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Petitioner: Allah Ditta VS Respondent: The State
Court Name: Islamabad High Court Judge(s): Mohsin Akhtar Kayani Title: Allah Ditta vs The State Case No.: Criminal Appeal No.99/2017 Date of Judgment:2018-12-19 Reported As: KLR 2019 Criminal Cases 6, 2019 PCRLJ 1316, PLJ 2019 Cr.C. 848, 2018 IHC 165 Result: appeal allowed
Judgment MOHSIN AKHT AR KAYANI, J: Through this criminal appeal, Allah Ditta/appellant has assailed the judgment dated 16.05.2017 passed by the Judge Juvenile Court (West), Islamabad whereby Allah Ditta/appellant has been convicted and sentenced according to the provisions laid down in Juvenile Justice System Ordinance, 2000 in the following manner: (a) U/S 302(b) PPC accused named above is sentenced to life imprisonment with fine of Rs.2,00,000/- and in default of payment of fine, accused named above to further undergo simple imprisonment for six (06) months. (b) U/S 376 PPC accused named above is sentenced to 10 (ten) years imprisonment with fine of Rs.1,00,000/- and in default of payment of fine, accused named above to further undergo simple imprisonment of three (03) months. (c) U/S 201 PPC accused named above is sentenced to three (03) years imprisonment with fine of Rs.50,000/- and in default of payment of fine, accused named above to further undergo simple imprisonment of three (03) months. 2. Brief facts as unfolded by PW-9 Abdul Malik/complainant in his complaint Exh.PM are that he is resident of Afghanistan, presently resident of Chelo, Islamabad, and is a vegetable vender. On 21.11.2008, his daughter Khatima Bibi, aged 8 years, left after Maghrib prayer time to fetch milk but she did not come back and on 22.11.2008, he reported the missing of his daughter to P.S. Golra Sharif. On 07.01.2009, he received information regarding a dead body in a drainage ditch (barsati naala) nearby Jamia Masjid Zahida Hanfiya, Sadaat Colony, Jhangi Syedan, Islamabad, which he and his brother Abdul Baki identified as Khatima Bibi on the basis of her dress (red color Ghagra), white color Shalwar with design stitching at the bottom (Pauncha), and black socks, whereas the clothes were on the body, but the cause of death was not known. Muhammad Mursaleen/ASI on receiving a wireless call from Rescue-15 reached at the spot along with Tasneem Ahmad/ASI, Mumtaz Habeeb/ASI, Azeem Khan/C and Muhammad Farooq/C, whereafter the complainant recorded his statement, which was converted into a complaint, and ultimately into FIR No.11 dated 13.01.2009, U/S 302/34 PPC, P.S. Golra Sharif, Islamabad (Exh.PZ). The dead body was then shifted to PIMS Hospital for postmortem. The police
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also registered naql report No.36 Exh.PA in the police record and after preparation of entire record of this case, the Investigation Officer arrested Allah Ditta/appellant, who recorded his statement U/S 164 Cr.P.C. (Exh.PT) before the PW-11 Muhammad Liaquat Abbasi/Magistrate and also got recovered Balti (bucket used to fetch milk and one chappal of the deceased) from Dheira of Muhammad Hafeez, milk seller. The Investigation Officer submitted final report U/S 173 Cr.P.C. before the Court, whereupon the Court awarded death sentence U/S 302(b) PPC for committing murder of deceased and also convicted Allah Ditta/appellant U/S 376 PPC for committing Zina with minor girl vide judgment dated 20.07.2010. 3. The appellant has assailed the said judgment by filing Crl. Appeal No.131/2010 (Allah Ditta vs. The State) and Murder Reference No.2/201 1 (The State vs. Allah Ditta) before the Hon'ble Islamabad High Court, whereby the judgment dated 20.07.2010 was set-aside vide judgment dated 02.11.2016 mainly on the ground that Allah Ditta/appellant was minor at the time of alleged occurrence and his rights under Juvenile Justice System Ordinance, 2000 have not been protected by the learned Trial Court, hence, the matter was remanded. After retrial, the learned Session Court vide judgment dated 16.05.2017 convicted and sentenced Allah Ditta/appellant U/S 302(b) for life imprisonment as well as U/S 376 PPC for ten (10) years imprisonme nt with fine of Rs.1,00,000/- and U/S 201 PPC for three (03) years simple imprisonment along with fine of Rs.50,000/-. 