MUHAMMAD HALEEM, J.-Appellant Muhammad Amir son of Yar Muhammad was tried for the murder of Liaquat by the learned Sessions Judge, Karachi and convicted under section 302, P. P. C.
And sentenced to death vide his judgment dated 28th April 1969, He has appealed against his conviction while the learned Sessions Judge has referred his case for the confirmation of death sentence. This judgment will dispose of the appeal as well as the reference.
2. The deceased along with one Abdur Rahman had arrived on 6th September 1966, from Goth Jamal Shah, situated in the District of Nawabshah, and stayed with his brother Muhammad Hanif in the cattle-wara of Chowdhry Fazal Din. The appellant, who is a relation of the deceased also arrived the same day but a little later and also stayed in the same cattle-wara. On the night intervening between 7th and 8th September 1966, while Liaquat was asleep on a cot lying in the shed near the gate where the buffaloes were tethered, Muhammad Hanif, who was awake and preparing to milk the buffaloes saw the appellant rise from the cot and look at his sides, upon which -he asked him as to what he was looking at, but he was told by Allah Bux and Bashir that possibly the appellant wanted to urinate and hardly had this conversation ended when he saw the appellant fire his pistol at Liaquat, upon which Liaquat uttered the words "should have struck after awakening, I have been slain while asleep" and died immediately thereafter. The appellant then ran towards the road. He was chased but could riot be captured. The incident was witnessed by Allah Bux, Bashir, Hanif son of Qamardin and Din Muhammad. Chowdhry Fazal Din, the owner of the cattle wara, also saw the appellant running away. Siddique and Abdur Rehman, who were asleep in the sane cattle-wara on cots nearby also got up on hearing the gunshot and they also saw the appel--lant running away. The motive alleged was that the appellant's sister was shortly to be married to the deceased but the appellant was annoyed over it and had accordingly followed him when the deceased and Abdur Rahman had come to fetch Muhammad Hanif and had avenged himself by killing him.
3. The report of the incident was recorded on a piece of paper by Zar Muhammad A. S. I. He was then on patrol duty and had met Muhammad Hanif near the gate of the wara as he was proceeding to lodge the report. It was recorded at 01.45 hours. The report was subsequently transcribed in the 154 (Cr. P. C.) book at Police Station Landhi.
4. The investigation of the case was carried out by Chowdhry Abdul Haq, Dy. S. P. Division-II. He repaired to the scene of offence and inspected it and recorded the statements of the witnesses.
The appellant was arrested, by Abdul Rahim A. S. I. P. On 21st September 1966, from Goth Imamdin in District Nawab--shah. He was brought from there in a truck and near Pipri Railway Station offered to produce the country-made pistol (.12 bore) which he took out from a bush. There was~one live cartridge in it. These articles were, seized as per mashirnama (Exh. 11).
5. The autopsy on the dead body was performed by Dr. Abdul Majid who noticed one wound which he described as a bullet wound though he stated that he observed pellets which, according to him, were of S. G. Cartridge of .12 bore shot-gun. The cause of death, according to him was the gunshot injury received by the deceased. The pellets recovered from the dead body and the pistol were sent to the forensic laboratory for matching but the report was in the negative.
6. The appellant denied the prosecution case but in his statement, recorded by the committal Court under section 342, Cr. P. C., admitted having gone to the cattle-wara on 7th September 1966, but further stated that from there he went to the wara of Mullah Ibrahim at about 10 p.m. But did not return from there. However, in the trial Court he denied having come to Karachi. He alleged no enmity against the witnesses but stated that they had deposed against him as they were related to the deceased. He also denied the, recovery of the pistol at his instance. Lastly, he denied his abscondence and stated that he was arrested from Goth Imamdin. He examined to defence witnesses, namely, Muhammad Zaman Shah and Muhammad Ali and produced the nikahnama of Mst. Rajan, and according to' it she was married to one Muhammad Ali on 8th February 1966.
7. The conviction of the appellant essentially rests on the ocular evidence of Muhammad Haneef son of Mahmud Khan, Fazal Din, Muhammad Siddique, Muhammad Bashir, Abdur Rehman and Din Muhammad. Muhammad Hanif son of Mahmud Khan and Muhammad Siddique were related to the deceased, while Chowdhry Fazal Din, Muhammad Bashir and Din Muhammad are disinterested witnesses. Each of them have supported the prosecution case to its hilt. Muhammad Hanif son of Qamar Din, who was an eye-witness, however, did not support the prosecution case and he was declared hostile and cross---examined.
8. Allah Bux, whose name transpired in the F. I. R. Was not examined by the prosecution but upon a application dated 3rd September 1968, moved on behalf of the appellant he was examined as a Court witness. He also did not support the pro--secution case. Two other witnesses, namely, Abdul Haq and Muhammad Akram were examined as Court witnesses as their names had transpired in the cross-examination of Allah Bux.
