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Criminal Appeal No.381 and Murder Reference No.120 of 1983, decided on 7th February, 1987.
‑‑‑S. 302‑‑Appreciation of evidence‑‑Plausible explanation for non- mention of the names of eye‑witnesses in the F.I.R. given‑‑Testimoney of such eye‑witnesses, held, could not be disbelieved merely for the reason that their names did not occur in the F.I.R.
‑‑‑S. 302‑‑Appreciation of evidence‑‑Eye‑witness stated to be paternal uncle of deceased‑‑No question as to his relationship with deceased put to such witness‑‑Testimony of such witness, held, could not be said to be unreliable on ground of his relationship alone.
‑‑‑S. 302‑‑Appreciation of evidence‑‑Eye‑witnesses having no enmity with accused and there was no reason for them to falsely implicate accused in the case‑‑Testimony of such witnesses, held, could not be disbelieved.
‑‑‑S. 302‑‑Appreciation of evidence‑‑Complainant had no knowledge of culprit at the time of making statement on which the F.I.R. was based and he, therefore, cast suspicion on some other person due to his (other person's) failure to get the hand of the deceased lady‑‑Complainant when learnt about the real culprit from eye‑witnesses, did not bother about the said person‑‑Held, suspicion was not charge and nothing, therefore, would turn on the suspicion on said person in the F.I.R.
‑‑‑S. 302‑‑Appreciation of evidence‑‑Identification parade‑‑Eye witnesses and witness of Vajtakker did not know accused earlier but they gave his description which held good in the case of accused‑‑Accused was correctly identified by such witnesses at the identification parade‑ Contention that accused had scar marks on his face but they were not covered before he was exposed to identification and, therefore, his identification was of no consequence‑‑Held, no question regarding scar marks was put to Magistrate who supervised the identification parade or any of the witnesses who identified the accused at the said parade‑‑Scar marks could be managed by accused after the identification parade and before his appearance before the trial‑‑Evidence relating to identification parade, therefore, could not be disbelieved on the score of scar marks in question.
‑‑‑S. 302‑‑Appreciation of evidence‑‑Recovery‑‑Medical evidence supporting ocular account‑‑Recovery of blood‑stained clothes of accused and blood‑stained crime weapon made on pointation of accused‑‑Positive reports from chemical examiner were received in respect of blood found on articles recovered on pointation of accused‑‑Recovery witnesses alleged to be related to deceased‑‑Testimony of such witnesses supported by statements of Investigating Officer and none of them were found to be inimically disposed towards the accused‑‑Mere relationship of recovery witnesses with deceased, held, would not warrant rejection of their testimony in circumstances.
‑‑‑S. 302‑‑Appreciation of evidence‑‑Extra‑judicial confession‑ Evidence of extra‑judicial confession based on hearsay‑‑Statement of person who furnished evidence of said extra‑judicial confession was recorded as court‑witness after the trial had concluded‑‑Accused was not re‑examined under S. 342, Cr.P.C. with reference to the statement of said court‑witness so as to enable him to explain his position qua the said statement nor he was given a chance to produce evidence in rebuttal thereof‑‑Such evidence of extra‑judicial confession, held, could not be relied upon in circumstances.
‑‑S. 302‑‑Appreciation of evidence‑‑Witness given up by prosecution as having been won over but Trial Court examined him as a court‑witness at a much belated stage (after the trial was concluded)‑‑Trial Court dubbing such witness as a self‑condemned liar' and despite that relying upon his statement‑‑No opportunity to accused to explain his position qua statement of such witness was provided nor he was permitted to rebut same‑‑Statement of such witness, held, could not have been relied upon by the Trial Court.
‑‑S. 302‑‑Appreciation of evidence‑‑Motive‑‑Where other evidence was available to show that accused was responsible for murder of deceased, his conviction, held, would be sustainable even if there was no evidence of motive.
‑‑S. 302‑‑Appreciation of evidence‑‑Ocular testimony furnished inspiring confidence and stood corroborated by evidence of Vajtakker, evidence of identification, medical evidence and evidence of recoveries which all remained unrebutted‑‑Conviction of accused under S. 302, P.P.C. was upheld.
