RIAZ AHMAD, J.--Appellant Muhammad Rafiq aged 32 years and Abdul Ghani aged 27 years (both real brothers) and sons of Darvesh were tried by the learned Additional Sessions Judge on the charge under section 302 read with 34 of the Pakistan Penal Code for causing the murder of Nawab Din deceased and also on charges under sections 452, 365 read with section 34 of the Pakistan Penal Code.
The learned Additional Sessions Judge, Multan vide his judgment dated 1st September, 1983 found both the appellants guilty on the said charges. Accordingly, appellant Muhammad Rafique on the charge under section 302/34, PPC was sentenced to death and to pay a fine of Rs.10,000 (Rs. Ten thousand only) or in default of the payment of fine, to suffer rigorous imprisonment for a term of two years. On the charge under section 452/34, PPC appellant Muhammad Rafique was sentenced to undergo rigorous imprisonment for a term of two years, and to pay a fine of Rs.500 (Rs. Five hundred only) or in default of the payment of fine to suffer rigorous imprisonment for a term of six months. On the charge under section 365/34, PPC he was further sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.500 (Rs. Five hundred only) or in default of the payment of fine to suffer rigorous imprisonment for six months.
Appellant Abdul Ghani on the charge under section 302/34, PPC was sentenced to undergo life imprisonment, and to pay a fine of Rs.10,000 (Rs.Ten thousand only) or in default of the payment of fine, to suffer rigorous imprisonment for a term of two years. While on the rest charge under section 452/34, PPC, he was sentenced to undergo rigorous imprisonment for a term of two years and to pay a fine of Rs.500 (Rs. Five hundred only) or in' default of the payment of fine, to suffer rigorous imprisonment for six months. On the charge under section 365/34, PPC, he was sentenced to undergo rigorous imprisonment for a term of two years, and to pay a fine of Rs.500 or in default of the payment of fine to suffer rigorous imprisonment for a period of six months. It was further directed that the fine on the charge under section 302/34, PPC, if recovered, half of the same shall be paid to the heirs of Nawab Din, deceased. All the sentences were ordered to be run concurrently.
2. The occurrence resulting into the death of Nawab Din deceased took place on 1st May, 1981 at about 9/10 pm in the house of the deceased situated in Chowk Moharan Wala Taraf Juma Khalsa at a distance of two miles from Police Station Mumtazabad.
FIR Exh. PN in this case was lodged by Zenab Bibi PW-6 (widow of the deceased) at Police Station Mumtazabad at 11-00 pm on the same night, which was recorded by Muhammad Afzal, PW-11, Sub- Inspector.
3. The prosecution case, in brief, as unfolded by the complainant Mst. Zenab Bibi PW-6 in the FIR was that she along with her deceased husband Nawab Din and her daughters, namely, Zeenat aged 21 years and Zarina aged 10 years and her sons Muhammad Nawaz and Muhammad Ikhlaq were living in a house in Basti Kumharan Wali which had been rented out to the deceased by one Munir Ahmed. Two years before the occurrence, Mst. Zeenat was married to the appellant Muhammad Rafique resident of chak No.133/16-L within the area of Police Station Mian Chanun.
According to the complainant Zeenat and her husband could not pull on together and, hence, Mst.
Zeenat returned to the house of her parents, and instituted a suit for dissolution of marriage against appellant Muhammad Rafique in the Court of Civil Judge Family Court Multan. On 29th April, 1981, the said suit was dismissed, and Mst. Zeenat filed an appeal against the judgment dismissing her suit.
On the fateful night at about 9/10 pm, the family members, including, the deceased were sleeping in the courtyard of the house on cots and a lantern was also burning when someone was noticed by the complainant on the western wall of the house. The complainant awakened her deceased husband, who taking the lantern in his hand went outside the house and soon thereafter re- entered the house being chased by appellant Muhammad Rafique armed with a dagger and Abdul Ghani appellant armed with a Kirch. Both the appellants attacked the deceased in the courtyard of the house. The complainant and her daughters raised hue and cry which attracted Sher Muhammad son of Shah Muhammad and Dr. Farooq son of Haji Noor Muhammad. Both the appellants with their weapons inflicted blows on the left flank and chest of the deceased on account of which deceased Nawab Din died at the spot. Zeenat PW-5 (daughter of the deceased) was caught hold of by Muhammad Rafique appellant, who dragged her outside the house for a distance of 100/125 yards near a wagon which was parked outside the house. The appellant forcibly put Zeenat into the wagon, when in the meantime the persons who had gathered near the wagon did not permit the wagon to be driven. All these persons with the help of Sher Muhammad and Farooq caught hold of appellants Muhammad Rafique and Abdul Ghani and driver and conductor of the wagon. Thus, Mst. Zeenat was rescued. The passer byes with the help of the residents of the locality and the eye-witnesses, namely, Sher Muhammad and Dr. Farooq Ahmad brought the wagon and its conductor and driver and the appellants to the police station where the complainant lodged the FIR in the terms noted above.
