' Rustam S. Sidhwa, J.--Tufail Maseeh and Aman Ullah were sent up for trial before an Additional Sessions Judge of Lahore in respect of the murder of one Mst. Attiya Rehana, deceased. Tufail Maseeh, accused, was charged under sections 302, 307 and 323, P.P.C. For the murder of Mst. Attiya Rehana, deceased, attempt on the life of Muhammad lshaq P.W. 14 and causing simple hurt to Mst.
Yasmin P.W.12 and Aman Ullah, accused, was charged under section 302/109. P.P.C. For the abetment of the said murder. The learned trial Judge, by his judgment, dated 18th February, 1980, convicted Tufail Masih, accused, under sections 302 and 323, P.P.C. (on two counts) and sentenced him under section 302, P.P.C. To death, subject to confirmation by this Court, with a fine of Rupees One Thousand (Rs, 1,000) or six months' rigorous imprisonment in default thereof and under section 323, P.P.C. To one year's rigorous imprisonment for causing injuries to Muhammad !Shag P.W. And to six months' rigorous imprisonment for causing injuries to Mst. Yasmin P.W. The sentences of imprisonment were ordered to run concurrently, if the death sentence was not confirmed by the High Court. Half of the fine, if realized, was ordered to be paid to the heirs of the deceased as compensation under section 544-A, Cr. P.C. Aman Ullah, accused, however was acquitted of all the charges. The Appeal (Crt A. 267 of 1980) preferred by Tufail Maseeh, convict, against his convictions and sentences and the reference (M.R. 70 of 1980) submitted by the learned Additional Sessions Judge for the confirmation of the convict's death sentence, are both now before us for determination and will be disposed of by this judgment.
2. The brief facts of the case are that Mst. Attiya Rehana, deceased, was living in her palatial bungalow comprising of about 36 Kanals of land at 47, Tufail Road, Lahore Cantt., with two minor sons, Mehr Hayat and Samar Hayat, and daughter, Yasmin P.W.12. Tufail Maseeh and Aman Ullah, accused, were in her employment and worked as Chowkidars. The bungalow had two electric connections, one from WAPDA for running heavy electric appliances, like air-conditioners, etc., whilst the other from M.E.S., for the normal load in the house. On the night of 28th of April, 1979, Samar Hayat and Yasmin P.W.12 slept in the latter's bedroom, while Mst. Attiya Rehana, deceased, and Mehr Hayat were in the adjacent bedroom. The deceased started reading some books. At about mid-night, the air-conditioners of Attiya Rehana, deceased, and Yasmin P.W.12 went off, although the ordinary lights remained lit. Some time later, Yasmin P.W.12 heard her mother's door click, followed by her footsteps. The deceased then went into the Verandah, called Tufail Maseeh, accused, and asked him to go and find out as to why the electric supply had discontinued. The accused went away and returned after some time to tell Mst. Attiya Rehana, deceased, that the cause could not be known. On this, Mst. Attiya Rehana, deceased, returned to her room. About 15 minutes thereafter, the deceased once again came out and asked Tufail Masih accused, to go and find out as to what had happened with the electricity. The accused went away and returned with the same reply. Hardly five minutes had passed, when Yasmin P.W.12 heard her deceased mother raising alarm. She was calling for help, so as to be saved from Tufail Masih, accused. Yasmin P.W.12 rushed to her mother's room, only to see Tufail Masih, accused, strangulating her with the help of her Azarband. The deceased lay prostrate, striving to get herself released, while Tufail Masih, accused, was sitting astride on her belly. Yasmin P.W.12 tried to get her mother released, but the accused did not permit her to do the same. Mst. Yasmin P.W.12 then called Ghulam Hussain, their Cook, who was sleeping .Nearby. He also came there and tried to intervene, but Tufail Masih, accused, did not leave the deceased. Yasmin P.W.12 rushed to the house of Mr. Mukhtar, her neighbour, and brought his Chowkidar, Muhammad !Shag P.W.14, to the spot. He was equipped with a Danda at that time. On seeing the Chowkidar approaching, the accused snatched the Danda from him and injured him with the same. He also beat up Yasmin P.W.12 and tied her to a cot with a cord.
