KHALID MAHMOOD Versus STATE

SH. MUHAMMAD ZUBAIR, J.-- - The appellant was convicted under section 302(b)/377, P.P.C. and section 10 of Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 and sentenced to imprisonment for life as Tazir under section 302(b), P.P.C., and imprisonment for 10 years with a fine of Rs.20,000, or in default thereof to further undergo R.I. for 2 years under section 377, P.P.C. He was also sentenced to undergo 10 years' R.I. with whipping numbering 30 stripes under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979. He was further sentenced to pay a fine of Rs.10,000 to the legal heirs of the deceased under section 544-A, Cr.P.C. or in default thereof R.I. for one year, by the Special Court for Speedy Trials, Lahore, presided over by a Judge of the Lahore High Court, Lahore vide judgment, dated 27-1-1993. Against his conviction the appellant has filed Criminal Appeal No.12/SAC/L of 1993. The State has filed Criminal Appeal No.13/SAC/L of 1993 against the same judgment for enhancement of sentence of the appellant from imprisonment for life to death while maintaining his sentence under section 302, P.P.C.

As both the matters arise out of the same judgment, these are being disposed of together by this judgment.

2. The occurrence in this case took place on 26-4-1992 during day time in Uganda Hotel, Lahore, about one kilometre towards north from Police Station Qila Gujjar Singh, Lahore and the F.I.R. (Exh.P.O./1) on the statement (Exh.p.p.) of Mst. Nasim Akhtar complainant (P.W.iI) was recorded by Waqar Ahmad Khan S.I. (P.W.15) at the aforesaid police station on 2-5-1992 at 5-15 p.m.

3. As for the main occurrence, it was stated by the complainant that she lived in House No-754/N, Samanabad, Lahore alongwith her daughter Mst. Shahnaz Akhtar (deceased) who was MA. Islamiyat and for the last three years had been doing job in Pakistan Traders Gulberg, Ghalib Market. As usual, on the day of occurrence at about 7-45 a.m. she left for office. At about 4-00 p.m. the same day on listening the bell she reached the outer door of her house where she saw a person aged about 25/26 years of wheatish colour wearing Shalwar Qameez alongwith a Rickshaw driver who asked her if Shahnaz was her daughter? She replied in affirmative. He told the complainant that her daughter (the deceased) was not feeling well in the office, and she had been removed to Mayo Hospital. He asked the complainant to go with them. On this the complainant and her daughter Gulnaz Akhtar (P.W.12) sat in the same Rickshaw and set for Mayo Hospital. When they reached Chauburji, after saying that there was a police raid and they did not allow three passengers in one Rickshaw, the appellant got down the same. The complainant alongwith her daughter namely Gulnaz reached in Emergency Ward of Mayo Hospital where she saw that her daughter (Mst. Shahnaz Akhtar) was lying dead.

4. The investigation was conducted by Ghulam Hussain A.S.I. (P.W.16). He prepared inquest report Exh.P.Q. and sent the dead body to the mortuary for its post-mortem examination. He also recorded the statements of Muhammad Nawaz and Shakeel-ur-Rehman P.Ws. He took into possession a foam matress Exh.P.6 on which the dead body of Mst. Shahnaz Akhtar was lying on the stretcher besides a white Chaddar Exh.P.7, vide memo. Exh.P.B. He took into possession clothes of the deceased shirt P.1, Shalwar P.2 Dopatta P3, vest P.4 and Tail (Peranda) PS, vide memo. Exh.P.C. Later on, the investigation was transferred to C.I.A. Staff and Amjad Mahmood Qureshi, Inspector (P.W.17) conducted the same. He again recorded the statements of the P.Ws. visited Uganda Hotel examined the respectables and other P.Ws. of the hotel and took into possession Entry Register containing the entries Exh.P.G. regarding the reservation of the room by the accused and the entry card Exh.P.H. vide memo. Exh.P.J. He inspected the place of occurrence, prepared rough site plan Exh.P.B./2 and got prepared the site plans Exh.P.B. and Exh,P.B.A. On 6-5-1992 he arrested the accused from the house of his in?laws at Flaming Road, Lahore. He got the accused medically examined vide application Exh.PA./1 on 9-5-1992. On 12-5-1992 while in custody the appellant got recovered Burqa P.8 from the Almirah of Room No.102 of Uganda Hotel which he took into possession vide Exh.P.E. He made application Exh.P.M. to Tariq Zaman, Magistrate for obtaining the finger prints of the accused and also made application Exh.P.N. for attesting his specimen signatures. He sent Entry Card Exh.P.H. alongwith finger prints Exh.P.ll to the Finger Prints Bureau for examination. He received report Exh.P.H./1 of the Expert Finger Prints Bureau. After completing the investigation, the challan was submitted in Court.

