' DR. FIDA MUHAMMAD KHAN, J.--- These are two connected appeals; one filed from jail by Muhammad Javaid son of Muhammad Afsar against his conviction, recorded by learned Additional Sessions Judge, Rawalpindi on 18-4-2000, whereby he has convicted him under section 302(b), P.P.C. And sentenced him to death with fine of Rs,1,00,000 or six months' R.I. In default, with the direction that the amount of fine, if recovered, be paid to the legal heirs of deceased. He has further convicted him under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, hereinafter referred to as the Ordinance, and awarded him life imprisonment with fine of Rs,20,000 or in default of payment of fine further one year imprisonment. The benefit of section 382-B, Cr.P.C. Has been granted to him.
2. The other appeal has been preferred by Mst. Robina Kausar wherein she has prayed that Javaid accused, who is acquitted of the charge under section 10 of the Ordinance, be also convicted under section 10 of the Ordinance. It has been prayed further that the other acquitted respondents/co-accused namely Kausar Mehmood son of Muhammad Afsar, Muhammad Razzaq son of Lal Hussain and Muhammad Suleman son of Muhammad Yousaf, be also convicted and sentenced. The Murder Reference No,2/I of 2002 also made for confirmation. Since all these matters arise out of one and the same judgment, therefore, we are disposing them of by this single judgment.
3. Briefly stated the case of prosecution as revealed in Fard Eiyan (Exh.P.H.), recorded on the statement of Mst. Robina Kausar, on 25-5-1997 at 5-30 p.m. Is to the effect, that on the same day at about 3-00 p.m., she was present alongwith her sister Mst. Pukhraj and Mst. Shahnaz Bibi in her house. In the meanwhile the accused Muhammad Javed who was carrying a rifle on his left shoulder and was holding a carbine in his right hand entered there. The courtyard of her house as well as of the house of her maternal-grandmother, Jannat Bibi, is one and the same. Soon after his arrival in the house, Muhammad Javed accused threatened to kill all of them and fired shot from his carbine whereupon the complainant and her sisters got scared, ran inside the house and closed the door. She alongwith her sisters saw through the window of their house that accused Javaid entered the house of Mst. Jannat Bibi and caught hold of her maternal-aunt Shahnaz, aged 25/26 years, and dragged her out of the house towards the street. Thereupon the complainant and her sister went out and raised hue and cry which attracted many persons but nobody could come forward as the accused Javaid was armed with carbine and also considered a rogue in the village.
However, her grand maternal mother, Jannat Bibi, arrived from the courtyard of house of Muhammad Azram side and tried to rescue her said daughter. Thereupon Javed accused threatened to kill her in case she advanced any further. Mst. Jannat Bibi, however, stepped forward whereupon said Muhammad Javed fired from his carbine which hit Jannat Bibi in front of her shoulder and, after felling down, she died on the spot. Muhammad Javed accused caught hold of Mst. Shahnaz and forcibly abducted her at weapon point for commission of Zina and marriage. She alleged that the reason for his grievance was the fact that earlier, about 2-1/2 years before, accused Javed had abducted her younger sister Mst. Shahnaz Bibi, and a case in that respect had been registered against him. Accused Javed, who was facing trial, had been granted bail, 5/6 months before and had, therefore, come to his house. She alleged that they had left aforementioned Muhammad Azram with the dead body and had come with her maternal-uncle Iftikhar Mehmood, who had reached there, to report the matter to police. Exh.P.H. Was thereafter sent and incorporated into formal F.I.R. At Police Station Kallar Saidan, District Rawalpindi.
Subsequently, the appellant/accused was arrested alongwith acquitted co-accused/respondents and challaned to face trial. They were formally charged on 29-6-1999 but they did not plead guilty to the charge and claimed trial. On conclusion of trial, while acquitting the co-accused only the appellant/accused was convicted and sentenced as mentioned hereinabove.
