' ABDUL MAJID TIWANA, J.--- This judgment shall dispose of Murder Reference No,90 of 1986 as also Criminal Appeal No,214 of 1986, both arising out of the judgment, dated 16-3-1986, by which Mr. Nusrat Hussain Qureshi, Additional Sessions Judge, Lahore, convicting Ahmad Din appellant under section 302, P.P.C. Sentenced him to death and a fine of Rs,3,000 or in default to undergo one year's R.I. Besides directing him to pay a compensation of Rs,2,000 under section 544-A, Cr.P.C. Or in default of its payment to suffer six months' R.I. More, for having committed the murder of Muhammad Iqbal. He, however, acquitted Mst. Aziz Bibi alias Jijan co-accused, the wife of Muhammad Iqbal deceased, who was allegedly instrumental in getting her husband killed by the appellant, her paramour.
2. The prosecution story, as embodied in the statement recorded by Muhammad Jaffar complainant resident of Ward No,2, Chunian, before A.S.I. Abdul Ghafoor of Police Station Badami Bagh, Lahore on 27-6-1984 at 7 a.m. In Mayo Hospital, Lahore, is as under:-- "Muhammad Iqbal (deceased), a nephew of Muhammad Jaffar complainant, had married Mst. Aziz Bibi alias Jijan, the acquitted accused, and out of this wedlock a son and three daughters were born during their stay at Mom Noorpur-Jattan. About a year prior to the occurrence Muhammad Iqbal (deceased) shifted his hearth and home to Theeng-Mor and settled there. Previously he was labourer in Pattoki Suger Mill but after shifting his residence he started selling cutpieces of cloth in Chunian after bringing the same from Azam Cloth Market, Lahore.
' Ahmad Din appellant, who was a cousin of Muhammad Iqbal (deceased), was on visiting terms with him and taking advantage of these contacts he developed illicit relations with his wife Mst. Aziz Bibi alias Jijan. A few days before the occurrence Muhammad Iqbal (deceased) happened to see Ahmad Din appellant in compromising position with his wife and he informed Rana Muhammad Ibrahim and Ataur Rehman Saeed about this incident and they admonished the appellant and the lady which caused annoyance to them.
' On 26-6-1984 Muhammad Iqbal (deceased) accompanied by his uncle Muhammad Jaffar complainant left for Lahore for purchasing cutpieces of cloth and when they reached a little away from Old Ravi Bridge at about 8-30 p.m., they decided to spend the night at Bund-Road as by tha!
Time the cloth market had closed. Being a summer night both of them down on Band by Road near Morcha and went to sleep. Ahmad Din appellant was on the look out and following them also came to Lahore At about Sehri Waila when they woke up, to their surprise they saw Ahmad Din appellant armed with Chhuri and approaching them. He raised Lalkara addressing Muhammad Iqbal (deceased) and gave him Chhuri blows on his abdomen as a result of which he fell down on Pakka Road. He repeated the blows which landed on his neck and then went or, giving blows on different parts of his body. Muhammad Iqbal (deceased) raised alarm but no body rescued him out of the fear of the assailant After inflicting blows the appellant ran away from the place of occurrence and Muhammad Iqbal (deceased) lay grievously injured or, the road.
' After a while Allama Syed Muhammad Zahid Siddiqui (P.W.) who was returning home after attending Shabina in a mosque, followed by Abdul Hameed (P.W.) who came there in order to ease himself happened to pass from near the place of occurrence and seeing Muhammad Iqbal (deceased) lying injured inquired from him about the occurrence and he told them that Ahmad Din appellant had developed illicit relations with his wife Mst. Aziz Bibi alias Jijan acquitted accused and when he tried to stop them from doing so, he (appellant) at the instance of his wife caused him injuries and in case he died both of them were responsible for his murder. Then he was removed to Mayo Hospital, Lahore, by Muhammad Afzal Constable and other persons where he succumbed to his injuries a little before recording this statement."
3. In the early morning of 27-6-1984 A.S.T. Abdul Ghafoor (P.W.) on the receipt of an information about the occurrence and presence of injured in the hospital, went to Mayo Hospital, Lahore. He tried to record the statement of the injured but the doctor opined that he was not fit to make statement. Then he recorded the aforesaid statement (Exh.P.C.) of Muhammad Jaffar complainant and sending the same to the police station for the registration of the case, took up its investigation.
