' Rustam S. Sidhwa, J.--Sardar Muhammad was tried by the Sessions Judge, Sheikhupura, under section 302, P.P.C. For the murder of Bashir Ahmad, deceased, and convicted under section 302, P.P.0 for the said murder and sentenced to death, subject to confirmation by this Court, and to pay a fine of Rupees three thousand (Rs, 3,000) or, in default thereof, to suffer further rigorous imprisonment for one year. The amount of fine, if realised, was ordered to be paid to the heirs of Bashir Ahmad, deceased, as compensation under section 544-A, Cr.P.C. The Appeal (Cr.A.92 of 1980) preferred by Sardar Muhammad, convict, and the connected Murder Reference (M.R. No, 43 of 1980) are now before us for disposal.
2. The brief facts of the case are that Bashir Ahmed, deceased nephew of Mst. Hussain Bibi P.W.7 used to reside as a tenant in the house of Allah Ditta P.W.3, situated in Nai Abadi Muhammadpura of Sangla Hill, alongwith his wife, Mst. Maqbool Begum P.W.
8. Mst. Hussain Bibi P.W.7 was in fact a resident of village Ratti Araian in Sheikhupura Tehsil. Because of indisposition, she had come to stay at his house for about a month prior to the occurrence in order to seek medical treatment at Sangla Hill. Sardar Muhammad, accused, originally hailed from Faisalabad District and used to work with the deceased in a 'Ban' factory of Muhammad Sadiq P.W.9 situate in the vicinity of his house. He could not find residential accommodation in Sangla Hill, on which the deceased allowed him to reside with him in his residential house.
3. About 15 days before the incident, the deceased had gone to the bazar in the evening in order to make purchases. At that time, Sardar Muhammad, accused, Mst. Maqboolan P.W.8 and Mst.
Hussain Bibi P.W.7 were present in the house. Sardar Muhammad accused, caught hold of Mst.
Maqbool Begum P.W.8 by her arm and said 'darling, keep me in mind as well. 'Mst. Maqbool Begum P.W. 8 resented this remark and started to abuse him. When the deceased returned to his house, she apprised him of the incident, who then asked the accused to leave his house at once. An altercation ensued between them, in the course of which he gave two to three slaps to the accused. The accused picked up a brick and hurled it at the deceased, but he stepped aside and thus saved himself. Mst. Hussain Bibi P.W.7 intervened and separated them. The accused then left, holding out a threat that the deceased would not live to enjoy his life.
4 . On the fateful day i,e, 3rd June, 1979, Bashir Ahmad, deceased, had gone to work leaving behind Mst. Hussain Bibi P.W.7 and Mst. Maqbool Begum P.W.8 in his house. At about 12 noon he returned in order to fill up his Huqqa. Suddenly, Sardar Muhammad, accused, came from behind, armed with a knife, raising a Lalkara. In order to save himself, the deceased rushed inside the room of his house.
The accused, however, did not allow him to close the door, but overtook him there. He then started giving knife blows to the deceased on his chest, neck and other parts of the body. Mst. Hussain Bibi and Maqbool Begum raised alarm, on which Muhammad Sadiq P.W.9 and Umar (given up P.W.) also came there. The deceased had fallen down, but the accused continued to deal knife blows to him in the presence of the aforesaid witnesses. On the commotion raised by the witnesses, he then left the deceased, who had breathed his last, and advanced towards them. They, however, immediately retreated and chained the door of the house from outside. After leaving the other witnesses to keep watch outside the house, Mst. Hussain Bibi P.W.7 then went to Police Station Sangla Hill, where she lodged the F.I.R. Exh. P.D. At 12-30 noon, which was recorded by Syed Aswar Ali Shah S.H.O. P.W.10.
5. After recording the F.I.R. The Investigating Officer reached the place of occurrence. He unchained the door of the house of the deceased and found Sardar Muhammad, accused, inside, holding blood-stained knife P.4 in his hand. The Investigating Officer arrested the accused and secured blood-stained knife P.4, which he took into possession vide memo. P.E. Blood-stained shirt P.5 and blood-stained Shalwar Exh,P.6, which was found on the person of the accused, were also taken into possession vide memo. P.C. Blood-stained earth was also recovered from the spot vide memo. P.F.
