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Petitioner: MUHAMMAD ASHRAF VS Respondent: THE STATE
Court Name: Federal Shariat Court Judge(s): Fazal Ilahi Khan, Ch. Ejaz Yousuf, Dr. Allama Fida Muhammad Khan Title: MUHAMMAD ASHRAF vs THE STATE Case No.:Criminal Appeal No,27-I of 1998 linked with Criminal Murder Reference
JUDGMENT
Reported As: 2001 P Cr. L J 412 Result: Sentence reduced Judgment JUDGMENT ' CH. EJAZ YOUSUF, J.--- This appeal is directed against judgment, dated 21-1-1998 passed by the learned Additional Sessions Judge, Jhelum whereby appellant Muhammad, Ashraf was convicted under section 302(b), P.P.C. And sentenced to death. He was also directed to pay compensation of Rs,1,50,000 to the father of the deceased as required under section 544-A, Cr.P.C. 2. Briefly stated the prosecution case as gathered from the record is that on 24-12-1996 at 11-15 a.m., report Exh.P.D., was lodged by one Muhammad Sarmad Qureshi son of Muhammad Boota with Liaqat Ali, A.S.-I., Police Station Sarai Alamgir, wherein it was alleged that on 23-12-1996 at 6-45 p.m. The complainant had sent his daughter, namely, Mst. Nargis Shaheen, aged about 8 years, to the shop of Muhammad Afzal (P.W.5) for fetching milk. Since she did not come back for about half an hour, therefore, the complainant got worried and he in order to enquire about his daughter went to the shop of said Muhammad Afzal. Since the shop was closed, therefore, the complainant went to the shop of one Fazal Butt, which too, was closed. Complainant, therefore, went to the shop of Munawwar and enquired from him about his daughter, who too, showed his ignorance. Complainant as such came back to his house and after disclosing the entire facts to his wife again contacted P.W.5 Muhammad Afzal who disclosed that she had come to his shop, .But since milk was not available, therefore, he had asked her to get the same from another shop. Afterwards, the complainant and residents of the Mohallah kept on searching the girl, but she could not be found. On 24-12-1996 at 9-30 a.m. Complainant received information that dead body of a girl was lying in a well situated near the Government Girls School Rajar, whereupon complainant went there and saw that it was the dead body of Mst. Nargis Shaheen. He, therefore, took out the dead body from
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the well with the help of given up P.W. Safeer Hussain and P.W. Abdul Razzaq and others and found that dead body was having injury on the head, which indicated that she was done to death. It was alleged in the report by the complainant that since her daughter was murdered by some body therefore, proceedings in accordance with law be initiated. On the stated allegations formal F.I.R., bearing No,428 was registered under section 302, P.P.C. At Police Station Sarai Alamghir and investigation was carried out in pursuance thereof. In the course of investigation, the dead body was examined and injury statement Exh.P.K., was prepared. The dead body was sent for post- mortem examination. A pair of sleepers Exh.P.5/1-2, taken out from the well, were also taken into possession. It would be worthwhile to mention here that nothing about the culprit/culprits was learnt uptil 24-1-1997 when in view of the statement made by Muhammad Shafique and P.W.11 Liaqat Ali under section 161, Cr.P.C. Regarding the confessional statement allegedly made by the accused regarding commission of the offence, the appellant was arrested on 24-1-1997. He during investigation made disclosure and led the police to the recovery of a Patti i.e,, Article P.2 allegedly worn by the deceased at the time of her death. It was found buried in a drain situated in front of the house of one Muhammad Shafique. The said Patti was taken into possession vide recovery memo. Exh.P.H. On 27-1-1997 appellant also made disclosure and got recovered the last-worn Shalwar of the deceased Article P.3 and bucket Article P.4 from the well in question which were taken into possession vide recovery memo. Exh.P.J. Later on, these articles were identified to be those of Mst. Nargis Shaheen deceased by her parents vide identification memo. Exh.P.H./1 and Exh.P.J./1. On the completion of investigation the appellant was challaned to the Court for trial. 3. Charge was accordingly framed to which the accused/appellant pleaded not guilty and claimed trial. 