He inspected the spot and seized the blood-stained earth. On 296-1984 he arrested the appellant and his acquitted co-accused from General Bus Stand, Badami Bagh, Lahore and took into possession his shirt (P.6) and Shalwar (P.7) vide memo. (Exh.P.H.) as both were blood-stained. On 3-7-1984 Ahmad Din appellant while in custody led to the recovery of blood-stained Chhuri (P.5) from near the place of occurrence which the Investigating Officer seized vide a recovery memo.
(Exh.P.E.) after making it into a sealed parcel. In this way he completed the investigation and submitted the challan.
4. On the commencement of trial in the Court of learned Additional Sessions Judge, Lahore, the appellant and his co-accused Mst. Aziz Bibi alias Jijan were charged for the murder of Muhammad Iqbal (deceased) in furtherance of their common intention and on their pleading not guilty the prosecution led evidence against them by producing as many as 14 witnesses.
5. To be a little more precise, H.C. Riaz Ahmad (P.W.1) deposed about the safe custody of the parcels pertaining to this case in Police Malkhana before their transmission to the office of Chemical Examiner at Lahore. Constable Muhammad Afzal (P.W.2) testified that on 26-6-1984 when he was present on duty at Bund Road in the area of Badami Bagh, Lahore he, a little after the morning prayer call, received an information that some body was lying injured on Bund Road near Morcha and going there he removed Muhammad Iqbal injured from the spot to Mayo Hospital, Lahore. According to him, the doctor gave him the shirt (P.1), Chadar (P.2) and Parna (P.3) of the deceased which he passed on to A.S.I. Abdul Ghafoor. On 9-7-1984 H.C. Riaz Ahmad gave him two or three sealed parcels which he deposited intact in the office of Chemical Examiner, Lahore, he added. Constable Muhammad Shall (P.W.3) deposed that on 26-6-1984 Muhammad Jafar complainant gave him a card (Exh.P.4) in Mayo Hospital, Lahore and he handed it over to A.S.I.
Abdul Ghafoor.
6. Ataur Rehman Saeed (P.W.4) stated that during the month of Ramazan 1984 when he was present with Rana Muhammad Ibrahim (P.W.2) at his Tube-well, Muhammad Iqbal (deceased) came there and complained to him (Rana Muhammad Ibrahim) about the illicit relations of the appellant with his wife and Rana Muhammad Ibrahim after sending for Mst. Aziz Bibi alias Jijan and the appellant, reprimanded them and annoyed by it they left the place with a threat. Ghulam Muhammad (P.W.5) is the witness of extra-judicial confession of Mst. Aziz Bibi alias Jijan acquitted accused.
7. Muhammad Jaffar (P.W.6) was the first informant and an eye-witness of the occurrence. His statement finds reflection in the above narration of the prosecution story. His statement shall he subjected to deep appraisal in due course where necessary. He also claimed to have witnessed the recovery of blood stained Chhuri (P.5) at the instance of the appellant from near the place of occurrence.
8. Allama Syed Muhammad Zahid Siddiqui (P.W.7) testified that on 27-6-1984 at about Schri Waila when he was returning home from a mosque situated near Bund Road, Lahore, after participating in the Shabina, he saw a person lying in an injured condition at Bund Road and when he asked him about the occurrence he told him that his name was Muhammad Iqbal and he was resident of Theeng Mor. According to him, he further told him that Ahmad Din, son of his Bhuwa, was in love with his wife and he had brought him there for purchasing cutpicces of cloth and he had injured him and also snatched away a sum of Rs,1,000 from him and that he should be taken to Theeng Mor. He deposed that after listening to the injured he went to Police Station Badami Bagh and informed the police about the incident. Some other persons were also present at the spot when he talked to Muhammad Iqbal at Bund Road but they were not known to him, he added. Abdul Hameed (P.W.8) testified that about one and a half years ago when he went towards Bund Road early in the morning in order to ease himself, he saw a person named Muhammad Iqbal lying injured and crying near Morcha. According to him, a police constable came there and then he, Muhammad Jaffar, a relation of the injured, and the constable removed the injured from the spot in a pick-up to Mayo Hospital, Lahore and prior to his removal when he asked him as to how he had been injured he had told him that one Ahmad Din who was the son of his father's sister had caused him injuries because he had developed illicit relations with his wife. He further stated that after leaving the injured at the hospital he had gone to his house but on the same day he later joined investigation when in his presence A.S.I. Abdul Ghafoor had collected blood-stained earth from the spot.
