1. ' SARDAR MUHAMMAD SHAIUF KHAN, J.-The appellant Muhammad Hassan aged 24 years was brought before the Court of Additional Sessions Judge, Kotli by the Kotli Police to stand his trial under section 302, P. C. For murder of one Muhammad Latif. The trial was accordingly held by the said Court and it was by order dated 27-1-1975 that Muhammad Hassan was convicted under section 302, P. C. And sentenced to death.
2. ' The story of the prosecution goes to say that a girl Mst. Nasim Akhtar alias Sima by name was married to Muhammad Latif who had been leading a happy life for about four years of their marriage, but afterwards their relations became strained as Mst. Sima began to live separate from her husband in the house of her parents. It is then alleged that Muhammad Hassan entertained illegal relations with the girl and in a way both of them were attracted to each other and so the happy relations of the spouses were put to ashes. Muhammad Latif was working somewhere in a hotel in Gujranwala and he in order to break the relations having been developed between Muhammad Hassan and his wife, took her wife to Gujranwala to live with the husband. Muhammad Hassan was so much after the girl that he even went to Gujranwala and used to meet the girl in absence of her husband, Latif from the house.
3. ' It was on 7-9-1973 that Muhammad Hassan showed a forged deed of divorce to Mst. Sima that she was divorced by her husband, therefore, she should accompany him back to the village. He was successful in deceiving the girl as such, and enticing her away therefrom. Mst. Sima was brought to Kotli by the accused-appellant along with a young boy named Yusuf of about 12 years of age, the brother of the girl.
4. ' Muhammad Latif on his return from work, found that his wife had disappeared from the house. He, in order to search her out, followed the abductor and the abductee towards Kotli. He reached Kotli by the very night. On waking next morning, he went to the Bus Stand Kotli where he found his wife alongwith Muhammad Hassan and Yusuf sitting in a bus bound for Nakyal. Muhammad Hassan on seeing Latif left the bus and disappeared. Mst. Sima and her brother fell back to the hands of Latif, who took them to the village where Mst. Sima accompanied by her brother went to the house of her parents and Latif to the house of his father.
5. ' It is said that Latif stayed for a day at his house and then left for Gujranwala on 9-9-1973. It is then claimed that Muhammad Hassan went to the house of Latif by the night of 10-9-1973 but Latif was not present in the house at the time he went there. Muhammad Shafi, an uncle of Latif and Mst.
6. Fazlan sister of Muhammad Hassan who is the wife of Niaz Ali and father of Latif were present in the house. Muhammad Hassan wanted that Latif should be sent to the house of Muhammad Hussain, brother of Muhammad Hassan accused-appellant where something would be talked about the divorce of Mst. Sima.
7. ' On return of Muhammad Latif he was told that Muhammad Hassan left a message for him to go to the how of Muhammad Hussain nearby. Latif accompanied by Muhammad ShPr Raj Din P. Ws.
8. Left for the house of Muhammad Hussain at 10 p.m. And called upon Muhammad Hussain who began to abuse and it was in return that Muhammad Hassan was also abused by hit this exchange of abuses Muhammad Hassan took out a revolver fired at Latif who took a turn and stepped back to save himself from the firing but he (Muhammad Hassan) rapidly made three fires more injuring Latif. Out of these four shots only two hit the victim and it was in result of this firing at Latif that he fell down and succumbed to the fire-injuries caused to his person then and there on the very spot.
9. ' At the time of exchange of abuses, Ali Sher, P. W, living nearby was also attracted to the scene of occurrence and so Muhammad Shafi, Raj Din, Ali Sher and Muhammad Hussain brother of Muhammad Hassan were the eye-witnesses of the scene of occurrence, when Muhammad Hassan was firing at Latif with a revolver, which act of firing by Muhammad Hassan caused instantaneous death of Muhammad Latif on the very scene of occurrence.
10. ' The motive for the commission of offence of murder of Latif at the hands of Muhammad Hassan accused was that he by killing Latif would be achieving his object of getting hand of Mst. Sima as his partner, in life who had developed an intimacy to put themselves together.
