1992 PLP 398 (SCMR)

JUSTICE MUHAMMAD RAFIQ TARAR (CHAIRMAN).‑‑ Khubaib Ahmed, (25/26) son of Abdul Qadir, resident of village Jhalari, Police. Station Jatoi, District Muzaffargarh, was tried by the learned Judge, Special Court for Speedy Trials, Multan, under section 364‑A/377/302, P.P.C. and section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 on the allegation that on 19‑9‑1991 he abducted Mst. Farhat Mai, aged six years, and after subjecting her to his unnatural lust stragulated her to death. By judgment dated 4‑11‑1991 he was convicted and sentenced to R.I. for 25 years and 30 stripes under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, imprisonment for life and a fine of Rs. 50,000 under section 377, P.P.C. In default of payment of fine he was ordered to suffer further R.1. for six months. Under section 302, P.P.C. he was sentenced to death to be hanged by the neck till he be dead. He has challenged his conviction and sentence through this appeal.

2. The brief facts of the prosecution case are that on the morning of 19‑9‑1991, Mst. Farhat Mai, aged six years, went to the house of Ghulam Yaseen for learning the Holy Qur'an whereafter she did not return home. Her father Manzoor Hussain returned from work at 12‑00 noon and was informed by his wife that Mst. Farhat Mai was missing. He started search for her and during the course he was informed by Akhtar Hussain and Dilawar Hussain PWs that they had seen Mst. Farhat Mai in the company of Khubaib Ahmed going on the pathway leading to Chah Azhar Shahwala. They further told him that Mst. Farhat Mai was eating a biscuit and on their enquiry Khubaib had told them that he was taking her to her father. As the girl could not be traced, her father Manzoor Hussain reported the matter at the police station on the next day i.e. on 20‑9‑1991 at 11‑00 a.m. vide F.I.R. Exh.PL expressing apprehension that Khubaib Ahmed might have murdered his daughter.

3. The prosecution story goes on that on 20‑9‑1991 at 3‑00 p.m. Khubaib Ahmed appellant met Muhammad Iqbal P.W.9 at his shop when Muhammad Ramzan P.W.10 was also there. He told them that having committed a big crime he remained restless throughout the previous night and wanted to get punishment for the said crime in this world. He continued that on the preceding day at 8‑30 a.m. when Mst. Farhat Mai came out of the house of Ghulam Yaseen after learning the Holy Qur'an he was present in front of his house and was eating a biscuit. He gave a biscuit to Mst. Farhat Mai and told her that he would take her to her father who was moulding bricks at Chah Azhar Shahwala. Then he took her to a cotton field and committed unnatural offence with her. She shrieked and he strangulated her to death. He requested them to produce him before the police lest he may be beaten to death by the villagers. Thereupon they produced him before Abdul Sattar Inspector/SHO who was present in the village and he arrested him. The appellant was wearing a blood‑stained Chaddar.The SHO removed it from his person and took it into his possession vide memo Exh.PB.

4. Soon after his arrest, the appellant led the police to a cotton field from where he got recovered the dead body of Mst. Farhat Mai in the presence of Muhammad Iqbal and Muhammad Ramzan P.Ws.

5. The S.H.O. prepared the injury statement Exh.P.F. and inquest report Exh. P.G. in respect of the dead body of the Mst. Farhat Mai and despatched it to the mortuary for post‑mortem examination.