9. Dr. Muhammad Javaid Athar, Registrar, West Surgical Ward, Mayo Hospital, Lahore (P.W.9) proved the death certificate of Muhammad Iqbal (deceased) (Exh.P.F.) and (Exh.P.G.) issued by Dr. Shahid earstwhile House Surgeon of West Surgical Ward, Mayo Hospital, Lahore by way of secondary evidence by identifying his handwriting and signatures. Muhammad Saleem (P.W.10) deposed about the arrest of Ahmad Din appellant and Mst. Aziz Bibi co-accused from the General Bus Stand, Lahore, by the police on the pointing out of the complainant and seizure of blood- stained clothes of Ahmad Din appellant vide recovery memo. (Exh.P.H.).
10. The next witness was A.S.I. Abdul Ghafoor (P.W.11). The part played by him as Investigating Officer has already been outlined. Hamidud Din Chishti, Draftsman (P.W.12) proved the site plan (Exh.P.L.)
11. Dr. Zahir Anjum Shirazi (P.W.13) had conducted post-mortem examination on the dead body of Muhammad Iqbal on 28-6-1984 after it had been brought by Muhammad Iqbal Constable and identified by Muhammad Jaffar complainant and had found 12 surgical stitched wounds. Out of them, five were located on the neck, one on the chest, two on the abdomen and four on the left arm. He also noticed eight multiple abrasions on different parts of the body.
12. On exploration he found evidence of surgical repair on stomach and diaphragm and paritonium. He also found thorax, hyoid bone and thyroid cartilage injured. In his opinion, the injuries were anti-mortem and some of them caused by surgical intervention. According to him, injuries Nos.13 to 20 were caused by a blunt weapon and all other injuries, as per Medico-legal report, were caused by a sharp-edged weapon. Death in this case occurred due to haemorrhage and shock as a result of injuries Nos.1 to 12. The probable time that elapsed between injuries and death was 6 to 18 hours and that between death and post-mortem examination from 20 to 30 hours. He proved the post-mortem examination report (Exh.P.M.) and the sketches of injuries (Exh.P.M./1) and (Exh.P.M./2).
13. The last witness was Dr. Zulfiqar Siddiqui Qureshi. He deposed that on 27-6-1984 he medically examined Muhammad Iqbal injured who was brought to the Hospital by Muhammad Afzal Constable No,7652 of Police Station Badami Bagh, Lahore at 6-20 a.m. And at that time the injured was conscious having blood pressure of 110/70 and pulse rate of 116 per minute and his body stood covered with mud. He found the following injuries on his person:--
(1) Incised wound 2 c.m. x 1 c.m. In front of right side of thoraco abdominal junction, 4 c.m. From mid-line. Depth of the wound was not probed.
(2) Incised wound 2-1/4 c.m. x 1 c.m. On front of thorax, 2 c.m. Left to mid-line at the level of 8th rib.
Wound was skin deep.
(3) Incised would 12 c.m. x 3 c.m. Placed almost horizontally, wound was going deep on the left lateral side of abdomen at the level of about 12th rib. Depth of the wound was not probed.
(4) Incised wound 10 c.m. x 3 c.m. On mid left side of neck. Sternocleidomastoid muscle was cut.
Wound was touching on front to the mid line. Depth was not probed.
(5) Incised wound 5 c.m. x 1 c.m. On right side of neck, extending on front of neck to 2 c.m. Left to mid-line. Depth of the wound was not probed.
(6) Incised wound 1 c.m. x 1/4 c.m. On left side below chin. Wound was skin deep.
(7) Incised wound 4-1/2 c.m. x 1-1/2 c.m. Below left ear muscle deep.
