P L D 1993 Federal Shariat Court 1 (PLP)

3. On the day following the one on which the matter was reported to the police, Mst. Abida Banu was medically examined by Lady Doctor Irshad Bibi (P.W.8). It was opined by the Lady Doctor that she was not virgin. Ex. PE is her medico‑legal report. The Lady Doctor took two vaginal swabs of Mst. Abida Banu and sent them to the Chemical Examiner, Multan, for examination. According to the report, Ex. PO, furnished by the said Chemical Examiner, the vaginal swabs were stained with semen. The appellant appeared before Dr. Abdur Rehman Shah (P.W.4), Muhammad Hussain (P.W. 5) and Muhammad Yousaf (not examined) on 23rd May, 1990 and confessed his guilt. He asked them to produce him before the police. This was done and thereupon the appellant was arrested by Madad Hussain (P.W.14), an Inspector of Police. While in police custody, the appellant led to the recovery of blood‑stained dagger, Exh.P.1, which was taken into possession by the said Inspector, vide recovery memo. Exh.PC, in the presence of Maabool Ahmad (P.W.6) and Riaz Ahmad (not examined). The Inspector also prepared site plan, Exh.PK, showing the place of recovery of the dagger. The dagger was sealed into a parcel and handed over to Ghulam Murtaza (P.W.11), a Police Constable, for safe custody. He then gave it to another Police Constable, namely, Ghulam Mustafa (P.W.10) who delivered it in the office of the Chemical Examiner, Lahore, for examination. The Chemical miner, vide his report Exh.PM expressed the opinion that the dagger was stained with blood. According to report, Exh.PN, furnished by the Serologist, the blood on the dagger was of human origin.

4. Contact of the Bahawalpur police with the police of CAW revealed that, on 11th February, 1990, one Moulvi Abdul Haleem Chats made FIR, Exh.PF, at the Police Station of Ghotki, stating that a dead body was there in the deserted well. This F.I.R. was recorded by Ghulam Nabi aacher (P.W. 13) who was acting as Duty Officer at the said Police Station. p.m this, the police of Ghotki went to the spot and prepared Fard Mauqa Wardat, Ex. PG, injury, statement, Exh.C‑3 and inquest report, Exh.C‑

5. On the moving of application, Exh.PJ, post‑mortem examination was performed in the dead body recovered from the well. Exh.PE/1 is the report of Dr. Muhammad Ahmad (P.W.12) who performed autopsy on the dead body. He opined that death of the deceased had occurred due to head injury. As there was no claimant of the dead body, it was buried, under the suppression of the Chairman, Municipal Committee, Ghotki, as an unclaimed p0e Exh.PB to Exh.PB/1‑4 are the photographs of the dead body. Muhammad Ubaidullah (P.W.7), who is an Assistant Sub‑Inspector of Police, took into possessions the said Fard Mauqa Wardat, injury statement, inquest report, post-mortem report and photographs, vide recovery memo. Exh.PD. The police of Ghotki had retained with it the last worn clothes of the deceased, his wrist‑watch and amulet (taveez). Mst. Abida Banu and her father went to Ghotki and identified the said articles and photographs as those of Muhammad Malik deceased.

5. Shaukat Ali (C.W.1) translated documents Mark A to E, which are in Sindhi language. Their Urdu versions are recorded in Exhs.C‑1 to C‑5.

6. Before conclusion of the investigation, incomplete challan was submitted by Azhar Hussain Shah (P.W.9), who is Sub‑Inspector of Police. On finalization of the investigation, however, complete challan was submitted by Inspector Madad Hussain (P.W.14) and thus the appellant was sent up before the learned Additional Sessions Judge to face trial on charges under sections 302 and 306 of the Pakistan Penal Code and section 11 and subsection (3) of section 10 of the said Ordinance.

7. The prosecution examined as many as 14 witnesses, referred to above, who supported its case. Thereafter, the appellant was examined, under section 342 of the Code of Criminal Procedure. He denied having committed the offences attributed to him. He did not produce any evidence in defence and also failed to make his own statement on oath.

8. View taken by the learned Additional Sessions Judge was that the evidence produced by the prosecution, except evidence relating to recovery of the dagger, deserved credence. He found that even the evidence other than that of recovery of the dagger warranted a verdict against the appellant. He, therefore, convicted and sentenced him as stated‑ earlier.

9. Undoubtedly, there is no ocular evidence regarding the killing of Muhammad Malik by the appellant but it is evident from the statement of Mst. Abida Banu (P.W.1) that she was taken away from Chak No.101‑DNB of Bahawalpur District on the pretext of arranging treatment at Ghotki. It was also deposed by Mst. Abida Banu that on reaching Ghotki the appellant took away Muhammad Malik wherafter Muhammad Malik disappeared for ever. Photographs of his dead body, Exhs.PB. to PB/1‑4 were identified by Mst. Abida Banu and her father and so also his last‑worn clothes, the wrist watch and the amulet (Taveez). Then, there is extra judicial confession, made by the appellant before Dr. Abdur Rehman (P.W.4) and Muhammad Hussain (P.W.5) in which he confessed having abducted and killed Muhammad Malik. This circumstantial evidence leaves no room for doubt that the appellant had abducted Muhammad Malik in order to murder him and that he had actually hacked him to death.