3. Abdul Rauf S.I. P.W.18 who was the S.H.O. Police Station North Cantonment, Lahore, having learnt about the occurrence at about 1.00 a.m. Whilst on patrol duty, immediately rushed to the spot. He recorded the statement Exh. P.D. Of Mst. Yasmin P.W.12 at the deceased's residence at 2.00 a.m. On the basis of the said statement, formal F.I.R. Exh. P.O/1 was recorded at Police Station North Cantonment at 2.15 a.m. The dead body of Mst. Attiya Rehana, deceased was lying on the floor in her bed-room. After preparing injury statement and inquest report, he sent the dead body of the deceased for post-mortem examination. Danda P.8 of Muhammad Ishaq P.W.14 was also found lying in the same room, which he took into possession vide recovery memo. P.K. A cord P.9 about eighteen feet in length, which was lying on a cot under a tree in the compound, was also secured through memo. P.L. The said recoveries were witnessed by Syed Hyder Ali Shah P.W. 16, Abdul Rauf S.I, P.W.18 and Riffat Saeed (given up P.W.). As both Mst. Yasmin P.W.12 and Muhammad !Shaq P.W.14 bore injuries on their person, they were sent for medical examination. Tufail Maseeh, accused, was arrested on the same day.
4. On 29th April, 1979 at 12-10 p.m. Dr. Sabir Ali, P.W. 1 medically examined Mst. Yasmin P.W.I2 and found the following injuries on her person:
(1) Scratch linear 1/4 c.m. On the back of right hand.
(2) Contused swelling 2 c.m. On the back of right wrist.
(3) Contusion 4 x 2 c.m. Front lower and right arm.
(4) Contused swelling with linear scratch 3 x 2 c.m. On the front root left thumb.
(5) Contusion 2 x 1 c.m. Front, outer, lower half left arm.
(6) The second and the third toes of right foot were found swollen. Nail of third toe was partially detached.
(7) She complained of pain in the back of chest.
' All the simple blunt weapon injuries were declared to have been caused within 24 hours of the examination. Muhammad !Shag P.W.14 was also medically examined by the same doctor the same day at 12-30 p.m., when the following injuries were found on his person:
(1) Contusion 11 x 7 c.m. Outer front, back, upper end left arm.
(2) Abraded contusion 5 x 3 c.m. Back left elbow.
(3) Contusion 6 x 2 c.m. Back left shoulder,.
(4) Contusion in area 15 x 10 c.m. Back right shoulder region.
(5) Contusion 20 x 2 c.m. Across the back of the chest.
(6) Contusion 9 x 7 c.m. Outer back upper right arm.
(7) Abrasion in area 8 x 4 c.m. Back right elbow.
(8) Contusion 6 x 3 c.m. Back upper half right forearm.
(9) Contusion 14 x 6 c.m. Upper part right buttock.
(10) Swelling of the whole left index finger.
(11) Abrasion in area 6 x 4 c.m. Front left knee.
(12) Abrasion 2 x 1 c.m. Front right knee.
(13) Swelling 3 x 2 c.m. Right temporal region.
(14) Multiple scratches on the nose.
(15) Contused swelling 4 x 3 c.m. Below the left eye.
(16) Contusion 5 x 3 c.m. Left side of the neck.
' All the simple blunt weapon injuries were declared to have been caused within 24 hours of the examination. The same day at 1-15 p.m. Dr. Sabir All P.W. 1 conducted the post-mortem examination on the dead body of Mst. Attiya Rehana deceased. It was a body of a stoutly built young looking middle aged woman. Eyes and mouth were closed. Whites of eyes were markedly congested with subconjunctival haemorrhage on both sides. The face and nails were acutely cyanosed. There were patchial haemorrhages all over the face. Rigor mortis was present all over and post-mortem staining on the back was present. An Azarband was found lying loose around the neck. There was a ligature mark found in the middle of neck extending on both sides towards the back of the neck. It was not well-defined on the back due to the hair. There were multiple scratches below the chin on the right side and upper part of the neck., The other injuries were as follows:
(1) Scratch x 1/4 c.m. On left cheek.
(2) Scratch 1/2 x 1/4 c.m. On left side of chin.
(3) Contusion 43 x 23 c.m. On the front of right shoulder over the outer end of the collar bone.
(4) Contusion 6 x 2 c.m. Upper part of the right chest below the collar bone.
(5) Contusions 4 x 2 c.m. 3 x 11, 2 x 2 c.m. On the back of the right shoulder.
(6) Contusion 3 x 2 front lower half left leg.
(7) Contusion 2 x 2 of the dorsum of left foot.