(8) Incised wound 7 c.m. x 2 c.m. Horizontally placed on left side of face extending from 2 c.m.
Below left angle of mouth to left side of neck. Depth of the wound was not probed.
(9) Incised wound 2-1/2 c.m. x 1 c.m. On front of left forearm 4 c.m. From left wrist. The wound was skin deep.
(10) Incised wound 5 c.m. x 2 c.m. On front of left hand, extending to the medial hedge, hyposthenia muscle was cut deeply.
' According to him, injuries Nos. 2, 6, 7, 9 and 10 were simple, while injuries Nos. 1, 3, 4, 5 and 8 were kept under observation. All these injuries were fresh and were caused by a sharp-edged weapon, he added. With reference to operation notes he stated that on 17-7-1984 injuries Nos.3, 4 and 5 were found grievous while injuries Nos. 1 and ,8 were declared simple. He proved the medico-legal report (Exh.P.M.). In reply to a question of the learned defence counsel he stated that in the column relating to the presence of any relation of the injured at the time of medical examination no name of any relative stood mentioned. In reply to another question he asserted that neither the patient asked him to record his statement nor the constable who brought him.
14. The learned prosecutor gave up Rana Muhammad Ibrahim and Haji Muhammad Alam (P.Ws.) as having been won over and Muhammad Arif and Allah Rakha (P.Ws.) as unnecessary and tendered in evidence the report of Chemical Examiner (Exh.P.O.) and that of Serologist (Exh.P.P.) and closed the prosecution case. The appellant and his acquitted co-accused denied all the incriminating circumstances figuring against them in the prosecution evidence and alleging their false implication, professed innocence. Explaining his involvement in the case Ahmad Din appellant stated that he had succeeded in getting the daughter of his sister Mst. Maryam engaged with the son of Muhammad Iqbal (deceased) which annoyed Muhammad Jaffar (P.W.) because he wanted to marry the daughter of his sister with the deceased's son and he got him falsely implicated in this case. His acquitted co-accused also made a similar statement about her involvement. Both of them appeared as their own witnesses as contemplated by section 340, Cr.P.C. And reiterated their false implication. The learned trial Judge by the impugned judgment, after acquitting Mst. Aziz Bibi alias Jijan accused on benefit of doubt convicted Ahmad Din appellant in the manner aforesaid and aggrieved by it he has preferred the appeal while the learned Additional Sessions Judge has made the reference for the confirmation of his death sentence.
15. It is argued on behalf of the appellant that Muhammad Jaffar complainant was not present at the time of occurrence and he was made complainant by the police after calling him from his house when the police came to know that he was related to the deceased and was inimical with the appellant. According to the learned counsel, the occurrence remained unwitnessed and the appellant was falsely implicated in this case on account of his animosity with Muhammad Jaffar complainant. He submits that there was no proof of appellant's having illicit relations with the wife of the deceased and this part of the prosecution story was concocted by Muhammad Jaffar (P.W.) in collusion with the police. He contends that if the testimony of Muhammad Jaffar complainant he excluded then the only piece of evidence that remained with the prosecution was the verbal dying declaration of the deceased made to Allama Syed Muhammad Zahid Siddiqui (P.W.7) and Abdul Hameed (P.W.8) which was not sufficient to base conviction of the appellant and if the same be believed then it would contradict the entire prosecution case as related by Muhammad Jaffar complainant.
