KHADIM HUSSAIN Versus THE STATE

ABDUL HAMEED DOGAR, J.-- -This appeal with leave of the Court has been directed against the judgment dated 19-7-2001 passed by a learned Division Bench of the Lahore High Court; Bahawalpur Bench, whereby the appeal filed by appellant Khadim Hussain was dismissed and his conviction and sentence of death under sections 364-A and 302(b), P.P.C. on both counts were maintained and the reference for confirmation of death penalty was accepted. He was also convicted under section 10(3), Offence of Zina (Enforcement of Hudood) Ordinance, 1979, for committing Zina-bil-Jabr with minor Mst. Tayyaiba Urooj aged for 5/6 years and sentenced to suffer rigorous imprisonment for 15 years. He was also directed to pay compensation amounting to Rs.30,000 to be paid to the legal heirs of the deceased and in default whereof was ordered to further undergo six months R. I.

2. Briefly, stated, the facts leading to the filing of the instant appeal are that complainant Haji Imam Din, father of the deceased, had arranged a shop for his nephew, namely, Khadim Hussain appellant in front of his house situated in Chak No. 12-BC Janubi, within the jurisdiction of Police Station Baghdad-ul-Jadeed, District Bahawalpur. Being nephew, appellant used to visit the complainant's house usually. Noticing his bad activities, complainant stopped him from visiting his house. On 13-6-1998, complainant's daughter Mst.Tayyaiba Urooj aged about 5/6 years went out of her house at about 6-15 p.m. and did not returit, hence complainant and his wife Mst.Manzooran started her search alongwith Malik Mumtaz-ul-Haq. During search, they came across Manzoor Ahmad son of Ilam Din and Ghulam Hussain son of Abdul Majeed who told them that they saw the appellant taking away Tayyaiba Urooj on his bicycle towards his house. On such information, they went to the house of the appellant who was not present but his father Nazir Ahmad, brother of the complainant, was present to whom they narrated the above incident. At about 9-30 p.m., complainant and the above mentioned P.Ws. again went to the house of the appellant who met them but denied about taking away Mst.Tayyaiba Urooj and such act confirmed the suspicion against him. Thereafter, the appellant, his father Nazir Ahmad and his brother Ghulam Rasool went to the complainant's house and started search of the girl but in vain. Ultimately, complainant and Mumtaz-ul-Haq went to Chaudhry Muhammad Munir, Member Zila Council and expressed their suspicion for the incident against the appellant. On 15-6-1998, complainant alongwith Mumtaz-ul-Haque, Manzoor Ahmad and Ghulam Hussain again went.at the Dera of Ch.M.Munir, where Muhammad Boota and Muhammad Hanif Ashiq were present. Nazir Ahmad, brother of the complainant, also brought his son, appellant Khadim Hussain there. After lot of efforts, appellant confessed his guilt and narrated that on 13-6-1998, he had taken away Tayyaiba Urooj in the evening to his shop where he administered intoxicant tablets in the water to her and then took her in the Sarkanda plants in Chak No.12-South/BC on bicycle where he committed Zina-bil-Jabr with her, then strangulated her and thereafter murdered her by causing her Churri blows on the neck. Subsequently appellant was brought to the police station where formal F.I.R. was registered and he was taken into custody.

3. During the investigation, the appellant led to the place of murder, pointed out the dead boy and also produced blood-stained knife which was sealed and thereafter sent to Chemical Examiner. The prosecution in order to prove its guilt, examined 12 witnesses.

4. On 16-6-1998 P.W.12 Senior Woman Medical Officer Ibrar Hashmi, examined the dead body of the deceased, conducted autopsy and found the following external and internal injuries on her person:--

(i) A purefying wound size 13 cm 1 cm in which maggots were present, wound was starting from mandibular angle of one side up to the other on the anterior aspect of the neck just above the thyroid cartilage;

(ii) I cm below injury No. 1, there was another putrefying wound size 12 cm x 1 cm present on the neck. Skin and muscles and blood vessels were cut. Hyoid bone was fractured.