4. After the registration of the case, the Investigating Officer took the said wagon in possession vide Memo. Exh. PE attested by Sher Muhammad PW-4 and Dr. Farooq (not produced) besides the Investigating Officer Muhammad Afzal PW-11. The Investigating Officer arrested appellant Abdul Ghani and Muhammad Rafique whose clothes were stained with blood, and accordingly their shirt P-1 and Shalwars P.2 stained with blood was got removed by the Investigating Officer and were taken into possession vide memo. Exh.P.F. And attested by Sher Muhammad and Dr. Muhammad Farooq (not produced) besides the PW-11 Muhammad Afzal Sub-Inspector. On search of appellant Muhammad Refique, a blood-stained dagger from a leather case tied with his right calf was recovered, which was taken into possession vide Memo. Exh. PH attested by Sher Muhammad PW-4 and Dr. Farooq (not produced) besides the PW-11 Muhammad Afzal Sub-Inspector.
At the time of arrest of Abdul Ghani appellant he was found to have a stick of wood with two sword blades along with a Kirch, and the same was taken into possession vide Memo. Exh. PK attested by Sher Muhammad PW-4, Dr." Farooq (not produced) besides the Investigating Officer. The Investigating Officer then visited the scene of occurrence- and secured blood-stained earth from the courtyard of the house, vide Memo. Exh. PL. The lantern was also taken into possession vide Memo.Exh.PM. Both these memos were attested by Sher Muhammad and Dr. Farooq (not produced) and the Investigating Officer. The blood-stained clothes of both the appellants along with the dagger and Kirch were sent to the Chemical Examiner and the Serologist. Vide report of the Serologist, all these items, were found to be stained with human blood.
5. On 2nd May, 1981, Dr. Imtiaz Elahi Piracha, Medical Officer, Civil Hospital, Kror Pacca. Multan conducted the post-mortem examination upon the dead body of the deceased Nawab Din and noticed the following injuries:-
(1) Stab wound 4 cm x 1-- cm x abdominal cavity deep. Loops of the intestines and omentum were out of the abdomen in the middle part below epigestrium.
(2) Stab wound 5 cm x 1 cm abdominal cavity deep. Intestines were out of the abdomen of left side, 6 cm above left iliac crest.
(3) Stab wound 5 cm x 1 cm abdominal cavity deep. Intestines were out of the abdomen on the left side -- cm below injury No.2.
(4) Stab wound 4 cm x 1 cm chest cavity deep on the left side of chest 1 cm below left nipple.
(5) Incised wound 2 cm x I cm x skin deep on right side of chest 6 cm below right clavicle.
Injury No.4 was found extended upto the apex of the heart after cutting pleura, left lung and paricardium. Stomach was cut under injury No.1 and the left kidney and intestine under injury No.2 and 3. In the opinion of the doctor, the death had occurred due to shock and haemorrhage resulting from injuries Nos. 1, 2, 3 and 4 which were individually as well as collectively sufficient to cause death in the ordinary course of nature.
6. With the assistance of the learned counsel for the parties, we have carefully gone through the record of this case, and we have also heard the various contentions raised by both the learned counsel.
Main stay of the prosecution is the ocular testimony furnished by Zenab PW-6 (widow of the deceased and mother-in-law of the appellant Muhammad Rafique) and Zeenat PW-5 (the daughter of the deceased and the wife of the complainant) and Sher Muhammad PW-4 (a tonga driver by profession, but an independent witness). The prosecution also relied upon the recoveries of weapons and the blood-stained clothes which were subsequently opined to be stained with human blood coupled with the evidence as to the motive.
7. When examined under section 342 Cr.P.C. Appellant Abdul Ghani denied the charge and stated that he reached the scene of occurrence after the incident, for the rescue of his brother Muhammad Rafique.
Appellant Muhammad Rafique admitted the occurrence and made the following statement:- "The case is based on distorted facts. As suggested by Nawab Din deceaed I visited his house on the fateful n1 lit all alone. I knocked at the door, and when it was opened found Sher Muhammad PW in the objectionable circumstances with my wife in the house of her father. I got infuriated and abused my wife. I tried to apprehend Sher Muhammad, but my father-in-law Nawab Din abused me and prevented me from making attack upon Sher Muhammad and Mst. Zeenat. At that time, I picked up a kitchen knife lying nearby and injured Nawab Din in the meantime Mst. Zeenat and Sher Muhammad were escaped. I had myself reported the matter to the police."
