SARDAR MUHAMMAD, J.-Appellant Abdul Razzaq aged 45 years was charged under section 449, P. P.
C. For having trespassed into the house of Muhammad Sadiq (deceased) and under section 302, P.
P. C. For having murdered the latter at 5.30 a. m. On 3rd November, 1978. The deceased was performing ablution for morning prayers. His wife Mst. Kaniz Begum (P. W. 2) was doing some odd job in the Verandah of the house. Nawazish Ali (P. W. 2) and P. W. Ghulam Hussain (not produced) who had stayed for night in the house of deceased as guests, had also woken up for Fajar prayers.
The appellant was stated to have entered the courtyard of the deceased by jumping over the wall.
He fired 3 shots as a result of which the deceased received injuries on different parts of the body.
Muhammad Sadiq (deceased) died on the spot. Abdul Razzaq ran to the roof of his house, wherefrom he fled away by scaling over the rear wall. The occurrence was witnessed by Mst. Kaniz Begum P. W. ?, Nawazish All P. W. 2 and given up P. W. Ghulam Hussain.
2. Motive for the occurrence was that civil litigation was going on regarding some houses since 7-8 years between the appellant and the deceased. The appellant had taken forcible possession of one of the houses, and a case under section 448/506, P. P. C. On behalf of the deceased was pending in Court. Security proceedings had also been taken inter se the parties under section 107/151 of the Code of Criminal Procedure in connection with which Inspector, C.I.A. Police, Rawalpindi had come to Gujjar Khan, on 2nd November, 1978 1. e. Preceding the day of occurrence.
After having made enquiries, the Inspector had instructed the deceased and the appellant to appear before him on following day. According to the complainant, the Inspector, C. I. A. Was enquiring into the matter on an application submitted by the deceased.
3. F. I. R. Exh. P.B. Was registered at Police Station Gujjar Khan on the same day at 6.00 a. m. On the statement of Nawazish Ali P. W. 2.
4. Autopsy on the dead body of Muhammad Sadiq (deceased) was performed by Dr. Shamsuddin P. W.
10. The deceased was found to have suffered fire-arm wounds of inlet just below right anterior axillary fold in an area of 4' x 3" and four firearm wounds of inlet at the middle of the medial aspect of left arm in area of 2' x r. Two exit wounds corresponding to the above-noted injuries were also noted. Two pellets, each about the size of a big plea which were found lodged in the subcutaneous area, were removed and handed over to the Police in a sealed bottle.
According to the opinion of the doctor, death was due to shock and haemorrhage due to the injury to heart which was sufficient to cause death in ordinary course of nature.
5. Learned Additional Sessions Judge, Rawalpindi vide judgment, dated 27th May, 1980 convicted the appellant under sections 302 and 449, P. P. C. Under section 302, P. P. C. He has been sentenced to death and to pay a fine of Rs, 10,000 in default whereof to suffer 2 years' R. I. In case of non- confirmation of death sentence. Under section 449, P. P. C. He has been sentenced to 10 years' R. I.
And to pay a fine of Rs, 5,000 in default whereof to suffer further R. I. For one year. The fine, after realization, has been directed to be paid as compensation to the heirs of the deceased.
6. The convict has filed appeal. Learned trial Judge, Rawalpindi has sent up Murder Reference. Both the matters are being disposed of by one judgment.
7. At the trial, ocular account has been deposed by Nawazish Ali P. W. And Mst. Kaniz Begum P. W. 3, wife of the deceased. The third eye-witness, namely Ghulam Hussain was given up as unnecessary.
Nawazish Ali P. W. 2 has stated that he had gone to the house of the deceased on 2nd November, 1978 and had stayed with him for the night. According to him, Muhammad Sadiq (deceased) was performing ablution at 5-30 a. m. On 3rd November, 1978 for Fajar prayers. He had also got up for Fajar prayers. Mst. Kaniz Begum was doing some work in the Verandah of the house. Abdur Razzaq appellant entered the courtyard of the deceased, armed with 12 bore gun by climbing over the wall.
He fired 3 shots at Muhammad Sadiq (deceased), hitting him on different parts of the body, as a result by which Muhammad Sadiq died. Abdur Razzaq applicant then climbed upto the roof of his house and ran away through the back wall of his house alongwith the gun.
