P.W.12 identified the dead body of Mst. Tahira after exhumation. He stated that it was identifiable. Abdul Rauf, A.S.I, P.W.11, recorded the initial statement of M. Aslam Exh.P/D about the suicide of his daughter and prepared inquest report Exh.P/G which was also signed by Sikandar Hayat P.W.7.
33. ' On 17-5-1993 Mubarak P.W.22 got recovered blood-stained hatchet Exh.P/3 on the pointation of M.
34. Ashraf, appellant-2 from the roof of his house through memo Exh.P/D which was witnessed by Tariq Mahmood P.W.9. He also recovered a Chhuri Exh.P/4 buried in the courtyard of Aslam on his pointation which was also witnessed by Tariq Mahmood P.W.9. The other witnesses of prosecution are mostly of formal nature.
35. ' All the three appellants, while giving statements under section 342, Cr.P.C. Denied the charges against them and stated that M. Aslam and M. Ashraf were under the bona fide impression that it was Mst. Riffat Bibi who set herself on fire. M. Ashraf in answer to Question No,15 stated as under: ' The allegation is incorrect. In fact the police on the night of 23-4-1993 had arrested as a suspect of murder of Mst. Riffat Bibi, my co-accused Muhammad Aslam father of Mst. Riffat Bibi and on 24-4- 1993, when Mst. Riffat Bibi came home I alongwith Mst. Riffat Bibi informed the Investigating Officer of this case about the misconception of her death of Mst. Riffat Bibi and police also arrested me and Mst. Riffat Bibi on the same day."
36. ' In answer to Question No,33 he stated as follows: "I am innocent. After the flood of 1992 the family of Dolat Ali P.W., took refuge in our village and they were treated as guests of God in the village. They were oftenly staying in our common house also.
37. When on 23-4-1993 the police arrested my brother on the suspicion of the murder of Riffat Bibi his daughter. On the following day when found Riffat Bibi alive I alongwith some other respectables of my village went to the police station and police arrested me."
38. Mst. Riffat Bibi earlier took the same plea that her father M. Aslam and her uncle M. Ashraf were under the bona fide belief that she had committed suicide.
39. ' In answer to Question No,11 she stated as under: ' I was married to Mahmood Ahmed son of my uncle Muhammad Ashraf, my co-accused for about 5 years. I am issueless and for that reason I have very strained relations with my husband and he used to give me beating. I was complaining about my husband to my parents but they always took side of my husband and forced me to be with my husband at any cost. On 23-4-1993 at a morning time when my husband gave me abuses and had given me beating I came to the house of my parents which is in the same haveli. I told my parents that I will not go to my husband's house, rather I will prefer to commit suicide. After my conversation with my parents when all the family members were busy, in the fields to cut crops, I came to know through a family child that my husband is searching for me in an angry mood and, thereafter, I without informing anybody went to the house of my relative Manzoor Hussain in village Mohra Tehsil Mirpur. In the night between 23- 4-1993 and 24-4-1993 a messenger came to Mirpur to inform Manzoor Hussain about my suicidal death. I then immediately alongwith Manzoor Hussain came to my house on the following morning and alongwith my father-in-law Muhammad Ashraf went to police station where my father was under arrest on the suspicion of my murder. When we informed the police about the real state of the affair the police arrested me and my father-in-law also there."
40. ' In answer to Question No,14 she stated as follows: "Mst. Tahira and her family after the flood of 1992 were taking refuge in our village and normally for the maximum time they were staying in our haveli. Mst. Tahira was my fast friend. I did not want to say anything about her modesty but now in the present circumstances, I have to say that Mst.
41. Tahira Was upset for about a week time before 23-4-1993 and she was always posing herself guilty of some sin. She did not disclose in detail to me but she was so guilty and repenting on some sin that she was always talking about suicide."