4. The prosecution in order to prove the case has produced 16 prosecution witnesses in the learned Trial Court including doctors, witnesses of recovery as well as Magistrate, who recorded the statement of Allah Ditta/appellant U/S 164 Cr .P.C. and several other police of ficials. 5. Dr. Shazia Zammurrad, Medical Officer, PIMS appeared as PW-14, who conducted postmortem of deceased Khatima Bibi and recorded her version as under: It was dead body of 08 years old female child, wearing red coloured clothes. Body was foul smelling, putrefied, and unidentifiable by appearance. Following injuries were observed on her body:- 1. Wounds on both cheeks. 2. Wounds on chest 3. Wounds on both arms and forearms. 4. Wounds on both things medially . 5. Neck mobile freely at C-1 and C-2 joints (dislocated) 6. Looking to be raped as per external genitalia. Chest walls were ruptured. Almost rest of the organs were healthy but putrefied. Genitalia were widened and open. In my opinion, deceased died due to multiple injuries, i.e. dislocation of C-1 and C-2, injury on cheeks, injuries on both arms and forearms, injuries on both things medially . All injuries were ante-mortem in nature and sufficient to cause death in ordinary course of life. As per report of chemical examiner of high vaginal swabs, semen was detected in the swabs and the girl/deceased was raped. Probable time between injury and death was few minutes to one hour, while time between death and post mortem was between one to two months as the body was putrefied. Postmo rtem report and Pictorial grams Ex-PU/1-6 bear my signatures as Ex-PU/7-8. 6. During the course of cross-examinatio n, PW-14 Dr. Shazia Zammurrad acknowledged that according to her report, the deceased was raped before murder and she sent the swabs to chemical examiner for analysis and acknowledged that the dead body was dry and even if the dead body was submerged in water, swabs can be taken for detection of semen, but that could be negative, however she conceded that swabs in this case were positive and the external genitalia is widened. She further acknowledged that there was no injury on tongue, hands (including fingers), and feet, and as per postmortem report, larynx and trachea, lung, mouth, pharynx, and esophagus were healthy. She also conceded that there was no bone injury in the upper and lower jaw and the deceased has not died due to suffocation, although there is no wound on the neck of deceased, except there was dislocation of neck and the injuries noted on the body of deceased were possibly caused due to physical trauma, rather than instrument. However, PW-14 Dr. Shazia Zammurrad also acknowledged that the walls of diaframe were ruptured and it could be assumed from the ruptured walls of thorax that physical trauma could have been a fall, whereas she also acknowledged that if a body falls from a height and the impact point is chest, it is likely that
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the bones of the neck would be fractured. She also acknowledged decomposition starts after 4/5 days after death of the person. According to her opinion, the time between death and postmortem was less than one month and by less than one month she meant it could be few days more or less than one month, and she finally acknowledged that an organ could be either healthy or putrefied and it cannot be both at one time. 7. The prosecution has produced Dr. Farrukh Kamal, MLO, PIMS as PW-15, who stated that on 08.01.2009, he was associated, facilitated and assisted by PW-14 Dr. Shazia Zammurrad in cond ucting postmortem of deceased and he prepared the postmortem report on the dictation of PW-14 Dr. Shazia Zammurrad and the postmortem report and pictorial diagrams Exh.PU/1-6 contain his signature. He also examined Allah Ditta/appellant and found him fit to perform sexual intercourse vide his report Exh.PY . During the course of cross-examination, he acknowledged that in Exh.PU, there is no authority by which he could conduct postmortem of deceased. He also acknowledged that he taken samples of accused on 06.02.2009 and handed over it to the Investigation Officer the same day . 