2003 PLP 1420 (MLD)

MUHAMMAD AKHTAR SHABBIR, J.

Briefly stated the facts of the case are that on 23-11-1998 Muhammad Ajmal complainant got recorded a case F.I.R. No.289, dated 23-11-1998 for offences under sections 449/302/34, P.P.C., 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, at Police Station Abadpur, District Rahimyar Khan, wherein, he alleged that he used to, reside in Basti Qadir Bakhsh, Mauza Rajanpur Kalan. His brother Muhammad Iqbal was, also the resident of the said Basti and was a driver by profession. On the fateful day, he was coming back from the mosque after offering Asar prayer, when he heard noise from the house of Muhammad Iqbal aforesaid. He went to his house where Gul Bahar and Jalil Ahmad were present. They told him that they had seen Jami1 Ahmad and Abdul Rashid running out of the house of Muhammad Iqbal, whereupon, the complainant, Gul Bahar and Jalil Ahmad entered the house of Muhammad Iqbal and found Mst. Parveen daughter of Muhammad Iqbal lying dead on the ground in a room of the house. A glass was also lying near her from which bad smell was coming. Some vomiting material was also there. It was further stated that wife of complainant's brother had gone to Badli Sharif to see her parents. She also reached back. They raised alaram which attracted Abdul Karim and other residents of the Basti. It was alleged that about a few days ago, Jamil Ahmad had asked Mst., Parveen to develop illicit relations with him, upon which Mst. Parveen rebuked him and due to this grudge, Jamil Ahmad with the help of Abdul Rasheed had forcibly administered poison to Mst. Parveen and killed her. The case was investigated, accused were arrested and challan was submitted for trial.

2. On 11-1-2001, the accused were charge-sheeted under sections 449/302/34, P.P.C., 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, to which they pleaded not guilty and claimed trial.

3. To bring home the guilt of the accused-appellants, the prosecution had produced as many as (10), P.Ws. Muhammad Yaqoob, A.S.-I., P.W.1, Ghulam Yasin, Constable P.W.2, Muhammad Aslam, Constable P.W.3, Muhammad Ajmal, Patwari P.W.4, Muhammad Ishaq, Constable P.W.5, Zahid P.W.6, Jalil Ahmad P.W.7, Muhammad Ajmal P.W.8, Lady Doctor Subha Seemin P.W.9 and Madad Hussain Inspector P. W.10.

4. P.W.4 Muhammad Ajmal Patwari stated that on 29-12-1988 after inspecting the place of occurrence, he prepared three copies of scaled site-plan Exh.P.W. and Exh.P.A./1 on the direction of police and on the pointation of P.Ws.

5. P.W.5 Muhammad Ishaq, Constable had deposed that on 23-11-1998 Madad Hussain, Inspector/S.H.O. handed over to him a dead body of Mst. Parveen for the purpose of post-mortem examination. He escorted the dead body of the deceased to District HQs. Hospital, Rahimyar Khan. Lady Doctor W.M.O. Rural Health Centre, Rajanpur Kalan conducted the post-mortem examination on the dead body of Mst. Parveen. After examination, the W.M.O. handed over to him last worn clothes of the deceased, Qameez P.1, Shalwar P.2, Dupatta P.3, Nose Pin (Koka) P.4, Pair of ear-rings (tops) P.5, a sealed parcel alongwith a tin sealed, box sealed and two sealed envelops. He produced all these articles before the S.H.O. who took into possession the same vide recovery memo. Exh.P.B.