42. ' Mr. Sardar Muhammad Ishaque Khan, Advocate, the learned counsel for the appellants, contended; that the statement of M. Aslam recorded by the police on 23-4-1993 was under the bona fide impression that his daughter had committed suicide; that all recoveries effected on 3-4- 1993 were fake; that deceased had no injuries at all. The alleged injuries were the result of the burst of the body due to extreme heating; that recoveries of hatchet and chhuri alleged to have been effected on 17-5-1993 are fabricated; that extra-judicial confession is pot believable and cannot be relied upon nor this weak type of evidence can form the basis of conviction; that Mubarak P.W.22 dishonestly investigated the case; that one tainted evidence cannot corroborate another tainted evidence; that the statements of P.Ws. 1 to 16 recorded without proper oath are not admissible; and that the learned Federal Shariat Court did not observe the principles governing the appeals against the acquittal and finally in any case the sentences awarded to the appellants are excessive.
43. ' On the other hand, Malik Rab Nawaz Noon, the learned counsel for the complainant, vehemently argued that the guilt of the appellants is proved beyond reasonable shadow of doubt.
44. ' We have carefully examined the record of the case in the light of the contentions of the learned counsels for the parties. The argument of the learned counsel that the appellants were under bona fide belief that Mst. Riffat Bibi had committed suicide is not believable in the circumstances of this case. Mst. Tahira was of the age of 13/14 years while Mst. Riffat was of 20/25 years. It is in the evidence of the doctor P.W.20 that her Qameez and the color thereof was visible; whereas Mumtaz Ali P.W.12 who identified the dead body after the exhumation has testified that only face of the dead body was completely burnt, while the fingers of right hand were intact and were identifiable. All the nails of right hand were completely nail polished. Moreover, M. Aslam and M. Ashraf themselves identified the dead body before P.W.20 and they did not claim at that time that the dead body is not identifiable. The learned counsel for the appellants laid much emphasis on the statement of doctor Ijaz Ahmed P.W.20 that the dead body was approximately 100% burnt but the learned counsel overlooked the fact that, firstly the doctor himself has clarified during cross-examination that by "approximately" he means 90-100% and secondly, according to his own statement she was wearing only Qameez (red silky) having pattron on it. He has also mentioned that she was found tied up with the brown coloured parna at right wrist. If the color and even pattron was visible on the Qameez, and if the colour of the parna was clearly marked by the doctor, how can it be believed by any stretch of imagination that the body was totally unidentifiable? Moreover, the right hand of the dead body was found tied on the back and obviously, the girl could not commit suicide by tying her own hand on the back. In these circumstances, it is not at all possible that the family members of Mst. Riffat Jabeen remained under bona fide impression that the dead body was of Riffat Jabeen.
45. ' Then according to Mst. Riffat Jabeen herself in her statement under section 342, Cr.P.C. She appeared on the next day while it is on the record that the family of Aslam kept wailing and mourning the death for 4/5 days during which according to Molvi Fareed Hussain P.W.6, they kept holding Fateha Khawani. If there was a real confusion about the identity of the deceased, the same should have been removed on the next day when Riffat. Jabeen appeared and there was no reason for the family to keet on mourning and holding Fateha: ' The opinion of the learned counsel that the injuries found on the body were that result of extreme heating of the body did not appeal us at all, for the simple reason that according to the report of the post-mortem and the statement of P.W.20 all these injuries were ante-mortem and were inflicted by some sharp-edged weapon. The doctor in his report has clearly stated that all the major organs like heart Lungs etc. Were found healthy. Therefore, the burst of body is out of question.
46. ' The learned counsel pointed out that the doctor had reserved his final opinion about the cause of death and nature of injuries till receipt of report of bacteriologist. But according to the report of the Bacteriologist Exh.P/T the miscroscopic examination failed to reveal any cellular or nuclear details due to antelytic changes. It is argued that in these circumstances, the opinion of the doctor cannot be held to be final. It is true that, in the beginning, the doctors had deferred his final opinion till he receives the Report of the Bacteriologist, but it was just a matter of precaution and formality, and finally he had expressed his opinion that the body had suffered ante-mortem injuries inflicted by sharp-edged weapon. There is no reason to discard this opinion.
