1998 PLP 1186 (MLD)

SARDAR MUHAMMAD DOGAR, J.

Nasir alias Tabla aged 2? years was tried by Additional Sessions Judge, Shorkot under section 302 P.P.C. and under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 for having committed Qatl-e-Amd of Mst. Sajida Maee aged 11/12 years after having committed Zina-bil-Jabr with her on 5-5-1994 at 8.30 a.m., in the bushes/Sarkandas in Chak No. 486/JB at a distance of 32 k.ms. from Police Station City Shorkot. Learned trial Judge vide judgment dated 24-9-1996 convicted him under section 10(3) of the said Ordinance and under section 302, P.P.C. and awarded sentences as follows:

Under section 10(3) of = 25 years R.I. plus to the said Ordinance suffer 30 stripes. Under section 302 P.P.C. = Death plus to pay a sum of Rs. 10,000 as compensation to the heirs of the deceased.

2. Since the appeal filed by the convict and the reference made by the learned trial Judge for confirmation of sentence of death have arisen from the same judgment, they are being disposed of together.

3. F.I.R. Exh. P.F./1 was registered at the police station by Tariq Mahmood, M.H.C., (P.W.6) on 5-5-1994 at 12.45 p.m. on receipt of statement Exh.P.F. of Allah Bakhsh (P.W.7) recorded by Muhammad Saleem, S.I. (P.W.10) on the same day at 11.00 a.m. at Police Post Adda Waryam Wala. According to F.I.R. Mst. Sajida Mai had gone out for evacuation to' the bushes (Sarkandas) near the village Abadi on the day of occurrence. As she did not return for half an hour the complainant out of anxiety went out in search of her alongwith Aftab (P.W.8) and Khadim Hussain (G.U.) P.W., when they reached in the Sarkandas on the eastern side of village pond they heard cries of Bachao Bachao, uttered by Mst. Sajida Maee They ran towards the Sarkandas and saw Nasir alias Tabla, pressing the throat of Mst. Sajida Maee with both hands. She was lying on the ground and her Shalwar had been removed. On seeing them Nasir alias Tabla ran away. They tried to help Mst. Sajida Maee but she had expired. The complainant stated that the accused had murdered his daughter after committing Zina with her.

3. Muhammad Safeem, S.I., after despatching statement Exh. P.F. to the police station for registration of case reached the spot. He despatched the dead body for post-mortem after preparing inquest report Exh. P.H. and injuries statement Exh. P.I. and inspected the spot. During spot inspection he took into possession Shalwar, P.2, of the deceased vide memo. Exh. P.G. He recorded statements of P.Ws. and arrested the accused on 9-5-1994. Challan was submitted to Court after completion of necessary investigation.

4. Statements of 11 P. Ws. were recorded at the trial. Dr. Muhammad Akhtar who had performed autopsy at 6.00 a.m. on 6-5-1994 appeared as P.W.1. He had noted following injuries on the dead body:-- "(1) A multiple abrasion on both sides of face and nose, running in different directions and was of variable size. (2) A transverse abrasion 1 cm x 1-1/2 cm below the chin. (3) A bruise 2 cm x 1 cm on the right side of neck upper part. (4) A bruise 3 cm x 1 cm on the left side of neck upper part. (5) An abrasion 1 cm x 2 cm transverse in direction on the front of neck 3 cm below the injury No. 4. (6) A multiple abrasion on the front of chest in mid line. (7) An abrasion 2 c.m. x 2 c.m. on the right shoulder outside 5 c.m. below the top of shoulder. (8) An abrasion 3 c.m. x 1 c.m. transverse on the front of left upper side. (9) A multiple abrasion on the front of right thigh. (10) There is perianal tears in mid line extending from posterior wallas of vagina. Opening of thorax. Walls, ribs and cartilages intact and healthy. Pleuras. Intact and healthy but congested. Larynx and Tracheae. Trachea healthy and intact but there is fracture of hyoid bone. Right Lung. Intact and healthy, congested and blood oozes on cutting. Left Lung. Intact and healthy, congested and oozes blood on cutting. Pericardium and heart. Intact and healthy. Pericardium congested right heat full of blood and left empty. Blood vessels intact and healthy. Abdomen: Walls intact and healthy, paritoneum intact and healthy. Mouth, pharynx and oesophagus intact and healthy. Diaphragm intact and. healthy. Stomach and its contents. Intact and healthy and contained 30 CC semi digested food. Pancreas: Intact and healthy. Small intestines and their contents: Intact and healthy, contained partially digested food and congested. Large intestines and their contents: Intact and healthy contained fecal matter and are congested. Spleen: Intact and healthy and congested. Kidney. Both intact and healthy and congested. Bladder: Intact and healthy, contained 30 CC of urine. Organs of generation external and internal Vulva and vagina stained with blood, vagina accommodated two fingers. Hymen ruptured. Mussels and bones and joints: Diseas or deformity. Nil. Fracture: Fractured hyoid bone. Dislocation: Nil. He had found hyoid bone fracture both the lungs and peritoneum was congested. According to his opinion death had resulted due to asphyxia resulting from the injuries Nos. 3, 4 and

5. The injuries were opined to be anti mortem and caused by blunt weapon. Probable time between injuries and death was opined to be within few minutes while time between death and post-mortem was opined to be within 24 hours. During cross-examination he stated that scratches and abrasions around the neck had resulted from nails also. He stated that there were marks of struggle on the back of the dead body including ankles and heels.