She took the vaginal swabs and sent the same to the Chemical Examiner which were found stained with semen, thus opined that the deceased was subjected to sexual assault.

5. P.W.5 Dr. Muhammad Javaid Akhtar medically examined the appellant and found him aged about 19 years and sexually potent.

6. Appellant in his statement under section 342, Cr.P.C. denied the prosecution version but set up the plea as follows:

"I have been falsely implicated in this case. The main figure behind the concoction of the case and fabrication of the evidence is P.W. Ghulam Hassan. He was highly inimical towards me because about a year prior to the occurrence complainant Haji Imam Din had approached my father with the suggestion that he wanted to adopt me and will keep me in his house as he did not have a male issue and I will be prop of his old age. He was about 67 years old. My father agreed and with the consent of both, a shop was arranged for me at Ada 13-Souling. After doing my business I used to stay in the house of complainant Haji Imam Din and visiting my, parents on week ends etc. The complainant had a vacant plot which he wanted to transfer in my name. However, my proposed adoption was seriously opposed by the wife of complainant Mst.Manzooran Mai as she wanted Ghualm Hassan P.W., her cousin, to be adopted as her son to whom the plot was also suggested to be transferred at her instance as he was illiterate and running his clinic even prior to the occurrence in Chak No.39/DNB. For the above reason Mst. Manzooran had often been quarrelling with the complainant and myself and also used to poison the complainant against me. She ultimately succeeded in getting me ousted from the complainant's house some time prior to the present occurrence. My ouster from the complainant's house was source of joy and happiness for Ghulam Hassan P.W. and he started putting up in the complainant's house. With the passage of time Ghulam Hassan became deadly inimical to me, so that there may not be any rapprochement between us and he may succeed in grabbing the entire property of my uncle. On the missing of Tayyabia Urooj, Ghulam Hassan conspired with his cousin Manzoor and they turned the complainant hostile against me through his brain washing. They were active and close associates of Ch. Munir P.W. in his elections and at their instance P.W. Ch.Munir subjected me to harsh treatment, severe threats and send for a rope to hang me therewith. He also made a solemn promise in the entire gathering that he will get me pardoned and spared me from the case on my confessing the guilt. I was minor. My poor father and brother kept mum and could not even speak a single word in my favour. Due to fear of Ch. Munir P. W.1 kept quiet. In the meantime the whereabouts of dead body were also known on account of emitting of smell therefrom. Ch. Munir P.W. accordingly got me involved in this case by exercising his influence and personal ties with the police. In the days of occurrence there were crops sown all along the location of the occurrence, water was also flowing in the Pakka Khal and irrigators used to have round of the watercourse which resulted in the knowledge about the missing of dead body. I was made a scapegoat. The police also wanted to show its efficiency, hence I have been falsely implicated in this case.

The P. Ws. are interested, partisan and have deposed against me as explained above. Ch. Munir P.W. was regular election contestant from the area."

7. He, however, did not examine himself on oath under section 340(2), Cr.P.C. but examined Muhammad Arif a school teacher who produced the relevant Register showing his School Leaving Certificate regarding his date of birth. Appellant, was nevertheless found guilty of the charges and was convicted and sentenced by the trial Court as stated above.

8. The appeal filed by the appellant was dismissed and his conviction and sentence were maintained.

9. This Court granted leave to appeal on 7-3-2002 to consider the following points:

(a) Whether under the circumstances of the case, last seen evidence of Ghulam Hussain and Manzoor Ahmad P.Ws. could be relied upon?

(b) Whether extra-judicial confession of the petitioner/appellant before the P.Ws. inspired confidence and the same was made voluntarily?

(c) Whether recovery of Churri at the pointation of the appellant, which was found stained with blood by the Serologist, could be relied upon?

(d) Whether appellant was minor at the time of commission of offence. If so, whether the death penalty could be awarded to him, despite the provisions of section 308, P.P.C.