8. The prosecution has produced the complainant Abdul Malik as PW-9, who stated that he is an Afghan citizen and living in Islamabad from last 25/30 years and on 07.01.2009, he found a dead body in a drainage ditch, which he positively identified as of his daughter who had disappeared on 21.11.2008 when she was going to fetch milk and having a bucket in her hand, however he was not confirmed as to who committed murder of his daughter . He also stated that on 21.11.2008, when his daughter disappeared, he visited buffalo shed of Abdul Hameed where he inquired from Allah Rakha and Allah Ditta/appellant, servants of Abdul Hameed, but they replied that she had not come there. On 22.11.2008, PW-9 Abdu l Malik/complainant went to P.S. Golra Sharif and submitted complaint regarding missing of his daughter and also advertised in newspaper regarding missing of his daughter . He again visited Dera of Abdul Hameed and inquired from him of Allah Ditta/appellant, whereby Abdul Hameed informed the complainant that Allah Ditta/appellant has disappeared and after recovery of dead body of deceased, the PW-9 Abdul Malik/complainant again inquired from Abdul Hameed regarding his servant Allah Ditta/appellant, who stated that his whereabouts are still not known, which raised his suspicion that Allah Ditta/appellant killed his daughter after ravishing her chastity and put the dead body in a gunny bag and threw the same in a drainage ditch/barsati naala. On 28.01.2009, he visited Malkhana of P.S. Golra Sharif and identified the bucket (P8 & P9) to be the same which the deceased had taken to fetch milk when she disappeared and he signed the memo of identification of bucket Exh.PP , which was attested by me, Naz Bibi and Abdul. On 31.01.2009, PW-9 Abdul Malik/complainant again identified one chappal of deceased lying in Malkhana of Police Station, which is of China made and of purple color (P7) through identification memo Exh.PE. PW-9 Abdul Malik/complainant recorded his statement on 07.01.2009 Exh.PM and 13.01.2009 Exh.PQ before the police. 9. Naz Bibi, mother of deceased, recorded her stance as PW-8 before Zulfiqar Ali/I.O. on 13.01.2009 and stated that on 21.11.2008 she sent her daughter Khatima Bibi deceased to fetch milk from Dera of Abdul Hameed (employer of Allah Ditta/appellant) and herself went to nearby shop in connection to purchase some commodities, however when she came back, she did not find her daughter Khatima Bibi, who had not returned, thereafter she started searching for her daughter in the neighborhood, but she was not traced. She further stated that her husband PW-9 Abdul Maalik also inquired from Dera of Abdul hameed as well as from Allah Ditta/appellant regarding whereabouts of her daughter but Allah Ditta/appellant showed his ignorance regarding the same. She further stated that on 22nd of the said month, they informed the local police about missing of their daughter , who was wearing red colour qameez, white shalwar and china made chappal of purple color and she further stated that they also published a public notice in newspaper regarding missing of their daughter . On 7th of the month, police informed them a dead body of female child is lying in drainage ditch and they have been called to identify the same, and on reaching at place of occurrence, they identified the dead body as Khatima Bibi. She further stated that Allah Ditta/appellant disappeared from vicinity and they suspect that he had murdered Khatima Bibi and threw the same in Naala. PW-8 Naz Bibi identified the bucket P8 & P9 in Police Station on 28th of the month, which were taken by deceased Khatima Bibi to fetch milk, regarding which memo of identification Exh.PP was prepared and thumb marked by PW-8 Naz Bibi. She also visited P.S. Golra Sharif on 31.01.2009 and identified shoe (P7) of Khatima Bibi vide memo of identification Exh.PE which was thumb marked by PW-8 Naz Bibi, mother of
