' Appellant has assailed a judgment delivered by the Court of Additional Sessions Judge No,VIII, Karachi East on 18-6-1997 whereby he has been convicted under section 377, P.P.C. And has been sentenced to suffer R.I. For ten years and a fine of Rs,5,000. In case of default to suffer further R.I. For one year. In case of recovery of the amount of fine 1/2 of the same has been directed to be paid to the victim. Benefit of section 382-B, Cr.P.C. Has been extended.
2. One Jameeluddin Shaikh (P.W.1) appeared at Police Station Soldier Bazar, Karachi East on 25-4- 1995 at 22-30 hours and lodged an F.I.R. In the said F.I.R. He alleged that on 21-4-1995 at about 10 a.m. His son Haseenuddin (P.W.3), aged about 12/13 years went out of home to play with other children. It was Friday and when the complainant returned after Friday prayers he found his son named above lying on a cart and there was blood on his Shalwar. On checking he found blood oozing out of the rectum and it was swollen as well. On query, the victim did not tell anything as he was frightened and was in a condition of pain and suffering. On repeated queries by his maternal- cousin Arif (P.W.5), on the third day after occurrence i,e, on 21-4-1995 the victim informed him that while he was playing in Nishtar Park with other boys, at about 12-00 hours the boys went away and he was drinking water from the water tank of the park that the appellant forced him inside his quarter which was nearby. Appellant also threatened him of murder in case he made cries. There then appellant made him to swa llow some yellow coloured pills with water. He started feeling sleepy and when he came to sense, he found the appellant cleaning blood from his buttocks. He was weeping due to pain in his rectum. Appellant again threatened him that in case he informed anybody, he shall be killed. Apprehensive of that threat he was not informing his parents. Arif disclosed the incident to the complainant who verified it from his victim son and lodged the report.
' Appellant was arrested, challenged and charged under section 12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 to which he did not plead guilty.
' To prove its case prosecution examined 6 witnesses. Appellant also examined himself on oath and 3 other witnesses in his defense.
3. The learned counsel for appellant has contended that an unexplained delay of 4 days in report is fatal to the case of prosecution; that incident was in the knowledge of the complainant from the very first day yet he took four days to report; that the first doctor who had examined the victim has not been produced; that all the witnesses of prosecution are related inter se although independent witnesses were available; that a hard floor was used for sodomy, yet no mark of violence was found on the body of the victim that the evidence indicated that the place of occurrence has been shifted; that Nishtar Park is an open place where all around people are living and it is a midday incident which is not probable in the circumstances of the case; that this is a case of doubt and its benefit must be extended to other appellant. The learned Advocate-General representing State has clearly stated at Bar that the delay in report in the present case cannot be explained. He has not supported the impugned judgment and has conceded for acquittal of the appellant.
4. The learned Advocate-General for the Province of Sindh has correctly conceded that this is not the type of case in which an explained delay of 4 days and 10-1/2 hours in reporting a heinous crime is pardonable or that it does not create doubts in the story of prosecution. This is because the first reaction of a father, who finds his son of 12/13 years of age in such suffering condition that from his swollen rectum blood was oozing and Shalwar was found stained with blood, shall be to report the matter immediately and get him referred for medical examination through police. What he did is what he is deposing as P.W.1 and that is:-- "I, therefore, took my son to hospital and got his treatment in private hospital."
' During cross he is replying:-- "When I took my son to private hospital the doctor assumed me that it is not a serious matter."
' Haseen-ud-Din (P.W.3) the victim is deposing:- "A fter three days of the incident I had informed the matter to my brother namely, Arif. Blood continuously oozing from my anus, as such I was taken to hospital."
From the perusal of record, the name and address of that first doctor who examined the victim is not transpiring. This conduct of withholding the evidence of this very important witness which could be and is not produced leads me to presume the existence of some fact which I think likely to have happened, regard being had to the common course of natural events and human conduct and that is that had this witness been produced he would have gone unfavorable to the prosecution who has withheld him. While relying on the provisions of clause (g) to Article 129 of the Qanoon-e- Shahadat Order, 1984 and the attendant circumstances of the prosecution case I hold that this delay is fatal to the prosecution as it creates strong doubts.
' S. Muhanimad Arif (P.W.5) has deposed that they had come to know about the incident on the following day, but Jameel-ud-Din (P.W.1), the complainant has deposed that after 3/4 days his son informed P.W. Arif that accused Rahim Bux had committed sodomy with him. This contradiction between the two most important witnesses is substantially setting aside the version of the prosecution as in fact all were in the knowledge of such an act having been committed by someone upon the victim from the very first day specially when the victim was also taken to some private doctor as well.