4. At the trial, the prosecution in order to prove the charge and substantiate the allegations levelled against the accused/appellant produced 16 witnesses, in all. P.W.1 lady doctor Mst. Samina Asghar, W.M.O. D.H.Q. Hospital Jhelum, had on 24-12-1996 conducted post-mortem examination of the deceased and found as under:-- ' "It was a dead body of eight years old girl wearing pink colour shirt with yellow piping. Shirt was wet. Eyes were closed and mouth was half opened. There was bluish discolouration of lips. Post- mortem staining was present at the back. Rigor mortis was developed. The following injuries were found present on the dead body: (1) Scratch mark 2 c.m. x 3 c.m. On lateral aspect of right knee. (2) 1 c.m. x 1 c.m. Scratch mark on anterior aspect of middle of left lower leg. (3) 1 c.m. x 1/2 c.m. Vertical wound in the middle of the eyebrow with inverted margin. It was deep to bone. (4) Scratch mark 2 c.m. x 2 c.m. Over right cheek bone adjacent to lateral margin of right eye. No evidence of violence was seen on the dead body. cranium and spinal cord ' Skull. Multiple fracture of right half of frontal bone. Multiple fracture of perital bone. Blood was collected under the scalp over the fractured area." ' Three vaginal swa bs were taken by the doctor and made into sealed parcel for onward transmission to the office of Chemical Examiner for detection of semen. In the opinion of lady doctor the head injury was the cause of death. However, she deferred her final opinion regarding cause of death till the receipt of reports. Later on, however, on receiving report of the Chemical Examiner i.e,, Exh.P.B., she expressed her opinion that there was a sexual contact. The probable time, according to her, elapsed between the injury and death was immediate and between death and post-mortem examination it was 12 to 18 hours. P.W.2 Muhammad Arshad, Constable deposed that on 28-11-1996 Saleh Muhammad, Moharrir/Head Constable had handed over to him one sealed parcel and a sealed envelope for onward transmission to the office of the Chemical Examiner,
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Rawalpindi which he delivered, in the said office, intact. P.W.3 Syed Tahir-ul-Hassan had identified the dead body of Mst. Nargis Shaheen at the time of post-mortem examination. P.W.4 Muhammad Sarmad is the complainant. He at the trial, reiterated the version contained in the F.I.R. And deposed that when his deceased daughter had gone to fetch milk, she was wearing Patti used in the school uniform and she was also carrying a bucket. He added that when dead body of the deceased was taken out from the well, she was wearing only a pink colour frock and the Shalwar was not on her body. He further deposed that later one, one sleeper, Shalwar of the deceased and the bucket, were also recovered from the well which were identified by him to be of the deceased. He is also marginal witness of the recovery memo. Exh.P.E. Vide which these articles were taken into possession by the police. In the course of his cross-examination he stated that the sleeper, bucket and Shalwar of the deceased were recovered from the well after about 4/5 weeks. P.W.5 Muhammad Afzal is a shop-keeper. According to him, on 23-12-1996 at about 7-00 p.m. Mst. Nargis Shaheen deceased had visited his shop in order to purchase milk. She was carrying a small bucket. Since the witness had no milk with him at the relevant time, therefore, he asked the deceased to proceed ahead. P.W.6 Saleh Muhammad, A.S.-I. On 24-12-1996 was posted as Moharrir Head Constable at Police Station Sarai Alamgir. On the same day Liaqat Ali, A.S.-I. Had handed him over three sealed parcels and three sealed envelopes, sent by the lady doctor for keeping the same in safe custody which he kept in the Malkhana till 28-12-1996 whereafter, one sealed parcel and a sealed envelope was handed over by him to Muhammad Arshad for onward transmission to the office of Chemical Examiner, Rawalpindi. He deposed that two sealed parcels alongwith sealed envelopes were handed over by him to Liaqat Ali for onward transmission to the office of the Chemical Examiner, Lahore as well as to the office of the Pathologist, intact. P.W.7 Abdul Majid, Patwari, deposed that on 29-12-1996 he had inspected the site and taken rough notes on the basis whereof he on 3-1-1997 had prepared the site plan i.e,, Exh.P.F. And Exh.P.F./1 in duplicate. P.W.8 Liaqat Ali deposed that on 28-12-1996 he was entrusted with two sealed parcels and envelopes for onward transmission to the office of the Chemical Examiner and the Pathologist, Lahore which he delivered, intact. Raja Saeed Akhtar, P.W.9 deposed that he was resident of village Rajar. In the night between 23rd and 24th December, 1996, at about 11/12 midnight, he was going from his residence to Nai Abadi. When he reached near the well situated near the land of Haji Manzoor, he saw the appellant, who was coming from the side of the well. After exchanging Assalam-o-Alaikum, the witness told him that he was going to his father-in-laws' house at village Rajar and in turn the appellant disclosed that he was coming from the house of one of his friends. P.W.10 Muhammad Shafique is a witness of the extrajudicial confession allegedly made before him by the appellant. He deposed that on 17-1-1997 at 3-00 p.m., appellant visited his house and disclosed that on 23-12- 1996 at 7-00 p.m. Mst. Nargis Shaheen had met him at railway track and told him i.e,, the appellant that she had gone to the shop of Master Afzal to purchase milk, but she could not get the same. As per witness, the appellant further disclosed to him that he i.e,, the appellant took the deceased to Street No,3 on the pretext of providing milk to her where, in a