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deceased. During the course of cross-examination, she notified the date of incident as 21.11.2008 and acknowledged that deceased never went to fetch milk prior to said incident and there are elder sons and daughters. She also acknowledged that they have not informed the Police Station that their girl went missing on 21.11.2008 and deceased was wearing purple color chappal P7 when she went missing. She also do not remember regarding the number of statements recorded by the police, however she stated that on three papers her thumb impressions were inscribed, i.e. one regarding chappal, second regarding bucket, which were thumb marked on different dates. 10. The prosecution has produced Sher Muhammad as PW-10, who is also an Afghan national, who stated that on 21.11.2008, he along with Aurangzeb visited the house of his friend PW-9 Abdul Maalik/complainant, who told them that his daughter has gone to fetch milk from Dera of Abdul Hameed but did not come back and Abdul Maalik was worried. PW-10 Sher Muhammad stated that after staying there for a short, he along with Aurangzeb went to a nearby shop to buy cigarettes and when they heard Azaan of Esha, they offered prayer in mosque of village Chelo and when they were coming from the mosque towards Kashmir Highway , they saw Allah Ditta/appellant was going while carrying a gunny bag on his right shoulder and they presumed that the gunny bag may contain khall or choker , and Allah Ditta/appellant was heading towards barsati naala located towards Sada at Colony . PW-10 Sher Muhammad further stated that on 13.01.2009, he came to know that dead body of Abdul Maalik' s daughter has been recovered from barsati naala and when he reached at the house of Abdul Maalik, the inmates of the house informed him that the dead body was recovered from a gunny bag and on hearing this, they believed that the deceased was done to dead by Allah Ditta/appellant after subjecting her to illicit fornication and in order to screen the offence, he packed the dead body of Khatima Bibi in a gunny bag and threw the same in a barsati naala. He identified the gunny bag P1 in the Court. However , during the course of cross-examination, PW-10 Sher Muhammad acknowledged that he was the employer of PW-9 Abdul Maalik and Aurangzeb was his friend and on 21.11.2008, when he came to know about the missing daughter of the complainant, he did not offer him help to search her daughter and on 21.11.2008, he along with Aurangzeb visited PW-9 Abdul Maalik by chance. He neither asked PW-9 Abdul Maalik regarding the recovery of his daughter in next one and half month nor visited the Dera of Abdul Hameed before the occurrence, even he is not able to tell direction towards Dera of Abdul Hameed from Chelo village. He also acknowledged that he never seen the accused person when he was on Kashmir Highway and he has seen the accused from outside the village upon a passage, who was heading towards barsati naala and both barsati naala and Dera of Abdul Hameed are in opposite direction. 11. The prosecution has produced Muhammad Mursaleen/ASI as PW-5, who stated that he was duty officer on 07.01.2009 at P.S. Golra Sharif and on receiving information regarding dead body of a minor girl lying near Sadaat Colony , he along with Mumtaz Habib/AS I, Tasneem Ahmad/ASI, Farooq/Constable and Azeem Khan/Constable went to place of dead body which was lying in a gunny bag. He recorded the statement of complainant and taken into possession the patson bag vide recovery memo Exh.PB, sent the dead body to PIMS Hospital for postmortem through Abdul Maalik complainant, Mumtaz Habib/ASI and Azeem Khan/Constable and sent complaint Exh.PM for rapt to the police station and prepared the inquest report Exh.PN. He stated that complainant Abdul Maalik identified the dead body vide identification memo Exh.PK on 08.01.2009 after postmortem and dead body was handed over to complainant for funeral purpose vide Exh.PL and on 27.01.2009, on the pointation of Allah Ditta/appellant, he got recovered bucket P8 and P9, which were taken into possession vide memo Exh.PJ and signed by him and on 30.01.2009, Allah Ditta/appellant got recovered slipper of deceased PW-7/complainant, which was taken into possession vide recovery memo Exh.PG and signed by him. During the course of cross- examination, PW-5 Muhammad Mursaleen/ASI acknowledged that he received the information of dead body on 07.01.2009 at about 1 p.m., but he did not write any roznamcha and he was the first Investigation Officer of the case. He further acknowledged that when they reached at place of occurrence, the dead body was lying in a patson bag and the same was not taken out from the bag and only few kids were present near the dead body, whose statements have not been recorded. From the appearance of the dead body, he could not tell whether it was of a girl nor he recorded any foul smell in his investigation report and complaint Exh.PM dated 07.01.2009 was in his handwriting. He has also not mentioned in Column No.7 of the inquest report whether any grass or hey