5. Dr. Nayyar Ghias (P.W.1) examined Khalid Mahmood accused on 9-5-1992 to know about his sexual potency. In his opinion, the accused was capable of performing sexual intercourse. He also found contused swelling with scapped abrasion in an area of 20 x 18 c.m. on right buttock. There was a contused swelling with scapped abrasion in an area of 20 x 15 c.m. on left buttock. All the injuries were declared as damiah, caused with a blunt weapon.

6. Dr. Arif Rashid Malik (P.W.9) on 27-4-1992 at 10-30 a.m. conducted the post-mortem examination on the dead body of Mst. Shahnaz Akhtar daughter of Abdur Rehman and his observations are as under: --

External examination:

It was a dead body of a female having strong built, 170 c.m. in length appeared to be of stated age, dressed in printed yellow and black colour Shalwar Kameez, yellow colour Dopatta, light blue colour Bunyan and black Paranda. Shalwar was stained with blood at perineal area. Clothes were signed removed and handed over to police. The dead body skin surface over face, neck and upper part of chest uptil first intercostal space were cyanotically congested. Bilateral sub-conjunctival haemorrhages were present. There was no hair growth in armpits. Nipples were rudimentary and pinkish in colour Well-developed cyanotic post-mortem staining was present on back in between areas of contact flattening. Rigor mortis was fully developed.

External injuries:

There were three injection marks.

(a) ??????? at the left cubitalfossa;

(b) ??????? two at the back of left hand on 3rd metacarpal bone, 2 c.m. below ? metacarpo phalangal joint, showing vital reaction.

Systemic examination:

Examination of Genitalia:

Mons pubis and labia majora were stained with blood. Labia minora were contused and swollen. Vestibule was contused. Frenulum of labia minora was freshly torn, size of tear was 1.5 x 1 c.m. Hymen was freshly torn widely stretching from 5 o'clock to 7 o'clock (in lithotomy position), extending into posterior vaginal wall. Blood was oozing out of vagina. Vaginal canal and uterus were extensively bruised and 300 c.c. clotted blood was present in uterus. Uterus was rudimentary in size. Vaginal canal ragosities were present. Five vaginal swabs were prepared for despatch to Chemical Examiner. Perianal area was bruised and faecal matter was coming out of anus. A minute super?ficial fresh tear at 7 o'clock (in lithotomy position) was present. Three anal swabs were prepared for despatch to Chemical Examiner.

Head:

Under surface of scalp was congested. Skull was intact. Membranes and brain were congested. Vertebrae and spinal cord were not open.

Thorax:

All the organs in the thoracic cavity were congested. Ribs were intact and healthy. Hyoid bone was not fractured. Trachea was congested. Both lungs were edematous, congested with petechial haemorrhage. Right side of heart was full of blood. Left side of heart was empty.

Abdomen:

In abdomen, peritoneum, pancreas and urinary bladder were healthy. Esophagus was congested. Stomach contained two ounces semi-?digested food, Haemorrhagic lines scattered all over the stomach mucosa converging towards pyloric end. Small intestine was congested and contained chyme. Large intestine was congested and contained chyme. Large intestine was congested and contained gases and faeces. Liver, spleen and kidneys were congested. Petechial haemorrhages were present on kidneys. Urinary bladder was empty.

Opinion

The injection marks, the injuries to the vagina, vaginal canal, uterus and anus were ante-mortem and these injuries were consistent with sexual intercourse,

Following material were sent to Chemical Examiner to the Government of the Punjab for detection of semen.