The said recoveries were made in the presence of Muhammad Sadiq P.W.9. Syed Aswar Ali Shah. S.I.
P.W.10 and Muhammad Umar (given up P.W.). After preparing the necessary papers, the dead body of the deceased was sent for autopsy.
6. On 4th June, 1979 at 10-00 a.m. Dr. Khalid Yazdani Sheikh P.W.4 conducted the post-mortem examination on the dead body of the deceased and found no less than twelve incised wounds and eleven incised linear cuts on various parts of the dead body, particularly in the region of the neck and chest. Both the lungs were ruptured and the thorax was ruptured. All injuries were ante- mortem and caused with sharp-edged weapon. Death was due to severe shock, respiratory failure, haemorrhage and heart failure. Nine out of twenty-three injuries found on the dead body were held to be sufficient to cause death in the ordinary course of nature. Probable duration between injuries and death was held fo be one hour and between death and post-mortem examination within twenty-four hours.
7. The blood stains on the earth recovered from the spot, the knife recovered from the accused, and the shirt and Shalwar found on his person were found to be of human origin, by the Chemical Examiner and the Serologist. After completing the necessary investigation, the challan was sent up against the accused.
8. The prosecution produced Mst. Hussain Bibi P.W.7 and Mst. Maqbool Begum P.W.8 to prove the motive. The said two ladies and Muhammad Sadiq P.W.9 in proof of the ocular, account and the arrest of the accused at spot, Dr. Khalid 'Yazdani Sheikh P.W.4 to corroborate the medical testimony and Muhammad Sadiq P.W.9 and Syed Aswar Ali Shah S.I. P.W.10 in support of the recoveries. The accused denied the allegations levelled against him, including the recovery of the knife and the clothes from his person. In his statement under section 342, Cr.P.C. He admitted that he had been working in the 'Ban' factory of Muhammad Sadiq P.W.9, which was near the house of the deceased.
According to him, Muhammad Sadiq P.W.9 had developed illicit intimacy with Mst. Maqbool Begum P.W.8, wife of the deceased. He had seen them in a compromising position twice or thrice and had admonished Muhammad Sadiq P.W.9 to desist from his activities and had threatened to apprise the deceased of the said fact. His dues had also fallen in arrears and were not paid by Muhammad Sadiq P.W.9 despite repeated demands. He had left for Faisalabad on 2nd June, 1979 in order to see his ailing mother and had returned to Sangla Hill on 3rd June, 1979 at about 9-00 a.m. When the Police had arrested him from the bazar at the instance of Muhammad Sadiq P.W.9. He had disclosed the true facts to the Police, but he was severely beaten and tortured at the instance of Muhammad Sadiq P.W.9, who was a rich man and who had got the deceased murdered so that he could marry Mst. Magbool Begum P.W.8.
9. The learned trial Judge, relying upon the motive, the ocular account, the recoveries and the medical evidence, convicted and sentenced the accused, as stated in para. 1 above.
10. We have heard the arguments of the learned counsel for the appellant and the State and have also perused the record. The evidence as regards motive is furnished by Mst. Hussain Bibi P.W.7 and Mst. Maqbool Begum P.W.8, the maternal-aunt and wife of Bashir Ahmad, deceased. According to their consistent testimony, fifteen days before the occurrence, Bashir Ahmad, deceased, had gone to the bazar in order to make some purchases, when both of them were present in the house alongwith Sardar Muhammad, appellant, and the appellant had caught hold of the arm of Mst.