4. At the trial, the prosecution examined twenty witnesses in all. P.W. 1 is Farhat Yasmin, Lady Constable. On 26-5-1997 she took Mst.. Shahnaz Bibi to Civil Hospital, Rawalpindi for conducting her medical examination. After medical examination, the doctor handed over her medical report alongwith a sealed envelope which were given by her to Gulzar S.-I./Investigating Officer who secured the same vide memo. Exh.P.A., duly attested by her. P.W. 2 is Abdul Majeed, Constable. On 28-5-1997 he received sealed envelope from Muhammad Rashid H.C. And delivered the same to the office of Chemical Examiner intact. P.W.3 is Mazhar Hussain, L.H.C. On 25-5-1997 the Investigating Officer handed over to him dead body of Mst. Jannat Bibi and he escorted the same from the place of occurrence to Civil Hospital, Kahuta but since there was no lady doctor, as was told to him, he took the same to D.H.Q. Hospital, Rawalpindi for post-mortem examination.
Thereafter, the doctor handed over to him Qameez P.1, Shalwar P.2. And Dopatta P.3 which he gave to Gulzar Aslam, S.-I. And he secured the same vide memo. Exh.P.B. Which was attested by him. He added that the postmortem examination was conducted on 26-5-1997 and he handed over the dead body to legal heirs of the deceased. P.W.4 is Iftikhar Mehmood. On 26-5-1997 he identified the dead body of his mother Mst. Jannat Bibi. P.W.5 is Lady Dr. Qanaat Sultana. She is the Woman Medical Officer who on 26-5-1997, at 5-15 p.m., medically examined Mst. Shahnaz daughter of Gulzar Khan who was brought there by Farhat Yasmin, Lady Constable. She made the following observations:-- "She was well-oriented in time and space.
' On general examination, she was unmarried. Her last menstruating period was about eight days back. Her secondary sex characters were well-developed. No marks of violence seen on the body except her private parts.
' As per vaginal examination, both labia minora were freshly torn, bleeding, hymen torn within two to three days, vagina admitted two fingers tightly.
' Per vaginal findings ' Uterus normal size. O.S. Closed fornix clear."
' She took two blood-stained vaginal swabs, sealed and sent them for semen analysis to Chemical Examiner. She opined that she was subjected to sexual intercourse. Report of the Chemical Examiner (Exh.P.S.) on the vaginal swabs, reveals that the same were stained with semen. P.W.6 is Qamaruddin. On 28-5-1997 he visited the place of occurrence as per direction of the police and obtained rough notes of the place of occurrence, on the pointation of P. Ws. On 4-6-1997, he prepared the scale site plans (Exh.P.D.) and (Exh.D./I) which bears his signatures. P.W.7 is Dr. Muhammad Shafiq, Medical Office. On 26-5-1997, at 11-45 a.m., he conducted post-mortem examination on the dead body of Mst. Jannat Bibi which was brought to him by Mazhar Hussain, Constable and which was identified by Muhammad Iftikhar and Muhammad Azram. On its examination he found it to be dead body of an old woman, aged 55 years, eyes and mouth closed, rigor mortis and post-mortem staining were present. He found the injuries on dead body and made observation and opinion as under:--
(1) Big lacerated wound of entry of fire-arm 14 x 8 c.m. Extending from tip of left shoulder joint to upper part of left chest, 11 c.m. Above left nipple and 5 c.m. From supra sternal notch. Skin was totally torn. Muscle exposed. Which were blackish and burning at the edges of skin at some part was also present.
(2) Wound of exit of fire-arm 1 x 1 c.m. At posterior part of left shoulder joint 7 c.m. From tip of shoulder. Edges were everted and lacerated.
' On dissection ' Left lung was damaged and filled with blood due to fracture of second rib. Brachial vessels and brachial plexes was damaged. Fracture upper and of left humerous.
' Stomach was containing partially digested food and was healthy vertebrae and spinal cord was not opened. Rest of organs were found healthy.