6. P.W.9 Lady Doctor Subha Seemin, Medical Officer, had conducted the post-mortem, on the dead body of the deceased Mst. Parveen and found as follows:-- Examination of dead body: On 24-11-1998 at 3-00 dead on observation smell of chemical + vomitus. Spray (Agriculture) may or may not be given by force. Person seen fleeing away. External appearance: Slight mark on right side of neck as if grabbed by somebody's (Lt.) hand. Emaciated and composed. II-Cranium and Pinal Cord. Not any abnormality found. III-Thorax: Walls, ribs and cartilages were not fractured. Pleurae was normal Larynx not broken but indication of previous pressure so loose. Trachea normal. Accumulation of blood in right lung. Accumulation of blood in left lung. Right ventricle filled with blood and left empty. All blood vessels were filled with blood (Aorta and caroted). IV-Abdomen Walls, peritoneum, mouth, pharynx, oesophagus and diaphragm were found normal. Stomach preserved and sealed. was normal. Small intestines and its contents were preserved and sealed. Large intestines and its contents were preserved and sealed. Liver, spleen, and kidneys were preserved and sealed. Bladder was normal. Hymen ruptured. Bruise's present around genitalia. Laceration on introitus + Pubic hair intact + secretion was present in vagina and three swabs were taken. V-Muscles. Not any major injury except those mentioned above. Reamrks by Medical Officer: She was not virgin. Had seminal or vaginal secretion. There were sings of resistance against intercourse (probably). The smell of pesticide or chemical was prevailed inside and outside the body. There was pressure on chest and neck and abdomen before death. Cause of death was insecticide belonging to organophosphorous group, as per report of Chemical Examiner dated 1-2-1999. According to the report of Chemical Examiner the deceased was subjected to sexual intercourse. The lady doctor had tendered in evidence the post-mortem report Exh.P.F., injury statement Exh.P.F./1, inquest reports Exh.P.F./2 and Exh.P.F./3.

7. P.W.8 Muhammad Ajmal complainant of the case had reiteratea the narration as contained in the F.I.R. He was also supported by Zahid P.W.6 and Jalil Ahmad P,W.7 who are the eye-witnesses of the occurrence.

8. P.W.10 Madad Hussain, Inspector had deposed that on 23-11-1998 Muhammad Ajmal complainant appeared before him at the police station and got recorded his statement Exh.P.C. As a result of which, a case F.I.R. 289 of 1998 Exh.P.C. was registered. He alongwith other Police Officials proceeded to the place of occurrence. He inspected the dead body of Mst. Parveen and prepared the inquest reports Exh.P.F./2 and Exh.P.F./3 and injury statement Exh.P.F./1. He recorded the statements of complainant and the P.Ws. at the spot. He also took into possession stinking glass from the place of occurrence vide recovery memo. Exh.P.E. Vomiting-stained earth was also taken into possession vide recovery memo. Exh.P.D. He also prepared unscaled site-plan of the place of occurrence Exh.P.G. All other P.Ws. are of formal nature.

9. When examined under section 342, Cr.P.C., the accused appellants had denied all the prosecution evidence. Jamil Ahmad accused appellant stated in his written reply that there is civil and criminal litigation going on between his father-in-law and Jam Abdul Aziz, a relative of the complainant party and he had been involved in this case at the instance of said Abdut Aziz and his son Abdul Karim. He further stated that the complainant also suspected that the deceased Mst. Parveen had developed some liking for him and was very unhappy with it as he himself wanted to marry his son with the deceased. Abdul Rasheed accused appellant also stated in line with Jamil Ahmad. They also produced five certified documents in their defence as documentary evidence but did not appear as D.Ws. in their own defence.

10. After going through the evidence of the parties, the trial Court convicted the accused appellants under section 449/34, P.P.C. and sentenced them to ten years' R.I. with a fine of Rs.20,000 each or in default thereof to undergo further for a period of 2-1/2 years' S.I. The appellants were further convicted under section 302/34, and sentenced to death. They are also directed to pay a sum of rupees one lac each as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased. according to their shares. In default thereof they were to undergo further for six months S.I. each. The accused appellants were also extended the benefit of section 382-B, Cr.P.C., vide judgment dated 14-2-2001.

