REHMAT HUSSAIN JAFFERI, J.---This judgment will dispose of Special Anti-Terrorism Appeal No,109 of 2001 and Confirmation Case No,12 of 2( 31 as they arise from common judgment.
2. The present appeal is directed against the judgment dated 14-12-2001, passed by Anti-Terrorism Court No,III, Karachi, in Special Cases Nos.166 of 2001 and 167 of 2001, by which the learned Judge had convicted the appellant under section 302(a), P.P.C., 10(4), Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with section 6(c) of Anti-Terrorism Act, 1997 and sentenced him to death on each count and to pay Diyat of Rs,200,000 (Rupees two lacs) to the legal heirs of the deceased and fine of Rs,100,000 (Rupees one lac), or in default therefore, to suffer R.I. for one .year.
The appellant was further convicted under section 324, P.P.C. and sentenced to suffer R.I. for 10 years and to pay fine of Rs,20,000 (Rupees twenty thousand), or in default thereof, to suffer R.I. for one year, with benefit of sections 382-B, Cr.P.C. It was further ordered that all the sentences shall run concurrently. However, the appellant was acquitted from the charge under section 13-E, Pakistan Arms Ordinance, 1965. Co-accused Maqsood Ahmed was acquitted from all the charges.
3. The facts giving rise to the present appeal are that complainant Mst. Nabila Kanwal and deceased Munawar Ali were residing in Flat No,A/108, Classic View, Block-19, Gulistan-e-Johar, Karachi as husband and wife. On 9-6-2001, at about 8-00 p.m., the deceased responded to a doorbell call where he met a person and then he brought that person and 3 more persons in his flat. Out of them, one was identified by the complainant to he co-accused Maqsood Ahmed who had a business transaction with her husband and was running an Estate Agency near the Estate Agency of her husband. The deceased, co-accused Maqsood Ahmed and his 3 guests sat in the drawing room where they were served with tea. The complainant then went to her bedroom where she fell asleep. After some time,, she woke up on a noise of opening of the door of her bedroom.
She called her husband but her husband did not respond. Immediately, thereafter, the guests of accused Maqsood Ahmed entered into her room. They beat her and committed rape upon her turn by turn, therefore, she became unconscious and then they also inflicted "Chhuri" injury on her throat, therefore, she again became unconscious. When she regained her senses, she was not able to walk or raise alarm. However, she went into bathroom where she took water and then with great efforts she came at the window from where she raised alarms but nobody came. She also saw her husband in another room lying dead. At about 11-00 p.m., the police entered her flat, after breaking open the door of her flat. She was sent to hospital where her statement was recorded. The said statement was incorporated in 154, Cr,P.C. Book. She was medically examined.
4. In the meantime, the police received information about this incident, therefore, they reached at. the Wardat and entered into the flat after breaking open the door, where they saw the complainant lying injured and deceased lying dead with bullet injury on his temple and a rope was tied around his neck. The police prepared such Mushirnama, inquest report, and then sent the injured and dead body of the deceased to the hospital for examination and post-mortem. The police recorded the statement of witnesses. Both the accused were arrested separately. The police informed the Rangers where appellant Ghulam Waris was serving, thereafter, the Rangers produced the appellant Ghulam Waris before the police who was arrested. The accused led to recovery of a pen- pistol, which was secured. It contained an empty bullet. After completing the usual investigation, the appellant and co-accused were challaned before the Administrative Judge, Anti-Terrorism Courts, Karachi from where, the case was assigned to Anti-Terrorism Court No,III, Karachi for disposal according to law.
5. On 19-11-2001, a charge under sections 302 and 324/34, P.P.C., 10(4), Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with section 6 of Anti-Terrorism Act, 1997 was framed against the appellant and co-accused Maqsood Ahmed, whereas, charge under section 13-E of Pakistan Arms Ordinance, 1965 was framed against the appellant. They pleaded not guilty to the charges.