Maqbool Begum P.W.8 and had tried to cultivate a moral relations with her by stating "darling, keep me in mind as well". The remark was resented by Mst. Maqbool Begum P.W.8, who not only abused him, but Mst. Hussain Bibi P.W.7 did likewise. When the deceased returned from bazar, Mst. Maqbool Begum, P.W.8 apprised him of the incident whereupon the deceased asked the appellant to leave his house, on which an altercation ensued between them, in the course of which the deceased gave 2/3 slaps to the appellant, who in return hurled a brick-bat at the deceased, which the deceased avoided by stepping aside. The appellant then left the house raising a threat that the deceased would not live to enjoy his life. According to the testimony of both these ladies, the appellant, who used to work in the same 'Ban' factory of Muhammad Sadiq P.W.9 in which the deceased also worked, had come to reside in the house of the deceased about a month prior to the occurrence, as he could not find alternative accommodation. Though the appellant claimed to reside in a separate room situated near the house of the deceased, he did not produce any evidence to that efect. In fact no categorical questions were put to the ladies in cross-examination to suggest that the appellant was not living with the deceased. Rather, it was suggested to them that he used to pay all his earning to them, which would impliedly show that he had some connection with them. Further, nothing has been brought out in the cross-examination of the said two ladies to show that the motive, as put forth, was untrue or could not be believed or that the said ladies had any enmity or animus with the appellant to put up a false motive. In these circumstances, their evidence as regards motive is natural and rings true. The learned trial Judge also accepted their evidence and we have no reason to differ in that respect. We, therefore, hold that motive attributed to the appellant stands duly proved.
11. The ocular account in this case is furnished by Mst. Hussain Bibi P.W.7, Mst. Maqbool Begum P.W.8 and Muhammad Sadiq P.W.9. The first two witnesses are related to the deceased, as stated in the para. Last aforementioned, but Muhammad Sadiq P.W.9 is not related to the deceased.
Muhammad Sadiq P.W.9 is the owner of the Ban factory at which the appellant and the deceased both worked. The deceased's house is the second house from Muhammad Sadiq's Ban factory. Mst.
Hussain Bibi P.W.7 and Mst. Maqbool Begum P.W.8 at the time of the incident, were in the very house where the incident occurred. They were, therefore, natural witnesses. Muhammad Sadiq P.W.9, who was at his Ban factory and talking with Muhammad Umar (given up P.W.) about 50 feet away from the house of deceased, rushed to his house with Muhammad Umar (given up P.W.) on hearing alarm and saw the occurrence. He is, therefore, a natural witness. All the three witnesses saw the occurrence. Their testimony which is consistent, is the same as reproduced in para. 2 above, which need not be repeated. The following submissions have been made by the learned counsel for the appellant in respect of the ocular account. First, that though there were a number of houses adjacent and opposite to that of the deceased, yet no independent witness saw the occurrence or was produced by the prosecution in support of its case. Second, that the testimony of Mst. Hussain Bibi P.W.7 was untruthful, in that she was not present in the house on the day and time of occurrence, but had been imported from village Ratti Araian and in order to prove her presence she had feigned sickness and had pretended that since a month prior to the occurrence she was receiving medical treatment, but when asked to produce any prescription or evidence to show that she had been ill, could not do so and it was, therefore, apparent that she had not seen the occurrence. Third, that the testimony of Mst. Maqbool P.W.8 and Muhammad Sadiq P.W.9 was unreliable as both of them had developed intimacy with each other, which the appellant had seen a number of times and in respect of which he had also admonished Muhammad Sadiq P.W.9 in the said matter, but in order to remove all hitches from their way, Muhammad Sadiq P.W.9 had secured the murder of the deceased and had falsely implicated the appellant. As regards the first submission, it is true that there are some houses adjacent and opposite to that of the deceased, but according to the testimony of the eye-witnesses, none from the said houses turned up at the spot when the incident occurred. But even assuming for the sake of argument that certain witnesses from the vicinity did turn up and saw the occurrence, they would very likely not have desired to offer themselves as prosecution witnesses, as is the general attitude of witnesses in this country, with the result that the investigating officer had no alternative but to produce the two ladies, who were the inmates of the house and the most natural witnesses of the occurrence, and Muhammad Sadiq P.W.9, who was a neighbour, in evidence. In the presence of the two natural witnesses and one other witness, who was a neighbour and also a disinterested witness, nothing turns on other independent witnesses from the neighbourhood not being produced to give evidence. This objection, therefore, has no force and is rejected. As regards the second submission made on behalf of the appellant, it is true that Mst. Hussain Bibi P.W.7, when confronted in cross- examination to produce supportive evidence in respect of her illness and treatment, expressed her inability to do so, but this does not in any way detract from her presence at the spot on the date and time of the incident. The incident occurred at about 12-00 noon on 3rd June, 1979 and the F.1 .R.
