' MUHAMMAD FARRUKH MAHMUD, J.---Khadim Hussain son of Jinwadda, appellant, was tried in case F.I.R. No, 257 of 2000 dated 28-8-2000 registered at Police Station Saddar, Lodhran, for offences under sections 302/337, P.P.C. Read with section 12 of the Offence of Zina (Enforcement of Hudood)
Ordinance 1979, by Mr. Shaukat Ali Khan, Judge, Special Court No, 1 (Anti-Terrorism), Multan.
2. The trial Court convicted the appellant under section 302, P.P.C. And sentenced him to death as Tazir. A fine of Rs,50,000 was also imposed upon the appellant and in default of payment of fine he was to undergo R.I. For one year and the amount of fine in case of its recovery was to be paid to the legal heir of the victim-father of the deceased. The trial Court also convicted the appellant under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and sentenced him to death with a fine of Rs, 50,000. In default of payment of fine, the appellant was to undergo R.I. For one year, vide judgment dated 30-7-2001.
3. Feeling aggrieved, Khadim Hussain-appellant has challenged the afore-referred judgment through the instant appeal. Murder Reference bearing No, 1 of 2001 (ATA) has also been sent to this Court.
4. As the instant appeal and the murder reference arise out of the same judgment, both are being decided simultaneously through this single judgment.
5. The occurrence took place in a cotton field near Bridge Matrain Minor situated in Mouza Fazalwala within the territorial jurisdiction of the Police Station Saddar Lodhran and the F.I.R. No, 257 of 2000 Exh.P.D. Was registered at the Police Station. Saddar, Lodhran on 28-8-2000 at 11-30 a.m. On the statement of Amir Bakhsh P.W.3, recorded by Mushtaq Ahmad, Inspector-S.H.O. P.W.
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6. According to the F.I.R., Aslam son of Pir Bakhsh aged 10 years (deceased) nephew of the complainant was a student of Madrasa Madina Munawara, situated in the Village Sal Saddar. Aslam used to leave his house at 7-00 a.m. In pursuit of his study and used to return at about 4-00 p.m. On 26-8-2000 Aslam left for Madrasa and did not return back till 5-00 p.m., therefore, the complainant felt worried and left in search of his nephew on a cycle. When the complainant reached near bridge Matrain Mihor, he heard cries coming out of the cotton field.
Meanwhile, the complainant was joined by Bashir Ahmad P.W. 4, his brother, who was also riding on a cycle and was coming from Gillani More. They saw that the appellant had removed the clothes of Aslam and had made him lying on the ground with face downward, while placing his leg on the neck of the child. He had inserted a stick in the anus of the child and was moving it therein. It is further stated that due to the arrival of the witnesses, the appellant escaped from the place of occurrence. It is also stated that at that time nephew of the complainant was unconscious and was taken to the house and after wearing him clothes, he was taken to the Health Centre, Gogran and under the Doctor's advice the child was shifted to B.V. Hospital, Bahawalpur, who remained under treatment there and lost his life in the early hours on , 28-8-2000. According to the complainant, the appellant had caused injuries by placing a. Stick inside the anus of Aslam or he had committed sodomy with him. The motive as given in the F.I.R. Was that one week prior to the occurrence some hot words were exchanged between the deceased and the appellant. The appellant nursed grudge and took revenge on the day of occurrence.
7. After registration of the case, P.W. 10 arranged for the post-mortem of the deceased and also prepared inquest report Exh.P.G. And the site plan without scale Exh. P. H
8. The appellant was arrested in this case on 7-9-2000 and on 12-9-2000 he led to the recovery of blood-stained stick of cotton plant P-4, which was taken into' possession vide memo Exh.P.C, prepared by P.W. 10 and signed by Piran Ditta alias Pir Bakhsh and Mulazim Hussain P.W.
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9.. After the completion of investigation, the challan was submitted in the Court of Anti-Terrorism, as it was a' case of child molestation.
10. On 18-1-2001, the trial Court framed the charge under section 302, P.P.C. Read with section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and as the appellant denied the charge, the trial commenced.
11. During the trial, the prosecution produced 11 witnesses in support of its case. P.W. 3 and P.W. 4 appeared as eyewitnesses. P.W. 5 and P.W. 11 furnished the medical evidence. P.W. 2 appeared as a recovery witness. P.W. 10 stated about the registration and investigation of the case. Rest of the witnesses are not material, therefore, need not to be discussed here.
