1998 PLP 2669 (SCMR)

MAULANA MUHAMMAD TAQI USMANI, J.

This is a very unfortunate and unusual case where in an infant girl aged only one year and five months, namely, Farzana Kausar was brutally murdered by being subjected to rape for which the present appellant is held responsible by the two Courts below. He was originally convicted by the Additional Sessions Judge; Pakpattan Sharif; on 16-2-1986 and was sentenced under sections 302, 364-A, P.P.C. and 10(3) of the Ordinance No.VII of 1979. The appellant filed an appeal before the Federal Shariat Court which, ,vide its order 5-3-1986, remanded the case to the learned trial Court. After retrial, the learned Additional Sessions Judge, Pakpattan Sharif again convicted the appellant on 9-9-1991 under the same sections. Under section 302, P.P.L. he was sentenced to death and to pay a fine of Rs.10,000 or R.I. for one year in dafault and was directed to pay a compensation of Rs.10,000 to the legal heirs of the deceased under section 544-A, Cr.P.C. or to undergo farther R.1. for six months. Under section 364-A, P.P.C. he was sentenced to ten years' R.I. and a fine of Rs.10,000 or further R.I. for one year in default and was ordered to pay compensation of Rs.10,000 to the legal heirs of the deceased; and under section 10(3) of the Ordinance No.V11 of 1979 he was sentenced to ten years' R.I. and thirty stripes. The appellant again filed an appeal before the Federal Shariat Court which was dismissed on 19-4-1992 and all the sentences given to him by the Additional Sessions Judges, Pakpattan Sharif, in his second judgment after remand were maintained. Hence, this appeal with special leave of this Court. The facts of the case, briefly stated, are that on 28-12-1983 an F.I.R. was lodged by Muhammad Amir P.W.3 wherein he stated that his daughter Mst. Farzana Kauser aged about 1-1/2 years was missing. He disclosed in the F.I.R. that he was working in his factory and his wife in the field to bring fodder for the cattle. When she came back at 2-00 o'clock she did not find her baby Farzana Kausar in the home. She informed the complainant whereby he came home and started searching for his baby. During search Hakim Ali (P.W.12) and Muhammad Ali (P.W.4) informed him that they have seen Jafar Ali, the appellant taking Farzana Kausar with him. He further stated in the F.I.R. that he kept searching for Jafar Ali and his daughter but no clue was found by him so far and that according to his apprehension, the appellant Jafar Ali has abducted his daughter for some foul play. This F.I.R. was lodged at 6-20 p.m. and in the same night the dead body of the baby was found in a Khal which was identified by P.W.3 Muhammad Amir, the complainant. P.W.7 Dr. Ghulam Ahmed examined the dead body of Mst. Farzana Kausar on 29-12-1983 at 07-00 a.m. with the following results: "Following injuries were found on the dead body: (1) A contused area 4 c.m. x 4 c.m. on the left cheek with swelling around it, extending towards the nose, bleeding has occurred from the nose. (2) Multiple small abrasions on the front of chest just below the root of neck. (3) The vagina was swollen, and bleeding had occurred from it. The vagina and anus had become one opening due to a tear from the before back wards. The tear entered the pelvis between the factum and bladder and it could admit penis. Both lungs were healthy and pale, the heart was healthy and empty. The pelvic cavity contained blood and pelvic peritoneous was injured due to the tear. The stomach was healthy and contained about two 4 ounces of liquid. The bladder was healthy and emply, rest of the organs were healthy and pale. The death in my opinion was due to shock and hemmorrhage due to injury No.3 which was sufficient to cause death in ordinary course of nature. The injuries were ante-mortem and caused by blunt weapon. Injuries Nos.1 and 2 were simple and injury No.3 was grievous and dangerous. Probable time that elapsed between injuries and death was a few minutes and between death and post-morten examination was about 18 hours. " The doctor took two vaginal swabs from the dead body which according to the report of the Chemical Examiner Exh.PE/2 were found stained with semen and blood. The prosecution examined 14 witnesses in all. Mst. Noor Bibi, the mother of the deceased baby, appeared as P.W.6 and deposed as under: "I went in the morning to cut the fodder. My husband was employed in a factory and had gone to do labour there. My mother-in-law was at home and Mst. Farzana Kausar minor with her.. My mother-in-law was blind. Accused Jafar Ali who is son of my maternal-uncle followed me in the fields at about noon time. He tried to take access with me and I gave him two slaps on his face. The accused then disappeared. At about 1-00 p.m. I returned to my home after cutting the fodder. I asked my mother-in-law that where was Mst. Farzana Kausar and she told me that Jafar Ali accused had taken the minor from her. I then searched the minor and Jafar accused in my neighbour, but could not find them. I then informed Manzoor Master in my neighbour who informed the complainant Ameer in the