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Criminal Petitions Nos. 38‑R(S) and 39‑R(S) of 1983, decided on 15th October, 1983.

(From the judgment dated 10‑9‑1983 of the Federal Shariat Court passed in Criminal Appeals No , 50/L and 54/L of 1983).

--S. 173‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 18‑Narration of facts in report submitted under S. 173, Cr. P. C. disclosing offence falling under S. 18, Offence of Zina (Enforcement of Hudood) Ordinance, 1.979 ‑ Investigating Officer even if, had not mentioned section of said Ordinance in report, trial Court was competent to form charge under S. 18 of said Ordinance‑‑Trial Court, held, not bound by conclusion reached by Investigating Officer in his report under S. 173,

Falak Sher v, State P L D 1967 S C 425 ref.

‑‑ S. 235‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 20 (1)‑Court of Session, upon disclosure of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, acquires exclusive jurisdiction to try same by virtue of S. 20 (1) of Ordinance‑Court of Session, can alongwith offence under Ordinance, 1979, also try offences under any other law committed in same transaction.

‑‑ Ss. 302/34 & 449‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 20(1), fourth proviso & (2), 7, 18 & 19 Criminal Procedure Code (V of 1898), S. 235‑Conviction of accused under Ss. 449 & 302/34, P. P. C. and S. 18 read with S. 1.9 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979‑Trial by Court 'of Session competent and appeal would lie only before Federal Shariat Court‑Reference for confirmation of death sentence to Federal Shariat Court also competent.

‑‑ Ss. 302/34 & 149‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 7, 18 & 19‑Evidence Act (I of 1872), S. 32‑Dying declaration‑‑Investigating Officer affirming that he had recorded deceased's statement "without addition of omission"‑‑Dying statement, held, was relevant document in circumstances.

Abdul Majid v. The State 197 P Cr. L J 545 and Muhammad Nawaz v. The State P L D 1979 B 142 ref.

Art. 203‑F (2‑B)‑Penal Code (XLV of 1860), Ss. .302/34 & 449‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 7, 18 & 19‑Supreme Court declined to interfere with concurrent findings of Courts below when adduced on merits, too, but there was not proper ground for interference‑Leave to appeal refused.

Dilawar Mahmood, Senior. Advocate Supreme Court instructed by Muhammad Afzal Siddiqui, Advocate‑on‑Record for Petitioners.

Nemo for the State.

Date of hearing : 15th October, 1983.

‑Muhammad Abbas and Ejaz Ahmad petitioners in criminal Petition No. 38‑R (S). of 1983 and No. 39‑R (S) of 1983, respectively, are seeking leave to appeal from the judgment dated 10‑9‑1983 of the Federal Shariat Court, whereby their respective appeals from the conviction and sentence recorded by the Court of Session, Gujranwala, on 28‑3‑1983 were dismissed. The Court of Session had sentenced Muhammad Abbas petitioner under section 449, P. P. C. to R. I. for 10 years and a fine of Rs.1,000 or in‑ default in payment thereof to lt. I. for 6 months ; under section 302/34, P. P. C. to death and a fine of Rs.5,000 or in default in payment thereof to R. 1. for 1 year, and under section 18 read with section 19 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) to imprisonment for 10 years plus 10 stripes. In case the sentence of death be not confirmed but the conviction be maintained, the various sentence would run concurrently and in that case he would also get the benefit of the period spent as under trial prisoner. Ejaz Ahmad petitioner was sentenced under section 449, P. P. C. to R. 1 for 5 years and a final of Rs.500, or in default in payment thereof to R. I. for 3 months under section 302/34, P. P. C. to imprisonment for life and a fine of Rs.5,000, or in default in payment thereof to R. I. for 1 year, and under section 18 read with section 7 of the said Ordinance to imprisonment for 2 years plus 5 stripes. All the sentences were to run concurrently and he, too, was given the benefit of the period already undergone as under trial prisoner.