We have carefully examined the plea raised by Muhammad Rafique appellant in juxtaposition with the prosecution case. No doubt, Dr. Farooq was given up having been won over and Zarina, another daughter of the complainant was also given up as un-necessary by the prosecution, but this circumstances has no bearing upon the prosecution case, inasmuch as, the case has been proved by the testimony of Zenab Bibi PW-6 and Zeenat PW-5 and Sher Muhammad PW-4, Zeenat and Zenab Bibi being the daughter and wife of the deceased respectively are the inmates of the house and, therefore, their presence at the spot and having seen the occurrence cannot be doubted. It was however strenuously argued that Sher Muhammad PW-4 is not an independent witness, inasmuch as, he had appeared as witness on behalf of Zeenat PW-5 in the case instituted by her for dissolution of marriage, against appellant Muhammad Rafique but this was denied by the witness in cross-examination whereas the statement of other witnesses disclosed that Sher Muhammad had appeared as a witness. Such denial in our view does not at all effect the inherent worth of his testimony. Sher Muhammad PW-4 had accompanied the complainant side to the police station in the wagon and had attested all the recovery Memos in this case'. No enmity worth the name has been pointed out or brought on the record to doubt his testimony. Even otherwise assuming for the sake of arguments that Sher Muhammad PW-4 is an interested witness, the rule of law would be to seek corroboration of his statement. In this case, ample corroboration in the form of recovery of blood-stained clothes of the appellants and the recovery of weapons, which were found to be stained with human blood, exists on the record to lend strength to the ocular testimony in this case.
The motive in this case is very important and Zeenat PW-5 (wife of the appellant Muhammad Rafique has fully established the cases of her separation and the institution of the suit by her and its subsequent dismissal and the preparation by her to file an appeal against the said dismissal of the suit. Nothing was brought on the record to belie the witness. In our view, the motive in this case is true and has been proved by the prosecution successfully. Even otherwise, we do not find any reason on account of which the mother-in-law would falsely implicate her son-in-law in a murder case. On the other hand husband having been killed, Mst. Zenab PW-6 would be keen to name the actual culprit and would not substitute the appellant to permit the real culprit go scot free. We are thus convinced with the truth of the statement of the eye-witnesses.
The plea raised by appellant Abdul Ghani that he had not participated in the crime is devoid of the truth. It may be stated here that both the appellant were arrested at the spot and were produced along with Wagon which they had brought with them for the abduction of Mst. Zeenat PW-5. Blood- stained clothes of appellant Abdul Ghani also take bottom out of the plea raised by him.
Similarly, the plea raised by appellant Muhammad Rafique is nothing but concoction. Medical evidence in this case clearly establishes that the nature of the injuries received by the deceased could not have been caused with a kitchen knife as alleged by the appellant. The plea of sudden and grave provocation by noticing both Mst.Zeenat and Sher Muhammad in a compromising position is hard to be believed, in our view appellant Muhammad Rafique has merely thrown mud upon his wife to defame her out of spite. We are not prepared to believe that the inmates of the house and, particularly, the mother and father would allow their daughter to carry on with her paramour in their presence in the house. Accordingly, we have no hesitation to repel the plea.
Furthermore, the time of occurrence 9/10 pm was hardly a proper time to visit the house for negotiating the compromise. Absence of injuries on the person of Zeenat and Sher Muhammad also reveal the hollowness of the plea raised by the appellant.
The designs of the appellant were unveiled by the statement of Akhtar Hussain PW-7 the wagon driver who was produced by the prosecution. According to PW-7 Akhtar Hussain, the appellants had approached him and had hired the wagon with a view to transport an ailing lady patient to the hospital. According to PW-7 he willingly agreed and accompanied both the appellants, and on reaching the house of the deceased and the subsequent events revealed the nefarious activity of the appellants when they tried to forcibly abduct Mst. Zeenat in the Wagon.
It was argued that the testimony of Akhtar Hussain should not be believed, inasmuch as he was an accomplice, because he had accompanied the appellants to abduct Mst. Zeenat. We are afraid that we cannot agree with such wild contention. The circumstances indicated that the appellants had in fact laid a trap for Akhtar Hussain to fall in. But according to the statement of Akhtar Hussain, he had driven the wagon along with the appellants who had been overpowered by the residents of the locality to the police station. P.W.7 Akhtar Hussain has no interest and in fact he has spoken the truth, and his testimony also corroborates the ocular account furnished by Mst. Zeenat P.W.5 and Mst. Zenab P.W.6. The witness had in fact refused to be a party to the abduction.
9. To sum up, the ocular testimony furnished by Mst. Zenab P.W.6 and Zeenat P.W.5 both inmates the house cannot be doubted. The blood-stained earth was also collected from the courtyard of the house of the deceased which goes a long way to establish the place of occurrence as alleged by the prosecution. Sher Muhammad P.W.4 :o an independent witness and is the resident of the same vicinity and was returning to his house after hearing an alarm, he entered the house and saw the occurrence. The testimony having been corroborated amply by the recovery blood-stained weapons, and the arrest of the appellants at the spot and their production along with the wagon in the police station leaves no doubt in our minds that the prosecution has successfully brought home the guilt to the accused. In this view of the matter, we find no merit in this appeal, and the same is hereby dismissed. Death sentence awarded to appellant Muhammad Rafique is hereby confirmed. Sentence awarded to him on the other charges is also maintained.
Similarly, the appeal of appellant Abdul Ghani also fails. His conviction and sentence on all the charges, including, one under section 302, P.P.C., is hereby maintained.
Consequently, appeal filed by both the appellants is hereby dismissed, and the Reference is answered accordingly.