Lucky Cotton Factory. Then my husband came. He also started searching the minor daughter and accused. I also informed the whole incident to my husband." Muhammad Ali P. W.4 stated that he saw Jafar Ali taking Mst. Farzana Kausar in the land of one Muslim Khan. Hakim Ali P.W.12 was also with him to whom the appellant told that he was going to 35/S.P. and that the mother of the baby was following him. When Muhammad Ali and Hakim Ali came to their village at 4-00 p.m. they learnt that Mst, Farzana Kausar was missing, and she was being searched, upon which they told Muhammad Amir, the complainant, that they had seen Jafar Ali taking away Farzana Kausar. Hakim Alt P W.12 also stated that he alongwith Muhammad Ali saw the appellant taking away Mst. Farzana Kausar. Yusuf son of Noor Muhammad appeared as P.W.2 who gave the following statement: "When I was passing through the lands of Chak No.32/S.P. I found that the dead body of Mst. Farzana Kausar was lying in a Khal and blood was oozing from her vagina. Three/four persons were sitting at the distance of 10/15 Karams from the dead body, out of which one was Charagh and the other was Allah Ditta. I identified the dead body of the minor because she was daughter of Amir Mochi of our village. The minor was at that time 1-1/2 years old. The persons present there including Charagh and Allah Ditta told me that few minutes before the death of the baby, a young man was taking away the baby from near the Khal and in their view he sat down in the Khal with the baby. They also disclosed that they thought that the baby was urinating in the Khal but all of a sudden they heard the cry of the baby and the young man ran away leaving the baby there. I left those persons to guard the dead body and myself. went to Chak to inform the parents of Farzana Kausar deceased. I accordingly informed her parents." Mst. Kahlida Perveen the elder sister of the deceased Farzana Kausar appeared as C.W.1 and stated as follows: "About 7/8 years ago Mst. Ferzana Kausar deceased, myself and my grandmother Mst. Noor Sain were present in my house at Dopeher waila. Jafar accused who is present in Court came in our house. He sat near my grandmother for some time, he then took Mst. Farzana Kausar with him for playing. My mother Mst. Noor Bibi at that time had gone to bring fodder. After about one hour my mother came and she asked from my grandmother that where was Mst. Farzana Kausar. My grand mother Mst. Noor. Sain told her that accused Jafar had taken her away. We then started searching Mst. Farzana Kausar. We the informed Amir complainant my father. We came to know in the evening that the accused had murdered Mst. Farzana Kausar after committing Zina with her. " On 31-12-1983, the appellant Jafar Ali appeared before Muhammad Saeed Khan Jafar, MIC, Jalapur P.W.13 and made a confessional statement before him with the following words (Exh.PL/2): This confession was proved by the Magistrate M. Saeed Khan who appeared as P.W.13. The appellant was arrested by the I/O on 31-12-1983 and Qameez P/2 and Chaddar P/3 which were worn by the appellant were taken by him into possession in presence of Falaksher P.W.5 and were sent to the Chemical Examiner which were found stained with blood vide his report Exh.P.N. The appellant while giving his statement under section 342, Cr.P.C. denied all charges against him and claimed that he had been involved in this case falsely due to enmity. The appellant also appeared under section 340(2) and repeated his denial but did neither give a cross-version, nor did produce any evidence in his defence. We have heard the learned counsel for the appellant and perused the record with his assistance. He raised the following points: (1) There is no direct evidence against the appellant, because no body has seen him killing the baby or committing sexual intercourse with her. (2) The Courts have relied upon last seen evidence which is the weakest type of evidence and no capital punishment can be awarded on this basis.. (3) Judicial confession was illegal because it was taken under oath. The learned counsel for the State vehemently supported the impugned judgments and contended that the guilt of the appellant is proved on the record beyond any shadow of doubt. It is true that no body has seen the appellant committing offences of rape and murder against the miserable baby, yet the prosecution has brought circumstantial evidence against the appellant. The appellant is the maternal cousin of Mst. Noor Bibi P.W.6, the mother of the victim, who has no enmity, grudge or ill-will against him. According to her statement the appellant followed her in the field and tried to commit "Ziadti" with her upon which show gave him two slaps on his face. after which he disappeared. This statement shows that the appellant was overpowered by his sexual lust. Mst. Khalida Bibi C.W.1, stated that the appellant came to the house of Noor Bibi when she was in the field and took Mst. Farzana Kausar with him on the pretext of playing with her. Hakim Ali P.W.12 and Muhammad Ali P.W.4 saw him taking the baby with him. Yusuf P.W.2 found the dead