' MUFTAKHIRUDDIN. J.-Ali Hassan son of Nohal, Ramdani Jamali and Allan son of Wazir Khan, residents of village Mehrullah Jamali Tehsil Jhatpat were tried for the murders of one Azad son of Mehrullah Mughari and Mst. Bharai wife of one Abul and the learned Sessions Judge Sibi (Ch. Muhammad Aslam) has convicted them under section 302/34, P. P. C. And sentenced them to death. Additionally they have been sentenced to a fine of Rs, 5,000 each or in default of payment of fine to undergo rigorous imprisonment for six months. The appeal of convicts and the connected murder reference are before us. The appeal and the reference shall be disposed of by this judgment.
2. The F. I. R. Was lodged by one Mehrullah Mughari (P. W. 1) on 27-6-1981 at Cattle Farm Police Station in District Nasirabad and it was stated that at about 8.30 a. m. The accused Allan and Ali Hassan had come to the house of his son (Azad Khan the deceased) with whom he (Mehrullah the complainant) was putting up and persuaded him to go with them to the nearby Goth Jamali for "G apshap" {{ARABIC TEXT}}. His son agreed. The complainant also accompanied them and when they reached the "Autaq" (j0091) in Goth Mehrullah Jamali he went to the house of his brothers for "Hall Hawal" di.). He had started the talk with his brother there when gunshots from the "Autaq" attracted him, and he accompanied by Saiful (P. W. 2) and one Durrani reached there running, the deceased Azad was lying in a pool of blood on the ground in the Autaq and was dead, Allan accused came out of the Autaq and had a shot gun with him. On emerging from "Autaq" he called Ali Hassan, who was standing in his house and asked him as to why he was standing quiet whereupon Ali Hassan assaulted Mst. Bharai wife of Abul (a relation of his) with hatchet blows and killed her. The accused ran away saying that they had killed both the deceased on the suspicion that they were "Siahkars".
3. Abdul Karim S. H.
0. (P. W. 8) proceeded to the scene of occurrence and prepared the inventory of Jai-Wardat (Exh.
P/10) and site plan (Exh. 13). The dead body of deceased Azad was found lying in the Autaq and had gunshot injuries. The dead body of deceased Mst. Bharai was lying in the courtyard of the house of Abul. The inquest reports of the dead bodies were prepared vide inventories Exhs. 5 and 6.
Two empties are found on the place of incident. The inventory. Exh. 7 was prepared and empties sealed in parcels. The dead bodies were sent for post-mortem examination on 28-6-1981. Blood- stained clothes of Mst. Bharai and deceased Azad were taken into possession from Medical Officer, Usta Muhammad vide inventories Exhs. 16 and 17. The statements of P. Ws. Gul Muhammad, Nek Muhammad, Saifal Durrani, Rasool Bux, Dil Murad, Alam Khan and Lutuf Ali were recorded an 27-6- 1981 and the statements of P. W. Muhammad Iqbal A. S. I. And Head Constable Muhammad Shafi were recorded on 28-6-1981. Accused Ali Hassan and Allan were arrested on 29-6-1981. One shot gun (Single barrel) was recorded from the house of Allan on 13-7-1981 vide inventory Exh. 22 and sealed. The same day one blood-stained hatchet, was recovered vide inventory Ex. 23 from the house of accused Ali Hassan. The statements of Gul Hassan and Durrani were also recorded on 13- 7-1981. The Medical Officer Usta Muhammad handed over a small bottle containing pellets and the same were taken into possession on 14-7-1981. The incriminating articles were sent to Chemical Examiner and Director Forensic Laboratory for examination. The reports received were Exhs. 28 and
29. After completion of investigation the accused were ehallaned to face their trial.
4. The accused persons pleaded not guilty to the charge, denied the prosecution allegations and proclaimed false implication due to enmity.
5. Before the trial Court the prosecution has examined 8 witnesses. Ocular testimony is furnished by witnesses Mehrullah (P. W. 1), Saiful (P. W. 2), Gul Muhammad (P. W. 3) and Nek Muhammad (P. W.