11. Feeling aggrieved by this judgment, the appellants have preferred the instant appeal.

12. Learned counsel for the appellants at the very outset has raised an objection that there was no evidence of commission of Zina by more than one person, therefore, the case was not triable by the Court of Special Judge, Anti-Terrorism and the judgment has been passed without jurisdiction. He further submitted that Zahid P.W.6 has not been named in the F.I.R. nor his statement has been recorded under section 161, Cr.P.C. and the conviction on this sole testimony of this witness has been made which is not supported by any other witness. This evidence is liable to be excluded from judicial consideration. Relies on case of Riaz Masih alias Mithoo v. The State (1995 SCMR 1730). Further argued that the investigation is based on mala fide as the Investigating Officer has not taken the finger-prints of the accused from stinking glass of poison. Further added that the accused-appellants have been involved in this case on the basis of enmity and the prosecution has produced documentary evidence to establish their enmity which has illegally been excluded by the trial Court during trial. Learned counsel further submitted that the opinion of the doctor and the report of Chemical Examiner with regard to-sexual, intercourse with the deceased has not been supported by any independent witness. Further contended that the prosecution has failed to prove the case against the appellant beyond any reasonable doubt and it was a case of suicide by the deceased girl who was unwilling to marry with a person of her disliking.

13. Conversely, the arguments addressed by the learned counsel for the appellants have vehemently been opposed by the learned counsel for the complainant as well as learned Law Officer, contending that the challan of the case was sent to the Court of Session and the Court on the objection of the appellants vide its detailed order dated 14-12-1999 sent the same to the Special Court, Anti-Terrorism. This order was challenged through a writ petition which was disposed of by the High Court with a direction to apply to the concerned Court but the accused appellants failed to raise such objection before the Trial Court at the proper time. Furthermore, the statement of P.W.6 supported by medical evidence, is sufficient to establish the guilt of the accused-appellants. The accused-appellants have not established their enmity with the father of the deceased as well as complainant. The medical evidence corroborated the prosecution story supported by recovery of poison glass and vomiting material.

14. We have carefully considered the arguments addressed by the learned counsel for the parties and also gone through the record with their assistance.

15. Muhammad Ajmal P.W.8/complainant had made an application before learned Sessions Judge, Rahimyar Khan, as the challan of the case was sent to that Court, raising the objection that according to the medical evidence and report of Chemical Examiner, the deceased had been subjected to sexual intercourse. Since two accused persons were nominated and seen at the place of occurrence, therefore, offence under section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, has been constituted which was exclusively triable by the Special Court, Anti-Terrorism. Learned Sessions Judge after hearing the objections of both the parties vide detailed order dated 14-12-1999 sent the case through proper channel to the Court of Anti-Terrorism. This order of the learned Sessions Judge has been challenged by the accused-appellants in the High Court through a writ petition which was disposed of by the Court with the direction to approach the concerned Court first. Under the direction of the Court, the accused-appellants did not raise such objection at the time of taking the cognizance of the case by the Anti-Terrorism Court. The Court had charge-sheeted the appellants under sections 449/302/34, P.P.C. and 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 on 11-1-2001. The taking of cognizance and charge-sheet had not been challenged by the appellants before next higher forum rather after recording of evidence, filed an application, challenging the jurisdiction of the Court, which was dismissed on 8-2-2001, by the Anti-Terrorism Court, which was dismissed on 8-2-2001, by the Anti-Terrorism Court but that, too, was not challenged before the High Court and the trial Court on 14-2-2001 passed the impugned judgment and convicted the accused appellants. In view of the above discussion, the question of jurisdiction at this stage cannot be raised as the appellants themselves participated in the proceedings of the trial of the case. Furthermore, the trial Court had framed the charge-sheet under section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, against the appellants but found that the prosecution had failed to prove the charge-sheet under section 10(4) of the Ordinance and did not convict the appellants under the said section. Accordingly, the arguments of the learned counsel for the appellants with regard to the jurisdiction of the trial Court, having no force is repelled.