‑‑S. 302‑‑Sentence‑‑Mitigating circumstance‑‑Accused having taken life of a helpless and pregnant lady when she was all alone in her house and that too in a brutal manner, there was no mitigating circumstance and his death sentence was maintained.
‑‑‑Ss. 302 &499‑‑Accused was charged under S. 302, P.P.C. and no charge under S. 499, P.P.C. was framed nor any evidence thereon was available on record‑‑Conviction of accused and sentence under S. 499, P.P.C. being totally unwarranted was set aside by High Court.
‑‑‑Writing of judgment was delayed by Trial Court for a long time and when it was recorded, due attention was not paid to charge and the evidence against the accused‑‑Trial Court, in opening para. of its judgment stating that accused stood tried before him on charge under S. 302, P.P.C. but in concluding part of the judgment he not only convicted accused under S. 302, P.P.C. but also under S. 499, P.P.C.‑‑Accused was sentenced to death under S. 302, P.P.C. while was punished with rigorous imprisonment for seven years under S. 499, P.P.C.‑‑No mention of conviction under S. 499, P.P.C. was even found, in short order of the Trial Court‑‑High Court disapproved of the roughshod manner of the Trial Court in which a murder case was handled.
Aftab Farrukh and Amjad Ahad Sheikh for Appellant.
Sh. Nasir‑ud‑Din Ahmad for Advocate‑General for the State.
Dates of hearing: 24th and 25th January, 1987.
‑‑Muhammad Nawaz son of Faqir Sain, aged 22 years, caste Jat, resident of Ruspur, Police Station Sialkot Cantt., District Sialkot, has been convicted by Ch. Iftikhar Ahmad Cheema, Additional Sessions Judge, Sialkot, under section 302 of the Pakistan Penal Code, for having intentionally killed Mst. Sughran Bibi, daughter‑in‑law of Barkat Ali complainant, in her house in village Dalowali, which is also situate in the area of the said police station, by giving her Chhuri blows. On the said charge, learned Additional Sessions Judge sentenced him to death and to pay a fine of Rs.2,000 or, in default of its payment, to suffer rigorous imprisonment for six months. The amount of fine, if recovered, was ordered to be paid to the legal heirs of Mst. Sughran Bibi, as compensation. Learned Additional Sessions Judge also convicted him under section 499 of the Pakistan Penal Code and sentenced him to undergo rigorous imprisonment for seven years. He has filed appeal (Criminal Appeal No. 381 of 1983) against the judgment of the learned Additional Sessions Judge while the later has made reference (Murder Reference No, 120 of 1983) for confirmation of the death sentence awarded to him. This judgment shall dispose of both the matters.
2. Prosecution case is that on 8th May, 1982, Mst. Sughran Bibi, who was married to Muhammad Munir (P.W.6), was all alone in her house when, at about noon time, she was killed by the appellant by giving her Chhuri blows. This occurrence was witnessed by Rehmat Ali (P.W.9) and Muhammad Ramzan (P.W.11). The appellant was also seen by Fida Husain (P.W.14) while he (appellant) was running away from the place of occurrence. The incident was reported to the police by Barkat Ali (P.W.8) by means of statement, Exh.P.J. which was recorded by an Assistant Sub -Inspector of the said police station, namely, Akhtar Ali Shah (P.W.12). The Assistant Sub‑Inspector met the complainant when the latter was on his way to the police station. The Assistant Sub‑Inspector despatched the above statement to the police station where the First Information Report, Exh.P.J/1 was drawn up. The Assistant Sub‑Inspector then visited the spot and prepared inquest report, Exh.P.M. and injury statement, Exh.P.N. in respect of the injuries suffered by the deceased. He sent her dead body for autopsy under the escort of Muhammad Ramzan, Foot Constable, (P.W.11). There was pool of blood at the place where the dead body was lying. The Assistant Sub‑Inspector collected some blood, through cotton, vide memo. Exh.P.G. and made it into a sealed parcel. Blood‑stained Parna, Exh.P.9, left by the appellant at the spot, was also taken into possession, vide memo. Exh.P.H. These two memoranda were attested by Muhammad lqbal (P.W.7) and Rehmat Ali (P.W.9). The said parcels were deposited by the Assistant Sub‑Inspector with Muhammad Yousaf, Moharrir Head Constable (P.W.5; for safe custody. Thereafter, the investigation