body of the Farzana Kausar lying in a Khal. Charagh Din and Allah Ditta who were sitting there told him that they saw a young man taking away the baby from near that Khal and in their view he sat down in the Khal. Soon after that, the dead body of the baby was found in the Khal. Charagh Din while appearing in the second trial as P.W.10 claimed that he did not know about the occurrence, but he was declared hostile. He was cross-examined by the prosecution in which he was duly confronted with his statement in the first trial where he had admitted his presence at the place of occurrence as stated by Yusuf P.W.2. All these witnesses with cumulative effect of their evidence go a long way to prove a very strong last seen evidence against the appellant. The learned counsel for the appellant submitted that the last seen evidence is the weakest type of evidence which should not form basis of conviction in a murder case. He relied on PLD 1970 SC 10, PLD 1970 SC 56, PLD 1977 SC 515 and 1969 SCMR

388. We have gone through the authorities cited by the learned counsel. None of these authorities has laid down the principle that last seen evidence cannot form basis of conviction at all, The consistent view of this Court has been that last seen evidence is not sufficient for establishing the crime where it requires making conjectures to connect the accused person with the crime or where there are reasonable possibilities that someone else has committed the offence, but if the chain of the fact is such that no reasonable inference can be drawn except that the accused has committed the offence after the victim has been last seen in his company, then in the absence of a reasonable explanation from the accused, this evidence can be relied upon for convicting him for the offence. In the case of Rahmat v. The State (PLD 1977 SC 515) on which the learned counsel has relied, the principle is laid down as under: "On a balance of the decided cases it appears that the circumstances of the deceased having been last seen in the company of the accused is not by itself sufficient to sustain the charge of murder. Further evidence is required to link the accused with the murder of his companion. Such as incriminating recoveries at the instance of the accused, a strong motive or the approximately of the time when they were last seen together and the time when the deceased was killed. Only then will the accused be called upon to give an explanation of the demise of the person who was last seen alive in his company." The status of the last seen evidence has been thoroughly examined by Court in a recent case of Khurshid v. The State (PLD 1996 SC 305) where page 315 the conclusions are spelled out as under: "From the above reports it is evident that the circumstances, namely, that the deceased was last seen with the accused person is a reliable piece of evidence if corroborated by other pieces of circumstantial evidence which are interlinked and which clearly connect the- accused persons with the commission of offence." It is further observed in the said judgment: "I may observe that while appraising the circumstantial evidence, the Court is to keep in mind the location of the incident. If the place of incident is a place where no witness was available and the accused had the exclusive knowledge about the incident, the simpliciter denial on the part of the accused will not be sufficient to nullify the circumstantial evidence of the nature which directly connects him with the commission of the offence charged with. But he should raise a plea of the nature which on being tested on the touchstone of probabilities warrants a reasonable hypothesis of the accused's innocence. I may further observe that in criminal cases though the Courts are supposed to follow the well-settled principles of Criminal Jurisprudence, namely, that an accused person is presumed to be innocent, that the, prosecution is to prove a criminal case against an accused person beyond reasonable doubt and in case two views are possible, the view which favours the accused person, should be preferred; and that all benefits of doubts should be extended to the accused, but at the same time, the Courts should also take notice of the changing circumstances of the present days. Even in cases where eye witnesses are available, they refuse to appear as witnesses in support of the prosecution case; either because of fear or on account of being won over by the accused party. The Court's approach, while appraising the evidence, should be dynamic and not static. .It should keep in view all the facts and circumstances of the case and if it is satisfied that factually the person charged with the offence has committed the same, it should record the conviction though there might have been some technical lapses on the part of the Investigating Agency /prosecution, provided the same have not prejudiced the accused in the fair trial. The people are losing faith in the criminal judicial system for the reason that in most of the criminal cases the criminals get away without being punished on technicalities. The last seen evidence