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Petitioner: Imran Ali VS Respondent: State
Court Name: Lahore High Court Judge(s): Sadaqat Ali Khan, Shehram Sarwar Ch. Title: Imran Ali vs State Case No.: Crl. A. No. 167868-J of 2018, Capital Sentence Reference No. 1/T of 2018 Date of Judgment:2018-03-20 Reported As: PLJ 2020 Cr.C. (Lahore) 798 Result: Order accordingly
JUDGMENT
JUDGMENT Sadaqat Ali Khan, J.--This single judgment shall dispose of Criminal Appeal No. 167868 of 2018 filed by Irnran Ali appellant (against his conviction) and Capital Sentence Reference No. 1/T of 2018 sent by the learned, trial Court for confirmation of death sentence of Imran Ali (appellant) or otherwise as both the above mentioned matters have arisen out of the same judgment dated 17.02.2018 passed by learned Special Judge ATC-I, Lahore according to which Imran All appellant was convicted and sentenced as under:
U/S. 364-A, PPC Sentenced to death. U/S. 376, PPC Death alongwith fine of Rs. 10-Lac, in default thereof to further undergo six months SI. U/S. 302(b), PPC Sentenced to death with compensation of Rs. 10-Lac u/S. 544-A, Cr.P.C. to the legal heirs of Zainab Ameen deceased and - in default thereof to further undergo six months SI. U/S. 7(a) Anti- Terrorism Act, 1997Sentenced to death with line of Rs. 10- Lac and in default thereof to further suffer six months SI. U/S. 377, PPC Sentenced to imprisonment for life with fine of Rs. 10-Lac and in default thereof
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to further undergo six months SI. U/S. 201, PPC Sentenced to imprisonment for seven years RI with fine of Rupees One Lac and in default thereof to further undergo three months SI.
in case FIR No. 8 dated 04.01.2018 under Section 363, PPC, Police Station A/Division, Kasur . 2. The facts of the case have been stated by Muhammad Adnan Complainant P.W.6 (paternal. uncle of Zainah Ameen deceased) in his statement before the learned trial Court which is hereby reproduced for narration of the facts:- "Zainab Fatima, my niece, aged 7 years, on 4.1.2018, at about 7.00 P.M. alongwith Muhammad Usman, her Chachazad went to the house of her KHALA situated at Road Kot to recite The Holy Quran, My niece Zianab Bibi did not enter the house whereas Muhammad. Usman entered the house. Rukhsana Bibi apprehended that Zainab Ameen minor girl might had gone back to her house but she did not come to the house. At about 8.00 P.M. Usman came back to home after reciting The Holy Quran. I enquired about Zainab from him that why Zainab had not come back to home. He told me that he had entered the house but Zainab Ameen did not enter. On this, we started her search. At about 9.30 P.M (night time), I informed 15 police. I apprehended that my niece Zainab had been kidnapped by an unknown person. On the same night, at about 1.0.00 P.M. I drafted application Ex.PA and produced before Duty Officer of Police Station A- Division. Application Ex.PB bears my signatures and thumb impression. Duty Officer present in the Police Station chalked out FIR Ex.PA/1. Computerized copy of which was given to me. At about 10.30 P.M. Muhammad Yasin SI came to outside the house where Zainab went to recite The Holy Quran. I gave the details of the clothes and its colour i.e. red orange shirt like FROCk and tights of black and white lines wearing Zainab to Yasin SI. Hood and high neck were of black and white lines with FROCK and socks of pink colour. I became the complainant/first informer of this case because her parents had gone to Saudi Arabia for performance of UMRA and were not available. Muhammad Yasin SI also recorded my statement at the spot. On the following days i.e. 5.1.2018, at about 1.00 P.M Muhammad Yasin SI came to our home alongwith developed photos of Zainab with unknown dubious person. I identified that it was the same photo P2 of Zainab and she was wearing the dressing stated above. I identified Zainab Bibi from her dressing, hair cut, her behavior and height. I could not ident ify the unknown dubious person with whom Zainab Ameen was looking. Investigating Of ficer recorded my statement in this regard. On 9.1.2018, at about 12.30 afternoon, I received information about presence of