9. We have examined the ocular evidence. The learned counsel for the appellant has not disputed the presence of Muhammad Hanif son of Mahmud Khan, Fazal Din, Muhammad Siddique, Muhammad Bashir, Abdur Rahman and Din Muhammad in the cattle-wara at the relevant the yet we have scrutinised the evidence to be convinced about their presence there. Zar Muhammad, A.
S. I. Of Outpost Landhi who was on patrol duty, having learnt from Umar had reached the place of incident soon after. He had recorded the statement of Muhammad Hanif on a piece of paper and had carried out some preliminary investiga--tion. He has spoken about the presence of Muhammad Hanif and 4 or 5 other milkmen at the place of incident. The defence has not challenged the presence of either Muhammad Hanif or any one of the above eye-witnesses in his cross-examination. Umar was examined and he has confirmed having informed Zar Muhammad.
An attempt was made in the cross-examination of Zar Muhammad to show that there was an outpost in Bhains Colony which was half a mile away and that it was unlikely that he would be near about the place as he belonged to a different outpost. We see no force in this line of attack as the defence was unable to impeach either the recording of the F. I. R. By him or the carrying out of preliminary investigation.
10. Each of these prosecution witnesses has stated that the appellant had slept on a cot near the deceased. There was light of the bulb from the electric pole and full moon in the sky. Muhammad Hanif, Muhammad Bashir and Din' Muhammad had clearly seen the appellant get up from the bed and fire at the deceased with his pistol. Abdur Rahman and Muhammad Siddique had seen him with a pistol after he had fired at the deceased while Fazal Din had seen him running away. Out bf them Fazal Din, Din Muhammad and Muhammad Bashir are disinterested witnesses. Muhammad Hanif, Muhammad Siddique, Muhammad Bashir `and Din Muhammad were employed as milkmen in the wara. Fazal Din, the owner of the wara who was himself there, has confirmed the presence of these eye-witnesses. There is nothing in the evidence of these witnesses to reflect a doubt about their presence at the place of incident. Allah Bux, who has not supported the' prosecution, has also spoken of the presence of Fazal Din, Bashir and Muhammad Hanif in his examination-in-chief and of the presence of Muhammad Siddique, Din Muhammad and Abdur Rahman in his cross- examination. Muhammad Hanif son of Qarnar Din, who was declared hostile, has also spoken of the presence of Bashir, Din Muhammad, Allah Bux, Siddique, Abdur Rahman and Fazal Din. In the circumstances, we Are convinced about the presence of the prosecution witnesses who , have implicated the appellant in the crime.
11. The learned counsel for the appellant has challenged the credibility of Muhammad Hanif and Muhammad Siddique, brothers of the deceased, upon the ground that they had made a false statement about the motive, namely that the deceased had come along with Abdur Rahman to take Muhammad Hanif for his marriage with Mst. Rajan, sister of the appellant who was already married to one Muhammad Ali and was then pregnant. The learned counsel also criticised the evidence of Abdur Rahman upon the same basis but we have observed from his testimony that apart from his disclosure that he was a friend of the deceased and had accompanied him to Karachi he had not spoken about the motive. In fact, what he stated in his cross---examination was that he had learnt about the marriage of 'Mst. Rajan with Muhammad Ali at the the of the incident. He has, however, not stated the purpose why he had come along with the deceased.
Abdur Rahman was examined immediately after the incident at the scene of offence and his presence in the wara cannot be doubted for a moment. He has no enmity with the appellant and none has been brought home. Apart from his friendship with the deceased there is nothing to suggest that he would falsely implicate the appellant because of it. The appraisal of his evidence upon the line suggested by the learned counsel for the appellant is also not correct. Similarly, Muhammad Hanif and Muhammad Siddique, who are brothers of the deceased, have do reason to falsely implicate the appellant though they had assigned motive which was not apparently correct.
At best their evidence would require scrutiny but in the context of the other ocular evidence their testimony is duly corroborated. These to witnesses were cross-examined at great length and it transpired, therein that their sister, Mst. Sakina, was married to Ameen, brother of the appellant and that she was not allowed to go to her husband after her marriage for to years. In the alternative, it was suggested that. Ameen had taken her away forcibly and they had applied for her return to a B.
D. Member named Pir Muhammad. These suggestions were denied. However, the defence examined Muhammad Zaman Shah to establish that Muhammad Hanif and others had applied to him for the settlement of a dispute with regard to the return of Mst. Sakina to her relations but Mst.