provided by the prosecution in this case is so consistent and approximity of time is such that it is sufficient to connect the appellant with the offence, particularly, keeping in view the fact that the victim was an infant and could not have left the company of the accused of her own accord. It is fully established on the record that the appellant took the girl from her house and on the same evening she was found murdered after being raped and in the intervening period she was seen in the company of the appellant by Muhammad Ali and Hakim Ali P.Ws., and thereafter by Charagh Din. In these circumstances it was the liability of the appellant to give an explanation for the death of the baby, but in his statement under section 342, Cr.P.C. he not only failed to give any explanation, but flatly denied that he had taken the baby with him which is otherwise fully proved on the record. This last seen evidence is corroborated by the confessional statement of the appellant recorded by Muhammad Saeed Khan, MagistKate Firsts Class, P.W.13. It is true that on the confessional statement the words are written, but the Magistrate has explained them, during cross-examination, in the following words: "The said words I have written in the statement inadvertently due to rush of work. However, I did not administer the oath." There is no reason to disbelieve the learned Magistrate on this point, therefore, the technical ground for rejection of the confessional statement as contended by the learned counsel for the appellant, does not have much force. It is proved on the record that the appellant was arrested on 31-12-1983 and on the same day, his confessional statement was recorded by P. W .13 who has mentioned in his statement that he observed all the formalities required for recording confession. He gave him half an hour to think and has explained to him that he is not bound to make this statement and that the statement can be used against him. The appellant himself did not take the plea that this confession was given by him under torture of the police or any other kind of pressure, rather he totally denied that he had made any confession, while the same is fully proved by the P.W.13. As mentioned earlier, the very day on which he was arrested i.e. 31-12-1983 he got recovered his Chadar, P/2 and shirt, P/3 which , were found stained with blood. It should also be noted that the complainant had lodged the F.I.R. at a time when he did not know that his baby was murdered, therefore, he simply reported that she was missing and that the appellant took her away. It was quite a natural report from him at that point of time which excludes any possibility of false involvement of the appellant in a murder case. After careful examination of the record, we are satisfied that overwhelming circumstantial evidence has been brought against the appellant. The contention of the learned counsel for the appellant that without direct evidence the appellant cannot be sentenced to death, is without force. If the circumstantial evidence connects the accused with the offence without any reasonable doubt, the same can form basis of the capital punishment. This position is accepted by the Islamic jurisprudence aiso. Al-Majallah which has been the code of Islamic Laws, promulgated by the Ottoman Caliphate and has remained in force for centuries in different parts of the Islamic world; has recognized the circumstantial evidence even in the case of murder. Sections 1740 and 1741 of this code are as follows: (Urdu translation) Lastly, the learned counsel contended that the sentence of death was originally passed by the learned trial Court on 16-2-1986 which was covered by the general amnesty order of the President of Pakistan which was issued on 8-12-1988, therefore, his sentence of death should be converted into life imprisonment, because under the said order all death sentences awarded up to the 6th December, 1988 were commuted to life imprisonment. This argument of the learned counsel is also without force, because the original order passed by the learned trial Court on 16-2-1986 was set aside by the remand order passed by the learned Federal Shariat Court on 5-3-1986. Then he was again convicted by the learned trial Court on 9-9-1991 i.e., much later than the. amnesty order, This was a fresh conviction and was not covered by the General Amnesty Order because it relates only to the sentences passed before 6-12-1988. The learned counsel then argued that had the case of the appellant not been remanded, he would have benefited froth the General Amnesty Order, therefore, this aspect should at least be taken as a mitigating circumstance in favour of the appellant. We do not agree with the learned counsel. The appellant has committed brutal murder of an infant child whom he treated like a beast, hence, he deserves no leniency. In view of the above discussion we find no merit in this appeal which is hereby dismissed. All the sentences, awarded to him by the learned Trial Court vide its judgment dated 9-9-1991, including the sentence of death, are upheld. N.H.Q./J-20/S Appeal dismissed.