was taken over by Zafar Alain (P.W.13) who was then posted as Sub‑Inspector (S.H.O.) at the above police station. On 9th May, 1982, the Sub‑Inspector got prepared site plan. Exh.P.B. (copy Exh.P.B./I) by Muhammad Ibrahim Draftsman (P.W.3). The Sub‑Inspector arrested the appellant on 13th May, 1982 when the appellant was produced before him by Hamid (not produced). The Sub‑Inspector sent the appellant to judicial lock‑up where identification parade was held on 15th May, 1982 under the supervision of a Magistrate, namely, Mumtaz Ali Qureshi (P.W.15). He was correctly identified by the said Rehmat Ali and Muhammad Ramzan, who had witnessed the occurrence as also by Fida Husain (P.W.14), who had seen the appellant running away after killing Mst. Sughran Bibi. Exhs. P.W.15/1 to P.W.15/5 are documents relating to the said parade. On 18th May, 1982, the appellant got recovered (blood‑stained and washed) Shalwar Exh.P.5 from a box in his house. It was taken into possession by the Sub‑Inspector and reduced into a sealed parcel, vide memo. Exh.P.C. On the same day, he led to the recovery of his bicycle, Exh.P.6 and its blood‑stained bell, Exh.P.6/1 from a room adjoining his house. They were also taken into possession, vide memo. Exh.P.D. Then, on his pointation, blood‑stained and mud‑stained shirt, Exh.P.7 was recovered from a blind well which too was taken into possession and made into a sealed parcel, vide memo. Exh.P.E. The appellant also led to the recovery of blood‑stained Chhuri, Exh.P.8 from a trench. It was taken into possession and made into a sealed parcel, vide memo. Exh.P.F. Memoranda Exhs. P.C. to P.F. were attested by Muhammad Sharif (P.W.4). Parcels prepared by the Sub‑Inspector were also deposited by him with said Muhammad Yousaf, Moharrir Head Constable. All the aforementioned parcels were taken to the Chemical Examiner by Muhammad Ghani, Foot Constable (P.W.2). Exh.P.O. is the report of the Chemical Examiner saying that the aforementioned articles were stained with blood. It was opined by the Serologist, vide memo. Exh.P.Q., that the blood thereon was of human origin.
3. Dr. Muhammad Hanif (P.W.10) performed post‑mortem examination on the dead body of Mst. Sughran Bibi and found the following injuries on her person:‑
(1) An incised wound 1" x 1/4" x going deep, transversely oblique left chest 2" above lower margin of bones chest cage and 5" away from the mid line of chest.
(2) An incised wound 1/2" x 1/2" sub cutaneous deep, transversely oblique, left chest 2" above injury No.1 and 2‑3/4" away from mid line of chest.
(3) An incised wound 1" x 1/4" x going deep vertically oblique left chest 2" above injury No. 2and 3" away from mid line of chest.
(4) An incised wound 1" x 1/4" x omentum protruding out vertically oblique front abdomen 3‑1/2" below the navel on mid line of abdomen.
As the damage caused by the said injuries and other related matters the said doctor reported as under:‑
"Under injury No. 1, cartilage of left 10th rib was cut through, diaphragm cut through, and left anterior margin of liver cut through, stomach wall anterior left cut through 1/4" x 1/16" x wall of the stomach. Peritoneal cavity pierced through under the diaphram, blood dark and semi fluid 16 ounces present in peritoneal upper cavity. Under injury No. 4 also the peritoneum cut through and small intestines cut through at one place, lower peritoneal cavity contained 8 ounces of dark partially clotted blood and small amount of chyme around the wound on small intestines. Under injury No. 3, 8th left intercastal space pierced through. Pleural cavity pierced through and left lung cut at its antero lateral aspect 1/2" x 1/16" x 1/2" into its substance. Left pleural cavity contained 16 ounces of semi fluid of dark blood. Both sides of heart empty. Stomach contained 10 ounces of semi solid and semi digested food, ecchymosed around the wound. Urinary bladder contained 4 ounces of urine"
That Mst. Sughran Bibi was in a family way at the time of her death is evident from the following observations of the doctor:‑
"Uterus was gravid of 6 months size. Os was closed with intact membranes of the foetus. Foetus side was 12" long and 22 ounces in weight. Placenta and cord and membranes were intact and healthy, Foetus was healthy. Uterus and external organs were healthy. Foetus was female."