dead body of a minor female on the heap of rubbish/trash situated on the back side of Elite College. I went alongwith Iftikhar Ahmad SI, Yasin SI, Naila Rani Lady Constable and Akhtar Hussain/C to the place where dead body was lying. I identified dead body of Zainab Ameen from her clothes i.e. trouser bearing black and white lines, High Neck was of black and white lines, Pajama was of black colour, round of lower part of FROCK was of Turquoise blue colour (FEROZI) colour with black net, socks of pink colour, shoes having red WELL WET strips. Iftikhar Ahmad SI prepared two Fard Shanakhats Ex.PL and Ex.PM respectively, one was of shoes stated above and other was of clothes and dead body which were attested by me 'and Muhammad Imran s/o Rafique Insari PW. Iftikhar Ahmad SI recorded my statement in this regard. Iftikhar Ahmad dispatched the dead body under the escort of Naila Rani lady constable and Akhtar Hussain/C. I also accompanied them. During PME of Zainab Bibi, I and Imran identified the dead body of Zainab Bibi. People of the area in the shape of mob assembled and became enraged, offended and became furious due to which terror and harassment was spread in the city. Most of the parents had hidden themselves alongwith their children in their respective houses due to occurrence of Zainab. Many people of the city were also protesting. Iftikhar Ahmad SI also recorded my statement in this regard." 3. After registration of the case, investigation started and on completion of the same report under Section 173, Cr.P.C. was submitted in the trial Court.
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4. Learned trial Court after observing legal formalities provided under the Criminal Procedure Code framed the charge on 12.02.2018 against Imran All appellant under Sections 364-A, 367-A, 376, 377, 302, 201, PPC and 7(a) Anti-T errorism Act, 1997 to which the appellant pleaded guilty and wanted to make his statement which was recorded by the learned trial Court as under: "Earlier , I have committed eight occurren ces of similar nature in the same way and manner . I used to commit sodomy with female child. Investigating Agency interrogated me with respect to Zainab's case and also asked whether I had committed any other offence of same nature. I disclosed to them that I had committed eight occurrences of similar nature. I used to commit such occurrence in the manner i.e. firstly , I selected the place for the commission of of fence of sodomy . Thereafter , I enticed away or, kidnapped female child on the pretext of giving her money and took her at the place which I had already selected. During the course of commission of offence, I placed my hand on the mouth of female child forcibly and as the moment, she became unconscious, I committed sodomy with her by lying her in inverted position and went away leaving her in unconscious condition. I used to kidnap the female child only with the intention to commit sodomy with her and not to kill. On the day of occurrence, I was present in my Mohallah situated at Road Kot. Meanwhile, I saw Zainab (deceased) while coming. At that time, some shops were opened, as such, I asked her nothing and followed her. At some distance, I saw that some shops were closed where Zainab Ameer wanted to enter some house. As the moment, she put her foot on first step of the stairs of that house, I asked her that I was going to distribute the money in the adjoining street and also wanted to give her money . On my offer, she turned back and followed me. Meanwhile, I took turn in another street. She also took turn and continued to follow me. Thereafter , I took many turns to different streets and she had been following me. In the same way, I took her upto main road KALI PULLI. In order to cross the road, I hold her finger and crossed the road while walking beside her. Then I took her upto Peeruwala Road, the place which I had selected to commi t sodomy . I saw that there was a Karkhana in front of the same where a person was standing and making telephone call, so I left that place and took her towards the deserted place near drainage. There was also a heap of rubbish/trash. It was night time and dark had prevailed everywhere. I