AFTAB FARRUKH, J.-Criminal Appeal No. 1131 of 1976 has been filed by Abdullah and Muhammad Yusuf appellants jointly through jail, whereas Criminal Appeal No. 522 of 1977 has been filed through jail by Muhammad Yusuf appellant alone.
Mst. Seeman, her real brother Abdullah son of Nazir, aged 28, and their uterine brother Muhammad Yusuf, son of Abdul Haq, aged 55, were sent up for trial by Police Station, Kamoke, District Gujranwala, for the murder of Mst. Safia, aged 55, wife of Bashir Hussain complainant. Mst. Seeman died before the trial. Mr. Abdul Basir Qureshi, Additional Sessions Judge, Gujranwaia, vide judgment dated 28-4-1976, convicted Abdullah and Muhammad Yusuf under section 302/34, P. P. C. Arid sentenced each of them to death and a fine of Rs. 3,00(? Each is case of default three years' further rigorous imprisonment. It has also been directed that out of the ,amount of fine, if realized., Rs. 3,000 be paid to the complainant as compensation. This judgment disposes of the Murder Reference as well as both the Criminal Appeals.
2. The occurrence took place on the night between the 13th and 14th of August, 1973, at about 2-30 a.m., in the house of complainant Bashir Husain (P. W. 5) who is husband of Mst. Safia deceased, a retired. School teacher. The house is situated in the Abadi of Eminabad town at a distance of 4/5 Killas from Police Post, Eminabad, which in turn is located at a distance of 8 miles from Police Station, Kamoke. Farzand Ali A. S. I. (P. W. 4) who was on patrol duty, on hearing about the incident, reached the scene of occurrence and recorded the statement (Exh. P. B.) of Bashir Husain (P. W. 5) at 4 a.m. Same night and despatched the statement to the Police Station, Kamoke, where formal F.
1. R. (Exb. P. B./1) was registered at 5 a.m. By Bashir Husain Shah Muharrir A. S. I. (P. W. 3).
3. Dead body of Mst. Safia was despatched for post-mortem examination and Dr. Nawaz Ahmad Bajwa on 14-8-1973 at 1-15 p.m. Found the following injuries on the person of the deceased :
(1) Contusion all around both eyes, 3" X 2-- ".
(2) Contused wound on the right cheek 1--- x ----- x skin deep.
(3) Contusion mark on both wrist joint.
(4) Contusion mark in front of the left to right of the neck, 7' X 1" above the thyroid gland.
Death in, the opinion of the doctor was due to asphyxia as a result of pressure on the trachea.
Death occurred soon after pressure. Time between death and post-mortem examination was about 16 hours. The doctor was also of the opinion that all the injuries could be caused by one person.
4. Muhammad Yusuf appellant was arrested by Farzand Ali A. S. I. (P. W. 4) on 17-8-1973, while Abdullah Appellant absconded and was proceeded against under section 87/88, Cr. P. C. Before his arrest on 10-11-1973 by Muhammad Yusuf Inspector (P. W. 7). The documents relating to his declaration as an absconder were not traceable at the time of the recording of evidence at the trial. Nevertheless, there is the evidence of the Police Officers on this point and, the appellant in his statement has himself admitted that he was declared as an absconder.
Mst. Seeman, who was overpowered at the spot and produced before the Investigating Officer, was formally arrested on 144-1973. A piece of cloth (Exh. P. 3) with which Mst. Safia was strangulated, %as left at the spot and taken into possession by the Investigating Officer vide Memo. Exh. P. A.
Which was witnessed by Muhammad Shafi, Muhammad Anwar and Muhammad Husain P. Ws.
Besides the Investigating Officer.
At the instance of Abdullah appellant on 24-1-1974 a pair of golden bangles (Exh. P. 4/i-z) were recovered from the house of Mst. Seeman, real sister of Abdullah appellant, and taken into possession vide Memo. Exh. P. F. Muhammad Tufail (P. W. 8) has appeared at the trial to support this recovery besides Muhammad Siddiq A- S. I. (P. W. 10). The other signatory of this recovery Muhammad Nazir was not produced at the trial.
5. The prosecution version briefly is that the complainant Bashir .Husain. Aged 64, and his wife Mst.
Safia deceased, retired school teacher, were on a short visit to their house situated in Eminabad.
Mst. Seeman, a distant relation, approached them for taking shelter in their house on the pretence of her house's roofs being in a dilapidated condition and complainant suggested that she would sleep along with his wife on the second floor. Whereas the complainant would steep on the first floor. Muhammad Husain (P. W. 6) on the fateful night also slept with the complainant as he had guests; in his own house. At about 2-30 in the night, Basbir Husain complainant woke up on being disturbed by the alarm and rushed to second floor in the company of Muhammad Husain and saw the two appellant strangulating his wife Mst. Safia with a cloth, while Mst. Seeman held hecby both her hands. On seeing the witnesses approaching, both the appellants ran towards the roof of house of Mst. Seeman which was adjacent. Mst. Safia who lay unconscious there, expired soon after. He noted that two golden bangles weighing about 8 Tolas (kare) and four other golden bangles weighing about 4 Tolas and a pair of ear-rings weighing about one Tola, which she was wearing, were missing and the accused had forcibly removed the same from her person. Mst.