11. ' Muhammad Hassan pleaded not guilty to the charge when he was examined under section 242, Cr. P. C. By the trial Court. Again after the close of the prosecution evidence, the accused-appellant was accordingly examined under section 342, Cr. P. C. The commission of the crime was again denied by the accused and when put to general questions with regard to the circumstances appearing against him in the case, he in answer to them stated that he along with his mother had gone to the house of his brother-in-law who is father of Latif deceased to ask her sister. Mst. Fazlan to accompany them on the occasion of `Shab-e-Qadar' to fall. They reached the house at night and so they were to stay there for the night when Latif was also present in the house. The meals were to be served to them and beds for the night were being arranged by Latif when after ten minutes of their arrival in the house, Muhammad Shafi, Raj Din, Ali Sher, a Goldsmith, Ali Sher, Abdul Majid and Muhammad Akbar appeared at the house of Niaz Ali and disgraced him telling as to why he had come to that house. He told them in reply that he had come just to take her sister Mst.
12. Fazlan to his house on the occasion of `Shah-e-Qadar'. On this, he was abused by them and Muhammad Shafi gave 2-3 blows of fists to him. He asked them to give his revolver and an attached case to him so that he could go back but they abused him and not allowed him to take away his luggage etc. Thus he ran away empty handed to the house of his brother Muhammad Hussain but was chased by them. While coming off to the house of his brother and after his entry into the house reports of fires were heard outside the house. His brother and wife of his brother went out of the house to see the incidence of firing. According to him, the persons chasing the accused reached the house of Muhammad Hussain and enquired about the accused who were told by Muhammad Hussain that nothing is known about the accused though he as a matter of fact was inside the house and the persons chasing were found talking outside the house that they wanted to kill Muhammad Hassan accused but instead Latif was killed. It was further stated to imply that the revolver was handed over to her mother by Muhammad Shafi P. W. And as such, it was recovered from her possession but she was forbidden griffy not to say so, otherwise she would be finished. In his statement under section 342, Cr. P. C. It was admitted by the accused that the revolver, crime-empties live-cartridges, licence and divorce-deed were recovered at his instance by the police, through he denied to have owned the crime-empties and divorce-deed.
13. ' The prosecution examined a number of witnesses out of whom three witnesses, namely, Muhammad Shafi, Ali Sher and Raj Din are the eye- witnesses who also talked about the strained relations of the spouses as well as those of illicit relations between the accused and Met. Sima.
14. ' The going of Muhammad Hassan accused to Gujranwala and enticing away Mst. Sima from the residence of Latif deceased is deposed to by the girl herself and a boy of about 12 years, namely, Yusuf who was living with her sister at the residence of Latif deceased in Gujranwala.
15. ' The prosecution story as it goes, is deposed to by the very eye-witnesses whose presence on the scene of occurrence is not even denied by the accused-appellant. However, the version of the accused is related by him in a different way. According to him, he was capable of coming off within the house of his brother when firing took place and he, in order to show that Latif was killed by the firing of Shafi who in chase of the accused fired and at the time fires were made, the accused had already been able to enter the house of his brother and fires taking as to have been aimed at the accused in the dark, hit Latif deceased. This, he heard from the mouth of the witnesses on the spot who after having found Latif killed, talked about that they wanted to kill Muhammad Hassan accused, but Latif was hit by their fires instead of Muhammad Hassan accused to be killed.
16. ' The learned Additional Sessions Judge, Kotli was of the view that as divorce-deed at the pointing out of the accused did not bear the thumb. Marks of the accused as was alleged by the prosecution, it would be deemed that the motive could not be proved by the prosecution. A careful examination of the case reveals that it was immaterial whether divorce-deed for being forged bore the thumb-impressions of the accused or not? It was to be seen whether it was shown to Mst. Sima at Gujranwala when she was enticed away by the accused. The enticing away of the woman and the manner in which she was recovered, were related by Latif to Muhammad Shafi and Mst. Sima was the person to depict the story of abduction and antecedents of abduction to her husband after she was found boarded in the bus at Kotli Bus Stand by Latif in the company of Muhammad Hassan accused and taken back by the husband. The coming of Mst. Sima from Gujranwala back to the village during the crucial days may not even be denied by the defence. And the coming of Latif from Gujranwala on 8-9-1973 and immediately returning again to the village on 10-9-1973, the night of which became a fateful night when the murder of Latif was committed should not be in dispute. The recovery of revolver and divorce-deed etc. At the very instance of the accused are admitted by him. The trend of cross-examination of the prosecution witnesses by the accused shows that the very revolver was used in the killing of Latif. On its very recovery, the revolver was seized by the Police along with the crime-empties which were fired from the very revolver seized by the Police as is confirmed by the Ballistic Expert who appeared as a prosecution witness and this is the revolver belonging to the accused himself. The accused tried to suggest to the witnesses that this revolver fell in possession of Muhammad Shafi P. W. Who made fires from it and thereafter it was delivered to the mother of the accused by Muhammad Shafi from whom it was recovered by the police, but this stand is belied by the very statement of the accused himself when he admitted in his statement under section 342, Cr. P. C. That it was recovered by the Police at his instance. The recovery of the divorce-deed was also admitted by him in his statement before the Court.