' Opinion ' In my opinion deceased died due to injuries Nos.1 and 2 caused by fire-arm weapon anti-mortem in nature. It caused damage to vital organ like lung and brachial vessels leading to haemorrhage shock and death. This type of injuries are sufficient to cause death in normal course of life. Time between injury and death was about half to one hour. Time between death and postmortem was about twenty to twenty four hours. Dead body after post-mortem and stitching alongwith last- worn clothes and police papers handed over to Mazhar Hussain, C/3826. Exh.P.E. Is the correct carbon copy of original post-mortem report which is. In my hand and bears my signatures.
Exh.P.E./1 is pictorial diagram of injuries which bears my signature. I also signed inquest report Exh.P.F. And injury statement Exh.P.G."
' P.W.8 is Ansar Javed, Constable. On 12-7-1997 he delivered a sealed parcel, containing carbine, handed over to him by Liaqat Ali, A.-S.I., to the office of Forensic Science Laboratory which he delivered there intact on the following day. P.W.9 is Mst. Robina Kausar. She is the complainant and granddaughter of the deceased Mst. Jannat Bibi. She reiterated her statement as mentioned hereinabove. P.W.10 is Mst. Shahnaz daughter of Gulzar. She is the abductee. She deposed in the following words:-- "It was 25-5-1997 the time was 3-00 p.m. I was present alone in my house while Mst. Robina, Shahnaz and Pukhraj were present in their own house in the courtyard. Javed accused went to the courtyard of the house of Robina Kosar etc. And he held a threat to Robina; Pukhraj and Shahnaz that he would not spare them alive. The accused Javed was carrying in his right hand carbine and on his left shoulder rifle. He fired in the air. Thereafter he came to our house. He pushed the door of our house, which was opened. He asked me to go alongwith him. On my refusal he dragged me out of the house by catching me from my arm. While he was taking me towards the street I was raising alarm. My three nieces followed us while raising alarm. When we reached near the house of Azram, meanwhile my mother Jannat Bibi came there. She stopped Javed from taking me, who in return held a threat to her. Razzaq accused was also present there at that time. Razzaq told my mother that nobody would come to help us that day and he was armed with rifle. My mother tried to get me released. Javed inflicted a fire shot of carbine on the left shoulder of my mother. My mother got injured and fell down there. Javed accused then forcibly dragged me via Nullas and "Kassies" to the Qilla Durbar. Short of Qilla Darbar brother of Javed accused namely Kosar met Javed near another Darbar situated in our village Rajjam. I was taken by Javed accused to Qilla Darbar where at about midnight Suleman, Razzaq and Kosar accused persons came there. Kosar accused was armed with hatchet, Razzaq and Suleman accused persons were armed with rifles. They talked with one another and Javed enquired from the remaining accused persons stated above as to whether my brother Arshad had come to the village or not. Javed accused also demanded from them the ammunition and the money. The accused persons then assured him that every thing will be provided to him and asked him first to commit Zina upon me. They also told him that they would guard us. Javed accused then shut down my mouth and committed Zina with me and the remaining accused persons remained on guard. The lights reached the place, Razzaq, Suleman and Kosar accused persons then ran away. Javed took me to aside. Javed accused then took me from the same way, to which he had come and was giving me threats that he would either marry me or would sell me out. The accused Javed then started urinating and asked me not to go anywhere, at the Darbar near our houses. I came from there to my house. The doors of the houses of my relatives were locked. I then went on the roof of our Katcha house where I concealed myself and lay down. My sister Imtiaz then came there and I narrated her all the story while weeping. I then came to know that my mother had expired due to the injuries sustained by her. At about 5-00 a.m.
Police came to our house. Police recorded my statement. I was got medically examined. I also recorded my statement with the Magistrate.
' 2/2-1/2 years prior to the occurrence of murder, accused Javed had abducted my sister's daughter Mst. Shahnaz. The said case was registered and is still pending in which accused was released on bail 5/6 months prior to this occurrence and due to this he committed the present occurrence. All the above mentioned accused persons are present today in Court."