saw a wall there adjacent to the heap of trash. During the course of kidnapping, she asked me where we were going. I asked her that we would go back after doing some job. Then I placed my hand forcibly on her mouth and observed that she had become unconscious. When I became sure about her unconsciousness, I laid her on a vacant place between wall and heap of trash, then I committed sodomy with her and rape as well from her back side while lying her in inverted condition. After satisfying my lust, I left her in an unconscious condit ion and went to attend MEHFIL- E-NAA T in the nearby MASJID. When I freed from Mehfil and came back to my Mohallah at about 11.00 P.M, I saw the presence of police vehicle. I enquired from a child of the Mohallah that what happened there? He told me that a minor girl had gone to recite a SI PARA (The Holy Quran) but did not come back to home. He further told me that her close relatives i.e. uncle, brothers and others were searching her. I enquired about her parents who told me that her parents were not present there. I thought they might have died but on my query , he told me that in fact her parents had gone to Saudi Arabia for performance of UMRA. On hearing this, I shocked, felt much shame and repentance over my obnoxious act. I felt that as my soul had left me alone and was no more existed in me. I started weeping at my own. So I came to the independent room of my home and started shedding tears. On that night, I had realized that I never committed goodness in my life. Now I have repentance over my act and too much worried due to commission of murder of Zainab, minor girl. I don't want to proceed further with the trial. I have narrated true facts of the commission of murder of Zainab and admit all the charges read over to me." At this juncture, learned trial Court has passed the following order: "A bare reading of Section 265-D to F Cr.P.C. would reveal that even in case of having pleaded guilty by the accused, it is not mandatory for the Court to pass an order of conviction and the Court even then can summon the prosecution witnesses. By now it is well settled preposition of law that in case of a charge of an offence carrying capital punishment of death or . transpiration of life, the Court is required to examine the prosecution witnesses, even if the guilt is admitted in response to the charge. In the case in hand since charge against
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accused Imran Ali is of heinous nature and carries capital punishment of death, the Court also thinks it appropriate to record the prosecution evidence. Let the prosecution evidence in attendance be recorded." 5. The prosecution produced following witnesses during the trial before the learned trial Court: Shaukat Ali Bodla ASI P.W.1 Muhammad Zikrial 1368/C P.W.2 Dr. Qurat ul Ain Attiq P.W.3 Dr, Riasat Ali P.W.4 Dr. Qazi Laeeque Ahmad P.W.5 Muhammad Adnan (Complainant) P.W.6 Mst. Rukhsana Bibi P.W.7 Muhammad Usman P.W.8 Amjad Iqbal Goga P.W.9 Ghulam Rasool P.W.10 Muhammad Jawad Junior Forensic Scientist PFSAP.W.11 Muhammad Adeel Abbas Forensic Scientist PFSAP.W.12 Abdul Naveed P.W.13 Dr. Ayyaz Ahmad Rana P.W.14 Ghaf far Ali P.W.15 Muhammad Muzammal P .W.16 Muhammad Nasar Ullah Draftsman P.W.17 Naila Rani 1 115/LC P.W.18 Akhtar Hussain 917/C P.W.19 Shabbir Ahmad P.W.20 Muhammad Saddique S.I. P.W.21 SafdarAli 1223/C P.W.22 Shafqat Ali ASI P.W.23 Sabir Ali 1322/C P .W.24 Ali Raza 98/C P.W.25 Muhammad Ramzan 246/HC P.W.26 Muhammad Irshad ASI P.W.27 Muhammad Aslam ASI P.W.28 Muhammad Yasin S.I. P.W.29 Iftikhar Ahmad S.I. P.W.30 Shaukat Hussain Inspector P.W.31 Ihsan Ullah Chohan DSP P.W.32
Whereas P.Ws. namely Abid Ayub, Farwa Rizvi, Imran, Mudassar , Abu Zar, Dr. Ashraf Tahir, Hajiz Yasin, Dr. Muhammad Laeeque, Dr. Adnan Hakeem, Professor Arif Rasheed, Muhammad Mansha Inspector , Maratab Ali ASI, Muhammad Rizwan, Muhammad Jave d Khan/HC, Babar , Muhammad Yahya/C, Asif/C, Qadoos Baig SP Investigation, Irfan Ullah Khan SSP, Syed Haider Sarfraz Assistant Director , Profess Dr. Arif Azeem, Munawar Hussain ASI, Muhammad Rizwan Statistics-and Muhammad Idrees Ahmad RPO/DIG were given up being unnecessary and while tendering certain documents Ex.P Ato Ex.PSSS closed its evidence. 6. Medical evidence was furnished by Dr. Qurat ul Ain Attiq P.W.3 who conducted post-mortem examination on the dead body of Zainab Ameeri deceased and observed as under:
