Aslam Riaz Hussain, J.--Niaz Ahmad appellant, age< about 46 years, was tried by Sh. Bashir Ahmad, Additions Sessions Judge, Sahiwal, for offences under sections 376, 302 an< 380, P. P. C. for having committed rape on Mst. Kariman on th< night between 21/22-11-1966 and thereafter having strangled her to death and committed that of some articles including some pieces of gold ornaments belonging to Mst. Karim,an deceased. He was acquitted by the learned trial Court of the offence under section 376, P. P. C. but was found guilty of the offence under section 302, P. P. C. for which he was sentenced to transportation for life.
The learned trial Judge, however, failed to record any finding with regard to the offence under section 380, P. P. C. or to award him any sentence for that offence.
Niaz Ahmad appellant has filed this appeal through Jail against his conviction and sentence.
2. The facts of the case briefly stated are as follows:-- Ali Muhammad, his wife Mst. Kariman deceased and their son Sardar cobblers by caste, used to reside in Chak No. 207/ E. B. Police Station Ahmad Yar, District Sahiwal. Ali Mohd, died about 15/16 years ago. Subsequently when Sardar grew up he went over to Arifwala town and started working there as a cobbler.
Thereafter, Mst. Kariman used to live in the house all by herself. About two and a half months before the occurrence Niaz Ahmad who was a first cousin (father's sister's son) of the deceased, came over Chak No. 207/E. B. and took up residence in the house of Mst. Kariman deceased. He installed his khadi (loom) in the courtyard of the house and started weaving cloth. Niaz Ahmad appellant, who was himself a widower, developed an urge to marry Mst. Kariman. About 15/16 days before the occurrence he contacted Muhammad Bakhsh (P. W. l2), the Lambardar of village for help in this connection and requested him to induce Mst. Kariman to marry him. Muhammad Bakhsh P. W. l2 approached Mst. Kariman in this behalf but she did not agree and instead sent a massage to her brother Muhammad Sharif (P. W. 13) in Chak No. 106/12-L. The latter thereupon went to the bouse of Mst. Kariman in Chak No. 207/E. B; reprimanded and abused the appellant for his insolent suggestion and told him to vacate the bouse. The appellant promised to leave the house. This incident is said to have formed the motive for the offence. On 22nd November 1966 one Niamat informed Abdul P. W. 10a brother of the late husband of Mst. Kariman who also used to reside in Chak No. 207/E.B. that both Mst. Kariman and Niaz Ahmad appellant were absent from the house and that the dcor of the house was locked from outside. They waited till about 8-00 p.m. but when neither Mst. Kariman nor Niaz Ahmad, appellant turned up, Abdul P. W. 10, accompanied by Niamat, went to Muhammad Bakhsh Lambardar (P. W. l2), and informed him about this fact. The Lambardar told them of his inability to go and break open the lock in order to find out what had happened, but advised them to inform Sardar P.W. 14, the son of Mst. Kariman, at Arifwala. He called Nazir Chowkidar P. W. 11 and directed him to go to Arifwala for this purpose. The latter accordingly went to Arifwala and informed Sardar P. W. who reached the village on the following morning at about 10 a.m.
The lock of the door of Mst. Kariman's house was then broken open by Sardar iu the presence of Muhammad Bakhsh Lambardar P. W. l2 and other P. Ws. All of them then entered the house. Sardar P. W. went into the room and found Mst. Kariman died on a cot. She had been strangled to death.
The string of her Shalwar was untied. The Shalwar had been pulled down and was lying on the lower portion of her legs. The boxes in one of the rooms of the bouse were found lying open. Sardar P. W. the son of Mst. Kariman discovered that certain ornaments and clothes belonging to Mst.
Kariman were missed.
3. Leaving others at the spot Muhammad Bakhsh Lambardar P. W. l2, left for Police Station Ahmadyar, which is situated at a distance of about nine miles from the village and lodged the F. I.
R. Exh. P. D. After recording the report Malik Faiz Muhammad, Sub-Inspector P. W. I6 proceeded to Chak No. 207/E. B. and reached there at about 3-00 p.m. After preparing the relevant documents, he sent the dead body for post-mortem examination. He took into possession the broken lock (Exh.
P. 25) from the outer door of the house of Mst. Kariman, vide memo. Exh. P. E.
4. In the meanwhile Niaz Ahmad appellant, after committing the murder is said to have gone and taken refuge in the house of his son-in-law Siddique, in Chak No. 9S/12-L. It,is stated that on 22nd November 1966 Siddique approached Faqir Muhammad Cobbler, P. W. 7 in the latter's house and informed him that his father-in-law had come to him after murdering a woman.