deserted house owned by one Rafique Butt he attempted to commit Zina with her. The witness further disclosed that according to the appellant, Mst. Nargis Shaheen raised alarm and threatened him i.e, the appellant that she shall make a complaint to her parents whereupon firstly, the appellant took her to a deserted well and thereafter to a tree. Appellant also thought to take her to a canal, but finally took her to the well situated near the Primary School Rajar and threw her therein. Witness further deposed that the appellant while making the confession was repentant, and therefore, requested him to get himself pardoned. P.W.11 Inayat Ali is another witness of extra-judicial confession. He too, deposed that on 17-1-1997 at 4-30 p.m., the accused Muhammad Ashraf came to his Dera and confessed before him that on 17-1-1997 the appellant had, met Mst. Nargis Shaheen in the evening, who was on her way back from the shop of Master Afzal. Since she was not able to get milk from the said shop the
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appellant on the pretext of providing her milk took her to the deserted house situated in Street No,3 and attempted to commit Zina with her and on the alarm being raised by her asked her to keep quiet. In the meantime, appellant heard announcement regarding disappearance of Mst. Nargis Shaheen on the loudspeaker. Thus, he became frightened and thought that in case Mst. Nargis Shaheen is let off she would convene a Punchayat the appellant would be taken to task. He as such took her to the well situated near the school of village Rajar and threw her therein. P.W.12 Safdar Hussain, A.S.-I. Had on 24-12-1996 on the receipt of complaint Exh.P.D., incorporated contents thereof into the formal F.I.R. Exh.P.D./1, P.W.13 Abdur Rehman, Constable had on 24-12-1996 escorted the dead body of Mst. Nargis Shaheen to the mortuary for post-mortem examination. He deposed that after the post-mortem examination, Medical Officer had handed him frock of the deceased Article P.1, three sealed parcels and three sealed envelopes alongwith a carbon copy of post- mortem examination report which he produced before the Investigating Officer, who in turn, took the same into possession vide recovery memo. Exh.P.G. The witness identified his signatures on the said recovery memo. P.W.14 Abdur Razzaq is a relative of the complainant. He deposed that on receiving the message regarding disappearance of deceased Mst. Nargis. Shaheen, he had gone to the house of the complainant Sarmad Qureshi, on 24-12-1997, in the evening. In his presence 2/3 school going boys came and told that dead body of a girl was lying in a well. Whereupon, he in the company of complainant visited the said well and on arrival of the appellant took out the dead body. On 21-9-1996 he again joined the investigation. In his presence appellant made disclosure and then led the police to the recovery of "Patti" Article P.2. He is a marginal witness of recovery memo. Exh.P.H., vide which the abovementioned Patti was taken into possession by the police. He further deposed that on 27-1-1997 appellant again led the police to the recovery of Shalwar Article P.3 and bucket Article P.4 from the well where from dead body of Mst. Nargis Shaheen was recovered. He is also a marginal witness of recovery memo. Exh,P.J., vide which the abovementioned Articles were taken into possession by the police. He had also witnessed the recovery of a pair of nylon sleeper vide Exh.P.E., which were taken into possession by the police at the time of the recovery of the dead body. P.W.15 Mst. Shamim Akhtar is mother of the deceased. She while corroborating the statement of complainant in all material particulars deposed that when Mst. Nargis Shaheen went to fetch milk, she was wearing a pair of sleepers, red colour Frock and a Shalwar alongwith a white colour "Patti" of school uniform. She was also carrying a small Kamandal (bucket). She deposed that on 26-1-1997 she had identified "Patti" Article P.2 to be that of the deceased in consequence whereof the Investigating Officer had prepared the identification mark Exh.P.H./1 which bears his signatures. On 27-1-1997 she had also identified Shalwar Article P.3, of the deceased and the bucket Article P.4. She deposed that in pursuance of above identification memo. Exh.P.A./1 was prepared by the Investigating Officer which bears his signatures. P.W.16 Liaqat Ali, A.S.-I., is the Investigating Officer of the case. He deposed that on 24-12-1996 he was posted at Police Station Sarai Alamgir. After registration of the case he had examined the dead body and prepared the injury statement Exh.P.K., inquest report Exh.P.L., sent the dead body for post-mortem examination, took out a pair of sleepers from the well, recorded statements of the P.Ws., under section 161, Cr.P.C., effected the recoveries of Patti Article P.2, bucket Article P.4 and Shalwar of the deceased Article P.3, got the same identified by the parents of the deceased vide identification memos. Exh.P.G./I and Exh.P.H./I, got prepared the site plan and also took into possession the sealed phial said to contain swa bs as well as the envelopes and handed the same over to Moharrir for onward transmission to the office of Chemical Examiner. 5. On the conclusion of the prosecution evidence the accused/appellant was examined under section 342, Cr.P.C., wherein he denied the charge and pleaded innocence. In answer to the question why this case against him he stated that it was a blind murder which took place in the night hours and since the culprit was not traceable, therefore, police arrested him in order to show