2. The allegation against the petitioners was that on 19‑8‑1981 at about 3 p. m. they trespassed into the house of Asghar Ali complainant situate in Mohalla Guru Nanakpura, Gujranwala, in order to commit rape and murder of Mst. Nasreen, daughter of the complainant, and in furtherance of their common intention, attempted to commit rape on her and on being resisted by her inflicted injuries upon her with sharps‑edged weapons in the result of which she died in the hospital on 29‑8‑1981. The wife of the complainant had already died and he lived in the house with his four children, Mst. Nasreen being the eldest. He worked in a weaving factory but on the fateful day he had taken leave on account of sickness. At about 2 p.m. he had gone out of the house to purchase vegetable, leaving Mst. Nasreen alone in the house, the other children being out of doors. While returning to his house and still at a distance of two houses from there, he saw the two petitioners entering his house, at which he came quickly to the house and when he stepped in the Deorhi he saw the petitioners, both armed with Chhuris in the Baithak. Muhammad Abbas petitioner was attempting to untie the string of the Shalwar of Mst. Nasreen deceased which she was resisting, whereupon the petitioners inflicted three knife injuries each on her, one of which, i. e., injury No. 5, that proved fatal, had been dealt by Muhammad Abbas on the front of abdomen on the right side. The complainant not being well could not physically intervene but at the alarm raised by him, his neighbours Ilam Din and Nadeem Hussain came at which the petitioners fled from the scene. The deceased in injured condition was removed to the District Headquarters Hospital. Her medical examination held at 4‑15 p.m. the same day confirmed the presence of six incised wounds on her person,

3. Zulfiqar Ali, A. S.I., who was then acting as S. H. O. on getting information of the occurrence came to the hospital and applied to the Medical Officer for a certificate of fitness of the deceased but as she was declared unfit, he recorded the‑ statement of Asghar Ali at 5‑30 p.m. in the hospital, which statement formed the basis of the formal F. I. R. in the case. He recovered totally torn shirt Exh. P. 2, Shalwar Exh. P 3, Dopatta Exh. P. 4 and a torn piece of brassiere Exh P. 5 all blood stained and belonging to the deceased. He continued visiting the hospital for recording the statement of the deceased and on 25‑8‑1981 when the Medical Officer certified her to be fit to make a statement (Exh. P. E/1), he recorded her statement (Exh. P. L.) which became the dying declaration in the case. The deceased expired on 29‑8‑1981 in the hospital. In the opinion of the Medical Officer, who conducted the post‑mortem examination, death had occurred due to peritonitis as a result of toxaemia on account of injury No. 5 which was sufficient to cause death in the ordinary course of nature.

4. The petitioners were arrested on 2‑9‑1981, and at the instance of Muhammad Abbas a blood‑stained Chhuri (Exh. P. 1) was recovered from a ditch near Alam Chowk, Hafizabad Road, Gujranwala, the blood on which was reported by the Serologist to be of human origin. The petitioners were challenged under sections 449 and 302/34, P. P. C. but on the facts disclosed in the challan, the trial Court charged them also under section 18 read with section 79 of Ordinance VII of 1979.

5. From the ocular witnesses, only Asghar Ali complainant was produced. Ilam Din and Nadeern Hussain having been given up as won over. The complainant was supported by the dying declaration, the medical evidence and the recovery of the Chhuri. The petitioners' plea was of bare denial and of having been falsely involved in the case due to enmity with the complainant created during the B. D. Elections. Ejaz Ahmad petitioner produced school leaving certificate to show that he was born on 16‑6‑1968 and thus was less than 16 years of age at the relevant time. The trial Court did not rely on the recovery on account of "material discrepancies" in the .statements of the concerned witnesses but accepting the ocular version given by the complainant particularly because he had no animus to falsely involve the petitioners and was supported by the dying declaration of the deceased, held the petitioners guilty as aforesaid.