6. In support of the case the prosecution examined the following witnesses:--
(1) P.W.1 S.I.P. Muhammad Ramzan (He arrested accused Ghulam Waris and acted as Mashir of recovery of pen-pistol).
(2) P.W.2 S.I.P., Muhammad Saleem Qureshi (Mashir of Wardat, inquest report and arrest of accused Maqsood Ahmed).
(3) P.W.3 Nabila Kanwal (Victim and eye-witness).
(4) P.W.4, Muhammad Akram (Mashir of examination of dead body and inquest report).
(5) P.W.5, P.C., Safdar Ali (Mashir of arrest of appellant Ghulam Waris).
(6) P.W.6 , S .I. P. /S.H.O. , Sayed Balaghat Hussain (He went to Wardat, sent the dead body to hospital and recorded 154, Cr.P.C. statement of complainant).
(7) P.W.7, A.S.I.P., Muhammad Ameen (He incorporated facts of complainant in 154, Cr.P.C. book).
(8) P.W.8 Maqbool Ahmed (Judicial Magistrate, recorded 164, Cr.P.C. statement of victim).
(9) P.W.9, Dr. Abdul Razak (Issued Medical Certificate of victim's injury).
(10) P.W.10, Dr.Sabahat Khanum (examined the victim).
(11) P.W.11, Dr. Dileep Khatri (conducted the post-mortem of the deceased).
(12) P.W.12, A.S.I.P., Muhammad Aslam (He went to Wardat, prepared inquest report at hospital and handed over the dead body to doctor).
(13) P.W'.13, S.I.P., Ali Sher (Investigation Officer)
7. After considering the material available on record, the learned trial Judge formed an opinion that the prosecution was not able to prove their case under section 13-E, Pakistan Arms Ordinance, 1965 against the appellant, therefore, he was acquitted from the said charge. The trial Court found that the appellant had committed the remaining offences, mentioned in the charge, therefore, he was convicted and sentenced as mentioned above. Whereas, the co-accused Maqsood Ahmed was acquitted from all the charges under the impugned judgment.
8. The appellant was dissatisfied with the said judgment; therefore, he has preferred the present appeal.
9. We have heard the Advocate for the appellant, Additional Advocate-General and perused the record of this case carefully with their assistance.
10. Learned Advocate for the appellant has argued that the entire case is based upon the evidence of P.W.3, Mst. Nabila Kanwal; that there is no evidence connecting the appellant with the commission of the murder of deceased as P.W.3 Mst, Nabila Kanwal did not witness the incident but when she regained her senses, after the departure of the culprits, she found the dead body of the deceased; that the trial Court had convicted the appellant under the charge of murder on surmises and presumption only, therefore, the said charge has not been, proved against the appellant. He has further argued that there is no evidence connecting the appellant with the charge framed under section 324, P.P.C. as the P.W.3 has not assigned the part of causing "Chhuri" injury to the appellant, which is the only injury, received by the victim, therefore, without any specific allegation and evidence, the appellant cannot be convicted for the said charge. He has further stated that the charge of rape against the appellant has also not been proved as the entire case is based upon the evidence of P.W.3 which is neither supported nor corroborated by any piece of evidence; that the victim had no marks of violence over her private parts nor any semen was detected on her clothes. He has further argued that there is no finding of the trial Court that a gang rape was committed upon the victim as the trial. Court has exonerated the co-accused Maqsood Ahmed from the charge of rape and held that appellant Ghulam Waris was responsible for the commission of rape, therefore, the trial Court was not justified in convicting the appellant under section 10(4), Office of Zina (Enforcement of Hudood) Ordinance, 1979.