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"Karwai". In answer to the question "as to why the P.Ws. Deposed against him" he stated that since they were related to the complainant party, therefore, they falsely implicated him". He, however, failed to lead evidence in his defence or to appear as his own witness in terms of section 340(2), Cr.P.C. 6. After hearing the arguments of the learned counsel for the parties, the learned trial Court convicted the appellant and sentenced him to the punishment as mentioned in the opening para. Hereof. However, he was acquitted of the charges under sections 10 and 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. 7. We have heard Mr. Ch. Naseer Ahmad Tahir, Advocate, learned counsel for the appellant and Mr. Muhammad Sharif Janjua, Advocate learned counsel for the State and have also gone through the record of the case with their assistance. 8. Ch. Naseer Ahmad Tahir, Advocate, learned counsel for the appellant has raised the following contentions:-- (i) That it has been claimed by P.W.9 Muhammad Shafique that when appellant in order to confess his guilt visited him on 17-1-1997 he i.e,, the appellant was served a cup of tea whereas the very fact that the day of 17th January, 1997 fell in the holy month of Ramazan having been denied by the said witness the learned trial Court ought to have disbelieved his statement. (ii) That extra-judicial confession allegedly made by the appellant before Muhammad Shafique P.W.10 and Inayat Ali P.W.11 being a very weak type of evidence could not have formed basis of conviction of the appellant. (iii) That the recovery of incriminating Articles was foisted on the appellant, therefore, it was of no avail. (iv) That P.W.9 Raja Saeed Akhtar has claimed that he has seen the appellant at 11/12 p.m. In the fateful night near and around the well, wherefrom dead body of the girl was recovered, but his statement was not believable because he had no occasion to go through the deserted way and that too, in the odd hours. (v) That imposition of death sentence in the case which wholly rests upon the circumstantial evidence was neither warranted nor could be sustained. ' Lastly it was also pleaded that extreme penalty of death recorded against the appellant by the learned trial Court in view of his tender age was not justified. 9. In order to supplement his first contention that since the day of 17th January, 1997 fell in the holy month of Ramazan and the very fact was denied by P.W.10, therefore, his statement ought to have been disbelieved by the learned trial Court, the learned counsel for the appellant vehemently urged that P.W.10 Muhammad Shafique has at the trial, stated that on 17th January, 1997 when the appellant, for the purpose of confessing his guilt, visited him he i.e,, the appellant was served a cup of tea. Learned counsel for the appellant maintained that since P.W.10 in the course of his statement, at the trial, took the stand that the day of 17th January, 1997 did not fall in the month of Ramazan whereas, factually, it was so, therefore, his statement should have been disbelieved by the learned trial Court. In order to substantiate his contention learned counsel for the appellant placed on record a copy of extract from the diary published by P.N.S. Bahadur wherein 7th Ramazan-ul-Mubarak has been shown as on 17th January, 1997. He has also filed an application under section 112 of the Qanun-e-Shahadat Order, 1984 praying therein that judicial notice of the above fact be taken. Mr. Muhammad Sharif Janjua, Advocate, learned counsel for the State has though candidly conceded that the day of 17th January, 1997 fell in the month of Ramazan and that he would have no objection if judicial notice of the fact is taken by the Court yet, has submitted that if the day on which appellant allegedly confessed his guilt before P.W.10 actually fell in the month of Ramazan and a cup of tea was served by P.W.10 to the appellant even then it would not effect merits of the case because firstly, no where it has come on record that the appellant was