He has further stated that motive for the occurrence was that civil litigation was going on between Muhammad Sadiq deceased and the appellant for the last 7-8 years in respect of some house belonging to the deceased. The appellant bad taken forcible possession of the house. The deceased had filed a case against the appellant under section 448/506 and had also got initiated proceedings under section 107/151 of the Code of Criminal Procedure. Inspector, C. I. A. Gujjar Khan had come to the house of the deceased and had bound down Abdur Razzaq accused and the deceased to appear before him on the following day.
The ocular account deposed by Nawazish Ali P. W. 2 has been corroborated by Mst. Kaniz Begum P.
W. Wife of the deceased. She has stated in cross-examination that Sharab Khan (deceased) was paternal. Uncle of her deceased husband, and had given her his house situated in Gujjar Khan Town by a "Wassiat", and the appellant had instituted a civil suit claiming that the Wassiat-aama was a false one. She has denied the suggestion that the litigation had ended in favour of the appellant. She has also stated about the appellant having taken forcible possession of the house.
She has denied the suggestion that her parents who were living as tenants in one of the houses of Sharab Khan (deceased) at Rawalpindi, were got ejected by the appellant through Court. She has stated that they had left the house of their own. She has denied the suggestion that her husband was murdered by Muhammad Ajaib P. W. And the appellant has been falsely implicated on account of enmity.
Nawazish Ali P. W. 2 in cross-examination admitted that he was a cousin (Khala-zad) of the deceased and his wife was sister of the deceased. He has also stated that appellant Abdur Razzaq was his cousin (Mamunzad), although in further cross-examination he has admitted that father of the appellant was not son of Ghulam Ali, his maternal-grandfather. He has also admitted that his house was at a distance of one mile from the house of Muhammad Sadiq deceased in Dhoke Hayat Ali, and that he possessed a bicycle on which he used to come for work from his house.
8. Evidence of the appellant having been arrested on 4th November, 1978 and of gun P. 7 having been taken into possession alongwith 15 live cartriges, has also been led through Niaz Muhammad Sub-Inspector P. W.
9. The evidence of recovery of the gun from the appellant has been corroborated by Muhammad Ajaib P. W.
11. Malik Pir Bakhsh, retired S. I. P. W. 13 who had inspected the spot after the registration of case, has stated about the empty cartridge P. 1 having been taken into possession from the place of occurrence. Although the evidence has been produced of the gun and of the empty having been sent to the office of the Forensic Science Laboratory, but the opinion of the Firearm Expert has not been tendered in evidence.
Ghulam Qadir P. W. 14, who was posted as Reader to the Assistant Commissioner, Gujjar Khan in 1978 produced complaint under section 448/506/148/149, P. P. C. Filed by the deceased against Abdul Razzaq appellant, etc. In the Court of the Assistant Commissioner, and the statement of Lehrasap Khan son of Sherbaz Khan recorded in the same, as a witness during preliminary evidence. Certified copies of these documents were placed on record as Exhs. PJ and PQ. In cross- examination he has , stated that the accused had not been summoned nor were they present on the day when the statements of Muhammad Sadiq complainant and of Lehrasap Khan, his witness, were recorded.
9. The appellant during his statement under section 342, Cr. P. C. Stated that there had been civil litigation but he had won all the cases and had got the possession through Court process. He has further stated that the deceased had got a case registered against him under section 448, P. P. C.
But the Police had cancelled the case after investigation. With regard to the proceedings under section 107/151, Cr. P. C. He has stated that the same were taken against the parties on his report. He has denied the allegation of having murdered the deceased and of gun P. 7 having been recovered from him. In answer to question, 'why this case against you', be has stated "that the deceased had many enemies. Some of the enemies appear to have killed him during dark hours of the night."
10. During cross-examination it was suggested on behalf of the accused to Muhammad Ajaib P. W.
11 that in fact he had murdered Muhammad Sadiq (deceased) and Sher Zaman (deceased) on account of enmity and had got the accused falsely involved in this case. The suggestion was denied.