7), Dil Murad (P. W. 4) is a witness before whom the blood-stained earth from the place of occurrence was obtained vide inventory Exh. P/5 and also bloodstained earth from beneath the dead body of Mst. Bharai vide inventory Exh. P/6 and two empties Exh. P/8 and 9 from outside the door of the house of Abul Khan were taken into possession. Lutif Ali (P. W. 5) accompanied the S H.
O. Cattle Farm to Goth Mehrullah Jamali and before him the dead body of a woman (Mst. Bharai) lying on a cot in the house of Mehrullah Jamali or Abul was taken into possession. The woman had hatchet injuries. The dead body of Azad (a boy) was recovered. He had gunshot injuries. P. W. 6 is Dr. Muhammad Ashraf who performed postmortem examination on the dead bodies of Mst. Bharai and Azad. P. W. 8 Abdul Karim was the S. H.
0. Cattle Farm on 27-6-1981. He had recorded the F.I.R. (Exh. P-4) and had proceeded to the place of occurrence and had prepared the site plan, prepared the inquest reports of the dead bodies of deceased Azad and Mst. Bharai, took into possession the blood-stained earth beneath the dead bodies. The empties of cartridges (Exhs. P-8 and 9) were recovered and sealed and sent the dead bodies for post-mortem examination. The blood-stained clothes i. e. Shirt and Shalwar of Mst.
Bharai were obtained by him on 28-6-1981 and the shirt and Shalwar of deceased Azad were also taken into possession the same day. The statements of Gul Muhammad, Nek Muhammad; Saifal and Lutif Ali were recorded by him on 27-6-1981. The accused Ali Hassan and Allan were arrested on 29-6-1981,
6. The accused/appellants in their statements recorded under section 342, Cr. P. C. Denied the fact that deceased Azad was the son of Mehrullah Mughari (P. W. 1) and that Mst. Bharai was the wife of Abul and daughter of Mehrullah Namali Appellant Allan examined one witness namely Allah Bux in his defence who stated that about 4 years back at about 8/9 a. m. He had taken the accused from his house to near Goth Lutif Ali Jamali where the accused stayed the night with him and remained till 5.00 p. m. On the following day when the police came. It should be noted that accused Allan was arrested on 29-6-1981.
7. We have heard Mr. Muhammad Daud Baluch, Advocate for the r appellants and Ch. Muhammad Yousuf A. A.-G. For the State.
8. The learned counsel for the appellants has urged the following grounds before us :-
(a) That the evidence indicates that the incident is witnessed,
(b) There is no corroboration one tainted witness is corroborated by another tainted witness.
(c) The ocular "testimony is replete with discrepancies and as such the veracity of the so-called eye-witnesses becomes doubtful.
(d) In the alternative it has been submitted by the learned counsel that the prosecution evidence itself indicates that it is a case of Siahkari. This being a case of Siahkari (c5,6"31,), the appellants are entitled to lesser punishment and sentence of death be not confirmed.
9. The medical officer who conducted autopsy on the dead bodies has noted the following injuries :- Mst. Bharai :
(1) Incised wound on right lateral side of the neck. Size 6" X 4" x 44" deep.
(2) Incised wound on the posterior side of the neck. Size 3" x x muscle deep.
(3) Incised wound on the supro-medical part of the right scapula. Size 3" x 1" x muscle deep.
(4) Incised wound mid-clavicular. Size 2" x 1" x muscle deep.
(5) Incised wound right middle of the palm which has out the lateral 3 fingers size 4" 1".
(6) Incised wound just posterior to the injury No, 5 which has not all the fingers except little finger.
' Neck. -All the muscles blood vessels on the right half of the neck are cut into two pieces. There is fracture and dislocation of the cervical vertebra.
' Spinal cord has also been out into two pieces.
' From the external and internal examination of the deceased the medical officer was of the opinion that the death of Mst. Bharai was due to trauma to the vital organs spinal cord and that the weapon used was sharp heavy cutting and the probable time bet been injury and death was immediate.