11. On the other hand the learned Additional Advocate-General has conceded that the entire case is based upon the evidence of P.W.3; that on the charge of murder there is no evidence connecting the appellant with murder of deceased as P,W.3 had not witnessed the said incident but found the dead body of her husband lying in another room, therefore, he has not supported the said charge against the appellant. He has also not supported the charge under section 324, P.P.C. on the ground that P..W.3 had not assigned the role of causing "Chhuri" injury on her person to the appellant and that it was the only injury caused on her person, therefore, without any specific evidence on the said point the appellant cannot be convicted for the offence punishable under section 324, P.P.C. He has further argued that in the impugned judgment there is no finding of the trial Court that a gang rape was committed upon P.W.3 but on the contrary the learned trial Judge had acquitted the co-accused Maqsood Ahmed. He has further stated that the offence, if any, would fall under section 10(3), Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and the evidence of P.W.3 is fully supported and corroborated by Medical evidence and that her evidence went unchallenged on the said point, therefore, the said evidence is sufficient to convict the appellant.
12. We have given due consideration to the arguments. From the above position and the evidence available on the record it is clear that the entire case is based upon the evidence of P.W.3 Mst.
Nabila Kanwal, the victim. The evidence of P.W.3, Mst. Nabila Kanwal shows that on 9-6-2001 at 6- 00 p.m., her husband responded to a doorbell call and brought four persons inside the flat, out of them, one was co-accused Maqsood Ahmed. They sat in the Drawing Room where they were served with tea and then she went to her bedroom where she fell asleep. After some time she woke up on the opening of the door and found the guests of accused Maqsood Ahmed, entering into her room who beat her and then committed rape upon her against her wishes and during the incident they strangulated her and she received injury on her eye, therefore, she became unconscious and then they inflicted "Chhuri" blow on her throat thereafter she again became unconscious. When she regained her senses, she was not in a position to walk or raise alarm, therefore, she went to bathroom where she took water and then with great efforts she went to the grill of window of her flat where she raised cries, but no body came there. She also saw her husband lying dead in another room. At about 11-00 p.m. police party entered in the flat after breaking open the door and then she was sent to hospital. She further stated that the appellant Waris had committed Zina with her, whereas, accused Maqsood Ahmed, who had also entered in her room and maltreated her but she could not say whether he committed Zina with her or not and that she became unconscious because of Zina-bil-Jabr committed by appellant Waris.
13. In this case the factum of the death of deceased from fire-arm injury has been admitted. The said evidence has been proved from the evidence of Medical Officer who found the following injuries on the person of the deceased:--
(1) Punctured fire-arm wound 0.25 c.m. in diameter, left temporal region of skull margins were inverted, and blackening was present (wound of entry).
(2) Punctured fire-arm wound 0.5 c.m. in diameter, right parietal region of skull, margins everted (wound of exit).
(3) Ligature mark 0.5 c.m. in width encircling the neck completely below the thyroid cartilage anteriorly, posteriorly and in both lateral aspects.
Head: On removal of scalp vault of skull found fractured. Cranial cavity found full of massive blood and clot. Menagis found ruptured and damaged. Brain texture damaged and ruptured.
All other structures in neck, thorax And abdomen were normal and intact.
14. From the above injuries it is clear that the deceased had received injury from a very close range as blackening was found on the wound of entry. As such, the deceased was fired upon from a fire- arm weapon which must have created loud noise and the P.W.3 who was sleeping in the adjoining room must have been awakened after hearing the said sound, but from the evidence of P.W.3 it is clear that she did not Wake up on the noise of shot of fire-arm but she woke up on the noise of opening of the door and after departure of the culprits she saw the dead body of her husband lying in a room of flat, as such, she was not eye-witness of the incident of murder. As per her own statement, there were 4 persons with the deceased when she went to her bed-room, after serving tea to them. It is not known as to who is responsible for causing murder of the deceased and at what point of time the deceased had received fire-arm injuries.
15. The prosecution tried to connect the appellant, through the recovery of a pen-pistol on his pointation. The trial Court disbelieved the said recovery, therefore, the appellant cannot be connected with the commission of this crime through the said recovery. It is pertinent to point out that no empty bullet of any fire-arm weapon was secured from the place of Wardat, though, the Investigating Officer in his statement has admitted that empty bullet was secured from the Wardat, but his statement is neither supported nor corroborated by P.W.2, S.I.P., Muhammad Saleem Qureshi , P. W.6, S . I . P. , Sayed Balaghat Hussain and P.W.12, A.S.I.P., Muhammad Aslam.