(a) ??????? Blood, (b) bile, (c) stomach with its contents, (d) small intestine with its contents, (e) piece of liver, (f) spleen, (g) left kidney, (h) skin. sub?cutaneous tissue and veins on and around injection marks.

The doctor received report of Chemical Examiner Exh.P.L. which he sent to S.S.P. Lahore vide endorsement Exh.P.L./1 with the following observations:--

?The autopsy findings are consistent with asphyxial and syncopal (haemorrhagic) mode of death.?

His opinion regarding the cause of death is also endorsed on the post-mortem report Exh.P.K./2.

Probable time between injury and death could not be given and the probable time between death and post-mortem was within 12 to 24 hours.

7. When examined under section 342, Cr.P.C. the appellant denied the prosecution allegations Lvelled against him and in answer to the question "Why this case against you, and why do the P.Ws. have deposed against you?" replied in the following words:--

"I have been falsely implicated by the police at the instance of Muhammad Ilyas P.W. who mala fidely prejudiced the parents of the deceased against me. I produce my written statement Exh.D.J. and the photo copy of my national identity card Exh.D.K. in my defence."

The appellant produced three defence witnesses who deposed that the appellant was arrested on 30-4-1992 from his house,in their presence.

7. Placing reliance on the prosecution evidence, the learned trial Judge convicted the appellant and awarded him the sentence as indicated above.

8. Learned counsel for the appellant vigorously contended that in fact, it was an unseen occurrence, none of the prosecution witnesses saw the real culprit and the appellant has been convicted on the basis of circumstantial evidence which, by itself, is not sufficient to prove the guilt of the appellant. The appellant is not a nominated accused in the F.I.R., in the absence of any test identification parade of the accused in jail, as required by law, the prosecution has miserably failed to prove the guilt of the appellant beyond any reasonable doubt. He next urged, that even the prosecution has failed to establish this important fact that it was the deceased, who visited Uganda Hotel, Lahore, alongwith the appellant, where she allegedly fell ill and had to be removed to Mayo Hospital, for treatment by the appellant. He pointed out that the sole witness, Muhammad Azam (P.W.14), the Waiter in Uganda Hotel, Lahore, who was in a position to recognize the appellant and the deceased in Room No.102, was declared hostile, thus there is not an iota of evidence on the record to connect the appellant with the crime. The prosecution has fabricated documentary evidence Exhs.P.G. and P.H. to involve the appellant falsely in this case, as is apparent from the evidence of Muhammad Azam Tanveer (P.W.6) and Amjad Mahmood Qureshi, Inspector (P.W.17).

In the end, learned counsel feebly contended that even if the prosecution evidence, in spite of all its above-mentioned infirmities, is accepted, on its face value, still offence under section 302, P.P.C. is not proved, at the most, conviction can be recorded under section 322, P.P.C. as the appellant had no intention to kill the deceased, it was case of Qatl-bis-Sabab.

The learned counsel for the State supported the impugned judgment.

10. The learned counsel for the complainant submitted that the sentence awarded to the appellant is grossly inadequate, it may be enhanced to death while maintaining the conviction.

11. We have gone through the entire record carefully and have also examined critically the respective submissions of the learned counsel for the parties.

It is true, in this case, there is no direct evidence available on the record to establish the guilt of the appellant and the learned trial Judge has based his finding on the assessment of circumstantial evidence. Before embarking upon the discussion of circumstantial evidence adduced in this case, it would be advantageous to define what is meant by the term ?circumstantial evidence?. Circumstantial evidence means the Evidence afforded not by the direct testimony of an eye-witness to the fact to be proved, but the bearing upon that fact or other and subsidiary facts which are relied upon as inconsistent with any result other than the truth of the principal fact. Circumstantial evidence is evidence of facts from which the facts `in issue' may be inferred as a natural or probable conclusion. In the present case, the fact `in, issue' is, who committed the murder of Mst. Shahnaz Akhtar deceased.