' The following material injuries were found on the person of the deceased Azad :-
(1) Gunshot wounds (7) in umber on the lateral side of the right upper forearm (wound of entrance) size 4" 4" each.
(2) Gunshot wounds (wound of exist) on the medial side of the right upper forearm 5" x 4'.
(3) Gunshot wounds (wounds of entry) 3 in number on the right / lateral side of the chest (lore part) size I x i" x cavity deep.
Thorax.-Walls, Ribs Cartilages-There is fracture of the 7th rib on the right side.
Stomach :-Perforated by gunshot and it contains blood.
Liver.-Severely damaged and was in multiple pieces whole abdomen was full of blood. The e was multiple Perforation in the small intestine and mesentry bdominal contents show slight signs of Putrefaction 2 pellets removed from abdominal cavity.
Muscles, Bones and Joints - here is fracture of right radius and ulna also the elbow joint, damaged.
Most of the blood vessels and muscles in the right upper forearm damaged. Two pellets removed from this fractured Area.
' According to the Medical Officer the death was due to the injuries to the organs like liver, stomach and intestine leading the excessive haemorrhage and death and that the injuries were caused by firearm (gunshot). Probable time between the death and the injuries was immediate.
' It was thus established that Mst. Bharai and Azad died of injuries suffered from them.
10. Nothing has been said by the learned counsel for the appellants about the medical evidence nor it disclosed anything which may help the defence. The place where from the dead bodies were found is not disputed and this is a circumstances in our opinion which supports the statement of P.
W. 1 that deceased Azad was persuaded to go to the village of the accused.
11. The earned counsel had made an attempt to show that the incident is unwitnessed. It has not been possible for us to subscribe to this view. P. W. Mehrullah Mughari (P. W. 1), Saifal (P. W. 2), Gul Muhammad (P. W. 3) and Nek Muhammad (P. W. 7) are the persons who have witnessed the incident. They are the persons who reached the place of incident on hearing gunshots. This was possible because they were nearby at a very short distance and had run towards Auta4 (L'it1j1). In the cross-examination of these witnesses nothing has been suggested which may establish that they are inimical to the accused. The suggestions thrown in the cross-examination could not be substantiated. Thus we are constrained to say that the entire cross-examination was without purpose and did not elicit anything helpful to the defence. The deceased Azad used to live with his father (P.W. 1) at Bari Shaikh a place according to the site plan (Exh. 13) at a distance of about 6 furlongs from the place of incident, and both were seen going toward Goth Mehrullah Jamali by Gul Muhammad and Nek Muhammad who were working in their fields. These witnesses also say that in the morning Ali Hassan and Allan (appellants) were seen going towards the Goth of the complainant who returned after 10/15 minutes accompanied by deceased Azad and P. W. 1 (Mehrullah). Thus the statement of Mehrullah stands corroborated in material particulars. Saifal (P.
W. 2) to whom Mehrullah Lad gone for "Hall Hawal" ciL.-) rushed to the place of incident alongwith him. This was natural and stands to reason. These witnesses live near the place of occurrence. It is apparent from their statements that they have not exaggerated. According to them on hearing the gunshots they rushed to the place. They do not claim to have witnessed the killing of Azad. They claim to have seen the deceased Bharai being hit. They appear to be natural witnesses. The denial of these facts by the accused/appellants does not appear to be correct for the reason that Goth Mehrullah Jamali is inhabited mostly by the people belonging to the accused family and yet no body could be produced to say that on that fateful day they were not there. We should not be understood to mean that the weakness of the defence should be taken as a circumstance against the accused. What we want to emphasise is that once the accused sets up a plea it becomes his duty to substantiate it and thus the onus shifts on him. This is what is contained in section 105 of the Evidence Act. The following weighty and instructive observation of Kayani Judge in this connection are reproduced from Ghulam Yusuf's case (1).