' P.W.11 is Mst. Shahnaz Bibi, daughter of Muhammad Aslam. She is the sister of complainant and eye-witness of the occurrence. She made statement on oath wherein she supported the version made by the complainant. P.W.12 is Muhammad Boota, Constable. He is marginal witness to the recovery memo. (Exh.P.J.) whereby gun P.4 and licence P.5 were taken into possession as per pointation made by the accused Suleman. P.W.13 is Muhammad Saeed. He is witness to the recovery memo. (Exh.P.K.) whereby blood-stained earth was taken in his presence, on 25-5-1997, and duly sealed. P.W.14 is Arshad Mehmood. He is witness to the recovery memo. (Exh.P.L.) whereby carbine P.6 recovered at the instance of appellant/accused Javed, on 8-7-1997, was secured. He also witnessed the recovery of recovery memo. (Exh.P.M.) whereby rifle P.7 was recovered at the instance of appellant/accused Javed and secured. P.W.15 is Dr. Tahir Rizvi. On 2-7-1997 he medically examined the appellant/accused Javed and found him quite capable to perform sexual act. P.W:16 is Muhammad Bashir, A.S.-I. On 26-5-1997 he kept sealed parcels containing blood- stained earth and a sealed envelope containing swabs in safe custody in Malkhana. On 28-5-1997 he handed over the sealed envelop to Abdul Majeed, Constable and on 3-6-1997 he handed over the sealed parcel to Muhammad Afzal, constable for onward transmission to the office of Chemical Examiner. P.W.17 is Abdul Ghfoor, A.S.-I. On 25-5-1997 he registered formal F.I.R. (Exh.P.H./1) on the basis of complaint prepared by Gulzar Akbar, S.-I. P.W.18 is Gulzar Akbar, S.-I. On 25-5-1997 while posted at Police Station, Kallar Saidan he received information about the occurrence and was going toward the place of occurrence when he met Mst. Robina Kosar alongwith Iftikhar Ahmad in village Sahote Bangial. He recorded her statement (Exh.P.H.) and dispatched it to police station for registration of the F.I.R. He visited the place of occurrence, prepared inquest report of the dead body (Exh.P.F.) and injury statement (Exh.P.G.). He dispatched the dead body of deceased for post- mortem examination to Kahuta. He recorded statements of witnesses and prepared inspection note. He collected blood-stained earth from the place of occurrence, sealed into a parcel and secured it vide recovery memo. (Exh.P.K.). He launched search of the accused and, in the process, recovered Shahnaz Bibi on the following day from her house and thereafter took her from Kahuta for medical examination to Rawalpindi. Thereafter he got recorded her statement under section 164, Cr.P.C. In the Court of R.M. Kahuta. He took into possession last-worn clothes of the deceased and also got prepared site plans (Exh.P.D.) and (Exh.P.D./1) of the place of occurrence. On 19-6-1997 he arrested the accused persons namely Razzaq, Kosar and the third one, present in Court, whose name could not be recorded by him. During his investigation Suleman accused produced .12 bore gun P.4 and Licence P.5 from his house in Mauza Sangni which he secured vide recovery memo.
(Exh.P.J.). Thereafter he arrested the appellant/accused Javed and got recovered carbine P.6, on his pointation, which secured by him vide recovery memo. (Exh.P.L.). He also recovered .7 mm rifle P.7, with ten live cartridges P.8/1-10, on the pointation of, the appellant/ accused, and secured them vide recovery memo. (Exh.P.M.). He handed over the case property to Muharrir of police station and recorded statements of the recovery witnesses. He then got the appellant/accused Javed confined to judicial lock-up. He also prepared rough site plan of the place (Exh.P.O.) where Zina was stated to have been committed with the abductee. He also prepared site plan (Exh.P.J./1), (Exh.P.M./1) and (Exh.P.L./1) being places of recoveries respectively of .12 bore gun, .7 mm rifle and carbine. P.W.19 is Liaqat Ali, A.S.-I. On 8-7-1997 he kept sealed parcel containing carbine in safe custody of Malkhana and on 12-7-1997 handed over the same to Ansar Javed Constable for onward transmission to the office of Forensic Science Laboratory, Lahore intact. P.W.20 is Muhammad Afzal, Constable. On 3-6- 1997 he was handed over the sealed parcel by Muhammad Bashir, Muharrir/H.C. Which he delivered to the Office of Chemical Examiner, Lahore intact, on 4-6-1997.