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"Description of injuries: No ligature mark was seen around the neck. External geritalia were stained with the blood from front side and fecal matter was coming out. Eyes were closed and mouth was semi open. Small amount of clotted blood in the right nostril and on the lower lip. Cranium and spinal cord including scalp, skull, membranes, brain, vertebrae and spinal cord were NAD( no abnormality detected). Thorax including walls of sternum, Manub rium body , xiphistemum, cartilages and ribs, pleurae, larynx and trachea, right lung, left lung, pericardium and heart and blood vessels were NAD. The anterior wall of abdomen was greenish, peritoneum, mouth, pharynx, esopha gus, diaphragm, pancreas, liver, spleen, both kidneys and organs of generation were NAD, mouth was blood stained, small amount of gastric contents was present in small and large intestines, No abnormality was detected in upper and lower limb.. I sent specimens to chemical examiner and. DNA Lab for expert opinion. One carton containing four signed and sealed jars for chemical examination. Carton was also sealed and signed by me.. Two envelopes containing anal and vaginal swabs including clothes were sent for DNA Testing. All these articles were handed over to Akhtar Hussain/C. Opinion: Probable time that elapsed between injury and death was almost immediately and between death and Post-mortem Examination was may be two to three days. In the report of Lab. Expert in the light of PME and report from Punjab Forensic Science Agency No. 2018-1 15939- DNA-15594, seen and signed by me, annexed with. According to Punjab Forensic , Science Agency case No. 2018-1 15939- Tox- 06225. Drugs and poisons were not detected. Final report regarding cause of death. The cause of death in this case was asphyxia due to throttling which was sufficient to cause death in an ordinary course of nature and caused by blunt means. Final report regarding sexual assault. Hymen was ruptured (torn). Swelling was present around labiminora. Posterior vaginal tear was present extending up to 3 cm. Swelling was also present around the anus. A tear measuring 1/2 cm x 1 cm was present at 8'0 clock position. Ex.PB is the correct carbon copy of PMR, Ex.PB/1 and Ex,PB/2 are pictorial diagrams, which are in my hand and bears my signatures. From the forgoing observations, I am of the opinion that both raped and sodomy had been done. During the PME, enraged mob entered the hospital and started to break the windows and doors of the mortuary . Keeping in view the critical gravity and heinousness of the situation I took the photographs from my personal mobiles of the dead body and also prepa red rough notes Ex.PC which are in my hand. I saved the photographs in USB PI and handed over it to Iftikhar Ahmad SI alongwith original rough notes Ex. PC who took the same into possession vide recovery memo and recorded my statement u/S. 161, Cr .P.C. in this regard. On 2.2.2018, I appeared before the medical board constituted by the MS, DHQ Hospital, Kasur . I also signed on FIR, complaint, application for PME, injury statement and inquest report." Dr. Riasat Ali P.W. 4 stated in his statement (examination-in-chief) as under: "On 31.1.2018, vide office order No. PA/AST/MISC/2018 Ex.PD, a Medical Board was constituted on the recommendation Ex.PE of JIT in the abduction, rape and murder case of minor girl Zainab for the paper scrutiny and expert opinion in the said case. The board was comprising upon me alongwith Dr. Muhammad Yasin MS DHQ Kasur(Chairman), Professor Arif Rashe ed HOD Forensic Medicine KEMU (Member), Dr. Adnan Hakeem APMO/DMLO (Member), Dr. Arif Azeem District Surgeon(Member) and Dr. Muhammad Laeequ Ch. DHO (PS) (Member). Opinion of the Board. The meeting of board was called on 2.2.2018 at 9.00 A.M. in the office of Medical Superintendent, DHQ Hospital, Kasur . The Standing Medical Board was gathered in the office of MS, DHQ Hospital, Kasur on 2.2.2018, at 9.00 A.M.