Seeman was overpowered at the spot and later at 4 a.m. Produced before Farzand Ali A. S. I. (F W.
4) at the time of recording the F. I. R.
The motive alleged is one of committing theft of golden ornaments.
6. Both the appellants before us pleaded denial simpliciter in their statements recorded under section 342, Cr. P. C. And imputed their false implication due to their relationship with Mst. Seeman, and that is their case in the appeal petitions filed through jail. Muhammad Yusuf appellant who has filed a separate appeal through jail also, has specifically mentioned that he had nothing to do either with the deceased party or his co-accused and since long he had severed all his relations with his co-accused who are his step-brother and sister. Muhammad Yusuf appellant also desired to be heard in person which opportunity we have afforded to him. Here too he has reiterated his stand submitting that his relations with his co-accused Abdullah were strained much before the occurrence, as he (Abdullah) would indulge in committing theft etc. And police would harass him, and on one or two occasions he had got his step-brother Abdullah appellant apprehended by the police.
7. We have been taken through the evidence by Mr. Muhammad Rafiq Butt, the learned counsel for the appellants. He has relied on the cross-examination of Dr. NawaZ Ahmad Bajwa (P. W. 12) for stressing that the injuries could easily be caused by one person and, therefore, it was a job of only one assailant and in this regard he further referred us to the evidence that the deceased was an elderly lady being a retired school teacher, whereas Mst. Seeman was comparatively of younger age and with better health. Therefore, the learned counsel has contended that Mst. Seeman alone could have and had done the job. It appears that burden is being thrown on Seeman alone as she is dead and we do not agree with the learned counsel. This is certainly a job of more than one person. If the deceased was about 55, Mst. Seeman accused (now deceased) too was only a few years younger. Taking off the golden bangles from the wrist would not be a convenient job. This would have involved overpowering of Mst. Safia which could not have been conveniently done by Mst. Seeman alone. It is somewhat a painful process and an additional reason for screaming and raising alarm involving the risk of attracting the interceptors. Therefore, in all probability, one person strangulated her and the other two or one, as the case may be, attempted to remove her bangles and other golden ornaments. Injury No. 4, which is a contusion mark in front of the left to right of the neck of the dimension of 7--- x 1--- above the thyroid gland and the other symptoms noted, conclusively prove strangulation and the contusion all around both the eyes of the dimension of 3" x 2----- noted as injury No. 1 and the contused wound on the right cheek 1' x ----- x skin deep conclusively prove resistance by the deceased and being overpowered. All this certainly establishes that the assailants or the culprits were more than one.
8. We have perused with care the testimony of Bashir Husain complainant (P. W. 5) and Muhammad Husain (P. W. 6). Muhammad Hussain has not fully supported the case of prosecution at the trial and his statement recorded before the Committing Court was transferred to the Court of Session under section 288, Cr. P. C. Before the Committing Magistrate he had specifically named Muhammad Yusuf and Abdullah appellants at the two accused strangulating Mst. Safia, whereas at the trial stage he mentioned as having seen two assailants running away from the side of Barsati towards the adjoining roof and Mst. Seeman holding the hands of the deceased. We quite well understand the reluctance of witnesses in our country from coming forward to depose the truth and the Supreme Court of Pakistan has taken note of this tendency in the case reported ail Muhammad Iqbal v. The State PLD 1976 SC 291. Suffice it to say that the statement transferred under section 288, Cr. P. C. Is good evidence and we do not see any reason on the part of Muhammad Husain for having stated anything other than the truth at the stage of making his statement before the Committing Magistrate. The witness before the Committing Magistrate had been cross-examined and nothing was brought on record for showing that he had any motive to falsely implicate the appellants at that stage.