6. In this case the appellant could have been convicted with the offence or the conviction could have been upheld, had the Investigating Officer been responsible enough to have procured the semen of the offender, Shalwar and pant of the victim and would have referred it to Serologist for grouping and matching. This slackness on his part has destroyed an important piece of evidence.
7. In view of these circumstances coupled with other facts benefit of doubt was given to the appellant and the impugned judgment was set aside by my short order. These are the reasons for the said order. Appeal is allowed.
Appeal allowed.
1999 P Cr. L .1 1942 [Lahore] Before Riaz Kayani and Kh. Muhammad Sharif, JJ LIAQAT ALI---Appellant versus THE STATE---Respondent Criminal Appeals Nos.15, 21/J, 127 and Murder Reference No,6 of 1997, heard on 10th May, 1999.
Penal Code (XLV of I860)-- ----S. 302---Appreciation of evidence---F.I.R. Was lodged promptly without any delay and accused was apprehended on the same night---Rifle with which deceased was killed by accused was recovered from accused and three crime-empties collected from the spot matched with said rifle, which was very strong corroborative evidence against the accused---Accused was real brother of deceased and complainant who was wife of deceased, had got no enmity whatsoever against accused---No question of false implication of accused was possible in case---Statement of complainant who was star-witness, had come from an unimpeachable source---Complainant who was a credible witness, there was no reason to disbelieve her---Ocualr account was corroborated by medical evidence, recovery of weapon, matching of crime-empties with rifle recovered from accused and motive furnished by complainant---No conflict existed between ocular account and medical evidence---Prosecution, in circumstances, had proved its case against accused beyond any shadow of doubt---Accused having been proved to be a desperate person, no mitigating circumstance was available in favour of accused---Death sentence awarded to accused by Trial Court was upheld in circumstances. [pp. 1945, 19461 A, B, C & D Mian M.
Tayyib Wattoo for Appellant. Niaz A. Khan, A.A.-G. For the State.
Date of hearing: 10th May, 1999.
' KH. MUHAMMAD SHARIF, J.--- This judgment will dispose of Murder Reference No,6 of 1997, Criminal Appeal No,21/J of 1997, Criminal Appeal 127 of 1997 and Criminal Appeal No,15 of 1997. Criminal Appeal No,21/J of 1997 and Criminal Appeal No,15 of 1997 have been filed by Liaqat Ali appellant, who was convicted under section 302, P.P.C. For the murder of his real brother Ghulam Abbas and was sentenced to undergo death sentence by the learned Sessions Judge, Bahawalnagar, vide his judgment, dated 18-2-1997. He was also directed to pay a fine of Rs,50,000 as compensation to the legal heirs of the deceased, or in default thereof 6 months' R.I. According to the judgment, one Lal Khan was also tried with him but he was acquitted by the learned trial Court. Against his acquittal Mst. Mumtaz Begum, complainant has filed a Criminal Appeal No,127 of 1997. In jail appeal Ch. Muhammad Riaz, Advocate is representing the appellant while in Appeal No,15 of 1997, Mr. M. Tayyib Wattoo, Advocate, is representing the appellant. Both these appeals arise out of same judgment.
2. The occurrence in this case took place on 1-8-1994 at 9-15 p.m. Within the area of Chak No,125- 6/R, 6-1/2 k.m. Away from the Police Station Faqirwali, Bahawalnagar, near the house of Samand Khan, father of the appellant and the matter was reported to the police at police station vide memo. Exh.P.C. By Mst. Mumtaz Begum, complainant on the same night at 10-30 p.m.
3. The brief facts, as narrated by the complainant through F.I.R. Exh.P.C. Are that she was married to Ghulam Abbas deceased 13/14 years ago. Ghulam Abbas deceased had two other brothers namely Haji Allah Ditta and Liaqat Ali, appellant. About 1-1/2 months prior to the present occurrence a case of abduction for murder was registered against Liaqat Ali, appellant and his acquitted co- accused Lal Khan, in Police Station Fort Abbas. Liaqat Ali appellant and Lal Khan (acquitted accused) were sure that this case was got registered by Ghulam Abbas, deceased and for this reason many a time altercation took place between Liaqat Ali appellant and Ghulam Abbas (acquitted accused). 20/25 days prior to the present occurrence Haji Samand Khan, father of the appellant and Ghulam Abbas deceased received an injury after a fall. On the day of occurrence, Ghulam Abbas deceased along with his wife Mst. Mumtaz Begum came to Haroonabad in Chak No,125/6-R in order to see Haji Samand Khan. Muhammad Ashraf son of Muhammad Khan, Khalid, Waheed sons of Muhammad Yar and Haji Allah Ditta son of Samand Khan were also present there.