16. The case has been registered on the statement of Muhammad Ajmal P.W.8/complainant, who deposed in the Court that on the day of occurrence he was going to his house from the mosque after offering Asr prayer and on hearing commotion he rushed towards the house of Muhammad Iqbal where Gul Bahar and Jalil Ahmad P. Ws. were standing. They told that they had seen Jamil Ahmad and Abdul Rashid accused running from the house of Muhammad Iqbal. On this they raised alaram. Thereafter, he (P.W.8) alongwith Gul Bahar and Jali1 Ahmad entered into the house of Muhammad Iqbal and saw that Mst. Parveen was lying on the ground and a stinky glass as well as some vomiting material was also lying near her. They took care of Mst. Parveen Bibi but she was found dead. Since the father of the deceased was not present, so, he reported the matter to the police whereupon a case F.I.R. No.289 of 1998 Exh.P.C. had been registered by Madad Hussain, Inspector P. W .10. The statement of this witness/P.W.8 had been corroborated by P.W.7 Jalil Ahmad, who deposed in line with P.W.8. He stated in detail whatever he had witnessed.

17. The most important witness of the case is Zahid son of Khalid Mahmood/P.W.6, a boy of aged about 9/10 years who had deposed that he went to the house of Ghulam Rasool, Humaira, Asma and Parveen were preset in the house. The father of Ghulam Rasool, namely Muhammad Iqbal had gone to earn his livelihood while his mother Mst. Aziz Mai and his brothers had gone to Badli Sharif. Therefore, the accused appellants asked us to go into the room as they had to talk with Mst. Parveen. They were replied to talk with Mst. Parveen in their presence, whereupon, Rasheed accused gave a slap to Ghulam Rasool. Zahid further deposed that after that they became frightened and went inside the room. Jameel accused-appellant forcibly caught hold of Mst. Parveen and dragged her inside the room who started weeping bitterly. He deposed that they came out of the room and stood at the door of the room where Mst. Parveen was present and saw that Abdul Rasheed accused was sitting on the chest of Mst. Parveen and was holding her hand while Jamil accused was administering her some material through a glass. Thereafter, both the appellants after administering the medicine went away. After their fleeing away, the P. W. stated that they have also come out of the house. Gul Bahar and Jalil P.Ws. were standing outside the house. They narrated the facts of the incident to them. In the meanwhile, Muhammad Ajmal complainant came there. They also narrated the whole story to him. This child witness had been cross-examined at length but nothing material, damaging the prosecution case had been extracted from his mouth.

18. As to the arguments of the learned counsel for the appellants that statement of Zahid P.W.6 has not been recorded under section 161 Cr.P.C. is concerned, it is suffice to observe, that defence had producee a copy of police proceedings. Exh.D.B. which shows that statement of Zahid P.W.6 had been recorded. P.W.6 had been confronted with the which reveals that the said witness was examined oy the police during investigation and the statement under section 161, Cr.P.C. was also recorded. The argument of the learned counsel for the appellant that a witness who was not nominated in the F.I.R. and his statement was not recorded by the police, his evidence could not be taken into consideration is liable to be excluded, being misconceived is not accepted because this argument of the learned counsel is belied from the record produced by the defence itself.

19. The Lady Doctor Subha Seemin, P.W.9, who conducted the autopsy of Mst Parveen deceased had opined that the deceased was not virgin. There were signs of resistance against intercourse. The smell of pesticide or chemical was prevailed inside and outside the body. There was pressure on chest and neck as well as abdomen before death. She had categorically deposed that the cause of death was insecticide belonging to organophosphorous group and the deceased was also subjected to sexual intercourse.

20. Muhammad Ajmal Patwai P.W.4 had stated that he after inspecting the place of occurrence, prepared three copies of scaled site plan Exh.P.A and Exh.P.A./1 on the direction of police and on the pointation of P.Ws. The last-worn clothes of the deceased Qameez P.1, Shalwar P.2, Dupatta P.3, nose pin (Koka) P.4 and pair of ear-rings (tops) P.5 had been taken into possession vide Exh.P.B., which is circumstantial evidence and the same is also strengthening the prosecution case.