At that time Bahadur P. W. 8 was also present at the house of Faqir Mohammad P. W. Faqir and Bahadur P. Ws. accompanied Siddique to his house and found Niaz Ahmad appellant present there. On inquiry by the witnesses the appellant told them that he had murdered a woman in Chak No. 207/E. B. All three of them i.e. Faqir Muhammad P. W.
7. Bahadur P. W. 8 and Siddique, then took the appellant to the dera of Muhammad Aslam Shah (P. W. 6), the Chairman of the Union Council, who had just returned from Sahiwal and produced Niaz Ahmad appellant before him. The appellant confessed before Muhammad Aslam Shah also that he had murdered a woman in Chak No. 207/E. B. by strangulating her and that theieafter he had locked the door of the bouse from outside. Muhammad Aslam Shah' was running temperature at that time and instead of taking any action himself advised Faqir Mohd. P. W. 7 to take the appellant to the police station. Faqir Mohammad and Bahadur P. Ws. accompanied by Siddique, accordingly took the appellant to Police Station Shah Kot, and produced him before Muhammad Iqbal Naib Moharrir (P. W. 15). Faqir Muhammad P. W. made a report Exh. P. J. which was recorded by the Naib Moharrir in the Roznamcha. Faqir Muhammad, Bahadur as well as Siddique put their thumb- impressions on the said report. As the occurrence pertained to the jurisdiction of the Police Station Ahmad Yar the Naib Moharrir sent the appellant to that police station under the custody of Shahnawaz F. C. alongwith a copy of Exh. P. J. Since Faiz Muhammad Sub-Inspector, the S. H. 0. of Police Station Ahmad Yar had already gone to the spot in pursuance of the F, I. R. (Exh. P. D.) lodged by Muhammad Bakhsh P. W. l2, Foot Constable Shahnawaz produced the appellant before the Sub- Inspector at the spot in Chak No. 207/E.B.
Subsequently on 27th November 1966, after interrogation, the appellant is said to have informed the Investigating Officer that he could lead to the recovery of the articles belonging to Mst.
Kariman, which he had stolen after the murder. He accordingly led the police party to the house of Muhammad Siddique in Chak No. 98/12-L, where, on the pointing out of the appellant, a sack of cloth was recovered from under a stack of fuel wood lying under a chappar. It contained two golden ear rings, Exhs. P. 10/1-2, hundred rupees in Rs. 10 currency notes (Exh. P. 11), key Exh. P. 9 and pieces of cloth Exhs. P. l2 to P.
23. The S. 1. took all these articles into possession vide memo. Exh. P. C.
The recoveries were also witnessed by Muhammad Aslam Shah P. W. 6 and Muhammad Sardar P.
W. 9.
5. During the post-mortem examination the following injuries were found by Dr. Iftikhar Ahmad Qureshi, M. O. P. W. 1 on the person of the deceased:--
(1) Brown, dry and parchment like scar mark j'xj'in the middle of interior surface of neck, 2J* x above the upper end of middle of sternum.
(2) One brown scar mark J* x J* on left lower face, 1' to the left and below the left angle of mouth.
(3) Scratch mark 2" x J' on the anterior surface of forearm 2\" below and lateral to the medial condyle of left elbow-joint.
(4) 3 Scratch marks on the ventral surface of terminal phalanx of left ring finger.
The doctor opined that the death had been caused due to asphyxia, on account of strangulation.
The probable time between injury and death was given by him as instantaneous and between death and post-mortem as 24 to 48 hours.
6. The appellant was challaned after completion of the investigation. He was then committed for trial to the Court of Session.
At the trial the prosecution produced I6 witnesses in support of its case.
7. When examined by the learned Inquiry Magistrate during the commitment proceedings and by the learned trial Court at the end of the prosecution examination, the appellant simply denied his guilt and pleaded innocence. He said that he had been involved in the case due to enmity. But he did not give any details of the alleged enmity. He produced no evidence in defence. During the trial, however, a suggestion was put by the learned defence counsel to Muhammad Sharif and Sardar P.
Ws., the brother and son of the deceased respectively that they had killed Mst. Kariman on account of her immoral character. The said witnesses denied this suggestion.