5. The appellant/accused made statement under section 342, Cr.P.C. Wherein he denied the allegations and pleaded innocence. In reply to question No,2 regarding the charge he made statement in the following words:- "The charge against me is incorrect. In, fact Haji Amanat asked me to kill a person and at my refusal he falsely implicated me in the present case."
' He denied the recovery of carbine as well as rifle with bullets from his possession and stated that it did not belong to him. In response to question No,16 put to him as 'why this case against you and why the P.Ws. Have deposed against you?" he made the statement in the following words:-- "Due td relationship with the deceased, the P.Ws. Deposed against me falsely. Due to dispute regarding my engagement with Mst. Shahnaz this false case had been made against me."
' He declined to produce evidence in his defence or make his own statement on oath under section 340(2), Cr.P.C. In disproof of allegations made against him.
6. We have heard learned counsel for the parties and have perused the record with their assistance. Malik Abdul Haq, learned counsel for appellant/accused Muhammad Javed, submitted that the case of prosecution mainly stands on the evidence of P.W.9, P.W.10 and P.W.11 but they all are interested and related witnesses who were bearing grudge against the appellant/accused on account of previous enmities, initiated in between them on the allegation of abduction, murder and counter-cases. The statement of these P.Ws., he contended, cannot be considered sufficient for bringing home guilt of the appellant/accused. He further submitted that no independent evidence has come forward to corroborate the statements of aforementioned P.Ws. And it may not be safe to base conviction on the evidence deposed to by these P.Ws. The learned counsel also submitted that the fire shot was allegedly made by the carbine from a distance of about 2-1/2 feet, but neither the crime-empty was recovered from the -place of occurrence nor burning signs were observed on the dead body during the post-mortem examination. Moreover, he submitted further that, dead body was seen lying on a cot which made the prosecution story doubtful. Learned counsel for the complainant, Mr. Sardar Ishaque, while fully supporting the case of prosecution against the appellant/accused Muhammad Javed, pressed his appeal to the extent of respondent/accused Razzaq also and contended that he was present at the time of murder of Mst.
Jannat Bibi in the house, was armed with rifle, raised Lalkara and extended threats. Since, he further submitted, he was not resident of that locality, he had no business to be there except the common intention of abetting the appellant/accused Javed in the commission of offence and according to the evidence he also went alongwith him. Explaining further, the learned counsel vehemently contended that common intention could develop even on the spur of moment. Regarding some lapses in the F.I.R. The learned counsel submitted that the grousom occurrence of tragic murder of Mst. Jannat Bibi had then highly harassed the complainant party and they could not be naturally, expected to give all the details. Learned counsel for the complainant, summing up his arguments, submitted that this is a case of prompt F.I.R. Which was witnessed by inmates of the house who could alone witness the occurrence as it took inside the premises of the house where they were living. They have made detailed depositions, duly corroborated by the M.L.R., and have stood the test of lengthy cross-examination. Regarding the, commission of Zina, learned counsel submitted that expert opinion is required for corroboration as a rule of prudence only. Learned counsel vehemently ruled out possibility of any mitigating circumstances whatsoever, to entitle the accused to lesser punishment.