In this case was recorded at 12-30 p.m. By no other person than Mst. Hussain Bibi P.W.7 herself. If she had not been present and seen the occurrence, she could not have been produced from village Ratti Araian in so short a time to lodge the F.I.R. She had no enmity with Sardar Muhammad, appellant, or any particular love lost for her nephew, Bashir Ahmad, deceased, to compel her to offer herself as an eye-witness in order to frame the appellant on a capital charge of murder. Her explanation for presence at the house, which is supported by Mst. Maqbool Begum P.W.8, who is the wife of the deceased, is natural and convincing. Nothing has been brought out in cross- examination to throw any cloud of doubt on her explanation. In these circumstances, her presence at the spot with Mst. Maqbool Begum P.W.8 cannot be doubted. As regards the third submission made by the learned counsel for the appellant, the same has no basis. Though the appellant in his statement under section 342, Cr.P.C. Took up the defence that Mst. Maqbool Begum P.W.8 and Muhammad Sadiq P.W.9 had developed illicit intimacy and that he had seen them in a compromising position a number of times for which he had admonished the latter and threatened him that he would apprise the deceased of the said facts, but the said story, together with other facts submitted by him in his said statement, were not fully and clearly put to any of the three eye- witnesses in their cross-examination.Lt was never put to Mst. Maqbool Begum P.W.8 and Muhammad Sadiq P.W.9 that the appellant had seen both of them in a compromising position with each other twice or thrice, though it was suggested to both that they had illicit terms with each other and that Muhammad Sadiq P.W.9 had got the deceased murdered so as to pave the way for their marriage to each other, both of which facts were denied by both of them. It was not put to Muhammad Sadiq P.W.9 that the appellant's dues, which had fallen in arrears, had not been paid to him, despite his repeated demands. Nothing has been brought forward from the cross- examination to support the defence theory of illicit intimacy between Mst. Maqbool Begum P.W.8 and Muhammad Sadiq P.W.9. It is also unbelievable that Mst. Hussain Bibi P.W.7 would join in any conspiracy with Mst. Maqbool Begum P.W.8 for the benefit of Muhammad Sadiq P.W.9 in order to falsely implicate the appellant, against whom she had no enmity or animus. This defence has no basis in truth and must be rejected. In this view of the matter, the ocular account given by the three witnesses, which is true and natural, must be accepted.
12. Since Muhammad Sadiq P.W.9 as stated above, is a disinterested witness, corroboration in the instant case is not required. However, the fact that the appellant was locked-up by the witnesses in the very room where he was seen committing the crime, from where he was secured by the Investigating Officer with the knife P. 4 with which he had committed the crime, and his blood- stained shirt and Shalwar were removed from his person, which knife and clothes were later found to bear stains of human blood, provide sufficient confirmatory circumstances to show the criminal participation of the appellant in the crime in instance. The medical testimony furnished by Dr. Khalid Yazdani Sheikh P.W.4 shows that the deceased had no less than 23 incised wounds and linear cuts, of a nature which could have been caused with the knife P.4 recovered from the possession of the appellant at the time of his arrest. This fact also acts as a strong confirmatory circumstance to implicate the appellant with the crime.
13. The upshot of the above discussion is that the motive, the ocular account, the recoveries and the medical testimony, fully prove the case of the prosecution against the appellant beyond any shadow of doubt. The appellant appears to have been properly convicted and sentenced. No mitigating circumstance appears in favour of the appellant for the imposition of the lesser penalty.
The appellant inflicted as many as 23 injuries on the deceased. No greater proof could have been given by him for his brutal and ghastly act. He was allowed shelter by the deceased in his house, when he could not find residential accommodation in Sangla Hill. This was an act of sincere kindness and grace on the part of the deceased. However, the appellant violated the deceased's friendship, by trying to make an amoral approach to his wife and, after being turned out instead of repenting for his mistake, he turned round and murdered his friend and benefactor. The appellant having shown no compassion, deserves no mercy in return. This appeal stands dismissed. The conviction and sentence of the appellant is maintained. The sentence of death of the appellant is hereby confirmed. . .