47. ' The learned counsel further contended that the recoveries of pillow cover, bangles and chappal of the deceaced on 30-4-1993 as alleged by the prosecution are fabricated for the simple reason that these articles were not found by Abdur Rauf P. W.11 who inspected the place of occurrence for the first time, nor did he see any blood stains on the wall as alleged by P.W.22. The argument is misconceived because the initial statement of Aslam was that Mst. Riffat had committed suicide, therefore, no deep examination was felt necessary, specially, when the articles recovered were burried in a ditch dug on the floor of the room. Therefore, there is nothing unbelievable if Abdur Rauf could not notice these articles at the time of his first inspection.
48. ' The learned counsel further contended that the recoveries of bloodstained Hatchet ExhP/3 on the pointation of M. Ashraf and a Chhuri Exh. P/4 on the pointation of Aslam are fake, firstly, because no incised wound was found on the dead body of Mst. Tahira, therefore, there was no occasion for using these weapons, and secondly, because these recoveries have been effected 24 days after the occurrence. The occurrence took place on 23-4-1993 while the appellants were arrested on 5- 5-1993, therefore, it is unbelievable that they preserved the weapons of crime upto 17 days. They could have easily destroyed these weapons in the meantime. The learned counsel relied in this respect on 1985 SCM R 1573 where the recovery of weapon after 4 days was disbelieved and on 1983 SCM R 98 where the recovery effected after 14 days was not relied upon.
49. ' We have paid due attention to the argument of the learned counsel, but, as mentioned earlier, it is proved by the medico-legal report that there were antimortem injuries on the dead body of Mst.
50. Tahira which were inflicted by some sharp-edged weapon. Therefore, first leg of the argument of the learned counsel is not based on correct appreciation of the record. As far as the delay in recovery is concerned, in the instant case, it is stated by a number of witnesses that the appellants were not available in their homes after the occurrence. Therefore, the notion that the appellants had 17 days to conceal the weapon is not correct Moreover, M. Aslam had got buried the Chhuri in his courtyard while Ashraf had concealed the hatchet in the roof wherefrom the weapons have been recovered, therefore, it is not correct that they had not concealed the weapons. It is worth mentioning that the recovery of Hatchet and Churri was witnessed by Tariq Mahmood P.W.9 is an independent witness of the locality which fact was not challenged during his cross-examination. In these circumstances these recoveries cannot be said to be fake and this case is distinguishable from the cases cited by the learned counsel. In the case of Abdur Rahman v. The State (1983 SCM R 958) it was held by this Court that evidence of witnesses of the occurrence is not worth reliance. It is in this background that the following observation was made: "As to the recovery of the fire-arm at the behest of Ghulam Muhammad it was difficult to accept this evidence after a long delay of 14 days in background of the evidence as it is". (underlining is ours).
51. ' In the case of Mujahid Hussain v. The State (1985 SCM R 1577) the recovery after 4 days was disbelieved from the accused person because he was not shown to have absconded and had, thus, an opportunity to get rid of the articles and the Police Officer had not stated as to wherefrom he had arrested the appellant and the presumption was that he was arrested from his house. In the present case, it is mentioned by the P. Ws. That the appellants were not available at their home and M. Aslam was arrested from the house of Sabir P.W.13, therefore, the facts of the cases cited above are not applicable to the present case.
52. ' The learned counsel has also challenged the veracity of the extrajudicial confessions made by M.
53. Aslam before Sabir Hussain P.W.13 and by M. Ashraf before Muhammad Khan P.W.14. The learned counsel pointed out that Sabir Hussain P.W.13 is resident of Dhoke Qaisar Dakhli and is Chairman of the Union Council Bokan while the occurrence took place in the village of Tawakkalpur Pakhwal which has a different union council. The learned counsel contended that if Aslam wanted to confess his guilt why should he elect to go to another village of a different union council? He could easily approach the counsellers or the lambardar of his own village. Moreover, the learned counsel argued that according to Sabir Hussain P.W.13 when M. Aslam came to his home was accompanied by this daughter Riffat Bibi and it is not believable that a person confesses his guilt of Zina in the presence of his own daughter. He further argued that it is also stated by his witness that the inspector police came to his home, therefore, it was a confession before the police officer which is not admissible in evidence.