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The relevant record was requisite and minutely examined. After interviewing the Dr. Qaurat-ul-Ain, Women Medical Officer and perusal of PMR, rough notes, Photographs prepared by WMO at the time of examination of dead body and keeping in view the low environmental temperatures, circumstances of death and history of the case, all the members of the board were of unanimous opinion which is as follows:- "the possibility of probable time betwee n death and PME being within three to five days cannot be ruled out Furthermore, autopsy findings were consistent with that the deceased was subjected to brutal vaginal and anal sexual act." The opinion of Medical Board is Ex.PF which is signed by alongwith other members of the board." 7. On the other hand, statement of Imran Ali appellant was recorded under Section 342, Cr.P.C. in which he again admitted the commission of occurrence by answering to the question "Why this case against you and why the PWs deposed against you? as under: "This case was registered against me rightly . I am the actual culprit of this case. I after kidnapping Zainab Ameen committed with her rape, sodomy and her murder . Before commission of rape and sodomy , I firstly forcibly placed my hand on her mouth and nose and pressed it and after making her unconscio us, I committed the occurrence. Legal heirs of Zainab Ameen had not any enmity against me. I did cruelty with Zainab and her family ." 8. After conclusion of the trial, learned trial Court convicted Imran Ali appellant with above stated sentences. Hence this appeal 9. Learned counsel for appellant has contended that: i. the judgment of the trial Court dated 17.02.2018 is against law and facts and is liable to be set-aside; ii. it is submitted that the story of the prosecution is improbable and not believable; iii. it is further submitted that prosecution has failed to prove its case against the appellant beyond shadow of doubt, the admission of appellant before trial Court in reply to charge and in his statement recorded under Section 342, Cr.P.C. is result of coercion and the learned trial Court wrongly convicted appellant in surmises and conjectures; iv. and lastly submitted for the acceptance of the appeal of the present appellant and his acquittal. 10. On the other hand, learned law officers/Mr . Abdul Samad. Addl. Prosecutor General, Mr. Munir Ahmad Sial DPG, Rai Akhtar Hussain, DPG and Mr. Tariq Javed DPP, assisted by learned counsel for the complainant have vehemently opposed the appeal and submitted that the prosecution has proved its case beyond any shadow of doubt against Imran Ali appellant with solid evidence and prayed for the dismissal of the present appeal. 11. We have heard the learned counsel for the appellant as well as learned law officers assisted by learned counsel for the complainant and perused the record. 12. The detail of prosecution case has been given in para 2 of this judgment, there fore, there is no need to repeat the same to avoid duplication and repetition. 13. Muhammad Adnan complainant P.W.6 (paternal uncle of Zainab Ameen decease d aged about 7/8 years ) got registered FIR Ex.P.A/1 on 04.-01.2018 at 10:00p.m. by moving written applic ation Ex.P.A. against unknown accused stating therein that on 04.01.2018 at about 7:00 p.m. Zainab Ameen deceased alongwith Muhammad Usman P.W.8 (paternal cousin of Zainab Ameen deceased ) left her house for the house of Mst Rukhsana Bibi P.W. 7 (maternal auntlKhala of Zainab Ameen deceased ) as she used to recite The Holy Quran there, who did not enter into the house of said Mst. Rukhsana Bibi P.W.7 and went missing rather had been kidnapped by unknown accused. On 09.01.2018 at 12:30 noon, dead body of Zainab Ameen deceased was found lying near the heap of garbage as stated by Muhammad Yasin S.I. P.W.29 and Sabir Ali constable P.W.24. No person from the prosecution claims to be the eye-witness of the occurrence rather the case of prosecution is based on circumstantial evidence supported by admission of Imran Ali appellant at every stage of the case that he had committed rape, sodomy and murder of Zainab Ameen deceased after kidnapping her (in his reply to the charge