6. On 21‑9‑1991 at 8‑00 a.m. Dr. Mushtaq, M.O., R.H.C., Jatoi, conducted the autopsy on the dead body of Mst. Farhat Mai deceased and found the following injuries on it:‑‑‑ (1) An abrasion 1 x 1 c.m. on the left cheek. (2) An abrasion 1 x 1 c.m. on the nose. (3) An abrasion 1 x 1/2 c.m. on the right side of the forehead. (4) Multiple abrasions on both knee‑joints. (5) The neck was swollen and skin peeled off on the neck. Maggots were present on the neck and the upper part of the chest. (6) The anus was swollen. There were multiple lacerations on the rectum. The recto‑vaginal pouch was ruptured resulting in single opening. In the opinion of the doctor, Mst. Farhat Mai had been subjected to "act of sodomy". Larynx and upper part of trachea were sent to Histopathologist for detection of fracture of hyoid bone. Both lungs, heart, stomach contents faecal, matter and anal swabs were sent to the Chemical Examiner. The opinion regarding cause of death was deferred till the reports of the Chemical Examiner and Histopathologist. On receipt of their reports the doctor opined that injury No.3 (due to widening of sutures) and injury No.5 (ante‑mortem injury of hyoid bone) were individually sufficient to cause death in the ordinary course of nature. He, further, opined that death could also occur due to shock and bleeding resulting from the injury No.6. As per Chemical Examiner's report the anal swabs were stained with semen.

7. After the investigation the appellant was sent up to face his trial.

8. There is no direct evidence of the, murder and the prosecution in order to prove its case has relied on the following pieces of circumstantial evidence:‑‑ (1) Last seen evidence furnished by Dilawar Hussain P.W.6 and Akhtar Hussain, P.W.7. (2) Extra‑judicial confession allegedly made by the appellant before Muhammad Iqbal P.W.9 and Muhammad Ramzan P.W.10. (3) Recovery of the dead body of Mst. Farhat Mai deceased at the instance of the appellant. (4) Recovery of blood‑stained Chaddar from the person of the appellant at the time of his arrest; and (5) Medical evidence.

9. The appellant pleaded not guilty to the charge and denied the prosecution's allegations against him. When asked why this case against him he made the following statement:‑‑ "There is party faction in the village. I belong to the People's Party while the complainant party belongs to the Muslim League. Mr. Abdul Qayyum, M.NA. is the leader of Muslim League and Allah Dad represents him in the area, and due to the pressure of Allah Dad and Mr. Abdul Qayyum, M.NA. I have been falsely roped in this case. I remained in the village throughout and I was with the search party on 19‑9‑1991 and the dead body of the deceased Mst. Farhat Mai was recovered by the search party. The police interrogated four other young men of the village including one of the relatives of Manzoor Hussain complainant, who is son of his sister‑in‑law, but after taking bribe, they were let off. The Investigating Officer acted under pressure of the above said Allah Dad and Abdul Qayyum and with mala fide intention has involved me in this case. The Abadi of Chak consists of 200 houses, there are about 300 unmarried young men. Had I made any confession, I would have made it before any Magistrate. The recovery of blood‑stained Chaddar has been planted on me."

10. After examining the evidence on the record, the learned trial Judge did not rely on the testimony of Akhtar Hussain, P.W.7 and also discarded the evidence relating to recovery of blood‑stained Chaddar from the person of the appellant. However, relying on the remaining evidence, he convicted and sentenced the appellant as mentioned above. On the basis of certain admissions made by Dilawar Hussain P.W.6, the learned counsel for the appellant contended that prosecution version regarding the appearance of the appellant before Muhammad Iqbal and Muhammad Ramzan, P.Ws. for extra -judicial confession and thereafter leading to the recovery of the dead body is a mere concoction. He submitted that there was absolutely no occasion for the appellant to have gone to Muhammad Iqbal and Muhammad Ramzan to make the confession because being relatives of the girl they were likely to react more sharply than the other villagers. It is further contended that extra -judicial confession is not relevant in a case punishable with death as Qisas and in any case being the weakest type of evidence it cannot be relied upon in the absence of strong corroboration from an independent and unimpeachable source. The learned State counsel while supporting the impugned judgment has contended that evidence of Akhtar Hussain, P.W.7 has been brushed aside by the trial Court without assigning any cogent reason.