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regularly observing fasts and secondly; if a portion of P.W.10's statement is found to be false even then it does not mean that his entire statement was unbelievable. ' In order to ascertain as to whether or not there is substance in the contention raised by the learned counsel for the appellant we have ourselves minutely gone through the record of the case and have also perused the document annexed with the application filed under section 112 of the Qanune-Shahadat Order, 1984. A perusal of the extract from the diary issued by the P.N.S. Bahadur shows that 17th January, 1997 in fact, was a day which fell in the holy month of Ramazan and while taking judicial notice of the very fact we are constrained to observe that though denial of the fact in question at the part of P.W.10 was not warranted yet, it does not necessarily imply that the deposition of P.W.10, in entirely was not believable because the maxim of "falsus in uno falsus in omni bus" is not a rule of universal application and at time, Court has to sift the grain from the chaff in order to reach the truth. Likewise, the rule that the integrity of a witness is indivisible too, cannot be accepted because, in case, if it is proved that the witness was not coming out with the truth on a particular point even then, it cannot be said that his entire statement was false. In such a situation, it would not be proper for the Court to discard statement of the witness outrightly but those portions of his statement which find corroboration from other independent sources/ evidence should be taken into account. In this view we are fortified by the following reported judgments:-- (i) Haq Nawaz and others v. The State 2000 SCMR 7, (ii) Muhammad Ahmad v. The State 1997 SCM R 89, (iii) Ahmad Khan *v. Nazir Ahmad 1999 SCM R 803, (iv) Muhammad Asghar and another v. The State PLD 1994 SC 301, (v) Sardar Khan etc. v. The State 1998 SCM R 1823 and (vi) Tawab Khan v. The State PLD 1970 SC 13. ' The contention has, therefore, no force. 10. As regards the next contention of the learned counsel for the appellant that since extra-judicial confession made by the appellant before P.Ws.10 and 11, was a weak evidence, therefore, it could not have formed basis for appellant's conviction. It may be pointed out here, that no doubt, an extra-judicial confession has always been considered and regarded as a weak type of evidence because it can be obtained rather cultivated easily yet, the fact remains that validity of a confession is not dependent upon its kind and sort. Time and again it has been laid down by the superior Courts that if the Court believes a confession, judicial or extra-judicial, retracted or unretracted, to be voluntary and true, then accused can be is on its sole basis. It is entirely a different matter that since it is not difficult to procure such type of evidence, therefore, the Courts have always considered the same as dubious and shady piece of evidence and have thus, emphasized the necessity of great care and caution in acting upon it. Otherwise, as a matter of law, no corroboration of a confession is needed. The rule of law is that the confession is a relevant fact and it is for the Court to determine its value keeping in view the circumstances of each case. However, as laid down by the Honourable Supreme Court of Pakistan in Sarfraz Khan's case, 1996 SCM R 188, an extra-judicial confession before it could be made basis of conviction, would required 3-fold proof i.e,, that the confession was actually made, it was truly made and that it was voluntarily made. It is also well-settled that conviction can be based on retracted extra-judicial confession if it is corroborated by subsequent discoveries. ' We may observe here that the extra-judicial confession made by the appellant was proved to be voluntary and true at the trial, and it was duly corroborated by the recovery of incriminating articles including last-worn clothes i.e,, Shalwar and Patti of the deceased as well as the bucket. Further the medical evidence, particularly to effect that the deceased before her death was subjected to Zina, the Chemical Examiner Report and the fact that appellant at the time of occurrence was seen near and around the well, render material corroboration to the confession,
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thus, it was rightly believed by the learned trial Court. The contention of the learned counsel for the appellant in this respect too, has therefore, no force. 11. In furtherance of his next contention that since the recovery of incriminating articles was foisted on the appellant, therefore, it was of no avail. The learned counsel for the appellant vehemently contended that since nothing was recovered at the instance of the appellant and the recovery of the incriminating articles particularly the Patti, Shalwar allegedly worn by the deceased and the bucket being carried by her at the time of her death, was fabricated by the prosecution in order to beaf-up its case, therefore, it could not have been taken as incriminating pieces of evidence against the appellant. In order to judge, as to whether or not there is substance in the argument, we have ourselves carefully gone through the record of the case. As per prosecution version the deceased girl, when disappeared, was wearing a white colour "Patti", which according to the…
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