9. As far as Bashir Husain complainant (P. W. 5) is concerned, he is a natural witness, as the occurrence had taken place in his own house. His presence at the spot is not challenged at any stage. The case of the defence specifically, as suggested to the P. Ws., is that Mst. Seeman alone has committed this offence which version we have not accepted while discussing the medical evidence and have observed that it is a job of more than one person. The testimony of Bashir Husain appears to us quite truthful and consistent. Nothing whatsoever has been brought on record for raising doubt in our minds regarding the presence; of this witness. He has given straightforward and truthful explanation for everything asked in cross-examination. He is distantly related to the appellants as well as Mst. Seeman, as one of the sisters of the appellants is married to Taj, a paternal cousin of the complainant and in these circumstances, if Mst. Seeman approaches this elderly couple, the complainant being 64 and the deceased being about 61 (calculating it from her retirement in 1971), it would be quite natural and understandable that the couple would permit Mst. Seeman to sleep in their house when the roof of her own house was in a dilapidated condition and the conduct of Bashir Husain complainant (P. W. 5) seems to be very respectable and pious in permitting the two ladies to sleep on the second floor, while he bad chosen to sleep on the first floor, and in this context we take note of the fact that this is not the case of the appellants that the complainant in collusion with Mst. Seeman has got rid of Mst. Safia. The sequence of events appears to be that when an effort was made to strangulate 41st. Safia or take off her ornaments, she woke up, put up resistenee and raised alarm before she was completely overpowered and strangulated. This alarm attracted to the spot Bashir Husain complainant and Muhammad Husain who were on the first floor. On seeing them approaching, the two male assailants took to their heels, jumped over to the adjacent roof, I.e. The house of Mst. Seeman. Mst.
Seeman could not make good her escape and was overpowered at the spot. When questioned about following the two assailants, Bashir Husain P W. Gave a very plausible and truthful explanation to the effect that no one followed the accused, as ha had identified them. The testimony of Bashir Husain is of the kind for which we would have normally followed the principle laid down by the Supreme Court of Pakistan in the case reported as Roshan v. The State PLD 1977 SC 557 and maintained the conviction of the two appellants on the sole testimony .Of Bashir Husain.
But in view of the fact, that this is a night time occurrence and the two witnesses would have got the glimpse of the two fleeing accused, the remote possibility of mistaken identity of the assailants cannot be ruled out, and the plea o g Muhammad Yusuf appellant that he had strained relations with his co-accused and the explanation of Muhammad Yusuf before us, made in person, the he being about 55 years of age was often admonishing Abdullah for hi misconduct, therefore, his relations were strained to the extent of severing since long, and Mst. Seeman has named him for saving her own real brother, also cannot be ruled out.
In the circumstances, stated above, by way of abundant caution and removing the remotest possibility of false implication on account of mistaken identity or false disclosure regarding the identity of the co-accused by Mil. Seeman, we are looking for corroboration, which we find in abundance against Abdullah appellant in the form of recovery of golden bangles (Exh. P. 4/1-2) and his absconding after the incident for quite a few months. The learned counsel has laid undue emphasis on minor discrepancies from the testimony of recovery witnesses Muhammad Tufail (P.
W. 8) and Muhammad Siddiq A. S. I. (P. W. 10), Such discrepancies are bound to happen even in normal course of events. The learned counsel is overlooking that Muhammad Tufail P. W. Is wholly an independent witness and there is nothing brought on record to indicate his interest in falsely deposing against the appellant. Similarly, there is no motive on the part of Muhammad Siddiq A. S.
1. (P. W. 10) for planting the recovery falsely. If he was to plant false recoveries, we see no reason on his part for not doing the same as against Muhammad Yusuf appellant who was equally named in the F.
1. R. The F. I. R. Was lodged very promptly in which the golden ornaments including the bangles, were specifically mentioned as having been taken away. The learned counsel has stressed that no goldsmith or other witness has been produced for establishing the identity of the golden bangles as that belonging to the complainant. This was not necessary in view of the fact that the appellants never claimed the ownership of these articles and they disown this recovery.
They have not challenged the assertion of Bashir Husain complainant regarding the ownership of bangle (Exh. P. 4/1-2). Therefore, the ownership is sufficiently proved as that of the complainant and the identity of the articles as those stolen from the scene of occurrence is fully established. This recovery in our view is a strong corroboration against 'Abdullah appellant. Therefore, we dismiss his appeal. No ground whatsoever for the mitigation of his sentence is available to him to the circumstances of this particular case, and, therefore, we have no hesitation in confirming his death sentence and the sentence of fine awarded to him is also maintained.
10. As regards Muhammad Yusuf appellant, this is admitted that he is not the real brother of the other two but a consanguine brother. He is aged about 55, whereas Abdullah is aged about 28. We cannot rule out the possibility of his assertion before us here today in Court that his relations with his step-brother were strained and he had severed them long ago on account of Abdullah's indulgence in theft etc. And his (Muhammad Yusuf's) harassment on that account by the police.
There is no incriminating recovery against him. It is possible that the assailant besides Abdullah and Mst. Seeman if at all. There, may have been someone else for whom Mst. Seeman and Abdullah may have chosen to substitute him. We cannot rule out the possibility of mistaken identity qua him, as admittedly the P. Ws. Rushed to the scene of occurrence on hearing the alarm and on seeing them, the two assailants took to their heels to a midnight occurrence. Therefore, by way of abundant caution, we will give Muhammad Yusuf appellant the benefit of doubt, allow his appeal and acquit him. He shall be set at liberty, forthwith if he is not required in any other case.