12. After the conclusion of the trial, the statements of the appellant was recorded under section 342, Cr.P.C. First on 27-6-2001 and subsequently on 20-7-2001: In both the statements, the appellant stated that he was roped ,in the case due to party faction and the P.Ws. Were close relatives, therefore, they had deposed falsely against him. The appellant refused to appear as a witness in his defence as contemplated by section 340(2), Cr.P.0 and also did not produce any defence evidence.
13. The learned counsel for the appellant has argued that there was a considerable delay in lodging of the F.I.R. And made the case doubtful; that there were material discrepancies in the statements of the P.Ws. ; that the appellant was roped in the case because of enmity between P.W.
3 complainant of the case and the father of the appellant over a "Rishta" ( ); that the medical evidence did not support the ocular evidence; that no recovery was effected from the appellant; that the investigation was conducted in a dishonest manner; that the motive as stated in the F.I.R.
Was not proved; and that the deceased died during the operation, which was operated upon him by the Doctors, B.V. Hospital, Bahawalpur, as the deceased was suffering from the Kidney disease.
14. On the other hand. The learned counsel appearing on behalf of the State has argued that confidence-inspiring/incriminating evidence was available against the appellant, therefore, the appeal is liable to be dismissed on merits.
15. We have heard the learned counsel for the parties and gone through the record of the case as well as the impugned judgment with extreme care and caution.
16. P.W.3 Amir Bakhsh and P.W. 4 Bashir Ahmad, have furnished the ocular evidence, who are real brothers inter se and are uncles of the deceased. Both these witnesses have given a very straightforward confidence-inspiring version of the occurrence on Oath during trial. They have very logically explained the reason for their presence at the time of occurrence. It has not been challenged that the deceased was not a student or did not go to the Madrasa for study. Both these witnesses have no enmity or whatsoever with the appellant, so as to involve him falsely in this case and their truthfulness is evident from the record. They never stated before the police that they had seen the appellant committing sodomy with the deceased. They have confirmed their narrations to the facts, which they saw and did not try to improve their version at all. A suggestion was made to P.W. 3 that there was a dispute of Rishta between him and father of the appellant. Neither Rishta nor the dispute was specified. It was only a suggestion of general nature and while making statement under section 342, Cr.P.C. The appellant has not stated any word about enmity relating to any Rishta. According to him, he was roped in the case due to party faction and what was the party faction and between whom, the record is silent in this regard.
17. We have also noticed that P.W. 2 and P.W. 3, who are brothers, were also related to the appellant, as the appellant is 'Khalazad' of P.Ws. 2 and 3. P.W. 4 has clearly stated that the appellant and P.W. 3 were enjoying good relationship prior to the occurrence and the same deteriorated `after the occurrence. The relationship between the P.Ws. And the appellant has not been even challenged. It is perhaps because of this reason that the matter was not immediately reported to the police and the same was reported after the death of Aslam. It is also argued that the P. Ws. Were not accompanied by their brother Piran Ditta, father of the deceased. It is in evidence that on the date and time of occurrence father of the deceased did not join the P.Ws., as he had gone to attend fields. Both the P.Ws. Have stated that they were attracted at the scene of occurrence on the cries of the deceased and when they attended to the deceased, they saw that blood was oozing from the anus of the victim and at that time the appellant had inserted a cotton plant's stick in the rectum of the victim and was rotating the same. There are no material contradictions in the statements of P.Ws. 2 and 3.
18. The learned counsel for the appellant has stated that P.W. 4 had stated that the appellant had removed his Shalwar, while P.W. 3 had started that when he saw the appellant he was wearing his Shalwar. However, P.W. 4 has explained that the appellant ran away with his Shalwar after the arrival of the witnesses. None of the P.Ws. Has exaggerated the facts of the case. Both the P.Ws. Did not state that they saw the appellant committing sodomy with the deceased.
19. Much emphasis has been laid on the fact that the matter was reported to the police on 28-8- 2000 after the death of Aslam, although they had seen the appellant committing the offence in the evening on 26-8-2000.
20. A perusal of the record shows that the deceased was in a terrible shape. Blood was oozing out of his anus, therefore, the deceased was immediately taken to the Doctor, Health Centre, Gogran, who referred the deceased to B.V. Hospital, Bahawalpur, where he remained under treatment till his death. The delay is quite explainable, as the appellant and the complainant party were close relatives and the appellant must be begging them not to register a case against him. The complainant party was also trying to save the life of the victim; as according to P.W. 3, he remained with the deceased after his admission in the hospital till his death. Even otherwise, there is no existing enmity between the appellant and the complainant, therefore, in such-like cases the delay would not adversely affect the case of the prosecution. Reliance is placed on the case of Ajaib alias Ajba and others v. The State (1994 SCM R 1479).