At 9-00 p.m. On the said day Liaqat Ali and Lal Khan accused also came there. An altercation also took place between Ghulam Abbas deceased and Liaqat Ali appellant there. Ghulam Abbas deceased, husband of Mst. Mumtaz Begum Complainant while taking an oath of his children said that he knew nothing about the registration of the case against them but Liaqat Ali accused did not accept his version. He, thereafter, went into his room and after taking his rifle went outside from the house of his father. He was also followed by Lal Khan. After some time Ghulam Abbas deceased while boarding in his car went out of the house and proceeded towards Faqirwali in his car and when he reached at a distance of one acre in front of the Dera of Bashir Ahmad, Chairman, i,e, at about 9-15 p.m. Liaqat Ali stopped his car. The complainant of the case Mst. Mumtaz Begum, P.W.
Alongwith Muhammad Ashraf, Waheed and Allah Ditta had also reached there. Liaqat Ali, in.Their view, fired 3/4 shots with his rifle at Ghulam Abbas deceased which hit him on his face and chest, who fell down on the seat of his car where he was sitting. Liaqat Ali appellant after causing injuries to the deceased ran away from the spot in his car. The complainant alongwith the abovesaid P.Ws.
Took the injured Ghulam Abbas in his own car to the Hospital Faqirwali but before reaching there Ghulam Abbas died.
4. The Investigating Officer in the instant case after registering the F.I.R. Went to the Hospital, prepared the injury statement and inquest report and also recorded the statement of the witnesses. He also arrested the accused on 2-8-1994 at 3-30 a.m. Rifle P.4 alongwith magazine P.5 containing 11 live bullets P.5/1-11 were taken into possession vide memo. P.D. The Investigating Officer also took into possession the Car No,LOM-234 in which Liaqat Ali was travelling, alongwith registration book, driving licence, arms licence, cash Rs,I7,000 and key ring containing 4 keys vide memo. Exh.P.D. Liaqat Ali in fact was already detained at Police Post Chowk Bahu Chishtian because he had conveyed a message of wireless for the apprehension of Liaqat Ali appellant.
Thereafter, the 'Investigating Officer came to the hospital. He also secured the Car bearing No,L0H- 9205 and took into possession blood and one bloodstained seat cover and made them into a sealed parcel. The Investigating Officer also secured one moiler of the deceased which had come out due to bullet injury alongwith a lead bullet of .222 bore rifle and taken into possession vide memo. Exh.P.E. Thereafter, he came to the spot, inspected the spot and took into possession 3 crime-empties of .222 rifle P.6/1-3, The same were made into a sealed parcel vide memo. Exh.P.F, The rifle P.4 taken from the appellant was sealed into a parcel.
5. The prosecution in order to prove its case produced 7 witnesses in all. Report of Chemical Examiner is Exh.P.M. And that of Serologist is Exh.P.L. And Fire-Arms Expert is Exh.P.N. Learned District Attorney had also given up Haji Allah Dina, Waheed and Muhammad Ashraf P.Ws. As having been won-over on the application moved by the complainant. Falak Sher P.W. Was also give n up as unnecessary, thereafter, the statements of the appellant and his co-accused Lal Khan was recorded under section 342, Cr.P.C. Appellant had also appeared under section 340(2), Cr.P.C. To rebut the prosecution case. He also produced three D.Ws. Namely, Muhammad Ashraf, his maternal-nephew, Allah Ditta, his real brother and Waheed Ahmad, his maternal-nephew who were eyewitnesses in the F.I.R. Lodged by the complainant.
6. Learned counsel for the appellant has read before us the prosecution evidence, statements of the appellant and other evidence as mentioned above and he submits that Mst. Mumtaz Begum was not present at the spot. She was resident of Faisalabad and was brought from Faisalabad after the occurrence and thereafter, in connivance with the police a false case has been registered against the appellant. He also submits that there was no light at the spot and it was impossible for Mst. Mumtaz Begum to have witnessed the occurrence. He submits that in the site plan which was prepared by the Investigating Officer without scale which is Exh.P.K. That house has not been shown from where the deceased had come out. Even in that site plan none of the P.Ws. Has been shown to be present at the spot. He further submits that there is no evidence or witness about motive. He submits that complainant is an interested witness. He also submits that in fact it was an unwitnessed occurrence and no independent witness has been produced. He submits that three eye-witnesses namely Muhammad Ashraf, Haji Allah Ditta and Waheed, who were named as eye- witnesses by the complainant had been produced by the appellant in his defense.