6. The petitioners filed separate appeals before the Federal Shariat Court. A preliminary objection taken in the appeals that the reference for confirmation of the death sentence could not be made to the Federal Shariat Court was repelled for the reason that an offence punishable under section 18 of the Ordinance was, by virture of second proviso to section 20 (1) of the Ordinance, exclusively triable by the Court of Session and an appeal from the judgment of that Court could lie only before the Federal Shariat Court and that the other offence of which the petitioners were convicted could be tried by the Court of Session along with the offence under the Ordinance by the enabling by the enabling provision of first proviso to the said section read with section 235, Cr. P. C. An objection to treating the statement of the deceased as a dying declaration, on the ground that it was a mere zimni recorded under section 161, Cr. P. C., was also repelled by reference to the provisions of section 162 (2), Cr. P. C. and section 32 of the Evidence Act. On merits, the Federal Shariat Court found that the injuries having been caused from a very close range, the identification of the assailants by the deceased in an occurrence which took place in broad daylight was beyond doubt ; that the dying declaration inspired confidence ; that there was no motive or enmity for the complainant to have falsely implicated the petitioners and that both the petitioners had participated in the occurrence. On this view of the matter, the Federal Shariat Court dismissed the appeals and confirmed the sentence of death of Muhammad Abbas petitioner.

7. Mr. Dilawar Mahmood, learned counsel for the petitioners, urged before us, as had been done before Federal Shariat Court, that the challan having been, submitted for offences under the Pakistan Penal Code, the Court could not have charged the petitioners with an offence under the Ordinance and that in any case the petitioners could have been charged under the first proviso to section 20 (1) of the Ordinance with a different offence only after the evidence led had shown that such different offence had been committed but not before. The contention has no merit. The narration of the facts in the report submitted under section 173, Cr. P. C. disclosed an offence falling under section 18 of the Ordinance and, therefore, even if the police officer had not mentioned that section in his report, the trial Court was competent to frame a charge under section 18 of the Ordinance also. It is a well‑established principle of law that the trial Court is not bound by the conclusions reached by the investigating officer in his report submitted under section 173, Cr. P. C. See Falak Sher v. State (P L D 1967 S C 425). Upon they disclosure of an offence falling under the Ordinance, the Court' of Session acquired exclusive jurisdiction to try the same by virtue of the second proviso to section 20 (1) of the Ordinance, which says "Provided further that an offence punishable under the Ordinance shall be triable by a Court of Session and not by a Magistrate authorised under section 30 of the Code . . . The Court of Session could alongwith are offence under the Ordinance also try offences under and other law committed in the same transaction, in view of section 235, Cr. P. C. and the first proviso to section 20 (1) of the Ordinance. The Federal Shariat Court had rightly therefore, rejected the objection.

8. The next objection was in regard to the competency of the reference before the Federal Shariat Court, as according to learned counsel the reference for confirmation of the death sentence on a murder charge could lie only before the High Court. In this connection, he pointed out that in fact an appeal (Criminal Appeal No. 171 of 1983) had already been preferred before the High Court and was still pending there. As the trial by they Court of Session under the provision of the Ordinance was competent, the appeal would lie only before the Federal Shariat Court in view of the fourth proviso to section 20 (P L D 1967 S C 425) and a reference for confirmation of the death sentence, to that Court would be competent under subsection (1976 P Cr. L J 545) of the said section. The objection too had been rightly rejected by the Federal Shariat Court.

9. In regard to the dying statement of the deceased, the technical objection raised was that it had not been scribed with a pencil as required by the rules and that only a carbon copy of the same had been produced in the evidence. No such objection having been taken before the trial Court, the same can hardly be permitted to be raised now. It was next urged, on the basis of the view taken by a learned Single Judge of the Lahore High Court in Abdul Majid v. State (1976 P Cr. L J 545) that the dying declaration not recorded in the presence of the doctor or by a Magistrate or any other independent official would be merely a statement under section 161, Cr. P. C. and not a dying declaration. However, a contrary view bad been expressed by another learned Single Judge of the same Court in Muhammad Nawaz v. State (PLD 1979BJ42) that a statement recorded under section 161, Cr. P: C. can be treated as a dying declaration if the maker of the statement dies soon thereafter. The investigating officer (P. W. 10) had affirmed that he had recorded the' deceased's statement "without addition or omission" That being so, the dying statement was a relevant document.

10. Learned counsel has addressed us on merits, too, but we do not find any proper ground to interfere with the concurrent findings of the Courts below.

11. The petitions are accordingly dismissed and leave to appeal refused.

M. Z. M. Petitions dismissed.

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