21. P.W. 5 Dr. Riaz Hussain first attended to the deceased. According to his statement and report Exh.P.E. "on per rectum examination tone, of splinter normal and seems to be perforation 4 c.m.
From the anal verge, finger came out blood-stained. The resuscitation of the patient was done and the prepared for explorative laprotomy. On laprotomy the following injuries were found by the Doctor:--
(1) Four litres fluid containing faecal matter, blood and urine was found in peritoneal cavity.
(2) One perforation in the auterior wall of rectum.
(3) Two perforations in the posterior of urinary bladder.
(4) Two perforations in the mid-illiesic.
22. The post-mortem was conducted by P.W. 11 Dr. Rashid Ahmad, C.M.O, DHQ Hospital, Lodhran. He found the following injuries in and around the anal region:--
(1) A lacerated 0.75 c.m. x 1/2 on 12 O'clock position on external opening of anus.
(2) Mild lacerate and redness on around the anus.
(3) Anal opening 2 c.m. k 1.5 c.m. Circular.
' He also stated about the ' perforation in interior wall of rectum of the deceased. According to his opinion the cause of death was haemorrhage, shock and optic shock, which were sufficient to cause death in the ordinary course of nature.
23. The medical evidence has fully supported the ocular evidence. Explorative laprotomy was done to know exactly about the injuries and the Doctors have nowhere stated that Aslam deceased was suffering from some kidney disease and was operated for that reason. Both the Doctors found the injuries on the anal area and rectum of the deceased. P.W.11 Dr. Rashid Ahmad while giving his opinion about the cause of death has nowhere stated that it was because of some kidney disease and when pressed F.W. 11 has categorically denied that the deceased was operated upon as he was suffering from any kidney disease. The medical evidence furnished by the two independent Doctors ruins the suggestion of the appellant that in fact the deceased was suffering from kidney disease and died during operation.
24. So far as the recovery of bloodstained cotton plant's stick is concerned, the same could not be proved by the prosecution. P.Ws. 3 and 4 have stated that the appellant left the place of occurrence along with stick, which was subsequently, allegedly found at the place of occurrence after 17 days of the occurrence. P.W. 10 also admitted that he did not recover anything on 28-8- 2000, when he visited the place of occurrence.
25. As far as the motive is concerned, it was given in the F.I.R. That one week prior to the occurrence some hot words were exchanged between the deceased and the appellant but no independent witness has been produced to support this motive and only P.W. 3, who is also an eye-witness stated about the motive. The appellant also could not specify any reason for his false implication in this case and only stated that he was involved in this case due to party faction. He did not deny his relationship with the P.Ws. In these circumstances, we do not give much importance to the motive.
26. As far as conviction and sentence awarded to the appellant for an offence under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, is, concerned none of the P.Ws. Has stated that they had seen the deceased being abducted by the appellant. P.Ws. 2 and 3 candidly stated that they had not seen the appellant committing sodomy with the deceased. There is no medical evidence relating to the commission of sodomy or abduction of the deceased by the appellant for the purpose of subjecting him to unnatural lust. In these circumstances, the conviction and the sentence of the appellant under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, is not maintainable, therefore, we set aside the same. However, the prosecution has proved its case beyond doubt for an offence under section 302 (b) P.P.C. The deceased, who was a child aged about 10 years, has lost his life due to the injuries caused by the appellant. He deserves no leniency in the circumstances of the case and while considering the appropriate sentence, we find no mitigating circumstance in favour of the appellant. It was held in the case of Nawaz Ali and another v. The State (2001 SCM R 726) "that lack of motive altogether or inability of prosecution to prove motive for the murder did not affect the imposition of normal penalty of death where the prosecution had otherwise proved its case against the accused beyond reasonable doubt". In the case of Allah Dad and others v. Muhammad Nawaz and others (2001 SCMR 111) it was held by the apex Court that "Motive was a state of mind and is not always established".
27. For what has been discussed above, we maintain the sentence of death as Tazir, awarded to the appellant by the trial Court, under section 302 (b), P.P.C.. However, we have noticed that the sentence of tine could not be imposed upon the appellant, therefore, we hold that the amount of fine (Rs, 50,000) would be treated as compensation under section 544-A, Cr.P.C., which would be paid to the legal heirs of the deceased. In case of non-payment of compensation, the appellant could undergo imprisonment for six months. With the afore-referred modifications, this appeal is dismissed and murder reference is answered in affirmative.