"I should not hesitate to admit that the first impression which I had
(1) PLD 1953 Lah. 223 of the judgments in Safdar Ali's case was that they had overruled the decision in Lal Khan v. Crown but the more I had tried to understand them and I confess I was slow to understand the more I have become convinced that the only point their Lordships wish to emhasize is that you must have the entire evidence in your mind, the evidence for the accused and the evidence for the prosecution and allow the one to face the other squarely that you should not be too pedantic about the burden of proof. In my original belief I had a vague feeling that these learned judgments would have the effect of repealing section 105 pro tanto but that feeling has ceased to harass me as I now believe that apart from their main theme, incidental pronouncements therein may be classed with the "Generality of expression" of which Lord Halsbury spoke in Quinn v. Leathern and which "are not intended to be expositions of the whole law". I therefore, do not find it possible to accept Mr. Manzur Qadir's agument that Safdar Ali v. Crown has altered the burden of proof The Federal Court is not a legislative body and it could not have intended to lay down a principle repugnant to section 105."
12. We have scrutinized the entire evidence on record with care and caution and have come to the conclusion that witnesses Gul Muhammad Nek Muhammad and Saifal are not chance witnesses.
They reside in the village Mehrullah Jamali and have no grudge with the appellants. They have testified about the presence of the appellants on the spot with weapons, and no contradiction with regard to material particulars between the testimonies of the witnesses inter se could be pointed out to us. Their evidence does not suffer from any serious infirmity. The learned counsel for the appellants has placed reliance on Muhammad Farooq's case (1) and that of Allah Rakhio (2) and has submitted that simply because witnesses has no enmity and appears to be independent does not necessarily means that what he states is not untrue. There is no cavil with the legal proposition enunciated in those cases but we have demonstrated that the evidence of the prosecution does not suffer from any serious infirmity nor any material contradiction in their statements with regard to material particulars has been found. The evidence of Gul Muhammad and Nek Muhammad does receive corroboration from the medical report.
13. The learned counsel for the appellants has drawn our attention to the delay caused in recording the F. I. R. At 2.15 p. m. On 27-6-1981 and has pointed out that the incident took place at about 9 a. m we have been told that the place of incident is at a distance of about six miles from the police station. Due to lack of proper means of communication in the area the delay is certainly explainable and does not appear to be deliberate. We find no substance in the contention. We accordingly repel the same.
14. There remains to be considered the alternative defence that it was a case of "Siahkari" which has been deliberately concealed by the prosecution. The plea requires closer scrutiny and in that connection the first point to be considered is whether there is any evidence that on any previous occasion there has been witnessed any incident in the past or on the date of incident on the basis whereof any suspicion of adultery could be aroused which could give rise to a feeling of provocation. We have been aroused informed by the learned counsel for the appellants that Autaq is a place/room outside the houses where people gather for chat and is usually not accessible to the woman folks. The time of incident i,e, 9. a.m. And place
(1) PLD 1976 Lah. 1403 (2) 1983 P Cr. L J 1714 thus belie the suggestion of Siahkari. The deceased Mst. Bharai is of an advanced age having spent about 20 years as a housewife while the deceased Azad is a young man of hardly 25 years. There was no suspicion of infidelity or in chastity in the woman. No previous illicit connection has even been suggested either in the cross-examination of any of the prosecution witnesses or through any witness of the village. Had there been the slightest truth in the plea it was not difficult to procure the evidence from the inhabitants of the Goth which is mainly populated by the kith and kind of the accused/appellants. The husband of Mst. Bharai did not come forward with any such allegation though it was he whose honour had been outraged if really his wife had been molested.
The appellant in their statement before the trial Court have denied the fact whether Mst. Bharai was wife of Abul though reside in the village. Thus they pose to be total strangers.
' We are of the considered view that the element of "Siahkari" was first introduced to justify the heinous crime of murder but it could not be substantiated, and later given up and the plea of Alibi was introduced at the trial and that too could not be substantiated. The defence has thus failed miserably. The real motive appears to have been something else known to the appellants alone.
Deceased Azad has been murdered under a pre-arranged plan and to justify that heinous crime another innocent woman has been killed. In fact, the case is overwhelming against the appellants.
We are, therefore, of the considered view the prosecution has satisfactorily proved the guilt of the appellants. Dismissing their appeal we confirm the death sentence because we find no mitigating circumstances in this case. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.