Sakina refused to go with them. This evidence is insufficient to establish enmity for the false implication of 'the appellant as there is nothing to show that it was at his instance that she was detained, even if we were to assume that there was some dispute with regard to the sending of Mst. Sakina to her husband or her return, from the custody of her husband: In the context of the evidence of these to witnesses it may also be observed that the appellant himself admitted in the committal Court that he was in Karachi on 7th September 1966, and had visited the wara that day and hid gone from there to Mullah Ibrahim's wara but had not returned from there. Even though the appellant did not reside at Karachi at the relevant the yet his presence at Karachi on the day of the incident can hardly be in doubt. Moreover, the appellant was related to the deceased and his brothers Muhammad Hanif and Muhammad Siddique, as he was the son of the aunt of their father.
It was, therefore, natural that he would have stayed in the wara with his relations. In this context it may also be stated that the appellant has not given any other place where he-had stayed. This is also confirmed by the evidence of at least three disinterested witnesses, namely Fazal Din, Din 'Muhammad and Muhammad Bashir. Fazal Din is the owner of the cattle-warn where the incident occurred and Din Muhammad and Muhammad Bashir were the employees of Fazal Din. Each of them has supported Muhammad Hanif and Muhammad Siddique about the presence of the appellant in the cattle-warn on the fateful night. We have; therefore, no hesitation in reaching the conclusion that the appellant had stayed in the wara and was seen firing his pistol at the deceased.
12. In the cross-examination of Fazal Din it was suggested that it was he who had got the deceased murdered as the deceased had opposed his marriage with his sister. This witness while denying the suggestion replied that he was a zamindar and would never take the sister of his own employee as his bride. This answer is meaningful and is a complete reply to the suggestion. We have examined his evidence in detail and have found no improbability in it. His presence at the spot was natural as he was the owner of the cattle-wars and was expected to be present at the the of the milking of his buffaloes. He has confirmed the arrival of the appellant and his stay in the wara and we have no reason to suspect his evidence. Similarly, Din Muhammad and Muhammad Bashir have also no axe to grind in falsely implicating the appellant. They had no enmity with him and we see no reason why they would have supported Muhammad Hanif and Muhammad Siddique in substituting the appellant for the real culprit. Talib Husain another disinterested witness who was in another wara nearby and had come on hearing the gunshot, has supported the presence of the prosecution witnesses and confirmed that they had disclosed the name of the appellant to him. He has also stated about the presence of the appellant in the warn, a day previous to the incident and the defence counsel did not challenge this part of his statement in his cross--examination.
13. We will now advert to the testimony of to witnesses, namely, Allah tux and Muhammad Hanif son of Qamar Din, who have not supported the prosecution case. The contention of the learned counsel for the appellant is that their version should be accepted in preference to the other prosecution witnesses who have supported the prosecution case. The presence of, these witnesses at the relevant the is not in dispute. Allah Bux was given up by the prosecution, presumably because he was not likely to support the prosecution case and examined as a Court witness at the instance of the appellant. He has denied his relationship with the appellant. He has spoken about, the appellant having worked in the wara of Mullah Ibrahim which was nearby and of leaving his employment to months before the incident. He has admitted the presence of the deceased and Abdur Rahman and also the happening of the incident, in which the deceased lost his life. He has avoided to mention the presence of the appellant in the wara. However, as observed earlier, the appellant himself admitted his presence in Karachi on the fateful --day and of visiting the ware where the present incident occurred before leaving for the wara of Mulla Ibrahim. A suggestion was put in his cross-examination by the Assistant Public Pro--secutor that his aunt, Mst. Sallan, was abducted by Ghulam, an uncle of Muhammad Hanif, which was, however, denied. His testimony gives us a clear impression that he has wilfully sup--pressed the truth, and in the context of the other reliable evidence, is not worthy of any credence. Similarly, Muhammad Hanif son of Qamardin has admitted the essential details of the prosecution 'case except the participation of the appellant and his presence there at the relevant the He had left the service of Fazal Din after three days of the incident and had gone to Punjab. His evidence also does not inspire any confidence and we see no reason why we should give any weight to it in the context of the ocular evidence which we have accepted. The trial Court also disbelieved these to witnesses upon the ground that they had perjured and we are in agreement with this view. There is con--sistent evidence that it was the appellant who had fired the pistol and no justifiable reason has come out to support his false implication. If these to witnesses were present then there was no reason why they could not have seen the real culprit and in the circumstances we feel that it was with a view to help him that they have avoided to mention his presence or, participation in the crime.
14. Two witnesses now remain to be considered. They are Abdul Haq and Muhammad Akram. They were examined as Court witnesses to establish the presence .Of the appellant as their names had transpired in the cross-examination of the hostile witness, Allah Bux. They were not examined by the police. Abdul Haq owns a hotel in Bhains Colony and his evidence is to the effect that the appellant had taken meals in his hotel on the day preceding the incident and a day earlier. His belated examination in Court is not free from suspicion, for if the appellant had taken the meals in his hotel he would have informed either Muhammad Hanif or someone else about this fact or should have himself offered to give his statement before the police. Similarly; Muhammad Akram also falls in the same category. He is a barber and according to his evidence he had shaved appellant's beard to days before the incident in Ibrahim's wara. He has also remained secretive and for the same reasons we would not place any reliance on his testimony as well.