12. The prosecution, in order to establish the guilt of the appellant, examined Mst. Nasim Akhtar (P.W.11) and Mst. Gulnaz Akhtar (P.W.12), mother and sister of the deceased, respectively. Accordingly to their testimony, Shahnaz Akhtar deceased left the house at 7-45 a.m. on 26-4-1992, for her office. At about 4-00 or 4-30 p.m., the appellant visited their house and told them that the deceased was lying in the Emergency Ward of Mayo Hospital, Lahore, in a precarious condition. Both of them went to the hospital alongwith the appellant in a Rickshaw, but the appellant alighted from the Rickshaw at Chauburji Chowk on the pretext that he would reach the hospital later on. When both the ladies reached the Emergency Ward, they found Mst. Shahnaz Akhtar lying dead on the stretcher. The mattress and Chaddar P.6 and P.7, respectively, were taken into possession vide memo. Exh.P.B., which was signed by Muhammad Nawaz P.W.4 and Muhammad Ismail, Constable. These articles bore the signatures of the doctor with a number and had the identification mark of Uganda Hotel, Lahore. In the Emergency Ward, the statement of Mst. Nasim Akhtar P.W. (Exh.P.O.) was recorded by Ghulam Hussain, A.S.I., P.P. Mayo Hospital, Lahore (P.W.16). Later on, Mst. Nasim Akhtar P.W.11 made a supplementary statement on 4-5-1992, wherein she gave the full particulars of the appellant and his business address of Gujrat.

13. The prosecution examined Muhammad Nawaz P.W.4 and Shakeel-ur?Rehman (P.W.5), cousin and real brother of the deceased, respectively. They deposed that Articles P.6 and P.7 were taken into possession in their presence. Then the appellant while in police custody led to the recovery of Burqa P.8 from Room No.102 of Uganda Hotel, Lahore, on 12-5-1992, from its Almirah which was taken into possession vide memo. Exh.P.E. and both these witnesses attested the recovery. Muhammad Azam Tanveer (P.W.6), allotted Room No.102 to the appellant vide Entry at Serial No.2869/2873 in Register Exh.P.G. and prepared the Entry Card Exh.P.H. Learned defence counsel tried to assail the genuineness of these two entries on the ground that these were fabricated later on, but we find this contention of the learned counsel is untenable as these witnesses have no ostensible reason to depose falsely against the appellant. Neither any enmity between the appellant and these witnesses was suggested nor proved, so we find no justification to discard their straightforward and confidence inspiring evidence. Muhammad Ilyas (P.W.8), the employer of the deceased deposed that he saw the deceased alive with the e appellant when both of them left his office in a Rickshaw after obtaining one day's leave from him. This witness was subjected to lengthy cross-examination by the learned defence counsel, but the defence failed to shake his testimony, so we see no reason to disbelieve this witness, who last time saw the deceased alive with the appellant. The entries made by the appellant in Uganda Hotel, Exh.P.G. and Exh.P.H. were sent to the Handwriting Expert, for comparison with the admitted signatures of the appellant, Exh.P.N./1 taken in the presence of Mr. Tariq Zaman, Magistrate First Class (P.W.13). The report of the Handwriting Expert Exh.P.H./1 is positive, such evidence, though circumstantial, is cumulative in its effect and sufficient to prove the guilt of the appellant beyond any reasonable doubt; hence his appeal being devoid of any force, is dismissed accordingly. We have observed that the trial Judge while sentencing the appellant under section 10 of Ordinance VII of 1979, ordered him to pay Rs.10,000 as compensation to the legal heirs of the deceased, or in default to undergo one year's R.I., whereas under the law, it could not be more than six months, so we reduce it accordingly.

14. Vide order, dated 31-10-1993, we issued notice to the appellant why his sentence be not enhanced to death, if his appeal is dismissed on merits. We have anxiously considered the medical evidence brought on the record coupled with reasons advanced by the learned trial Judge for withholding the sentence of death. While maintaining the conviction of the appellant under section 302, P.P.C., we find that the learned trial Judge gave very cogent and solid reasons for not awarding the capital sentence on the appellant, which is the normal penalty under the law. We revoke the notice issued to the appellant for the enhancement of his sentence.

15. In view of the above discussion, we find no merits in both the appeals and dismiss the same accordingly.

N.H.Q./116/SAC ???????????????????????????????????????????????????????????????????????????????? Appeals dismissed.