10. The only argument raised by the learned counsel for the appellant, and that too half‑heartedly, was that the dead body of Muhammad Malik had not been seen by any of the witnesses examined by the prosecution and, therefore, it could not be said that he had been killed. This is not true, because, it is evident from the statement of Duty Officer, Ghulam Nabi Chacher (P.W.13) that on the making of FIR, Exh.PF, by Maulvi Abdul Halim Chana, he (Duty Officer) went to the deserted well in which there was the dead body and prepared Fard Mauqa Wardat, Exh.PG, injury statement, Exh.PH and inquest report, Exh.P1, relating to the dead body and then despatched the dead body for post‑mortem examination, vide his application, Exh.PJ. Exh.PE/1 is the post‑mortem examination report furnished by Dr. Muhammad Ahmad (P.W.12). According to the statement of the Duty Officer last‑worn clothes on the dead body, the wrist watch and amulet (Taveez) were also removed by the police. It was further stated by the Duty Officer that the dead body was buried as an unclaimed one under the supervisions of the Chairman, Municipal Committee, Ghotki. He went on to say that photographs, Exhs.PB to PB/1 to 4 of the dead body were also prepared. It is, therefore, clearly discernible from his statement that he had seen the dead body. Morever, there is testimony of last seen furnished by Mst. Abida Banu (P.W.1) which is to the effect that the appellant took away Muhammad Malik from Ghotki and did not bring him back and that when she asked about him, she was threatened with death. All fhese facts are borne out by the statements of Mst. Abida Banu (P.W.1), Abdul Ghafoor (P.W.3), Muhammad Ubaidullah (P.W.7), Dr. Muhammad Ahmad (P.W.12) and Ghulam Nabi Chacher (P.W.13). Photographs of the dead body of Muhammad Malik were identified by Mst. Abida Banu (P.W.1) and her father, Abdul Ghafoor (P.W.13) His last‑worn clothes, the wrist watch and the amulet (Taveez) were also identified by them. It was not the plea of learned counsel for the appellant that the photographs on the record are not those of Muhammad Malik. In addition, there is extra‑judicial confession made by the appellant before Dr. Abdur Rehman (P.W.4) and Muhammad Hussain (P.W.5) that he killed Muhammad Malik and threw his dead body in a deserted well. We have, therefore, no doubt whatsoever that the dead body of Muhammad Malik was recovered from a deserted well and that it was seen by Ghulam Nabi Chacher (P.W.13) who took out necessary proceedings in regard to his dead body. We are also satisfied that the appellant had abducted Muhammad Malik and then caused his death with a view to fulfilling his nefarious desire of committing Zina‑bil‑Jabr with Mst. Abida Banu without having any fear of Muhammad Malik deceased.

11. Learned counsel for the appellant did not say anything else against the evidence relied upon by the learned trial Court for holding that all the charges leveled against the appellant had been proved beyond reasonable doubt. At the stage of trial certain objections were raised against the said evidence but they were convincingly repelled by the learned trial Court. These objections were not adopted by learned counsel who appeared before us on behalf of the appellant. This shows that he too did not find any force in the objections advanced before the learned Additional Sessions Judge. We are also of the view that the prosecution evidence relied upon by the learned Additional Sessions Judge inspires confidence and justifies .the conclusions reached by him. We, therefore, maintain the conviction of the appellant on all the charges framed against him.

12. As for the punishment awarded to the appellant, we have noticed one legal defect in the order of the learned Additional Sessions Judge with regard to the sentence of fine imposed by him under subsection (3) of section 10 of the said Ordinance. A perusal of subsection (3) of section 10 of the said Ordinance would clearly reveal that it does not contain any provision obliging or permitting a Court to inflict the sentence of fine also. The learned Additional Sessions Judge had, therefore, fallen in error in sentencing the appellant to pay a fine of Rs.5,000 under subsection (3) of section 10 of the said Ordinance and directing him to suffer further rigorous imprisonment for one year for non‑payment thereof. Accordingly, we set aside the sentence of fine imposed on the appellant under subsection (3) of section 10 of the said Ordinance. The other sentences are warranted by law and are not excessive. We, therefore, maintain all the convictions of the appellant and the sentences awarded to him, except the sentence of fine under subsection (3) of section 10 of the said Ordinance which has been set aside just above.

13. The appellant shall have the benefit of provisions of section 382‑B of the Code of Criminal Procedure which was allowed to him by the learned trial Court as well.

14. The appeal is disposed of accordingly. N.H.Q./782/FSC???????????????????????????????????????????????????????????????????????????????? Order accordingly.