10. Learned Advocate Supreme Court for the appellant mainly contended that admittedly the incident was an unwitnessed one. Manzoor Ahmad and Ghulam Hussain, the witnesses on the last seen evidence produced by the prosecution should not have been relied upon as they were not only interested and biased but were closely related to the complainant. According to him both of them were the cousins of the wife of the complainant and the mother of the deceased. On extra-judicial confession, he stressed that the same was extracted under duress and with an inducement and promise that the appellant would be granted pardon by the parents of the deceased, thus, was not worthy of the credit. According to him, even so -called recoveries of crime weapon and the dead body at the pointation of the appellant should not have been made basis for the conviction as the same were made in violation of the provisions laid down under section 103, Cr.P.C. He lastly contended that as per the School Leaving Certificate, the appellant was less than 18 years of age on the day of occurrence, was thus minor. In, such situation, his case would fall under the provisions of section 308, P.P.C and the sentence of death could not be imposed.

11. On the other side, the learned State Counsel vehemently controverted the above contentions and argued that the conviction and sentence were based on proper appraisal of the evidence which do not suffer from any infirmity or irregularity. According to him, the prosecution has been able to collect strong circumstantial evidence in the shape of last-seen evidence, extra-judicial confession adduced by the independent witnesses and corroborated by the recovery of blood-stained weapon of offence pointation of the place of incident and recovery of dead body of the deceased and also positive report of the Chemical Examiner regarding the knife being stained with human blood and the vaginal swabs stained with semen.

12. Admittedly, the appellant is the real nephew of the complainant Haji Imam Din. There is no denial to fact that he was provided with a tailoring shop by the complainant for his livelihood thus being his real nephew, he used to visit the house of the complainant. The last-seen evidence furnished by P.Ws. Ghulam Hussain and Manzoor Ahmad, quite independent witnesses, was rightly relied upon by the Courts below. In our opinion also the same is truthful and trustworthy mainly for the reasons that no animosity of any sort was suggested to these witnesses against the appellant by the defence. It is the quality of the evidence which is to be weighed while deciding the case. Above all, the defence has failed to bring on record that they were in any case closely related to the wife of the complainant and deposed falsely at her instance.

13. On extra-judicial confession prosecution succeeded in bringing on record the evidence of P.W. Ch. Muhammad Munir, Member of District Council. It was in his presence and in presence of respectable, of the locality including Nazir Ahmad, father of the appellant that he confessed his guilt in normal manner. P.W.(10) Chaudhry Muhammad Munir, categorically stated that he did not exercise any kind of duress or coercion upon the appellant to force him to make confession with promise to get pardon. If this had been so, at least father of the appellant would not have remained silent but had agitated the matter before police or the Magistrate who remanded the appellant in custody. Thus, there is no doubt to its being voluntary in nature. The recovery of blood-stained Chhuri and its positive chemical report, pointation of the place of incident, and the factum of the recovery of the dead body at his instance cannot be doubted mainly for the reasons that the above mentioned recoveries were made from a place exclusively in the knowledge C of the appellant. Irrespective of the above, all the above pieces of circumstantial evidence have been further corroborated by other strong circumstantial evidence such as medical evidence, furnished by Senior Woman Medical Officer Ibrar Hashmi who not only described the injuries on the person of the deceased but also opined that the minor was raped and subsequently killed.

14. The factum that the appellant was below 18 years of age at the time of incident has also been rightly discarded by the Courts below. School Leaving Certificate produced by D.W.1 Muhammad Arif, School. Teacher's is not worthy of reliance as the appellant had studied for one year in the school only which factor alone shows that it was a managed document. Moreover, this ground was never agitated during investigation, as such was an afterthought and was rightly rejected by the Courts below.

15. All the above circumstantial pieces of evidence have been found true, voluntary and confidence-inspiring. We, therefore, in the light of above discussion, while affirming the view of the evidence taken by the High Court uphold the conviction and sentence awarded to the appellant and dismiss the appeal being without any substance.

N.H.Q./K-78/S Appeal dismissed.