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or any other thing else attached with the clothes of deceased and in Column No. 8, he mentioned that eyes and mouth of deceased were semi opened and body of deceased was relatively dark as referred in Column No.9. However, he admitted that grand Jamia Masjid Hanfiya is located at approximate distance of 15 paces from the place of occurrence. He also confirmed that he neither made any person a witness from the vicinity or from the mosque as to whether they observed the dead body prior to date of recovery or not nor he investigated the fact that dead body was lying in naala for 45 days and nobody have noticed the dead body and he has not written the cause of death in Column No.20 of the inquest report. However, he stated that the body of deceased was not decomposed and was in healthy state. PW-5 Muhammad Mursaleen/ASI acknowledged that Allah Ditta/appellant made disclosure in his presence regarding recovery of bucket P8 and P9 and got recovered the same, however no one associated the recovery proceedings. PW-5 Muhammad Mursaleen/ASI also confirmed that shoes recovered on 30.01.2009 were of purple color and the same were recovered from outside the gate in bushes and the place of recovery is an open place and anybody can go and visit the same. 12. Saleem Akhtar/Constable-4208 appeared as PW-1 and produced wireless log report Exh.PH regarding missing details of Khatima Bibi lodged by Abdul Maalik in which age of Khatima Bibi has been referred as 8 years, wheatish color , clad in red frock and wearing China made chappal, disappeared from village Chelo, earlier in the evening time on the date of information i.e. 22.11.2008. He acknowledged that whatever was stated by the complainant, it was transmitted and the same was not altered in any manner . 13. PW-2 Tahir Shabbir has recorded rapt No.36 dated 07.01.2009 pertaining to this case, referred as Exh.P A. During the course of cross-examination, he acknowledged that he incorporated the complaint in Roznamcha and gave a copy of rapt to Farooq/Constable and the same was transferred through Manzhoor Ahmad/ASI being itla dahinda. He further acknowledged that FIR was not lodged on 07.01.2009 by him after receipt of istighasa . 14. Azeem Khan/Constable put appearance as PW-3 and stated that on 07.01.2009, he along with Zulfiqar/ASI and PW-9 Abdul Maalik/complainant took dead body of Khatima Bibi/deceased from barsati naala in a bag of patson P1 vide recovery memo Exh.PB and on 13.01.2009, CMO PIMS Hospital handed over last worn clothes of deceased i.e. qameez maroon P2, shalwar white color P3, bunyan of red color P4, and socks black color P5, which were taken into possession vide recovery memo Exh.PC. PW-3 stated that on 25.01.2009, during the personal search of Allah Ditta/appellant Rs.60 (P6/1-2) was recovered from him, which were taken into possession vide recovery memo Exh.PD and on 30.01.2009, during the interrogation of the case, Allah Ditta/appellant disclosed that he can get recovered slippers of deceased and he led the police party to Dera of Abdul Hameed and from the bushes, he got recovered right foot slipper of light purple color and handed over it to the Investigation Officer, which was taken into possession vide recovery memo Exh.PE. During the course of cross-examination, he acknowledged that wireless call was received regarding information of the incident and he went along with PW-5 Muhammad Mursaleen/ASI along with Muhammad Farooq to the place of occurrence in a private taxi and when they reached there, only kids were present and patson bag was torn and