11. Although the prosecution has produced evidence regarding the crime empty which had been taken into possession [from the spot, having been sent to the Forensic Science Laboratory and of the gun P. 7, which was recovered from the appellant, to have been sent to the office of the Forensic Science Laboratory, but the prosecution has not produced the opinion of the Fire-arm Expert. In this view of the matter, we find weight in the contention of learned counsel for the appellant that the evidence of recovery of crime empty from the spot, and for that matter recovery of gun P. 7 from him (the appellant) is of no consequence, and does not advance the case of the prosecution in any manner. We feel no hesitation in setting apart the evidence of recovery of gun P.
7 from the appellant and of the crime empty from the spot.
12. We have not been impressed by the contention of learned counsel for the appellant that there was any contradiction of ocular account by the medical evidence. The contention exactly was that while the eye-witnesses have positively stated of the appellant having fired 3 shots, the deceased was found to have suffered two inlet wounds, and the other two injuries noted were exit wounds.
The reason for not agreeing with the contention of learned counsel for the appellant in this regard is that it has not been positively stated by any of the rosecution witnesses that all the three shots had hit the deceased, nor has anyone of them categorically stated about the location of the injury by each of the shots fired. One of the shots may not have struck the deceased.
13. The argument of the learned counsel for the appellant that there was no necessity for the appellant to have trespassed into the house of Muhammad Sadiq deceased by scaling over a wall of 4 feet height, as he could have easily fired the gun from over the wall, or could have at least entered through the main entrance, which was without shutters, does not seem to possess much substance. We have no hesitation in observing that it is not always safe to draw inference as to in what manner the accused should have acted while committing the offence. The crimes are committed in the heat of moment when the persons lose good sense and the sense of reasonableness. In fact the only thing in view of a criminal at the time of commission of offence is the resoluteness with which he decides to embark upon his mission, if we may call it and its achievement. Now in this case the appellant could not have taken the chance of missing the shot and thus warning the victim and affording him opportunity to move away and hide, before he could have scaled over the wall in persuit of his object. Even otherwise it does not seem possible that the appellant could have objectively fired at the deceased while standing across the wall.
The alternate argument that the appellant could have entered the house of the deceased from the main entrance, has also not weighed with us for the reason that the appellant may not have felt any inconvenience in scaling over the wall, moreover, he was not going for a leisure visit that he should have walked through the main entrance.
14. The other contentions raised by learned counsel for the appellants were (a) that the occurrence had taken place in the dark hours of the night and it has not been stated that any lamp or electric bulb was burning in the house of the deceased at the time of occurrence, (b) that Nawazish Ali complatnant (P. W. 2) had no ostensible reason to have stayed for the night in the house of the deceased when admittedly his house was only at a distance of one mile and he had a bicycle to go to his house ,(c) that Mst. Kaniz Begum P. W. 3 because of civil litigation against the appellant was a inimical witness, (d) that Nawazish Ali P. W. 2 being a Khalazad and brother-in-law of the deceased and Mst. Kaniz Begum being wife of the deceased, were interested witnesses, and so no reliance should be placed on the statements of these witnesses. Learned counsel for the appellant has cited Aminullah v. The State and Mumtazuddin v. The State .
15. We have gone through Aminullah's case. In that case the appeals of the two appellants earlier had been dismissed by the learned Court and their cases had been re-fixed for fresh adjudication, as a result of order passed on review. Learned counsel for the appellant has contended that similarity in the case cited above and in the case in hand, was, that in that case also the occurrence had taken place at Sehri-wela and the eye-witnesses were wife of the deceased, his sister and daughter, like the present case where wife has appeared as an eyewitness for the murder of her husband in his own house. Learned counsel wanted us to agree that the fact of natural witness being present is no guarantee of his/her being truthful witness. We do not agree with him stricto senso. Although such a possibility cannot be ruled out.
16. The case cited was a case of patricide. The wife of the deceased and his daughter were in fact step-mother and step-sister of the appellant. Although, sister of the deceased had also appeared as a witness, but according to the facts of the case she was living with her brother all through life.
One of the appellants had pleaded alibi at the time of trial.