11. We have very carefully considered the submissions made by the learned counsel for the parties in the light of evidence available on the record. In cross‑examination Dilawar P.W. stated that after telling the complainant that his daughter was seen in the company of the accused he went to Alipur from where he returned after an hour; the people were then searching the missing girl; the police came to the spot in the evening and he made his statement before the police officer; the dead body of the girl was recovered in the evening when the police arrived and that it was recovered at the instance of the accused. On the basis of the above admissions the learned counsel for the appellant contended that the prosecution version that the appellant made extra‑judicial confession before Muhammad Iqbal and Muhammad Ramzan, P.Ws on. the next day and thereafter, while in police custody, led to the recovery of the dead body on that day, was false. Dilawar P.W. was produced by the prosecution as a witness of last seen. In examination‑in‑chief he stated that he and Akhtar Hussain P.W. had seen Mst. Farhat Mai deceased in the company of the appellant who, on their inquiry, told them that he was taking her to her father who was moulding bricks. He was neither a witness to the arrest of the accused nor to the recovery of the dead body. He appears to have made obliging concessions in cross‑examination in order to favour the accused, therefore, much importance cannot be attached to his above statement.

12. The evidence of Akhtar P.W. was discarded on the ground that in his statement under section 161, Cr.P.C. he had narrated a story "as told by Dilawar and he has introduced the fact of purchase of milk at the trial. It appears that he has purposely made this statement to damage the prosecution". It was further observed that a witness "who relates one thing to the police and the other at the trial is not trustworthy". We have noted that there is nothing in the statement of this witness to show that he had stated "one thing before the police and other at the trial". Nothing was brought on the record by confronting him with his statement before police to show that he had stated differently therein. In examination‑in‑chief he stated that he and Dilawar were returning to the village when they saw Mst. Farhat Mai in the company of the appellant. He further stated that he had milk with him. In cross‑examination he stated that he was coming to the Basti after purchasing the milk. This minor omission in the police statement could hardly constitute a ground for rejecting his evidence in toto. He is an independent and disinterested witness having absolutely no motive to falsely implicate the accused in a heinous crime like murder and his evidence can safely be relied upon.

13. The evidence regarding extra‑judicial confession was furnished by Muhammad Iqbal and Muhammad Ramzan, P.Ws. who too had no axe to grind against the appellant. The prosecution is not obliged to show why the accused chose relatives of the victim for making the confession and the same cannot be thrown away if it is otherwise established that it was voluntary and true. The appellant made the confession before them ors 20‑9‑1991 wherein he stated that he had strangulated the unfortunate girl after subjecting her to his unnatural lust. The victim being a girl, the witnesses could not have known whether she was raped or subjected to sodomy unless they were so informed. The post‑mortem examination conducted on the next day of making of confession revealed that the unfortunate little girl had been subjected to sodomy and in that view of the matter their evidence finds substantial corroboration from the medical evidence. The recovery of dead body at the instance of the appellant from a cotton field also lends material support to the prosecution case.

13. We agree with the learned counsel that extra‑judicial confession is no evidence in a case punishable with death as Qisas. However, in view of the nature of evidence produced by the prosecution and relied upon by the trial Court, it is evident that the appellant was punished with death as Tazir and not as Qisas although it was specifically not so stated in the impugned judgment. The argument so far as this case is concerned is, therefore, misconceived. The plea of the appellant that he was falsely implicated as he belonged to a certain political party has no substance. There is nothing on the record to show that he had contested .the election against the local M.NA. or had actively helped his opponent in the election. He did not make statement on oath under section 340(2) of the Cr.P.C. in disproof of the allegation against him nor produced any evidence in his defence.

14. From the evidence on the record we are satisfied that on the facts proved, no hypothesis consistent with the innocence of the appellant can be suggested and the prosecution has proved its case against him beyond a reasonable doubt. He was, therefore, rightly convicted on all the charges and we uphold his conviction. There is no mitigating circumstance in his favour to withhold the penalty of death. Acting like a beast, he subjected a girl of tender age to his unnatural lust and then strangulated her to death. For the foregoing reasons there is no substance in this appeal and the same is dismissed. N.H.Q./21/SA.C. Appeal dismissed.