21. The statements of P.Ws.6, 7 and 8 are sufficient to prove the presence and participation of the accused appellants in the occurrence.

22. Abdul Rasheed appellant when examined under section 342, Cr.P.C. had taken the stand in his written reply that he has been falsely involved in the case due to civil and criminal litigation between himself and Abdul Aziz a close relative of complainant. He further deposed in defence that Allah Bux his brother had filed an appeal against Abdul Aziz and others and false story was cooked up after a lot of deliberation with Abdul Aziz and Abdul Hakim, his son. He continued that the complainant had suspected that the deceased had developed some liking for him (Abdul Rasheed) and was very unhappy about it as he/the complainant himself wanted to marry his son with the deceased. The complainant, Abdul Karim and his father Abdul Aziz colluded with Madad Hussain, S.H.O. Abadpur and they fabricated the evidence and involved him in the instant case. Muhammad Ajmal accused/appellant had also taken the defence that there is a civil and criminal litigation going on between his father-in- law Atta Muhammad and Jam Abdul Aziz, a close relative of the complainant. The defence had filed copies of some documents F.I.R. Exh.D.1, on the complaint of Abdul Aziz son of Faiz Bakhsh, copy of private complaint Exh.D.2, titled as Jam Abdul Aziz v. Atta Muhammad and 9 others, copy of the challan form of case F. I. R. No. 161 of 1997 on the complaint of Abdul Aziz against Muhammad Siddique and five others including Abdul Rasheed Exh.D.3 and a copy of private complaint Exh.D.4 titled as Abdul Aziz v. Hazoor Bakhsh and 16 others. We have examined the F.I.R. Exh.D.1, wherein, Khalil Ahmad son of Bashir Ahmad had been nominated as prosecution witness while P.W.7 is Jallil Ahmad son of Abdul Ghafoor, so, the stand of the appellant that the prosecution witnesses have also enmity against them is belied from the record. The appellants had not established their direct enmity with the father of the deceased as well as complainant or any other prosecution witness. There is also no other evidence on the record to substantiate that the complainant party is under the influence of Jam Abdul Aziz with whom the appellants had civil and criminal litigation. Keeping in juxtaposition, both the version, the Court will carefully follow that which is plausible and favourable to the accused-appellants, but in the present case the defence version taken by the appellants is not established on the record. The defence has not been able to shatter the prosecution evidence.

23. The statement of P.W.6 Zahid an innocent child witness who met with lengthy cross-examination and was also examined by the police, cannot be brushed aside easily, who himself had witness Abdul Rasheed sitting on the chest of the deceased and holding her hands, whereas, Jamil Ahmad accused-appellant was administering the medicine to the deceased. The accused had been seen running away by Jalil Ahmad P.W.7 who is an independent witness. The statement of P.W.6 had further been fortified by the statement of P.W.9, Lady Doctor Subha Seemin who conducted the post-mortem examination of the deceased and found that there was pressure on chest, neck and abdomen before death. The prosecution evidence having no motive whatsoever for false involvement of the accused. The same was straightforward and implicitly reliable. Recovery of stink glass and clothes of the deceased have further strengthened the prosecution version. The presence as well as participation of the accused-appellants had also been proved by the prosecution.

24. Having considered these circumstances and given our anxious consideration to all the aspects of the case we are unable to find any extenuating circumstances that can be urged in favour of the accused appellants. The prosecution has successfully proved its case by producing ocular medical, recovery and circumstantial evidence. However, at the time of murder of the deceased except Zahid P.W.6, no other eye witness was available nor the police made efforts to collect any other evidence, therefore, we think that the ends of justice would be met if the sentence of death on each of these two appellants is altered to one for life imprisonment, so, we alter their sentence accordingly. Resultantly, with this modification in the sentence of the appellant, the appeal is dismissed. "The Death Sentence is not Confirmed". H.B.T./J-94/L Order accordingly.