17. Therefore, the statements of the recovery witnesses in relation to revolver, crime empties and divorce-deed etc., cannot be belied in any manner. Evidently, the recovery memos. Exh. P. H. And P.
18. E. Stand proved thereby purporting to be correct in respect of the subject embodied therein. That being so, the motive for commission of the crime is established beyond doubt that Muhammad Hassan accused and Mst. Sima had illicit connections and they wanted to unite themselves which in a run resulted in an awful death of Latif, the husband of Mst. Sima.
19. ' Muhammad Hassan accused is also closely related to the father of the deceased. The sister of the accused is the step-mother of Latif deceased who was born as a son to the brother-in-law of the accused from a Sikh woman who fell in the hands of Niaz Ali father of the deceased during the War of Liberation and was converted to Islam and is no longer living. It was after her death that Mst.
20. Fazlan was married to Niaz Ali. Undoubtedly, the eye-witnesses may be related to the deceased through Niaz All but at the same time the accused is also related to them through Niaz All and not only this but Ali Sher's daughter is also married to one Sharif brother of Muhammad Hassan accused. Therefore, it 'cannot be said that the witnesses were inimical to the accused in any manner. Mst. Sitna's coming from Gujranwala and going direct to her parent's house shows that she was no longer willing to live with her husband. The parties were closely related, so it was but natural that the matter in respect of divorce of Mst. Sima be discussed to end the trouble. So Latif accompanied by Raj Din and Muhammad Shafi was driven to the house of Muhammad Hussain, in order to have a discussion with the accused but before they could enter into any talks, Muhammad Hassan accused picked up a quarrel by abusing Latif and then there was exchange of abuses between them, which abuses also attracted Ali Sher P. W. To the scene of occurrence. All Sher P. W.
21. In the circumstances, appears to us quite independent because he is very close to both the parties and as such, there is no reason, whatsoever, to disbelieve his statement. He is an eye-witness and so are Muhammad Shafi and Raj Din. There are no material contradictions in the statements of the eye-witnesses so as to raise a doubt in respect of their testimony. According to the prosecution.
22. Muhammad Hussain D. W. Was also an eye-witness to be examined by the prosecution but was given up by the prosecution for being won over by the accused. He being a real brother of Muhammad Hassan accused was not expected to have disclosed the real facts and so also his wife. His statement read in the light of the statement of the accused, in no way inspires confidence.
23. The story of the prosecution is more plausible and as such, we agree with the trial Court. That Muhammad Hassan was responsible for the murder of Latif.
24. The plea of self-defence is also urged by the learned counsel of the appellant, but is not at all borne out from the circumstances of the case. There seems no assault, whatsoever, to have been made either by Latif or any of the prosecution witnesses on the accused so as to have raised an apprehension in his mind that he was going to be killed by any one of them or there was even an apprehension of grievous hurt to be caused to his person. No' such right in the circumstances of the case is found to be extended to the accused-appellant in any manner, whatsoever, for causing death of Latif.
25. ' The statements of the defence witnesses, namely, Mst. Fazlan, Mst. Arsh Begum, mother of the appellant, Muhammad Hussain and Mst. Rashima wife of the Muhammad Hussain, brother of the appellant were rightly discarded by the trial Court as they do not reliably fit in the version of the accused-appellant, which is itself short of any substance worthy of credit.
26. ' Such being the case, the offence of murder was fully brought home to the accused-appellant by the prosecution for which he was rightly convicted and sentenced to death by the learned trial Judge.
27. ' Therefore, finding no force in this appeal for the reasons above we dismiss the same and forward the case to the Government for confirmation of the death sentence passed by the trial Court.