8. Since this is a jail appeal, no one appeared fqr the appellant. We have, however, gone through the entire record with the help of the learned Assistant Advocate-General. The prosecution has produced sixteen witnesses in support of its case but it shall be noticed that there is no eye- witness of the occurrence in this case and the prosecution case rests entirely on circumstantial evidence. ,
9. The circumstances relied upon by the prosecution are--
(1) that the deceased and the appellant lived in the same house in Chak No. 207/E.B. and that no one else resided with them;
(2) that the appellant had a motive to kill Mst. Kariman deceased;
(3) that on 22nd November 1966, the appellant as well as the deceased were absent from the house and the outer door of the house was found locked; that they did not return till about 8-00 p.m. that night, which gave rise to a suspicion;
(4) Sardar P. W. 14, the son of the deceased was called from Arifwala, and the lock on the door was broken open. When Sardar P. W. and other persons entered the house Mst. Kariman was found lying dead on a cot inside one of the rooms, while the appellant was missing; A report was at once lodged at Police Station Yar Ahmad giving inter alia a list of things found to have been stolen from the boxes belonging to Mst. Kariman deceased;
(5) that the appellant turned up at the house of his son-in- law Siddiq in another village (i.e. Chak No. 93/12-L) and confessed his guilt. He also made an extra-judicial confession before Muhammad Aslam Shah P. W. 6, Faqir Muhammad P. W. 7 and Bahadur P. W. 8, residents of Chak No. 98/12-L;
(6) that the appellant was taken by Faqir Muhammad and Bahadur P. Ws. etc. to Police Station Shahkot and report Exh. P. J. was made about the matter, but as the case pertained to the jurisdiction of Police Station Ahmad Yar, the appellant was sent to that police station under escort;
(7) that the stolen articles belonging to Mst. Kariman were got recovered by the appellant from the house of his son-in-law Siddiq.
10. For establishing each of the above-noted circumstances, the prosecution produced different sets of witnesses. Some of the witnesses, however, deposed to more than one of the said circumstances.
Abdul P. W.
10. Muhammad Bakhsh P. W. l2, Muhammad Sharif P. W. 13 and Sardar P. W. 14 deposed with regard to the first of the above-mentioned fact, namely, that after the death of her husband and the departure of her son Sardar P. W. to Arifwala, the deceased used to reside in her house in Chak No. 207/E. B. all by herself, and that about 2$ months before the occurrence the appellant, who was her cousin, came to that village and took up residence with her.
Muhammad Bakhsh P. W. l2 and Muhammad Sharif P. W. 13 deposed with regard to the motive.
Muhammad Bakhsh P. W. is a Lambardar of the village. He stated that 15/16 days before the occurrence the appellant had come to him and requested him to induce Mst. Kariman to marry him. The witness accordingly conveyed this request to Mst. Kariman, but she did not agree and, instead, sent a message to her brother Muhammad Sharif P. W. about this proposal by the appellant. In response to her message Muhammad Sharif P. W. came to the village and reprimanded and abused the accused and told him to get out of the house. Muhammad Sharif P.
W. 13 corroborated this part of the statement of Muhammad Bakhsh, P.W. l2.
Abdul P. W. 10, a brother-in-law of the deceased deposed about circumstances mentioned at (3) and (4) in para. 9 above. He stated that on finding the appellant and the deceased absent from the house and the outer door of the house locked, he became suspicious and informed one Niamat (who has not been produced). They waited till 8-00 p.m. and when neither the deceased nor the appellant turned up, they informed Muhammad Bakhsh Lambardar about this matter. The Lambardar called Nazir Chowkidar (P. W. 11) and sent him to bring Mst. Kariman's son Sardar P. W. 14 from Arifwala. Nazir P. W. accordingly left for Arifwala and brought Sardar P. W. on the next day. The lock on the house was then broken up. Sardar P. W. went in and found his mother lying dead on a cot inside the house.
This version is corroborated by Muhammad Bakhsh P. W. l2, Nazir P. W. 11 as well as Sardar P. W. 14.
Faqir Muhammad P. W. 7 a resident of Chak No. 98/12-L, desposed that Siddiq (who was the son-in- law of the appellant) came and informed him that his father-in-law had come to his house in the village and had told him that he had committed a murder, Bahadur P. W. 8 was also present at that time. Thereupon Faqir Muhammad and Bahadur P. Ws. accompanied Siddiq to his house. Niaz appellant was present there and on an inquiry by the above-noted witnesses he confessed that he had committed murder in Chak No. 207/E. B. They then took him to the dera of Muhammad Aslam Shah P. W. 6, the Chairman of the local Union Council. The appellant again confessed his guilt before Muhammad Aslam Shah and stated that he had murdered a woman in Chak No. 207/E. B. by strangulating and that after the murder he had bolted the door from outside and had put a lock on it. Muhammad Aslam Shah P. W. was very ill. He, therefore, told Faqir Muhammad P. W. to take the appellant to the Police Station. Accordingly Faqir Muhammad, accompanied by Bahadur P. W. and Siddiq took him to Police Station Shah Kot where he made a report of the matter to Naib Moharrir Muhammad Iqbal P. W.