' The ligature alongwith the injuries were ante-mortem. Death was due to asphyxia, brought about by the compression of the neck. Probable time between death and injury was soon and that between death and post-mortem examination within twelve hours. The vaginal swabs taken by the doctor were not found to be stained with semem. Shirt P.3 and Shalwar P.4 (alongwith Azarband P.5), the clothes last worn by the deceased, were handed over to Riaz Hussain F.C. By the doctor. On 9th May, 1979 Tufail Masih, accused led to the recovery of his shirt P.6 and Shalwar P.7 from his room in his house, which was taken into possession by the police vide memo. P.H. On the same day Abdul Rauf S. I. P.W.18 obtained non-bailable warrants Exh. P.W.8/1 for the arrest of Aman Ullah, accused, which were handed over to Muhammad Yousaf A.S.I., P.W.8. Aman Ullah accused having avoided service, the said warrant was returned with report Exh. P.W.8/2. Accordingly a proclamation was issued by Magistrate on 20th May, 1979. Aman Ullah, accused, however, was arrested by the Rawalpindi Police on 3rd November, 1979 and arrested in the present case by Abdul Rauf S.I. P.W. 18 on 4th November, 1979.
4. After completing the investigation, the challan against both the accused was sent up.
5.
5. At the trial, the prosecution produced Mst. Yasmin P.W.12, Ghulam Hussain P.W. 13 and Muhammad Ishaq P.W.14 in proof of the ocular account, Gulzar Muhammad Bhatti M.I.C. P. W.17 with regard to the judicial on fission made by Tufail Masih, accused, Sana Ullah A.S.I. P.W.7, Syed Ali Haider Shah P.W.16 and Abdul Rauf S.I. P.W.18 in support of the recoveries, Lal Din P.W. 15 in proof of the evidence regarding conspiracy, Muhammad Yousaf A.S.I. P.W.8, Murawat Bari A.S.I. P.W.9, Jahan Khan Inspector P.W.10 and Abdul Rauf S.I. P.W.18 to prove the abscondence of Aman Ullah, accused, and Dr. Sabir Ali P.W.1 to corroborate the medical testimony.
6.
6. Both the accused denied the accusations that were levelled against them. Tufail Masih also denied the recoveries allegedly effected at his instance .And the judicial confession alleged to have been made by him to the Magistrate. As regards the latter, he submitted that he was tortured by the police to make a confessional statement, to which he did not agree. They both admitted the fact that they were working as Chowkidars at Attiya Rehana deceased's residence at 47-Tufail Road, Lahore Cantonment, during the days of occurrence. Both of them stated that they had been falsely involved in the case on account of suspicion. Aman Ullah, accused, imputed his abscondence to fear of arrest and denied that he had avoided service.
7.
7. The learned trial Judge, relying upon the ocular account furnished by Mst. Yasmin P.W.12 and Muhammad !Shaq P.W.14, the recoveries of Danda P.8 and cord P.9 from the place of occurrence, and the medical testimony, convicted and sentenced Tufail Masih, accused, as stated in para. 1 above, and acquitted Aman Ullah, accused, on the ground of benefit of doubt.
8.
8. We have heard the arguments of the learned counsel for the appellant and the State and have also perused the record. The ocular testimony in this case is furnished by Mst. Yasmin P.W.12, Ghulam Hussain P.W.13 and Muhammad Ishaq P.W.14. Mst. Yasmin P.W.12 is the daughter of Mst.
Attiya Rehana, deceased, and was sleeping in the room adjoining that where the deceased was sleeping, when the incident occurred. She is, therefore, a natural witness. Ghulam Hussain P.W.13 was the Cook of the deceased and sleeping on a cot in front of the garage in the same residence where the occurrence occurred. He is also a natural witness. However, for reasons stated by the learned trial Judge in the 5th para. Of his judgment under the caption "Ocular Evidence", with which we concur, his evidence was disbelieved on the ground that his conduct was so unnatural that it was apparent that he had not seen the occurrence. Muhammad !Shaq P.W.14 was a Chowkidar employed in the bungalow of one Mr. Mukhtar, which was situated opposite to the bungalow of the deceased. He was on duty on the night of 28/29th April, 1979 and rushed to the rescue of the deceased when Mst. Yasmin P.W.12 came rushing to him seeking his help and he followed her with Danda P.8 to the deceased's bed-room, where he saw Tufail Masih, appellant, strangulating the deceased. He is, therefore, a natural witness. According to the testimony of Mst. Yasmin P.W.12, on the night of 28th April, 1979 she and her brother Samar Hayat were sleeping in one room whilst her mother Mst. Attiya Rehana, deceased, with her other brother Mehr Hayat was in the adjacent room.
Her mother was reading a book in her room, whilst her younger brother was sleeping there. They had two electricity connections to their residence, one for running heavy appliances, such as air- conditioners, etc., whilst the other was for normal power used in the house. The former connection was from WAPDA whilst the latter was from the M.E.S. At about mid-night, her air-conditioner and that of her mother went off, although the lights in the rooms remaind on. Her room and that of her mother had a common door in between. She heard her mother's calls followed by her footsteps.