54. ' After appraising the evidence of Sabir Hussain P.W.13 we find that the contentions of the learned counsel have no force. Sabir has stated that Aslam was previously known to him and during cross- examination he has clarified that the appellant came to him at his house at Tawakkalpur and that when Aslam disclosed to him about the incident, Mst. Riffat Bibi was not present there but she was in a separate room. The witness has also made it clear that after the disclosure by Aslam about the incident, he himself called the police to his house through one Qadeer, therefore, it cannot be held that this confession was made before ^ police officer. The statement of Sabir Hussain is fully supported by the fact that Mubarak P.W.22 arrested M. Aslam and Mst. Riffat Bibi from the house of Sabir. The following part of the statement of Mubarak Ali is very clear about this fact:-- "I have been making search of accused from 30-4-1993 to 10-5-1993 but they were not present in their village. Ch. Sabir produced the accused before me in his under-construction bungalow in Nai Abadi of village Pakhwal."
55. ' Sabir Hussain (P.W.13) is quite an independent witness who is neither related to the complainant party nor he had any or grudge against the appellants. No such has been suggested to him during his cross- examination. It is true that extra judicial confession is a weak type of evidence but if it is corroborated by supporting circumstances, it can be relied upon. In the present case the extra judicial confession made by M. Aslam is corroborated by the fact that he was arrested soon after making this statement from the very place where he made confession. It is also supported by the fact that Mst. Tahira was found wounded, burnt and dead in this (Aslam's) own house and according to the report of the chemical examiner Exh.P/U the vaginal swab taken from the dead body of Mst. Tahira was stained with semen.
56. ' The learned counsel further contended that the last seen evidence provided by Mst. Fazal Noor P.W.16 is not worthy of reliance because according to her and his husband Daulat Ali P.W.17, their daughter Mst. Tahira had last been seen alive in the company of Mst. Riffat Jabeen and M. Aslam where after she disappeared on 20-4-1993, but these parents of Mst. Tahira did not report the matter to the police upto 30-4-1993. Their silence about the matter for 10 days is very unnatural and it shows that their evidence has been maneoeuvred by Mubarak P.W.22 who has been dishonestly investigating the case.
57. ' In fact, Daulat Ali and Mst. Fazal Noor both have stated in their deposition that they had been searching for their daughter and approaching M. Aslam and Riffat Jabeen time and again to ask for the whereabouts of their daughter but every time the appellants replied in the same manner that Mst. Tahira had left their home after which they did not know anything about her. Then Mst.
58. Fazal Noor says:- "After 6/7 days we came to know that Mst. Riffat accused is alive whereas Muhammad Aslam and Muhammad Ashraf accused are absconding from their home. This incident was reported to the police."
59. ' The learned counsel for the appellants also raised the legal questions that the Trial Court did not give oath to P.Ws. 1-16 in the prescribed manner and started giving prescribed oath to the witnesses from P.W.17 onward, therefore, the evidence of P.Ws.1 to 16 is inadmissible and cannot be read against the appellants. The learned counsel is referring to sections 6 and 7 of the Oaths Act 1873 as amended by Ordinance No,XXVII of 1981, according to which the High Court has prescribed following words:-- "I swear by Allah Almighty that the evidence that I shall give before the Court in this case shall be the truth; the whole truth and nothing but truth; that I shall conceal nothing from the Court; and that if I say anything which is untrue or conceal anything, the wrath of Allah may fall on me."
60. ' The learned counsel referred to the case of Qari Ghulam Mustafa v. Muhammad Youns and others, reported in 1996 M LD 604, where the learned Single judge of the Lahore High Court has held that according to section 8 of the Oaths Act after its amendment in 1981, administration of Oath is mandatory and non-compliance renders the statement of a Muslim witness recorded on solemn affirmation as inadmisible vitiating entire proceedings.