15. This report is Exh. P. J. Since the occurrence related to the jurisdiction of Police Station Ahmad Yar, Muhammad Iqbal P. W. 15 sent him to the said police station in the custody of Shah Nawaz F. C.
This part of the story (mentioned as circumstances Nos. 5: and 6 above) has been supported by Muhammad Aslam Shah P. W. 6, Bahadur P. W. 8, Naib Moharrir Muhammad Iqbal P. W. 15, Muhammad Aslam Shah P. W. 6, Sardar P. W. 14 and Faiz Muhammad A. S. I. P. W. I6 deposed with regard to the recovery of ornaments etc. belonging to the deceased, at the pointing out of the appellant. Sardar P. W. 14, identified the articles.
11. It is pertinent to note that the appellant was very closely related to the deceased as she was Ins maternal uncle's daughter. Sardar P. W. 14 is also, therefore, closely related to him. Abdul P. W. 10 is the brother of the late husband of Mst. Kariman. None of the other witnesses is related to either of the parties. Nothing has been brought on the record to show that there was any previous enmity between the witnesses and the appellant. As a matter of fact the defence has not even made a suggestion to that effect during the cross-examination of the prosecution witnesses. The prosecution witnesses in this case, therefore, had no motive whatsoever to falsely involve the appellant. They have made consistent and straightforward statements and we have no reason to disbelieve them.
Muhammad Aslam Shah P. W. 6 and Muhammad Bakhsh P. W. l2 are respectable persons. They have no axe of their own to grind.
12. Two separate reports about the incident were made at two different police stations. It was contended on behalf of the appellant that in the report made at Police Station Shah Kot, it is stated that the appellant had told the witnesses that he along with Muhammad Sharif, a brother of Mst.
Kariman, had killed the deceased on account of her bad character, whereas at the trial Faqir Muhammad, Bahadur and Muhammad Aslam Shah P. Ws. stated that he had confessed before them that he alone had killed a woman in Chak No. 207/E. B. It was therefore, sought to argue that the evidence with regard to the extrajudicial confession is not reliable and should not be believed.
We are not inclined to agree with this view. Even if it be assumed that the version given in the F. I. R. lodged at Police Station Shahkot is correct and the appellant had mentioned that Muhammad Sharif P. W. had participated with him, in the commission of the murder, it nevertheless remains a confession of his own guilt. Having found the witnesses to be independent, impartial and trustworthy we find that the extra-judicial confession made by the appellant before them, as well as the other circumstances (mentioned at 1 to 6 in para. No. 9 above) deposed to by them stands proved through their testimony.
13. We are, however, not so sure about the evidence with regard to the circumstance mentioned at No. 7 in para. 9 above, namely the recovery of certain articles belonging to the deceased, at the instance of the appellant. Our reason for this is as follows:-- Niaz Ahmed appellant is said to have stolen these articles from the boxes belonging to Mst.
Kariman after murdering her.
He is supposed to have taken these with him to the house of his son-in-law Muhammad Siddique and concealed them there. It is from that house that he brought out these things. The first surprising fact about this aspect of the case, is as to how Sardar P. W. 14, who admittedly did not reside with his mother, Mst. Kariman, was able so accurately, enumerate each and every ornament or piece of cloth allegedly found to be missing from the boxes. Another surprising thing is that the appellant, who readily confessed his guilt before so many persons, did not disclose the whereabouts of these articles till the 27th of November, although he was, admittedly, in the custody of the police since the 23rd of November, again Muhammad Sarwar P. W. 9, one of the witnesses of recoveries has been brought from another village (Chak No. l2[21] /E. B.) situated at a distance of 70 miles as if no witness from the locality was available. It is also noteworthy that all the witnesses of recoveries stated at the trial that the cloth-sack containing the articles and clothing were brought out from inside a chappar, whereas in their statements under section 161, Cr. P. C. they had stated that it was brought out from a kothi inside the courtyard of the house of Siddique. Two witnesses namely Nur Muhammad P. W. 4 a shopkeeper and Muhammad Yaqub P. W. 5 a goldsmith were produced to say that clothes and ornaments etc. had been either purchased or got made by Mst. Kariman and Sardar P. W. from their shops. They had, however, to admit that the clothings and articles in question can be purchased at other shops or manufactured by other persons also. All this makes the recovery of the ornaments etc. very suspicious and we feel that it would be unsafe to rely on the same.
The net result of the above discussion is that all but the last of the circumstances mentioned above stand established.