Even, Mashirnama of Wardat is silent with regard to the recovery of empty bullet from the Wardat, as such, the appellant cannot be connected with the commission of this crime through the recovery of pen-pistol. The trial Court had also observed at page 12 of the impugned judgment that P.W.3 had not witnessed the occurrence regarding murder of her husband Munawar Ali. The trial Court had also discarded the evidence of Investigation Officer with regard to his statement about the recovery of empty bullet from the, Wardat. It has been observed at page 20 of the impugned judgment as under:-- "As discussed above, the inspection memo. of place of incident Exh.21. is completely silent regarding recovery of empty cartridge from the place of incident, whereas the Investigating Officer deposed that he had secured the empty cartridge from the place of incident at the time of inspection which is a material discre pancy and is badly reflecting on the case of prosecution and led to the inference that crime empty was created by the Investigating Officer for certain "purposes."
16. At page 19 of the impugned judgment the trial Court has observed as under:-- "Her evidence is completely silent about the murder of her husband and murder of what circumstances his murder was committed, is also a big question-mark which remains inobscure throughout the investigation conducted by S.I.P., Ali Sher."
17. The trial Court could not find any evidence connecting the appellant Ghulam Waris with the commission of murder, but the learned Judge presumed that when the appellant was found guilty of Zina-bil-Jabr with the complainant, therefore, he was also found to have committed the murder of the deceased. Such observation has been made by the trial Court in the judgment at page 22, which reads as under:-- "Since the accused. Ghulam Waris is found guilty of committing Zina with the complainant as such he is also found guilty of committing the murder of deceased by way of strangulation around the neck of the deceased."
18.From the above position, it is clear that appellant Ghulam Waris was convicted for offence punishable under section 302(a), P.P.C., merely on presumption and surmises. It is well-settled principle of law that conviction on capital charge can be based upon the substantive evidence and cannot be based on merely presumption and surmises. Furthermore, the trial Court convicted the appellant under section 302(a), P.P.C. for proving the said charge, the evidence as required under section 304, P.P.C. is to be led but it is surprising to note that no such evidence was led before the trial Court but in spite of that the appellant was convicted under section 302(a), P.P.C., which is against the requirement of law as such it cannot be sustained.
19. After considering the material available on the record we are of the view that the Trial Court was not justified in convicting the appellant without cogent, substantive and reliable evidence which is lacking in the present case. As such, the conviction and sentence awarded to the appellant under section 302(a), P.P.C. are set aside.
20. As regards the charge under section 324, P.P.C. only evidence led by the prosecution is of P.W.3.
According to P.W.9, Dr, Abdul Razak, the P.W.3 had one incised injury 2 c.m. x 5 c.m at mid of neck and was muscle deep. The injury was found to be Ghair Jaifah Badiha. P.W.3 in her entire statement has not assigned the part of causing the said injury to the appellant but stated that accused persons had caused her said injury. She clearly admitted that after receiving the injury she again went unconscious, as such, when the said injury was received by her she was conscious and could have seen her assailants but she did not state that the said injury was caused by the appellant.
From her statement it is clear that it was not only the appellant who entered in her bedroom but other accused persons including acquitted accused Maqsood also entered in her room. The prosecution have not led any evidence to show that all the accused persons had common intention of causing the said injury, as such, the prosecution have failed to prove the said fact in this case. Under these circumstances, each person would be responsible for his own act. The trial Court was also of the same view, therefore, the section 34, P.P.C. was not applied while convicting the appellant. From the facts of the case, it is clear that the ingredients of section 324, P.P.C. are not attracted, as, if the accused wanted to kill the injured then there was no body to stop them from achieving their object. The injury on the person of the injur itself shows that it was only a skin deep, which indicates that it was caused without applying force. As such, offence, if any, would fall under section 337-F(ii), P.P.C. The learned Additional Advocate-General has also not supported the said charge, therefore, the conviction and sentence awarded by the trial Court to the appellant under section 324, P.P.C. are set aside.