7. We have given our anxious consideration to the points raised by the learned counsel for the appellant. So far as the evidence of P.W.9 Robina Kausar, complainant, P.W.10 Mst. Shahnaz abductee and P.W.11 Mst. Shahnaz, sister of complainant are concerned, they are natural witnesses of the occurrence. Admittedly they were present in their house, when the occurrence took place therein. It will be appreciated that for an occurrence taking place inside a house is surrounded by walls, the inmates of the house could be the witnesses and they also might be relative inter se. As such mere relationship of a witness with deceased by itself may not be a sufficient ground to discredit his or her testimony particularly when he or she has no motive to falsely involve an innocent person as an accused or substitute the real accused in a case where ruthless murder of a very close relative has taken place. It is however, necessary for safe administration of justice that statement of such witnesses have to be thoroughly scrutinized to see as to whether their evidence was reasonable, probable or plausible and contained intrinsic worth that could be relied upon. In the instant case the statements made by the above mentioned P.Ws. Are consistent in material particulars and inspire confidence. Their statements have been subjected to lengthy cross- examination but the defence has failed to bring any material whatsoever to falsify or discredit their testimonies. The P.Ws. Despite cross-examination have remained unshaken and there is no C reason whatsoever to disbelieve their unrebutted and trustworthy testimony. Their versions being reliable and worthy of credence cannot be brushed aside merely on the ground of inter se relationship. These eye-witnesses have categorically given details of the occurrence which show that the appellant/accused Javed, alongwith others, had entered the house of complainant and was seen holding a carbine in his hand and carrying a rifle on his shoulder. Soon after his entrance in the house he shouted 'Lalkara' to the inmates of the house that he would not leave them alive and had also fired shot from his carbine. Thereafter the witnesses saw him going into the courtyard of Mst. Jannat Bibi where he caught hold of Shahnaz (P.W.10) from her arm, dragged her out and took her towards the street. Mst. Shahnaz (P.W.10) raised alarm but the accused did not let her free.
In the meanwhile the P.Ws. Saw Mst. Jannat Bibi coming over there and trying to stop Javed from taking away Mst. Shahnaz whereupon he threatened her that if she went forward he would kill her.
However, Mst.. Jannat Bibi advanced to rescue her daughter Mst. Shahnaz and thereupon Javed accused released a fire from his carbine which hit Mst. Jannat Bibi on her left shoulder and she fell down, succumbed to the injury on the spot and died. In the meanwhile Javed accused took away Mst. Shahnaz. The statement of P.W.9 and P.W.11 are consistent to that extent. Rest of the details were narrated by Mst. Shahnaz, abductee herself. She alleged that the accused forcibly dragged her via Nullah and Kassies towards Qilla Darbar. On the way Kausar, brother of Javed accused met him and she was taken to Qilla Darbar where at about midnight the acquitted co-accused Suleman, Razzaq and Kausar reached. They were armed. After getting assurance from the acquitted co-accused to guard them, Javed accused forcibly committed Zina-bil-Jabr with her, after shutting down her mouth. Thereafter Javed accused took her away from the same way and extended threats to her that he would either, marry or would sell her out. However, getting an opportunity when the accused Javed was urinating, she went to her house. Since at that time doors of the house of her relatives were locked, she went on the roof of her Katcha house and concealed herself and, when her sister lmtiaz came there, she narrated the entire story to her while weeping. As far as statements of these P.Ws. In respect of Mst. Jannat Bibi, deceased is concerned that finds full corroboration from the statement of P.W.7 Dr. Muhammad Shafiq who conducted post-mortem examination on her dead body and found big lacerated wound of entry of fire-arm 14 x 8 c.m. Extending from tip of left shoulder joint to upper part of left chest, 11 c.m. Above left nipple and 5 c.m. From supra sternal notch and a wound of exit of fire-arm 1 x 1 c.m. At posterior part of left shoulder joint 7 c.m. From tip of shoulder. He has opined that due to these injuries, caused by fire- arm, anti-mortem in nature, death was caused as it had damaged the vital organs like lungs and brachial vessels leading to haemorrhage shock. We may point out that non-recovery of an empty from the spot, in circumstances when people had gathered there is not at all fatal to the case of prosecution, in view of the ocular account supported by the inquest and post-mortem report.
Moreover, non-observing the burning sign or charring of the body is also immaterial as the distance between the accused and the deceased cannot be exactly the same as stated by the P.Ws. Who were seeing the occurrence from some distance, in a highly horrified situation, which ultimately took the life of their grandmother. The dead body was afterwards seen lying on the cot but that was only a natural phenomena as out of respect the dead body was lifted from the earth.