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framed by .the learned trial Court, in his statement under Section 342, Cr.P.C. and in the instant criminal appeal filed by him through jail ), which is categorized as under: i) Muhammad Usman P.W.8 (whose competency as witness had been checked by the learned trial Court by following the procedure under Article 3 of Qanun-e Shahadat Order , 1984) paternal cousin of Zainab Ameen deceased stated in his statement (examination-in-chief ) that on 04.01.2018, he alongwith Zainab Ameen deceased went to the house of Mst. Rukhsana Bibi P.W.7 (maternal aunt/Khala of Zainab Ameen deceased ) to recite The Holy Quran. He was ahead of Zainab Ameen deceased while going to the house of Mst. Rukhsana Bibi P.W.7. He entered the house of Mst. Rukhsana Bibi P.W. 7 but Zainab Ameen deceased did not enter . He recited The Holy Quran and came back to his house where his uncle Muhammad Adnan complainant P.W.6 enquired about Zainab Ameen deceased). ii) Mst. Rukhsana Bibi P.W.7 (maternal aunt/Khala of Zainab Ameen deceased ) Stated in her statement (examination-in-chief) that she used to teach The Holy Quran to the children of her relatives including Zainab Ameen deceased and Muhammad Usman P.W.8 at her house at 7:00 p.m. On 04.01.2018 Muhammad Usman P.W.8 came to recite The Holy Quran but Zainab Ameen deceased did not come. iii) Muhammad Yasin S.I. P.W.29 stated in his Statement (examination-in-chief ) that on 09.01.2018 at 12:30 noon, dead body of Zainab Ameen deceased was found lying near the heap of garbage, in presence of Sabir Ali constable P.W.24 and other police officials, Iftikhar Ahmad S.I P.W.30 sent the dead body of Zainab Ameen deceased to the hospital for post-mortem examination through Sabir Ali constable P .W.24. iv) Dr. Qurat ul Ain Attiq P.W.3 on 09.01.2018 conducted post-mortem examinatio n on the dead body , of Zainab Ameen deceased, sent specimens to Chemical Examiner and DNA Lab for expert opinion comprising one carton containing four signed and sealed jars for chemical examination, two envelops containing anal and vaginal swabs including clothes for DNA test through Akhtar Hussain constable P.W. 19, who handed over the same to the Iftikhar Ahmad S.I P.W.30, which were taken into possession by him through recovery memo. Ex.P.FF. Iftikhar Ahmad S.I P.W.30 handed over the same to Zikria constable/Moharrar P.W.2 for safe custody in the Maalkhana. Zikria constable/Moharrar P.W.2 on 10.01.2018 ' handed over above said parcels to the said Iftikhar Ahmad S.I P.W.30 who deposited the same intact on the same day in the of fice of PFSA. FORENSIC EVIDENCE PERT AINING T O DNA ANAL YSIS v) Dr . Qazi Laeeque Ahmad (Forensic scientist DNA and Serology , PFSA) P.W.5 Stated in his Statement (examination-in-chief ) that on 10.01.2018 Iftikhar Ahmad S.I. P.W.30 deposited eight sealed parcels of Zainab Ameen deceased (one sealed box/Dabba said to contain last worn clothes of Zainab' Ameen deceased comprising of Pants, Trouser , Shirt, High neck, Upper with hood, Sweater , One socks, two sealed envelops swabs one said to contain two vaginal swabs and other said to contain two anal swabs, three sealed envelops of Crime Scene Investigation of PFSA one said to contain one swab from right nail, one swab from left nail and one said to contain buccal swab; one sealed parcel of blood ). Dr. Qazi Laeeque Ahmad (Forensic Scientist DNA and Serology , PFSA) P.W. 5 further stated that since it was a case of sexual assault, therefore, the evidence items were examined for the presence of seminal material which was identified on the following items of Zainab Ameen deceased: 1. Vaginal swabs 2. Anal swabs 3. Pants 4. Trousers 5. Sweaters. DNA analysis was conducted on these items and DNA Profile of single unknown male individual was obtained from the sperm fractions of the evidence items. DNA analysis report consists of three pages bearing numbers 0000406335, 0000406336, 0000406337, issued on 12.01.2018, which is Ex.P.G., Ex.P.G/1, Ex.P.G/2, and signed by him. Result and conclusion of the said report (Forensic Serology and DNA Analysis report Ex.P.G, EX.P .G/1 and EX.P .G/2) is available at pages 24 to 26 of…
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