21. As regards the charge of rape, P.W.3 has categorically implicated the appellant with the commission of rape. Her statement is fully supported and corroborated by the medical evidence.
The Medical Officer, Dr. Sabahat Khanum had taken out the vaginal swabs and sent to Chemical- Analyser for examination and report, which is in positive. After examining the said report, the Doctor opined that the victim was subjected to rape. Thus, her statement that at the time of incident she was raped has been fully supported and corroborated by the Medical Officer.
22. The learned counsel for the appellant has argued that there were no marks of violence over the body, of victim, therefore, no Zina-bil-Jabr was committed upon her. On the other hand the learned A.A.-G., has argued that the P.W.3 had received injury on her neck, therefore, the offence of Zina- bilJabr has been committed.
23. The offence of Zina-bil-Jabr has been defined in section 6(1), Offence of Zina (Enforcement of Hudood) Ordinance 1979, which reads as under:-- "6. Zina-bil-Jabr. (1) A person is said to commit Zina-bil-Jabr if he or she has sexual intercourse with a woman or man, as the case may be, to whom he or she is not validly married, in any of the following circumstances, namely--
(a) against the will of the victim;
(b) without the consent of victim;
(c) with the consent of the victim, when the consent has been obtained by putting the victim in fear of death or of hurt; or
(d) with the consent of the victim, when the offender knows that the offender is not validly married to the victim and that the consent is given because the victim believes that the offender is another person to whom the victim is or believes herself or himself to be validly married.
Explanation.---Penetration is sufficient to constitute the sexual intercourse necessary to the offence of Zina-bil-Jabr'
24. Keeping in view the above definition, we may have a new look at the statement of P.W.3. She in her statement stated that she woke on the noise of the opening of the door of her bedroom. She found the guests of acquitted accused Maqsood Ahmed (who were 3 in number) entering into her room. They beat and maltreated her and committed rape with her turn by turn against her wishes.
During the said incident, they strangulated her and she also received injury on her right eye. Then she became unconscious. Thereafter, after regaining her senses the said accused caused injury over her neck and then she again went unconscious.
25. From the above statement it appears that the 3 guests of acquitted accused Maqsood Ahmed had committed rape against her wishes and she was beaten, maltreated, strangulated. But her statement is neither supported nor corroborated by the medical evidence. As according to Dr. Sabahat Khanum, she did not find any mark of violence, strangulation or injury on any part of body of the victim except incised wound 2.c.m. x 5 cm. muscle deep at the middle of neck which was caused to the victim, after commission of rape and after regaining her senses. After examining the vagina of the victim the doctor opined that vestibula was not congested. She also did not find any laceration or tenderness over her vagina. According to victim, 3 persons committed rape upon her turn by turn against her wishes then in such situation, if she had put some resistance then the culprits must had caught hold of her from her hands, arms, feet or other parts of her body- to control her movements so that they could achieve their object and while doing so, the P.W.3 must had received some marks such as scratches, abrasion or bruises on her forearm, waist, feet, chest, lower part of her abdomen, inner aspects of thighs or back. But no such marks or any other kind of marks were seen by the Medical Officer on the above parts of the body of the victim. In the case of struggle by the victim, she could have frequently scratched her assailants and by doing so she could have broken her nails but no broken nails were found by the Medical Officer. Furthermore, if she had resisted then she must had moved her lower part of her body and by doing so she would have received bruises and laceration on the external genitals such as redness, tender swelling or inflammation. But no such signs were found by the Medical Officer on the genitals of the victim.
From all these facts it is clear that while committing rape, the P.W.3 did not put any sort of resistance for doing such acts but on the contrary it appears to us that whatever may be the reason and circumstances she was willing and consenting party. In similar circumstances, said view was taken in the authorities (1) Muhammad Asghar v. The State PLD 1985 FSC 1; (2) Bahadur Shah v. The State PLD 1987 FSC 11; (3) Muhammad Ikram alias Munji v. State 1997 PCr.LJ 1079; and (4)
Muhammad Adnan and another v. The State SBLR 2003 Sindh 403.