upper portion of dead body was visible and the patson bag was about 3x2 feet in specification and dead body was placed outside by someone and neither anybody was willing to record his statement nor the Investigation Officer recorded the names of persons present on spot and water was flowing next to the dead body. 15. Abdul Baaqi, brother of complainant, appe ared as PW-12 and stated that on 08.01.2009, he become witness of identification of dead body of deceased Khatima Bibi and attested the memo Exh.PK with his thumb mark and has also received the dead body through Exh.PL. He further stated that on 28.01.2009, he identified the bucket P8 lying in Police Station Malkhana vide identificat ion of bucket Exh.PP , which was attested by him and his brother . He also recorded his supplementary statement on 10.03.2009. 16. Alamgir Khan/S.I. appeared as PW-7 and stated that on 13.01.2009, he was posted as Moharrar in Police Station Golra Sharif and Zulfiqar Investig ation Officer handed over to him three parcels to keep in Malkhana. On 19.01.2009, he handed over one sealed parcel to Muhammad Azeem/Constable for DNA test, which was returned to him as it could not be deposited. The same was again handed over to Muhammad Azeem/Constable on 21.01.2009, which was deposited in KRL Hospital. On 20.01.2009, he handed over two parcels regarding chemical examiner and pathologist to Aftab/Constable to deposit in Lahore and on 28.01.20 09, complainant and his brother
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Abdul Baaki appeared in Police Station and identified the steel bucket through identification memo Exh.PP and on 31.01.2009, complainant and his wife PW-8 Naz Bibi appeared in Police Station and identified the slippers (chappal) through Exh.PE and on 09.02.2009, he received two sealed parcels from Zulfiqar Ahmad/S.I. to keep in Malkhana, which was dispatched to laboratory through Jangrez khan/Constable. During the course of cross- examination, PW-7 Alamgir Khan/S.I. acknowledged that the witnesses identified bucket P8 and P9 in Malkhana and he neither given the description of articles lying in Malkhana in his statement U/S 161 Cr.P.C. nor the total number of articles lying in Malkhana and on 31.01.2009, complainant and his wife came to identify the shoe lying in Malkhana and neither any mark whatsoever was placed on the article for identification purposes nor any Magistrate was present for identification of the articles. 17. Muhammad Liaquat Abbasi, the then Magistrate, appeared as PW-11 before the Court and stated that on 06.02.2009, Zulfiqar/S.I. of P.S. Golra Sharif submitted an application (Exh.PR) for recording of statement of Allah Ditta/appellant U/S 342 Cr.P.C., whereupon he passed his formal orders, referred as Exh.PR/1 and Exh.PR/2, which are in his handwriting and signed by him, who also completed codal formalities before recording of statement of accused Exh.PX and finally recorded the statement of Allah Ditta/appellant U/S 342 Cr.P.C., referred Exh.PT, which is in the handwriting of PW-11 Muhammad Liaquat Abbasi/Magistrate and certificate was signed by him at the end of statement Exh.PP/1. He further stated that before producing Allah Ditta/appellant before him, he had already been sent to judicial custody by concerned judicial Magistrate and after recording of statement, he was sent back to judicial custody. The statement U/S 164 Cr.P.C. (Exh.PT) of Allah Ditta/appellant is reproduced as under: {{URDU TEXT}} 18. During the course of cross-examination, PW-11 Muhammad Liaquat Abbasi/Magistrate conceded that it is not written in application Exh.PR that Allah Ditta/appellant has already been sent to judicial custody by the concerned Magistrate and the said fact is not recorded. He also acknowledged that he observed all the formalities to ensure that accused has not been subjected to torture and he aske d the accused about the factum of tortur e, however he has not physically inspected the accused for this purpose and all the proceedings have been conducted by him, even Exh.PT was in his handwriting. PW-11 Muhammad Liaquat Abbasi/Magistrate acknowledged that he has given half an hour to…
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