7. On the other hand learned counsel for the State has supported the judgment of the trial Court.
There is nobody to peruse the Criminal Appeal No,127 of 1997 on behalf of the complainant against the acquittal of Lal Khan.
8. We have heard the learned counsel for the parties and have also gone through the evidence recorded by the trial Court. The occurrence in this case took place at 9-15 p.m. While the police station was at a distance of 6-1/2 k.m. From the place of occurrence. The matter was reported to the police within one hour and 15 minutes without any delay. The appellant is real brother of the deceased and Mst. Mumtaz Begum is wife of Ghulam Abbas deceased. She has got no enmity whatsoever against the appellant. There is no question of false implication in the instant case. It was natural for Mst. Mumtaz Begum to have accompanied her husband Ghulam Abbas deceased in order to know about the welfare of her father-in-law namely Samand Khan who had received an injury while falling on the ground. Three eye-witnesses who appeared as D.Ws. Namely Haji Allah Ditta, Muhammad Ashraf and Muhammad Waheed are near relatives of the appellant because Allah Ditta is real brother of the appellant. Muhammad Ashraf and Muhammad Waheed are maternal-nephews of the appellant. They were given up by the District Attorney on the application of Mst. Mumtaz Begum on the ground that they have been won-over by the appellant. Mst. Mumtaz Begum was married 12/13 years prior to the present occurrence with Ghulam Abbas deceased. She had minor children, There was no body to support them and she was alone to contest this case for the murder of her husband. D.Ws. Must have thought that one of their brother Ghulam Abbas has been killed while the other is behind the bars for his murder and if we appear against Liaqat Ali appellant, he would also go to gallows so they refused to support the prosecution case although, they were named in the F.I.R. And there was no option left with Mst. Mumtaz begum but to give them up as having been won-over. Court has to see the quality of evidence and not the quantity of evidence. Mst. Mumtaz Begum is the star-witness of the prosecution. Her statement had come' from an unimpeachable source. She is a credible witness in our opinion. There is no earthly reason to disbelieve her. F.I.R. Was lodged promptly without any delay and the appellant was apprehended on the same night at 3-30 a.m. .222 rifle was recovered from him and three crime- empties collected from the spot matched with the rifle recovered from him. This is a very B strong corroborative piece of evidence against the appellant. Motive has been mentioned by Mst. Mumtaz Begum in the F.I.R. And also before the trial Court on oath and moreover the appellant in his statement under section 342, Cr.P.C. Has admitted while replying the question No,3 that case was registered against him but he was acquitted in this case. We may also mention here that when the appellant appeared under section 340(2), Cr.P.C. In order to rebut the prosecution evidence on oath. He was cross-examined at length. It had come on record that appellant was a desperate person. He was involved in many criminal cases. This also shows the dare devilness on the part of the appellant that he even did not spare his real brother and killed him by causing 4/5 fire-arm injuries on the vital part of his body which proved fatal. There is no conflict C even between ocular account and medical evidence. According to doctor Fayyaz Ahmad P.W.2. Who had conducted the post-mortem examination on the dead body of the deceased. He found 4/5 entry wounds on the person of the deceased and injury No,5 was an exit wound and all these were caused by fire-arm.
An objection by the learned counsel for the defense was raised that there was no light at the place of occurrence nor any light was shown by the Investigating Officer while preparing site plan without scale. We may mention here that while cross-examining Mst. Mumtaz Begum, the learned defense counsel himself through her cross-examination has brought on record at second last page of the statement of said P.W. That:- "the tube lights were fixed in front of the Dera of Bashir Ahmad Chairman. There were 3 tube lights fixed in the walls."
The Dera of Bashir Ahmad, Chairman is just in front of the place where the occurrence had taken place. In our view the prosecution has proved its case against the appellant beyond any shadow of doubt. Ocular account is corroborated by medical evidence and recovery of weapon and matching of crime-empties with the said rifle recovered from the appellant and the motive furnished by Mst. Mumtaz Begum. There is no mitigating circumstance in favor of the appellant. In this view of the matter the judgment of the learned trial Court is upheld and the death sentence awarded to the appellant is maintained. Murder Reference is replied in the affirmative and death sentence is confirmed. As far as appeal against acquittal of Lal Khan is concerned, it is dismissed because it has also got no merit as there is no evidence against Lal Khan to connect him with the commission of the murder of Ghulam Abbas deceased.
Death sentence awarded to Liaqat Ali is confirmed.