61. ' The learned counsel did not advert to section 13 of the Oaths Act, 1873 which reads as follows:-- "No omission to take any oath or making any affirmation, no substitution of any one for any other of them, and no irregularity whatever in the form in which any one of them is administered, shall invalidate any proceedings or render inadmissible any evidence, whatever in or in respect of which such omission, substitution or irregularity took place, or shall affect the obligation of a witness to state the truth."
62. ' In the light of the provision of the Oaths Act it is held by this Court in 1992 SCMR 416, in the case of Sajjad Ahmad v. The State, that:-- The objection that evidence of the P.Ws. Was not recorded by the learned trial Judge on oath is not such a fatal flaw which may vitiate the whole trial and as such is repelled. The irregularity is certainly curable '' under section 13 of the Oaths Act, 1873)."
63. ' Next, the learned counsel assailed the last seen evidence provided by Mst. Fazal Noor P.W.16.
64. According to her statement she had last seen her daughter Mst. Tahira in the company of Mst.
65. Riffat the appellant on 20-4-1993, while the occurrence took place on 23-4-1993. According to the learned counsel the proximity of time is essential in accepting the last seen evidence. In the present case the duration between the time when Mst. Tahira was last seen in the company of Riffat Jabeen and the time of her death is three days. In these circumstances, it is argued, the last seen evidence is of no consequence. This argument of the learned counsel would have helped him if Mst. Tahira had been murdered after three days at some other place, but in the instant case, the dead body of Mst. Tahira was found in the very house of M. Aslam, the appellant, and the doctor has opined that the probable time between death and post-mortem examination was approximately 1 to 2 days. The post-mortem was conducted on 23-4-1993 and it means that the girl had died either on 22nd or 21st of April 1993, therefore, the lack of proximity of the time does not help the appellant so far as the last seen evidence is concerned, specially, when Mst. Fazal Noor and Daulat Ali have consistently stated that they had been approaching Mst. Riffat Jabeen and M.
66. Aslam repeatedly during these days and each time the appellants had been concealing their knowledge about the whereabouts of Mst. Tahira.
67. ' With regard to charge of Zina-bil-Jabr against M. Aslam, the learned counsel concerned that mere positive report of the Chemical Examiner cannot establish that Zina was committed by M.
68. Aslam unless there is ocular evidence to connect the accused with the crime. The argument has no force because the factum of committing rape is proved by the extra judicial confession of M. Aslam himself coupled with the Chemical Examiner Report and the opinion of the doctor that sexual intercourse was committed with the girl before her death. This fact was further supported by the fact that the dead body was found without shalwar, therefore, this is not a case where only the Report of the Chemical Examiner was made basis for conviction of the appellant under section 10(3) of the Offences of Zina Ordinance, 1979.
69. ' Lastly, the learned counsel submitted that if it is presumed that the charge under section 302, P.P.C. Is proved, this is not a case where capital punishment should have been given to the appellant. In the circumstances of the case where the whole case is based on the circumstantial evidence which according to the learned counsel is not very strong, the life imprisonment might have been sufficient.
70. ' This contention is not acceptable because if the evidence of the prosecution is insufficient, it would have been a case of acquittal, but after perusal of the record we are of the view that the guilt of M. Aslam is proved by a number of circumstances. The dead body of Mst. Tahira was found in his own house for which he lodged a misguiding report in the Police Station. Certain articles of the deceased were found buried in a ditch in the room. He has himself pointed to the blood- stained chhuri buried by him in the courtyard of his house. He remained in hiding after the occurrence upto 10-5-1993 on which date he himself admitted his guilt before Sabir Hussain where from he was duly arrested by the police. Keeping all these pieces of evidence in view, the charges against M. Aslam are proved to the hilt, and once we accept this evidence against him there is no mitigating circumstances whatsoever in the present case. He has brutally murdered a young girl after subjecting her to his sexual lust and then tried to misguide the law enforcing agency by claiming that his own daughter had committed suicide, therefore, he deserves no leniency and the full dose of sentence under section 302, P.P.C. Is fully justified.