As we find, the main ground for acquittal of Nemat Ullah appellant has been noted at page 453, which reads as follows :-1 2 "For the foregoing reasons, I am, therefore, unable to agree with the view taken by the learned Judges that Nemat Ullah appellant has not succeeded in making out a case of alibi. At any rate all the evidence produced by him considered alongwith the prosecution evidence leaves room for reasonable doubt of his guilt and makes it highly probable that he was at Karachi when the crime was committed. The benefit must, therefore, go to him."
The co-appellant who was brother of Nemat Ullah was given the benefit of doubt, considering the fact that the evidence has not been believed against Nemat Ullah and for some other ancillary reasons also. In the circumstances, we do not find any similarity in the facts of the two cases, and as such the cited case has no bearing on the case in hand. We have also gone through Mumtazuddin's case. The facts and circumstances of that case are not attracted to the facts and circumstances of this case.
17. We would now like to consider the evidentiary value of the statements of Mst. Kaniz Begum P.W.
And Nawazish Ali P.W. Mst. Kaniz Begum admittedly was residing in the house with her husband where the occurrence had taken place. As such, there can be no doubt that she was the most natural witness. The question, posed is whether reliance can be placed on her statement in view of the fact that there was civil litigation pending between her husband and the appellant. Although, the appellant was litigating on behalf of Mst. Kaniz Begum but there is no evidence that she had ever pursued the matter by herself. The allegation that the appellant had got her parents ejected, has been denied by her. It seems impossible to believe that a woman would spare the actual murderer of her husband and would falsely implicate someone merely for the reason that some litigation was going on with him. Possibility of false implication cannot be ruled out, altogether but substitution in such a situation is impossible to be imagined. If the intention had been of falsely implicating the appellant, the case could safely have been registered at least against two persons, for, the deceased bad received two different injuries, and there could have been no difficulty to name two persons, and in that case if it had been considered absolutely necessary to falsely implicate the appellant, he could have been named as one of the assailants alongwith the actual culprits.
We have gone through the statement of Mst. Kaniz Begum. We have not been able to suspect even that the statement has been incorrectly made. It rather rings true. As such, we are positively of the view that without any doubt reliance can be placed on her statement.
18. About Nawazish Ali P. W. 2 one can say without doubt that he had his own permanent abode at a distance of one mile and he could have gone to his house without any inconvenience. We have not been able to find out anything from the record to hold that his stay in the house of his wife's brother, was something uncalled for, or highly improbable. During cross-examination he was asked, whether he bad given any reason in the first information report to have stayed in the house or his brother-in-law, to which he had replied in the negative. No further question has been asked.
Had be been asked to state the reasons for his having stayed, he might have come up with some plausible explanation. In the normal circumstances, it should not be expected of a relative to state positive reasons without being asked for staying in the house of a first degree relative.
19. However, that is not the end of the matter. We have it on record of this case in the cross- examination of Nawazish Ali P. W., that Sher Zaman had been allegedly murdered by Abdur Razzaq appellant, and from the cross-examination of Ghulam Haider A. S. I. P. W. 8 that Abdur Razzaq was named as accused for the murder of Sher Zaman and that two murder cases vide F. I. R. Nos. 254 dated 2nd November, 1978 and 255 dated 3rd November, 1978 were registered against the accused (appellant). He has further stated in cross-examination that the present case is regarding the murder of Sadiq whereas the other case pertains to the murder of Sher Zaman (the number of the F. I. R. Of present case is 235/78, Police Station Gujjar Khan, District Rawalpindi). It can safely be presumed that the deceased would have also learnt about Sher Zaman having been murdered and the appellant having been named in the F. I. R., as the occurrence had taken place in the same town and the case had been registered in the Police Station at Guj jar Khan. The presumption seems to be safe one, particularly keeping in view the fact that the appellant was also nigbhour of the deceased. This fact by itself is an attending circumstance to consider the reasonableness of Nawazish Ali's stay in the house of the deceased for the night.
20. The deceased having known this fact, might have felt scared of the appellant and as such he might have thought of asking Nawazish All to stay with him for the night and so also Nawazish Ali might have considered it proper to stay with him for the night. In this regard it may also be noted that Ghulam Hussain P.W. Who was given up as unnecessary, was also a relative of the deceased.