5. Dr. Muhammad Ali who had medically examined the appellant about potency appeared as P. W.2 and stated that Nasir was fit to perform sexual intercourse.

6. Allah Bakhsh who had lodged the complaint appeared as P.W.7 and re-narrated the facts given by him in the F.I.R. During cross-examination he stated that there were signs of struggle at the place of occurrence. She asked her mother to accompany her but she had not gone because she was banking bread. According to him the deceased had gone out without Dopatta and shoes. He stated that they tried to catch the accused but he ran away. He added that they had raised alarm when the accused had started running and people of the village had reached at the place of occurrence but by that time accused had fled away. According to him the Sarkandas were spread in an area of 2/3 acres. He stated that P.Ws., Aftab, Mulazim, Khadim Hussain and Mopal Reema had accompanied him to the hospital for autopsy. He denied the suggestion that he had suspected Ghulam Muhammad and Dina to have committed occurrence. He denied the suggestion that they had gone to cut wheat crop at the time of occurrence. He denied the suggestion that his in-laws had demanded the hands of his daughter. He also denied the suggestion that he had engaged his brother Aslam in Watta of his deceased daughter and that Aslam had refused to accept the Watta. The suggestion that the occurrence had taken place 15/20 days after the refusal of Watta, was, also denied by him. The suggestion that sons Haji Asghar, son of Zia Ghuman and son of Ch. Ghulam Rasool were suspected as real culprits of the occurrence. He also denied the suggestion that Gogga, Hamid and Yousaf Warraich were also named as culprits of the occurrence. He denied the suggestion that Noor had told him that dead body of his daughter was lying in the Sarkandas. The suggestion that they had named Noora, Mahmood and Muggi as real culprits was also denied by him. He denied the suggestion that the accused had frightened his children including deceased some days before the occurrence by saying Hawua and that he had involved the accused in the case falsely due to that grudge. Aftab Ahmad P.W.8 while corroborating the statement made by P.W.7, also claimed to have witnessed the collection of Shalwar P/2 of Mst. Sajida Maee, from the spot by the Investigating Officer. During cross- examination he stated that his house was situated at a distance of one acre from the place of occurrence. He denied the suggestion that Noora Muslim Sheikh had informed at 1.00 p.m. that he had seen the dead body near the sarkandas across the pond. According to him there were marks of struggle at the spot. He stated that they did not chase the accused as they started looking after Mst. Sajida. He denied the suggestion that the accused was cutting wheat crop with his family members from the field of his uncle Fazil. He refuted the suggestion that the complainant had named some other persons as culprits of the occurrence. Both, P.W.7 and P.W.8 denied the suggestion that any proclamation had been made from the loudspeaker of the mosque that the girl had been found. Hidayat Ali who had transmitted sealed phial containing swabs to the office of Chemical Examiner on 6-6-1994 appeared as P.W.9 and verified that fact.

7. Muhammad Saleem, Sub Inspector who had recorded statement Exh. P.F. of the complainant, visited the spot, despatched the dead body from the spot, had arrested the accused on 9-5-1994, recorded statements of P.Ws. and submitted challan to Court after completion of necessary investigation appeared as P.W.10 and gave the above details as well as details of investigation done by him. He expressed ignorance about the fact that at the time of occurrence accused was working in the fields with his family. He denied the suggestion that he had falsely involved the accused at the instance of complaint party. The statements of remaining P.Ws. are more or less of a formal nature. Positive report Exh. P.J. from the office of Chemical Examiner was also tendered in evidence.

8. Appellant during statement under section 342, Cr.P.C. denied the prosecution case and pleaded innocence He stated as follows in reply to the question "why this case against you and why the P.Ws. have deposed against you :-- "P.Ws. are related inter se. At the time of alleged occurrence I was cutting wheat crop alongwith my family members and relatives at a distance of one square from-the place of occurrence. I have been roped in falsely on the basis of party-faction." He examined in defence Sher Muhammad D.W.1 and Ghulam Muhammad D.W.2. Sher Muhammad stated that he alongwith Nasir, accused, Munir, Khan, Allah Bakhsh, complainant and many others were cutting wheat crop from land of Nazar Ghuman. He stated that at 8/8-15' a.m. wife of Allah Bakhsh came there and told Allah Bakhsh that their daughter Mst. Sajida was missing, hearing this Allah Bakhsh went alongwith her. He stated that an announcement was made from the speaker of the mosque at 10.00 a.m. that daughter of Allah Bakhsh was missing. He claimed that he had gone to house of Allah Bakhsh alongwith Ghulam. to enquire about his daughter. According to him people present at Baithak of Nazar Ghuman were suspecting that Muga, Muggi, Mahmood Gondal and Hamid Gondal might have committed the offence. He stated that people sitting at the Baithak of Mulazim Gondal were expressing suspicion against Goshi, Ziaullah, Shaukat and Liaqat to have committed the offence. He claimed that when they were sitting at the Baithak of Noora Muslim Sheikh came there and told that the girl has been traced, on which they all rushed to the place of occurrence and saw the dead body lying there on a cot.. He claimed that the accused had remained with them cutting wheat crop from 5.00 a.m. to 10.00 a.m. on the day of occurrence. He stated that some fifteen days before the occurrence Nasir accused had frightened daughters of Allah Bakhsh and other children while returning from marriage by saying Haow. He added that the complainant was annoyed and had involved Nasir in this case. During cross-examination he admitted that accused was his nephew. According to him police had arrived at the spot at 1.30 p.m. He denied the suggestion that he had made false statement. Ghulam Muhammad D.W.2 by and large corroborated the statement made by D.W.1, He gave out that accused was his maternal cousin. During cross-examination he denied the suggestion that he had made a false statement.