71. ' The learned counsel further contended on behalf of M. Ashraf that the evidence against him is his extra-judicial concession made before Muhammad Khan. P.W.14 and the alleged recovery of Hatchet on this pointation from his own house, and both are not believable. His extra-judicial confession is sought to be proved by the evidence of Muhammad Khan P.W.14 who is firstly ex-police man and is resident of Makhdoompur Beli and there was no occasion for M. Ashraf to go to some other village for making this statement, particularly, when it is stated by P.W.14 that Ashraf came to his home three days prior to 105-1993, while he was not present at his home and that M. Ashraf stayed in his home for three days and made this statement after he came back on 10-5-1993.
72. We have perused the evidence of P.W.14. He has clearly mentioned that he was a friend of M. Ashraf and there is nothing unbelievable if some one goes to his friend in his village and stayed at his home for three days and then makes a statement before him after the host comes back. Merely the fact that Muhammad Khan was an ex-police officer does not render his evidence unbelievable.
73. The fact that he was a friend of M. Ashraf is not challenged in cross-examination. There is nothing on the record that he had some relation with the complainant party and it is hightly improbable that despite his friendship with M. Ashraf he stands in the witness-box and testifies falsely against his own friend. His statement is supported by the fact that M. Ashraf was arrested by the police on the same day and that he was handed over to the police by this witness. The objections of the learned counsel, regarding the recovery of weapon have already been repelled.
74. ' Coming to the case of Riffat Bibi, the learned counsel submitted that there is no evidence at all against her except the last seen evidence and extrajudicial confession of her co-accused which cannot be read against her.
75. ' After a careful perusal of the record, we are inclined to accept this submission of the learned counsel to some extent.
76. As far as the charge under section 302, P.P.C. Is concerned the sole evidence against Mst. Riffat Jabeen is the extra-judicial confession of M. Aslam and M. Ashraf. It will not proper to convict a co- accused on that basis alone. The learned Federal Shariat Court also has admitted that the presence of Mst. Riffat Jabeen at the time of murder is not certain. Although the Parna by which the hand of the deceased was tied is identified by Mst. Nasreen P.W.15 as belonging to Mst. Riffat Jabeen yet the fact that she herself tied her hand by that parna cannot be proved except by the confession of her co-accused, therefore, it will not be safe to convict her for the charge under section 302, P.P.C. The possibility cannot be ruled out that she was not a party to the commission to murder instead she detained Mst. Tahira in her home at the instance of her father as mentioned by Mst. Fazal Noor. Moreover, after Mst. Tahira was murdered by her father and uncle she tried to save their skin by hiding herself and concealing the proof of offence. Therefore, her conviction under section 201, P.P.C. Is fully justified.
77. The upshot of the discussion is that the appeal of Mst. Riffat Jabeen is partly allowed. Her conviction and sentence under section 302, P.P.C. Is set aside, however, her conviction and sentence under section 201, P.P.C. Awarded by the learned Federal Shariat Court is maintained. The appeal of M. Aslam and M. Ashraf is dismissed and their conviction under all counts as well as the sentence awarded by the learned Federal Shariat Court including the sentence of death to both of them under section 302(b), P.P.C. Are maintained.
78. ' Daulat Ali through Criminal Petition No,36(S) of 1997 has sought leave to appeal against the judgment of the learned Federal Shariat Court for the purpose of enhancing the sentence of Riffat Bibi and enhancement of the compensation amount ordered 'to be recovered from her and from M. A slam and M. Ashraf. So far as the case of Mst. Riffat Jabeen is concerned we have already acquitted her under section 302 (b), P.P.C., therefore, there is no question of enhancement of her sentence to death. So far as the case of M. Aslam and M. Ashraf is concerned both have been awarded the punishment of death, therefore, no enhancement of compensation is called for, therefore, his petition is dismissed.