16. Muhammad Jaffar complainant was paternal-uncle of Ahmad Din appellant and maternal- uncle of Muhammad Iqbal (deceased). He alleged illicit relations of the appellant with the wife of the deceased and blamed the former for the murder of the latter on the abetment of Mst. Aziz. Bibi alias Jijan acquitted accused. Due to his close relationship with the appellant as well as with the deceased whatever he has alleged may not be incorrect but the manner in which the occurrence is said to have taken place appears to be doubtful. He has claimed himself to be the eye-witness of the occurrence having accompanied the deceased from his house to Bund Road, Lahore and his being present at the time when the appellant assaulted his victim. We are convinced that the appellant did assault the deceased at Bund Road, Lahore and caused him fatal injuries but we doubt if Muhammad Jaffar was present and had seen the occurrence. Had he been present he would not have watched his real maternal-nephedatedly attacked with a Chhura by his paternal- nephew, as ad on-looker, nor he would have allowed the injured to writhe in the muddy place because, according to medical evidence, when the injured was taken to the hospital his body stood covered with mud. The column relating to the presence of the relations at the time of medical examination in the medico-legal report was lying blank. It also gave an indication that when the injured d and medically examined, none of his relations, including Muhammad Jaffar complainant, was present. What actually seems to have happened was that Muhammad Iqbal (deceased) was grievously injured at Bund Road by Ahmad Din appellant who after committing the crime ran away and the deceased was seen lying injured by Allama Syed Muhammad Zahid Siddiqui (P.W.) who was going to his house after attending Shabina in a mosque and after listening to the story of injured he informed Badami Bagh Police and the police constable later removed the injured to the hospital. It was the injured himself who had disclosed the identity of his assailant while giving account of the occurrence to Allama Syed Muhammad Zahid Siddiqui (P.W.) and the police with the help of those particulars came to know about the place where the deceased and his family resided as also the place of residence of the appellant and in this way they made Muhammad Jaffar a formal complainant and putting the story of dying declaration in his mouth cited him as an eye-witness, thereby giving a twist to the real facts of the prosecution case. The first informant in this case in fact was Allama Syed Muhammad Zahid Siddiqui (P.W.) whose veracity and impartiality was above board. Being a highly educated person in Theology he was a truthful and independent witness by all standards and he gave the account of dying declaration of Muhammad Iqbal (deceased) in a forthright manner. The dying declaration by itself suffered from no legal infirmity whatsoever as there was none to brief or tutor its maker who was under the apprehension of death and whatever had actually transpired he related in a straightforward manner indicating therein the motive for the crime, the name and address of his assailant, the manner he brought him to the place of occurrence and after assaulting him took away his money.
17. Much stress has been laid by the learned counsel for the appellant that if the deceased knew that the appellant was carrying on with his wife and he had even complained about their conduct to Rana Muhammad Ibrahim about their immorality and he had reprimanded them and they had posed a threat, then the appellant was not expected to accompany the deceased to Lahore and both of them staying for the night at a deserted place. This is true that if the illicit relations between the appellant and Mst. Aziz Bibi alias Jijan had been drummed up by the deceased to the extent of bringing to the notice of Rana Muhammad Ibrahim and he had reprimanded them by calling them to his Dera then of course there could be remoter possibility of the deceased's having accompanied the appellant to Lahore and their staying for the night together at an unfrequented place but if the matter had not been publicized to that extent and only the deceased had its knowledge or suspicion then they could travel and stay together as given out by the deceased in his dying declaration, particularly when they were so closely related to each other and the deceased's wife was playing the role of an abettor. In a situation like this when the wife of the deceased was in league with the appellant, they could easily plan and persuade the deceased to accompany him (appellant). In this connection her statement recorded under section 340(2), Cr.P.C. That she had given a sum of Rs,1,000 to her husband and he went to Lahore is worth considering.
18. In any case, the oral dying declaration of Muhammad Iqbal (deceased) made to Allama Syed Muhammad Zahid Siddiqui (P.W.7) is a reliable piece of B evidence which, as held in Shahbaz v.
Crown PLD 1953 Lah. 566 and Muhammad Afzal v. Faqir PLD 1984 SC 375, by itself is sufficient to base conviction of the appellant for the murder of Muhammad Iqbal (deceaed). This dying declaration to some extent finds corroboration from the evidence of recovery of blood-stained Chhuri (P.5) at the instance of the appellant and statement of Mst. Aziz Bibi alias Jijan made under section 340, Cr.P.C. While appearing as her own witness (D.W.2) wherein she had stated that she had given Rs,1,000 to her husband for purchasing cutpicces of cloth and he had left for Lahore. In the dying declaration made to Allama Syed Muhammad Zahid Siddiqui he had stated that his assailant Ahmad Din appellant had, after causing injuries to him, also snatched away Rs,1,000 from him which he had brought for purchasing cutpicces of cloth. In view of the above, we dismiss the appeal of c Ahmad Din appellant and confirm his death sentence and dispose of the appeal as well as the reference accordingly.