The fact that Mst. Kariman deceased and Niaz appellant used to reside together, by themselves, in the same house and one fine morning Mst. Kariman was found lying dead in the house while the appellant was found missing, is a very important circumstance. It is similar in nature to a circumstance where the deceased is last seen alive with the accused. Although normally this circumstance, does not, by itself, raise a presumption of guilt against the accused. It does not make him liable to furnish an explanation and a conviction is, as a rule, not based solely on such evidence without any independent corroboration, yet there can certainly be cases where the fact of the deceased having been last seen alive in the company of the accused 'does' put the accused under an obligation or duty to furnish a plausible explanation. In Fazal Elahi v. The Crown (1), it is observed by the Federal Court as follows:-- ".............. For, while the fact of an accused person being the only person in the company of the deceased within a very short time of his death may be almost conclusive, in the absence of explanation from the accused, for holding him to (ITP L D 1953 FC 214 [VOL. V be responsible for the death, should it have been the result of violence, prolongation of the interval generally tends to weaken the inference very greatly. In certain circumstances, as much as an hour's extension may suffice to avoid even the duty of furnishing an explanation. This is the more so if there be no reason shown which would oblige the two men to remain in each other's company "
14. The principle enunciated by their Lordships is that if the accused has met with an unnatural death shortly after having been seen alive with the accused, this fact may be almost conclusive for burdening him with the responsibility for the death, unless, of course, he is able to furnish a plausible explanation which goes to exonerated him, but if the interval between their being last seen together and the deceased being found dead subsequently, is a long one then the presumption tends to became weak.
In another case, namely, Allah Ditta v. The Crown (1) where the deceased was last seen entering a jungle in the company of the accused but was subsequently found dead in that jungle Mr. Justice Cornelius (as his Lordship then was), held that the mere fact that the deceased was last seen alive in the company of the accused coupled with the failure of the accused to furnish an explanation for the death of deceased was enough to sustain finding of guilt against him. The exact observations of his Lordship are as follows:-- "The two matters we have dealt with, coupled with Allah Ditta's failure to furnish an explanation for the disappearance of Mst. Sairan who was last seen alive in his company (he denied the allegations) are in our view amply sufficient to sustain the findings of the Courts below, and we accordingly dismiss the appeal."
The 'two matter' dealt with by his Lordship in that appeal were:-- (0 Whether the identity of Mst. Sairan deceased, who was seen entering the jungle in the company of the accused had been conclusively established,
(ii) whether the evidence of Fajja P. W., who deposed about having seen Mst. Sairan entering the jungle with the appellant was worthy of reliance.
His Lordship arrived at the conclusion that the evidence of Fajja P. W. was reliable and that the indentity of the woman entering the jungle in company of the accused/appellant had been established beyond any doubt.
15. According to the above-mentioned observations of Mr. Justice Cornelius, where tbe fact of the deceased having been last seen alive with an accused is established beyond doubt, the accused is under a duty to furnish an explanation otherwise he 1 shall be presumed to be guilty of having killed the deceased and his failure to furnish a plausible explanation for the death of the deceased would be sufficient to find him guilty.
If the principle enunciated in the above-noted two cases is applied to the present case, the circumstances that Mst. Kariman (who lived in the same house with the appellant), was found dead in the house; the appellant after having locked the house from outside, had gone away and the fact that he has failed to give any explanation for leaving the house after locking it from outside, would by themselves be sufficient to convict him.
In this case, however, apart from the above-noted evidence there are also other circumstances which go to support the view that it was the appellant who has killed Mst. Kariman. It has been established on the record that he had a motive or reason to kill Mst. Kariman deceased. Apart from this he actually admitted having killed her before Muhammad Aslam Shah, Faqir Muhammad and Bahadur P. Ws. We have already held that the witnesses in this case are absolutely independent and impartial person and their evidence is worthy of reliance. The extra-judicial confession of the appellant, deposed to by Muhammad Aslam Shah, Faqir Muhammad and Bahadur a P. Ws. therefore stands fully proved. All the circumstances mentioned above, taken together, are not capable of being explained upon any ether hypothesis except that of the guilt of the appellant. His conduct in absenting himself from the house, which was found locked from outside lead to the inescapable conclusion that it was the appellant who had caused the death of Mst. Kariman. We, therefore hold that the appellant is guilty of the offence under section 302, P. P. C. and has been rightly convicted by the learned trial Court. We therefore see no reason to interfere with his judgment.
I6. The learned trial Court has however not given any finding with regard to the offence under section 380, P. P. C. We therefore proceed to do so. Since we have not believed the evidence of the recovery of ornaments etc., we acquit him of the charge under section 380, P. P. C.
As a result of the above discussion we dismiss the appeal. .