In the opinion of the doctor, all the injuries were ante‑mortem and injuries Nos. 1, 3 and 4 were sufficient to cause death in the ordinary course of nature and were inflicted with sharp‑edged weapon alongwith injury No 2'. Death was due to shock and haemorrhage. Exh.P.K. is copy of the post‑mortem report made by the said doctor. Exh.P.K./1 is the diagram of the injuries prepared by him.
4. After necessary investigation, the appellant was challaned by the said Sub‑Inspector.
5. The appellant denied the charge under section 302 of the Pakistan Penal Code. The prosecution produced the witnesses mentioned above to prove its case. The learned Additional Sessions Judge also examined Muhammad Ishaq as C.W.l. He was cited as a prosecution witness but was given up as having been won over. It was stated by Muhammad Ishaq that when Hamid (not examined) produced the appellant before the Sub- Inspector, he (Hamid) also told the Sub‑Inspector that the appellant had confessed before him (Hamid) that he had killed Mst. Sughran Bibi because of her refusal to subject herself for sexual intercourse. When cross‑examined by the Additional Public Prosecutor, Muhammad Ishaq also said:‑
"It is correct that the under‑trial accused Muhammad Nawaz went to the house of Mst. Sughran deceased situate in village Dalowali on the day of occurrence and on seeing her all alone in the house, he made a criminal attack upon her with intent to commit sexual intercourse. On her refusal, he gave her Chhuri blows which resulted in her death:"
6. In his statement, under section 342 of the Code of Criminal Procedure, the appellant refuted all the allegations levelled against him by the prosecution witnesses. In reply to the question as to why the case was brought against him, he gave the following explanation:‑
"I know nothing about the occurrence, I had no motive to cause the intentional death of Mst. Sughran Bibi deceased who was not known to me. I never visited the house of the complainant nor I know him. Some unknown assailants had murdered Mst. Sughran Bibi and I have been made scape goat in this case. The P.Ws. had deposed against me because they are under the influence of the local police. The), are closely related inter se."
7. No defence evidence was led by the appellant.
Relying on the prosecution evidence, and the statement of Muhammad Ishaq (C.W.1), it was held by the learned Additional Sessions Judge that the prosecution had fully established the guilt' of the appellant for causing the intentional death of Mst. Sughran Bibi'. He, therefore, convicted and sentenced him as aforesaid.
9. Assailing the judgment of the learned Additional Sessions Judge, it was submitted by learned counsel for the appellant that the ocular evidence given by Rehmat Ali (P.W.9) and Muhammad Ramzan (P.W.11) could not be relied upon, because they were not mentioned as eye witnesses in the statement of the complainant, Exh.P.J., which forms basis of the F.I.R. Exh.P.J./1. It is true that Exh.P.J. is silent regarding the said witnesses, but there is explanation available for the omission of their names therefrom. It was stated by Rehmat Ali and Muhammad Ramzan that after causing fatal injuries to Mst. Sughran Bibi, the appellant ran away from the spot and they chased him for about two hours although they could not apprehend him. One of the reasons for which they could not get hold of the appellant was that he made good his escape on a bicycle, while the witnesses followed him on foot. On hearing of the death of Mst. Sughran Bibi, when the complainant came to the spot. several persons were present with her dead body but the eye‑witnesses were not there as they had gone after the appellant. Since the persons who were then available with the dead body had not seen the occurrence, they could not tell the complainant as to who was the culprit. It seems that the complainant hurriedly left for the police station to report the incident. P.W.12, Akhtar Ali Shah, Assistant Sub‑Inspector of Police, met him on the way and recorded his statement, Exh.P.J. The Assistant Sub‑Inspector immediately came to spot. This is clearly discernable from his statement to the effect that the dead body of Mst. Sughran Bibi was lying in a pool of blood when he came there and he collected some blood through cotton. Needless to say that, more often than not it is blood‑stained earth which is taken from the spot in such like cases because of the drying up of the blood due to late arrival of the police. It appears that when the eye‑witnesses returned to the spot after an unsuccessful chase and related ocular account to the Assistant Sub‑Inspector, it was reduced by him into writing in the shape of statements under section 161 of the Code of Criminal Procedure. These statements were recorded on the day of occurrence. Since there is plausible explanation for non‑mention of names of the eye‑witnesses in the F.I.R., we are not prepared to disbelieve their testimony merely for the reason that their names did not occur therein.