In the situation noted above, the presence of relatives in the house of the deceased for the night following the day of murder of Sher Zaman in which the appellant was named, rather sounds well.
Although, it was vehemently argued by the learned counsel for the appellant about the reasonableness of Nawazish Ali having stayed for the night in the house of the deceased, but nothing was contended as to why his evidence should be discarded, if his presence at the spot or for that matter his stay in the house of the deceased is not ruled out. No enmity whatsoever, of Nawazish Ali P. W. 2 against the appellant has been alleged. In this view of the matter we feel that reliance can safely be placed on his statement.
21. It was argued that the occurrence in fact had taken place some time prior to 5-30 a. m.
Reference in this regard was made to the opinion of the doctor who at the time of post-mortem examination had opined that the deceased had died within 6 hours of the post-mortem examination which was conducted at 11-20 a.m. On 3rd November, 1978. It was further argued that even at 5-30 a.m. It would have been quite dark and there being no evidence that there was any light burning at the place of occurrence, the prosecution witnesses could not have identified the assailant.
According to the first information report the occurrence had taken place at 5-30 a.m. This time is always the probable time. The words used by the doctor are that time between the death and post-mortem was about 6 hours. 'About' does not mean 'within'. It can be extended by one or two hours on either side and in that view of the explanation there is nothing to conclude that the occurrence would have taken place in some early hours of the night, much prior to 5-30 a.m.
According to Nawazish Ali P. W., the Azan for Fajar Prayers used to be called in those days at 5.30 a. m. And the prosecution case also is that the deceased and the complainant had risen for performance of Fajar prayers. Fajar call prayer time is{{URDU TEXT}}and by that time sufficient daylight dawns. Even if it is considered that there was no light in the house at the time of occurrence, we do not think that the witnesses would have any difficulty in identification of the appellant, whom they knew since long, with whom they had litigation and who was their immediate neighbour, in the available light of the Fajar prayer time.
As such, we have not been able to find any force in the argument of learned counsel for the appellant of either the occurrence having taken place in the early hours of the day or of any difficulty for the witnesses in identification of the assailant.
22. We have also considered the argument of learned counsel for the appellant that the prosecution has not been able to establish the motive. In this regard he had referred to the statement of the appellant himself, who had stated that he had won all the civil cases and that the case got registered by the deceased Muhammad Sadiq against him under section 448 of Pakistan Penal Code had been cancelled by the Police after investigation, and that the appellant had no notice about the complaint filed by Muhammad Sadiq deceased as he had not been summoned in that case.
Mst. Kaniz Begum P. W. Had, however, not accepted in cross-examination, the suggestion of the suits having been won by Abdul Razzaq appellant, and no judgment has been produced by the appellant to controvert her statement.
23. The fact of existence of litigation between the appellant and the deceased, has not been denied. The appellant was, obviously being chased by the deceased both in civil and criminal Courts. The statement of the appellant that he had no knowledge regarding the complaint having been filed by the deceased, is devoid of any force. He knew about the registration of case under section 448, P. P. C. And about cancellation of the same by the Police. He would naturally have been interested to know as to what steps were being taken by the deceased thereafter.
The complaint was filed in September, 1978 in the Court of Assistant Commissioner, Gujjar Khan where both the parties were residing. The present occurrence took place on 2nd November, 1978. In the meantime, the appellant must have come to know about the latest position in the complaint. In this view of the matter even if it is granted for the sake of argument that he had won all the civil suits and had got the case cancelled from the Police registered under section 448 P., P. C., he must have felt extremely annoyed and frustrated on filing of the complaint against him and on pursuing the same by making statement and producing evidence. The appellant, obviously, had a motive and the prosecution has been able to establish the same.
In the circumstances, enumerated above no doubt is left in our mind that the ocular account stated by Nawazish Ali. P. W. 2 and Mst. Kaniz Begum P. W. 3 is fully corroborated by the evidence of motive and the medical evidence beyond any reasonable shadow of doubt. The prosecution has been able to establish the case against the appellant. The conviction and sentence of the appellant is, therefore, maintained and the appeal is dismissed. Sentence of death is confirmed. PLD 1982 SC 429 PLD 1978 SC 114