15. The trial Court while appraising the ocular evidence observed in para. 16 of the judgment :- "The above discussion bring out the following position:
(i) Eye-witnesses produced by the prosecution were present on the scene at the the of the incident.
(ii) They have no reason to falsely implicate the present accused..
(i.e) The report was lodged in the matter without delay.
(ii) The account tallies with the result of the medical examination.
In these circumstances I find that the ocular testimony produced by the prosecution is trustworthy," and we agree with this conclusion.
16. Having reached the conclusion that .The appellant was in Karachi and had stayed: in the wara of Fazal Din his disappear--ance from there is a circumstance which in the absence of any explanation; and when considered in the context of other incriminating evidence, is an indication of his guilty conduct. The learned counsel for the appellant, however, criticised the use of the word `abscondence' by the trial Court upon the ground that there was no clear-cut evidence in the technical sense of the word to sustain a finding in this behalf. This word connotes the mean--ing: "go away secretly or fly from the law". The sudden disappearance of the appellant having regard to its meaning would be a circumstance which could be described as abscondence and we accordingly do not agree that it cannot be termed as abscondence. The trial Court having reached the conclusion that the appellant was in the wara at the relevant the has treated his plea of absende from there as one of alibi though it was not technically set up in that sense. It has also held that this false plea along with the other evidence was an indication of his guilt. We are, however, of the view that even the setting up of a false alibi cannot lead to an inference of guilt and the trial Court was wrong in treating it as an incriminating circumstance.
17. The defence counsel was unable to impeach the evidence of recovery of the pistol at the instance of the appellant. We have also examined the testimony of mashir, Piroo, and no circumstance .Has been brought out in his evidence to throw a doubt either upon the factum of recovery of his credibility. Even though the weapon has not been proved to be a crime weapon yet it can reasonably be inferred, having regard to the gunshot injury found on the body that it could be a likely one used in the commission of the crime. The appellant had exclusive knowledge of the place from where it was recovered and that place was near to Karachi. It is plausible to assume that the appellant while running away may have got rid of it by throwing it away. The appellant has not offered any explanation as to how he had gained information of the place from where it was recovered and accordingly his exclusive knowledge cannot be explained on any innocent hypothesis. This circumstance, in our view, thus supports the prosecution case.
18. It was strenuously urged by the learned counsel for the appellant that the trial Court had disbelieved the motive and in the circumstances the alleged visit of the appellant cannot be explained upon the hypothesis of the prosecution case. There are to witnesses who have specifically spoken about the motive.
They are Muhammad Hanif and Muhammad Siddique, brothers of the deceased. In the F. I. R. As well as in their evidence it was stated, that the deceased had come along with Abdul Rahman to fetch Muhammad Hanif for his marriage with Mst. Rajan, sister of the appellant who was then pregnant. The defence has produced the nikahnama 'through the testimony of his brother, Muhammad Ali, in which she is stated to have married on 8th February 1966, to Muhammad Ali son of Shameer. In these circumstances her marriage with the deceased was not possible according to the learned counsel and therefore a false motive was set up. We find from the testimony of Muhammad Hanif that she had become pregnant before her marriage and the deceased had refused to marry her. Muhammad Siddique has also stated that Mst. Rajan had become pregnant and the deceased had refused to marry her. If this was so, then how did the question of her marriage with .The deceased arise and why should the deceased come to Karachi to fetch Muhammad Hanif. We agree with the learned counsel for the appellant that the motive assigned for the crime was not the one which had prompted the appellant to kill tote deceased. He may be that his liaison may have been discovered after the marriage and the appellant may have followed him to avenge the insult. This is also a conjecture and there is nothing on record to sustain a belief as to the reason which had led the appellant to commit his murder. However, we feel that there must have been some strong reason for the appellant to follow him and commit his murder though that reason has not come on record. Motive even if disproved would be of no consequence if there is ocular evidence to establish the guilt and accordingly this plea is of no avail.
19. The doctor has described the first injury as a bullet wound though in his examination he has stated that pellets of S. G. Cartridge were recovered the weapon was fired from a very close range and the pellets had entered in one mass and possibly the nature of the wound must have given to him the impression of an injury like a bullet wound and he has accordingly described it as such. In view of the testimony of the doctor that pellets were recovered, the possibility of a revolver or a pistol having been used is excluded.
20. In the result we are of the view that the prosecution has established the guilt of the appellant beyond reasonable doubt. We would accordingly uphold his conviction and confirm his death, sentence. The reference is accordingly accepted anti the appeal stands dismissed.