10. Another argument raised by learned counsel for the appellant was that according to the inquest report, Exh.P.M. dead body of Mst. Sughran Bibi was lying inside a room and, therefore, the eye‑witnesses could not witness the occurrence while standing on the roof top of a nearby Verandah facing the said room. The Assistant Sub‑Inspector of Police, Akhter Ali Shah (P.W.12), who prepared the inquest report, explained that the dead body was in the Verandah and it was inadvertantly mentioned by him in the said report that the dead body was lying inside the room. Even if the incident had taken place inside the room it could be seen by the said witnesses because it is nobody's case that the room had a door which was closed. It can be easily gathered from the statement of the eye‑witnesses that they had seen the appellant leaving the spot after giving Chhuri blows to the deceased. In the circumstances, we are not inclined to discard the testimony of the eye‑witnesses connecting the appellant with the murder of Mst. Sughran Bibi on the short ground that according to the inquest report the dead body of Mst. Sughran Bibi was lying inside the room.
11. One more point canvassed by learned counsel for the appellant was that one of the eye‑witnesses, namely, Rehmat Ali was related to the deceased. No question was put to him regarding his relationship. It was, however, stated by Barkat Ali complainant (P.W.8) that Rehmat Ali was paternal uncle of the deceased. His relationship alone, however, did not make him unreliable witness. As for Muhammad Ramzan, who is another eye‑witness in this case, it has not been brought on the record that he tool was related to the deceased. Both Rehmat Ali and Muhammad Ramzan had no enmity with the appellant. There was, therefore, no reason for them to falsely implicate the appellant in this case.
12. Learned counsel for the appellant drew our attention to the F.I.R., Exh.P.J. in which Asghar son of Muhammad Khan was suspected to have caused the death of Mst. Sughran Bibi. As stated above, the complainant had no knowledge of the culprit at the time of making statement, Exh.P.J., on which the F.I.R. is based. He, therefore, cast suspicion on said Asghar due to his (Asghar's) failure to get the hand of Mst. Sughran Bibi. It was a suspicion and not a charge against him. The complainant did not bother about Asghar when he learnt from the eye‑witnesses that not he but somebody else had taken the life of Mst. Sughran Bibi. If Asghar had hacked her to death, the complainant would not have spared him and got hold of the appellant against whom he had no grudge whatsoever. It may be noted here that the appellant not even resides in the village lived in by the complainant. In the circumstances nothing turns on the suspicion cast on Asghar in the F.I.R.
13. In regard to Fida Husain (P.W.14), who is the witness of Vajtakker, it was submitted by learned counsel for the appellant that his statement did not inspire confidence because the eye‑witnesses, who had allegedly chased the appellant, made no mention of Fide Husain. Learned counsel could not demonstrate that Fida Husain had crossed the eye‑witnesses when they were chasing the appellant and, therefore, failure of the eye witnesses to refer to Fida Husain is immaterial.
14. As indicated earlier, the eye‑witnesses and the witness of Vajtakker did not know the appellant earlier. They gave his description which holds good in the case of appellant. He was correctly identified by them at the identification parade. This is evident from the report of Mr. Mumtaz Ali Qureshi (P.W.15), who supervised the parade as a Magistrate. In regard to the said parade, it was contended by learned counsel for the appellant that the appellant had scar marks on his face but they were not covered before he was exposed to identification and, therefore, his identification was of no consequence. There is no evidence of scar marks except the statement of Dr. Muhammad Hanif (P.W.10) who performed autopsy on the dead body. of Mst. Sughran Bibi. He made mention of the scar marks when he was cross‑examined with reference to the appellant who was present in Court. The said doctor did not examine the appellant earlier. No question regarding the above marks was, however, put to the said Magistrate or any of the witnesses who identified the appellant at the said parade. The marks in question could be managed by the appellant after the identification parade and before his appearance before the trial', Court. In the circumstances, we are not inclined to disbelieve the evidence relating to identification parade on the score of the scar marks in question.