Her mother went down into the Verandah, sent for Tufail Masih, appellant, and asked him to go and find out as to why the electricity supply had discontinued for the air-conditioners. Tufail Masih, appellant, went out and returned later to disclose that the cause of failure was not known. On this, her mother returned to her room and laid down. After an interval of about fifteen minutes, her mother again asked Tufail Masih, appellant, to go and find out as to why the power had not returned. The appellant went and returned back with the same reply. After about 15 minutes, she heard an alarm raised by her mother from the adjoining room calling her to come and save her from the appellant. She rushed to her room where she found the lights were on and Tufail Masih, appellant, had felled her mother, who lay prostrate on the ground, and was sitting astride on her belly and strangulating her with the help of an Azarband which he had removed from her mother's Shalwar. She tried to get her mother released, but the appellant did not permit her to succeed. She then called Ghulam Hussain P.W.13, her Cook, who was sleeping in front of the garage. He came and tried to get her mother released from the clutches of the appellant, but was unsuccessful. On this she rushed to the house of her neighbour, Mr. Mukhtar, and approached his Chowkidar, Muhammad lshaq P.W.14, to the spot. The Chowkidar came with his Danda P.8. When they both reached the bed-room of the deceased, the appellant was still strangulating her with the Azarband. On seeing the Chowkidar approaching, the appellant got up, snatched Danda P.8 and started inflicting injuries to him with the same. Thereafter, the appellant turned his attention to her and beat her and tied her with a cord to a cot in front of the Verandah. The evidence of Muhammad Ishaq P.W.8 corroborates in material particulars that furnished by Mst. Yasmin P.W.12.
On behalf of the appellant, the following submissions have been made with regard to the ocular testimony: First, that the case was one of blind murder which was not witnessed by anybody, which was obvious from the fact that so many photos and so many thumb-impressions on papers were secured by the Police, as is evident from the testimony of lrshad Ullah P.W.14, and that such procedure is only adopted by the Police when actual witnesses of the occurrence are not available.
Second, that the testimony of Mst. Yasmin P.W.12 is unreliable and unreservedly should not be accepted. In this connection it was submitted that she had named Ghulam Hussain P.W.13 as an eye-witness, whose presence had been disbelieved by the trial Judge, that she could have phoned the police to seek assistance, which she did not do, and that the medical evidence did not disclose that she had been tied to a cot, all of which circumstances show that she was not present or, in the alternative, that her testimony is unreliable. Third, that Muhammad Ishaq P.W.14 had not witnessed the occurrence, which was manifest from the fact that he had slipped away from the place of occurrence after being injured and had not appeared before the Police to have his statement recorded till 9-00/10-00 a.m. Fourth, that respectable witnesses from the adjoining locality, who must have heard the alarm and rushed up and seen the occurrence or at least have seen Tufail Masih, appellant, present at the spot, were not produced and, therefore, an inference should be drawn that had they been produced, they would not have supported the prosecution case.
10. We have given our anxious consideration to the submissions made on behalf of the appellant. In the first place, the photos of the deceased were taken in this case not because the case was one of blind murder, but for the purpose of showing the position and condition in which the dead body of the deceased was lying on the ground in her own bed-room. Lrshad Ullah P.W.11 in his cross- examination referred to the fact that during his stay at the spot the Police had been collecting thumb-impressions and getting photographs prepared. The reference to "thumb impression" is perhaps an incolloquial reference to the documentation work being done by them. Mst. Yasmin P.W.12 was present at the spot when Abdul Rauf 5.1. P.W.18 reached the spot, which was at 1-15 a.m.
And, therefore, the case being one of blind murder, which the police was investigating as such, does not arise. The testimony of Mst. Yasmin P.W.12 and Muhammad lshaq P.W.14 is consistent in material particulars. Notwithstanding a lengthy cross-examination, nothing has been brought out to suggest that they were not present at the spot and did not see the occurrence, as is suggested.