9. Learned counsel for the appellant after taking us through the evidence criticised the impugned judgment and contended that eye-witnesses had not seen the occurrence, that the appellant was involved in this case due to enmity/suspicion, that the investigation of the case was done in a slip shod manner and that the fact that the accused had not tried to run away from the village after the occurrence speaks of his bona fide. Learned counsel for the State defended the judgment of trial Court.

10. Learned counsel while contending that eye-witnesses had not seen the occurrence, elaborated that had the, witnesses seen the occurrence alongwith Khadim Hussain, (given up) P.W., they would have not only caught the accused but would have also given him beating for having committed such an heinous crime. Learned counsel stated that the very fact that the accused had not been caught at the spot show that the witnesses had neither seen the accused at the spot doing any criminal act nor had even seen him around the spot. In our view the contention of the learned counsel does not possess weight for the reason that the father and the other witnesses after having seen the deceased being throttled would have first looked after her to see, whether she was alive or not and whether they can render her any help to save her life. Moreover the accused was a young man of 27 years and it is not possible that father of the unfortunate girl who was 55 years would have started running after him. The witnesses explained during cross-examination that on seeing him running away they raised alarm, villagers rushed to the spot but in the meantime the accused had run away.

11. The argument that the accused was involved in this case due to enmity is absolutely out of place as nothing was brought on record during trial to consider that there was any animosity between the accused and the complainant or any of the eye-witnesses. The only suggestion put to P.W.7 and P.W.8 at the trial was that the accused had once frightened the daughters and other children of Allah Bakhsh when they were returning from the marriage party. It is a common knowledge that expression 'haow' to scare children is a sweet joke and it is done just to enjoy reaction of the children. Leaving aside the innocent nature of the joke even otherwise both the witnesses have denied that such a thing had happened. The complainant in this case was a poor person, his unfortunate daughter, even, had no shoes and Dopatta to wear while going out for easement. What type of enmity he could have with anybody? In the circumstances we do not find any substance in the argument of the learned counsel.

12. As mentioned in the preceding para the complainant was poor person belonging to a low class. What influence he could have exercised on the Police to get undue favour in the investigation? Moreover, investigation in this case was also a very simple affair. Only one person had been named in the F.I.R. The dead body of the deceased was lying on the spot. Her Shalwar which was later found stained with semen was also lying there. Nothing was to be recovered from the accused. The only task the Investigating Officer had to do after registration of the case, was to send the dead body for post-mortem, recorded statements of P.Ws., collected Shalwar from the spot and arrested the accused. For doing all this what favour he could have done to the complainant. All that he did was his duty. That being the position we do not find anything in the contention raised by the learned counsel.

13. The contention of the learned counsel that since the accused had not tried to run away from the village so it should be assumed that he was innocent, does not advance the case of the appellant. After all where could he have run and for how long? He was involved in a crime for which he could not have earned sympathy from anybody. Mere fact that he did not abscond is no reasons to believe that he was innocent. The contention, therefore, stand repelled. As mentioned above, the eye-witnesses in this case were not inimical to the appellant. Their testimony find corroboration from the medical examination. Shalwar of the deceased sent to the office of Chemical Examiner was found stained with semen which also lend corroboration to the allegation of commission of Zina. Only two persons appeared in defence of the appellant. Their stance C was that the appellant had remained with them cutting wheat crop from 5.00 a.m. to 10.00 a.m. One of them was the uncle of the appellant and the other was first cousin. They did not claim that they had appeared in defence during investigation or had approached the higher Authorities or even respectables of the area to say that the appellant was involved in this case falsely. The keen-ness of defence witnesses to save their relative is apparent from the fact that during statements they named twelve persons as suspects. Had that been so atleast someone of them would have been joined .in investigation but no such thing had happened.

14. It is a case of prompt lodging of F.I.R., question of conspiracy or concocting a false story does not arise because eye-witnesses had seen the appellant throttling the deceased and the medical evidence supported p that.

15. For all the reasons noted above we do not find any merit in this appeal the same is; therefore, dismissed. The sentence of death awarded to the appellant is confirmed. H.B.T./1186/FSC Appeal dismissed.