15. Medical evidence supports the ocular account inasmuch as according to the statement of Dr. Muhammad Hanif (P.W.10) the injuries suffered by the deceased were caused by sharp‑edged weapon. Ocular account is also to the effect that the appellant had caused these injuries with Chhuri which is a sharp‑edged weapon. Learned counsel for the appellant did not say a word against the medical evidence.
16. Recovery of appellant's Parna, Exh.P.9 from the spot and the recovery of his Shalwar (blood‑stained and washed), Exh.P.5, bicycle Exh.P.6 with blood‑stained bell, Exh.P.6/1, blood‑stained and mud -stained shirt, Exh.P.7 and the blood‑stained Chhuri Exh.P.8 on his pointation also connect him with the murder of Mst. Sughran Bibi. It was pointed out by learned counsel for the appellant that Muhammad Sharif (P.W.4), Muhammad Iqbal (P.W.7) and Rehmat Ali (P.W.9) who were witnesses of the recoveries, were related to the deceased; but their mere relationship does not warrant the rejection of their testimony which also stands supported by the statements of the Investigating Officers. None of, these witnesses were inimically disposed towards the appellant. We, therefore, find nothing wrong with the evidence of the recoveries. As stated earlier, positive reports were received in respect of blood found on the said articles.
17. This brings us to the evidence of extra‑judicial confession) furnished by Muhammad Ishaq (C.W. 1). The alleged confession was not' made to him but before Hamid, who was not examined. Confession was not made before Hamid in the presence of Muhammad Ishaq either. It was submitted by learned counsel for the appellant that the statement of Muhammad Ishaq regarding extra‑judicial confession was hearsay evidence and could, therefore, not be relied upon. There is merit in this plea of learned counsel for the appellant. It is also noteworthy that the, statement of Muhammad Ishaq was recorded by the learned Additional' Sessions Judge after the trial had concluded. It was on 20th February, 1983' that the learned Additional Sessions Judge heard arguments and adjourned the case to 23rd February, 1983 for judgment. He, however, did not announce judgment on that date or on five subsequent dates fixed for the purpose. On 21st March, 1983, the accused requested for re‑hearing of arguments and then the case was fixed for 27th March, 1983 for arguments and judgment. The case was adjourned on the said date as well as on seven other occasions. On 26th April, 1983, Muhammad Ishaq was ordered to be summoned as a Court witness at the request of parties' counsel. His statement was recorded on 28th April, 1983 but arguments were not heard on that date or on two subsequent dates fixed for the purpose. Ultimately, the case was re‑heard on 19th May, 1983 but judgment was not announced on that date or on two other dates fixed for its announcement. At long last, the case was decided on 26th May, 1983. Appellant was not re‑examined, under section 342 of the Code of Criminal Procedure, with reference to the statement of Muhammad Ishaq, as a Court witness, so as to enable him to explain his position qua the said statement nor he was given a chance to produce evidence in rebuttal thereof. For all these reasons we would note like to rely on the evidence of extra‑judicial confession.
18. Muhammad Ishaq also made following statement relating to the actual occurrence:‑
"It is correct that the under‑trial accused Muhammad Nawaz went to the house of Mst. Sughran deceased situate in village Dalowali on the day of occurrence and on seeing her all alone in the house, he made a criminal attack upon her with intent to commit sexual intercourse. On her refusal he gave her Chhuri blows which resulted in her death"
This statement, which was made by Muhammad Ishaq when cross- examined by the learned Additional Public Prosecutor was relied upon by learned trial Court. Submission of learned counsel for the appellant was that since Muhammad Ishaq was not cited as an eye‑witness nor did he claim to be so, his above statement relating to the occurrence would not be taken into consideration. There is lot of force in the argument of learned counsel for the appellant. The said statement of Muhammad Ishaq appears to be based on extra‑judicial confession which has already been discarded. As stated earlier, Muhammad Ishaq was given up by the prosecution as having been won over but was examined by the learned Additional Sessions Judge as a Court witness at a much belated stage. Surprisingly enough, the learned trial Court relied upon the above statement off Muhammad Ishaq after dubbing him as a self‑condemned liar'. Also, as indicated above, the appellant was not provided with an opportunity to explain his position qua his statement nor he was permitted to rebut it. Keeping all this in view, we would like to exclude from consideration the above statement of Muhammad Ishaq.