The reference to the presence of Ghulam Hussain P.W.13 at the spot by Yasmin P.W.12 appears to be a correct statement. However, it appears that. Ghulam Hussain P.W.13, be a Cook and co-worker with Tufail Masih, appellant, made a large number of concessions in his cross-examination, which compelled the learned trial Judge to treat his conduct as unbecoming one who was present at and saw the occurrence., However, even assuming for a matter of argument that Ghulam Hussain P.W.13 did not witness the occurrence, but perhaps came later, as in any case he resided in the same bungalow, the testimony of Mst. Yasmin P.W.12 and Muhammad !Shag P.W.14 cannot be brushed aside under any circumstances. The fact that Mst. Yasmin P.W.12 did not telephone the Police only supports the case of the prosecution that she was tied by Tufail Masih, appellant, to a cot or else she would have attempted to phone the police for assistance. The suggestion that the medical evidence does not support her claim that she was tied by Tufail Masih, appellant, to a cot, must be rejected outright. Scratches, contusions and swellings on the back of her right hand and wrist, and at the end of her front lower right arm, the front root of her left thumb and the front outer lower half of her left arm, all give a clear indication that they were the result of her two hands being tied to a cot round about the wrist and lower arm. Injuries on the second and third toes of her right foot also clearly show that she kicked Tufail Masih, appellant, in her unsuccessful attempt to secure the release of her mother from the appellant's stranglehold. The submission that as Muhammad !Shaq P.W.14 had slipped away from the place of occurrence and did not furnish his statement to the police till 9-00/10-00 a.m. For the first time his conduct was unnatural and, therefore, his testimony should not be believed, the same cannot be accepted. He was a Chowkidar attached with the bungalow of Mr. Mukhtar. Obviously, after receiving injuries, he left the deceased's residence only to repair to his own bungalow where his duty beckoned him. According to his cross- examination, he was summoned by the Police at about 9/10 a.m. For the first time. If he was summoned late, as suggested by the learned counsel for the appellant, it was not his fault, for which he can be held responsible. The submissions of the learned counsel, therefore, carry no weight and must be rejected. The testimony of the two eye-witnesses is clear, natural and convincing and inspires confidence. None of the eye-witnesses has any enmity or animus with Tufail Masih, appellant, as to falsely involve him on so grave a capital charge of murder. In these circumstances, we have no hesitation in accepting the ocular testimony, which we regard as the most convincing evidence in this case against Tufail Masih, appellant.
11. Though corroboration is not strictly required, the recovery from the deceased's bed-room of Danda P.8 of Muhammad Ishaq with which the appellant belaboured him and injured Mst. Yasmin P.W.12 and the cord P.9 from a cot under a tree in the compound of the deceased's house with which the appellant tied up Mst. Yasmin P.W.12 are offered as supportive pieces of evidence supporting the main prosecution case. In addition, the medical testimony is offered as corroboration to the ocular account. The testimony of Syed Ali Haider Shah P.W.16, one of the recovery witnesses, has not been challenged in any material way, other than draw a reference to the fact that he resided 11 miles away from the place of occurrence, but this does not displace his testimony, as he is a respectable businessman who had reached the spot after learning about the incident from the servant of Irshad Ullah P.W.11, the son-in-law of the deceased. He had no motive to falsely plant himself as a recovery witness against Tufail Masih, appellant. Nothing has been brought out in his cross-examination to show that he was either very friendly with the investigating officer or was a police tout. The testimony of Abdul Rauf S. I. P.W.18 in respect of these recoveries also cannot be disbelieved. He also has no motive to plant false recoveries in the case. Both have no enmity against the appellant. The recovery of the Danda P.8 and the cord P.9 therefore, strongly go to show that the testimony of the prosecution witnesses is correct. The medical testimony furnished by Dr. Sabir Ali P.W. 1 clearly shows that the dead body of the deceased had a ligature mark 1 c.m. Wide running almost right round the neck, though it was not so well-defined at the back due to the hair. The body also bore a number of contusions on its right shoulder, right chest and front left leg, apart from scratches on the left cheek and chin. All these show that the deceased was the subject of assault as also strangulation, which caused her death. Further, the injuries found on Yasmin P.W.12 reveal that she was injured by a blunt weapon similar to Danda P.8 recovered from the bed-room of her mother's residence. The swelling on the second and third toes of her right foot also show that she made some attempts to secure the release of her mother from the clutches of her assailant, by kicking of the assailant. Likewise, the injuries on the person of Muhammad lshaq P.W.14 lend support to the prosecution story that he was severely assaulted with a blunt weapon similar to Danda P.8. The medical testimony, therefore, furnishes strong corroboration to the ocular account.
12. The upshot of the above discussion is that the ocular account, the recoveries and the medical testimony clearly prove the case of the prosecution against Tufail Masih, appellant, beyond any shadow of doubt. He appears to have been properly convicted and sentenced. No mitigating circumstance appears in his favour for the imposition of the lesser penalty. The sentence of death awarded to him is, therefore, confirmed. This appeal is hereby dismissed.