26. As regards the injury on her neck, it is admitted by the victim that she received injury after commission of rape as such this injury was caused neither before nor during the course of rape, therefore, it cannot be held that the force was applied by the accused persons before or during the course of rape. It is pertinent to point out that the prosecution have alleged this injury as an attempt to cause the death of victim and for that purpose a separate charge under section 324.
P.P.C. was framed which has been found to be not proved. As such, this injury cannot be taken to have been caused before or during the course of rape, therefore, it is not helpful to the prosecution in any manner:
27. From the above piece of evidence it . is clear that the prosecution have failed to prove the charge of Zina-bil-Jabr against the appellant.
28. Learned Advocate for the appellant has further argued that the appellant was unknown to the victim, therefore, an identification test should have been held before a Magistrate through the victim. It is pointed out that identification test is necessary in a case when the witnesses had a momentary glimpse of the culprits who were not known to them previously. In the present case, no doubt the appellant was not known to the P.W.3 before this incident but she had ample opportunity and time to have seen her assailant clearly, From her evidence it is clear that she saw the appellant when he entered in her flat, thereafter, she saw him when he entered in her bedroom and then she saw him while committing rape- upon her. The situation was such where the P.W.3 had ample opportunity and considerable time to have seen the face of the appellant very clearly and that, too, from a very close range. The incident is such where a victim could not forget the face of the person who committed rape upon her. The P.W.3 had clearly identified the appellant in Court to be the accused who committed rape upon her. Under these circumstances, it is not necessary that H an identification test should have been held before a Magistrate.
29. The Honourable Supreme Court of Pakistan in case of State v. Farman Hussain and others PLD 1995 SC 1 has examined the question as to in which cases an identification test before a Magistrate is necessary and in which cases it is not necessary. In a case in which a witness has fleeting glimpse of an unknown culprit, then identification test is necessary. But if the accused is known to the witness previously or seen the accused several times or had ample opportunity to see the accused then in such situation such identification test is not necessary. A relevant portion of the judgment at page 25 is reproduced:-- "A distinction is to be made between a case in which witness has had only a fleeting glimpse of the accused who happened to be stranger and a witness who had known the accused previously or who had met the accused several times. In the former case, the Court insists upon having proper identification parade, whereas in the latter case the identification parade can be dispensed with as the witness can identify the accused even in the Court. My above quoted observation in the case of Muhammad Yousif Zai (supra) pertains to the above, second category of cases. The present case in fact falls in the above second category of cases as Tariq Nawaz was kidnapped, he was taken into a car and was confined in the bungalow for five days, where he had ample opportunity to see some of the accused repeatedly. He even saw them at the time of arrest. He was, therefore, in a position to identify the accused."
30. From the facts and circumstances of the case it is manifest that the appellant has committed the offence of Zina as defined under section 4 punishable under section 10(2) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, read with section 7(ii) of Anti-Terrorism Act, .1997 (It is the punishment of Offence 6(c) of A.T.A.), therefore, the appellant is liable for conviction under the said provision of law.
31. Consequently, the convictions and sentences awarded to the appellant under section 302(a), P.P.C.and section 324, P.P.C. are set aside, whereas the conviction of the appellant under section 10(4), Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with section 6(c) of Anti- Terrorism Act, 1997 is converted to section 10(2) of the said Ordinance read with section 7 (ii) of Anti-Terrorism Act, 1997 and sentenced to suffer R.I. for 5 years and to pay fine of Rs,50,000 (Rupees fifty thousand), or in default thereof, to suffer R.I. six months more, with benefit of section 382- B, Cr.P.C.
32. With the above modifications in the convictions and sentences, the appeal is partly dismissed and partly allowed. The reference for confirmation of death sentence Order accordingly.