19. It was urged by learned counsel for the appellant that there was no evidence of motive against the appellant except the evidence of extra- judicial confession. In the F.I.R. Exh.P.J./l, no motive qua the appellant was alleged and, therefore, the prosecution was not obliged to lead any evidence in this regard. If there is other evidence showing that the appellant was responsible for the murder of Mst. Sughran Bibi, his conviction would be sustainable even if there is no evidence of motive.
20. To sum up, the ocular testimony furnished in this case inspires confidence. It also stands corroborated by the evidence of Vajtakker, the evidence of identification, the medical evidence and the evidence of recoveries, which, too, deserve credence. In view of all this evidence, which has gone unrebutted, we are convinced that the appellant was responsible for intentionally causing the death of Mst. Sughran Bibi. We, therefore, uphold his conviction under section 302 of the Pakistan Penal Code.
21. As for the sentence, there is no mitigating circumstance in favour of the appellant. He took the life of a helpless and pregnant lady when she was all alone in her house and that too in a brutal manner. We, therefore, maintain the death sentence awarded to him.
22. As indicated earlier, learned Additional Sessions Judge convicted the appellant under section 499 of the Pakistan Penal Code also and sentenced him to rigorous imprisonment for seven years. Provisions of section 499 relate to the offence of defamation. No charge under section 499 was framed against the appellant, nor there is any evidence thereon. Learned Additional Sessions Judge could not, therefore, convict the appellant and sentence him under section 499. His order in this regard is totally unwarranted. This was also frankly conceded by learned counsel for the State. We, therefore, set aside the conviction of the appellant as well as the sentence inflicted on him under section 499.
23. Appeal preferred by the appellant is dismissed except to the extent of setting aside his conviction and sentence under section 499 of the Pakistan Penal Code. Death sentence awarded to the appellant is confirmed. Reference received from the learned Additional Sessions Judge is answered accordingly.
24. Before parting with this case we would disapprove of the roughshod manner in which this murder case was handled by the learned Additional Sessions Judge.
25. As indicated earlier, writing of judgment was delayed by the learned Additional Sessions Judge for a long time and when it was recorded, due attention was not paid to the charge and the evidence against the appellant. In the opening paragraph of his judgment, it was stated by the learned Additional Sessions Judge himself, that the appellant stood trial before him on charge under section 302 of the Pakistan Penal Code but in the concluding part of his judgment he not only convicted the appellant under section 302 but also under section 499 of the said Code. Under section 302 he was sentenced to death while under section 499 he was punished with rigorous imprisonment for seven years. It is interesting to note that in the short orders recorded by the learned Additional Sessions Judge on the order‑sheets, both in English as well as in Urdu, he did not make any mention of the conviction and sentence of the appellant under section 499. Therein, he talked of his conviction and sentence under section 302 only. Since there was no charge under section 499 or evidence thereon, there was no basis whatsoever for convicting him thereunder and imposing on him the sentence of rigorous imprisonment of seven years. Sending a person to jail for seven long years without any rhyme or reason is highly objectionable. It is no less than playing with the liberty and honour of an individual.
26. Learned Additional Sessions Judge also relied upon the statement of Muhammad Ishaq (C.W.1) despite describing him as self‑condemned liar' and without affording an opportunity to the appellant to explain his position qua his statement or to produce evidence in rebuttal thereof.
27. It is thus, evident that the learned Additional Sessions Judge not only dealt with the case lightly but also with gross carelessness.
M.B.A./M‑210/L Order accordingly.
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