In this view of the matter we have found that the prosecution has established its case against the appellant/accused to the hilt.
8. It is also pertinent to mention that the prosecution has successfully established the motive part working behind the occurrence. It is on record that about 2-1/2 years prior to this occurrence, the appellant/accused Javed had abducted Mst. Shahnaz Bibi, daughter of Muhammad Aslam, and F.I.R. Was lodged against him accordingly. On account of this he was feeling revengeful and, it was during this period of his release on bail in that case that, he entered the house of deceased and ultimately murdered Mst. Jannat Bibi while she intercepted to stop him from abducting Mst.
Shahnaz Bibi. It is also worth-mentioning that the instant case is based on an F.I.R. Promptly lodged soon after the occurrence. There is also nothing to even indicate that the appellant/ accused was either substituted for the actual offender or was misidentified, as it was a broad-daylight occurrence and the appellant/ F accused was well-known to the whole family. Although he was accompanied by the other accused but the single shot injury which culminated in fatal consequences has been attributed directly only to him and there is no possibility of participation of any. Other co-accused in the murder of Mst. Jannat Bibi.
9. We have also seriously considered the facts whether there is any mitigating circumstance, according to law, but have failed to find out any reason whatsoever for awarding the appellant/accused lesser punishment other than the normal penalty of death. The brutal murder caused by fife shot from the carbine aimed at the vital organs of the deceased who had come forward only to rescue her daughter leaves no room for any extenuating ground. The tragic murder was then followed by series of offences, including the abduction, and in view of these circumstances we have no other option but to maintain the death sentence awarded to the appellant/accused and confirm the murder reference.
10. As far as the charge of Zina-bil-Jabr with the abductee, Mst. Shahnaz by the appellant/accused is concerned, we find that report in respect of its commission is not specific as mentioned by the prosecution and the same is somewhat doubtful. The lady Dr. Qanaat Sultana (P.W.5) who examined her on 26-5-1997 has given a positive report but, according to her, the sexual intercourse was performed two/three days prior to her examination. Since the occurrence took pace on 25/26- 5-1997, as alleged by Mst. Shahnaz, the exact date of commission of Zina, becomes doubtful and the benefit naturally goes to the appellant/accused and especially so when statement of Mst.
Shahnaz is not corroborated by any other piece of evidence.
11. So far as acquittal of Muhammad Razzaq, respondent/accused is concerned, there is nothing on record to show that he shared common intention with accused Muhammad Javed in causing murder of Mst. Jannat Bibi, deceased who was shot dead alone by the later. According to the prosecution the appellant/accused Muhammad Razzaq, armed with rifle, is stated to be present there at the time and place of occurrence and was also heard uttering "Lalkara" to the inmates.
However, this fact is mentioned neither in the F.I.R. Nor in the statement of P.W. Mst. Robin, under section 161, Cr.P.C. It is also mentioned nowhere in the evidence that he was present at the time of the murder of Mst. Jannat Bibi. The other eye-witness namely Mst. Shahnaz Bibi and Mst. Pukhraj also did not mention his presence over there at that time. The statement of Mst. Shahnaz, daughter of Muhammad Gulzar under section 164, Cr.P.C. Made before the Magistrate is also not brought on record. It is noticeable that Muhammad Razzaq, respondent, has gained double presumption of innocence and the evidence brought on record is not of the quality to lead us to the only conclusion of his guilt. Taking into account the cumulative effect of what is stated above, we do not find sufficient material to set aside his acquittal and record his conviction.
12. Consequently for the reasons stated above, we dismiss the appeal filed by Muhammad Javed son of Muhammad Afsar and maintain his convictions and sentences as recorded by Additional Sessions Judge, Rawalpindi vide the impugned judgment. We also dismiss the appeal filed by Robina Kausar wife of Abdul Rashid whereby acquittal of respondents has been challenged.
13. The Murder Reference No,2/I of 2002 is answered in affirmative.