Appellant Muhammad Irshad was tried by Mr. Allah Rahkhio Laghari-II, Additional Sessions Judge (South) Karachi, for the offence under section 302, P.P.C. Who found him guilty and vide judgment, dated 27-8-1990 sentenced him to imprisonment for life and to pay a fine of Rs.10,000 or in default to suffer R.I. For one year. Rs.5,000 out of fine, if recovered were to be paid to the legal heirs of deceased Mst. Gulnaz. The benefit of section 382-B, Cr.P.C. Was also extended to the appellant. By this appeal filed under section 410, Cr.P.C. The appellant has challenged his conviction and sentence.
2. Complainant Shah Nawaz worked as a Chowkidar in Anjuman Behbood-e-Samat-e-Atfal (ABSA School for Deal), Defence Housing Society, Karachi, who resided in servant quarter situated within the compound of the school with his family members. Appellant Muhammad Irshad and his brother Muhammad Nawaz, who are related to complainant Shah Nawaz also resided with him in the same quarter. Appellant Muhammad Irshad developed liking for deceased Mst. Gulnaz daughter of complainant Shah Nawaz, who was aged about 15 years and demanded her hand, which infuriated complainant Shah Nawaz and his wife Mst. Barfi Khanum, who turned out the appellant and his brother from their quarter. It is alleged that on 13-11-1984 at about 10-00 a.m. The appellant caused repeated Chhuri blows to deceased Mst. Gulnaz while she was cleaning the utensils outside the room of her quarter. The shrieks raised by Mst. Gulnaz attracted her father Shah Nawaz, Moosa Khan, Akmal Ahmed and other members of staff of the school. Mst. Gulnaz also came out of the quarter and collapsed on the feet of her father. During this process she could only tell to her father that Irshad had stabbed her. In the meantime appellant scaled over the wall and then bolted away, although he was given a chase. Mst. Gulnaz who had gone unconscious was taken to Jinnah Post Graduate Medical Centre, Karachi, in the van belonging to Akmal Ahmed, but she died on the way. On the same day at 11-00 a.m., Shah Nawaz lodged F.I.R. At Defence Police Station (Crime No.251 of 1984) under section 302, P.P.C. Muhammad Usman S.H.O. Recorded the F.I.R.
He then went to Jinnah Post Graduate Medical Centre, Karachi, where, he held inquest in respect of deceased Mst. Gulnaz. He then proceeded to the scene of incident and prepared such memo. The Police Officer then recorded the statements of almost all the material witnesses. On 14-11-1984 the Police Officer arrested the appellant and recovered blood-stained Chhuri from his possession. The blood-stained clothes of the appellant were also seized and such Mashirnama was prepared.
Some letters were also secured from the possession of the appellant. On 21-11-1984 the appellant was produced before A.C.M.-XVI (South) Karachi, who recorded his judicial confession. The blood- stained articles which were sent to Chemical Examiner, Karachi, were found to be stained with human blood. After completing the investigation the appellant was sent up to stand trial for the offence of murder of Mst. Gulnaz.
3. The appellant pleaded not guilty to the charge framed under section 302, P.P.C. And claimed a trial. At the trial the prosecution examined Shah Nawaz (P.W.1), Mst. Barfi Khanum (P.W.2), Moosa Khan (P.W.3), Akmal Ahmed (P.W.4), Muhammad Fareed (P.W.5), Ghayur Khan alias Qayyum Khan (P.W.6), Mrs. Salima Riaz (P.W.7), Mrs. Nazli Farooqui (P.W.8), Gul Zareen P.C. (P.W.9), Muhammad Rafique (P.W.10), Qazi Siraj Ahmed, Tapedar (P.W.11), Muhammad Usman S.H.O. (P.W.12), Dr. Muhammad Aijaz Ali Khan (P.W.13), and Khursheed Naeem Malik, A.C.M. (P.W.14).
4. In his statement recorded under section 342, Cr.P.C. The appellant has disputed the case of the prosecution. According to him the real culprit was Ghayur (P.W.6) who was saved by the relatives of deceased Mst. Gulnaz and instead he was falsely implicated in this case due to enmity.
5. The appellant examined himself on oath (D.W.1). He also examined his father Khan Afsar (D.W.2), and Ashique Hussain (D.W.3) in his defence.
6. On the assessm ent of evidence available on record the learned Additional Sessions Judge found the appellant guilty and convicted him accordingly. It is in these circumstances that the present appeal has been filed.
7. I have heard Mr. Fazal Dad Khan, learned counsel for the appellant, Mr. S.Z.A. Qureshi, learned counsel for the State and Mr. Muzaffar Ali Khan, learned counsel for the complainant. I have also gone through the record of this case carefully.
8. The fact that deceased Mst. Gulnaz died after sustaining Chhuri blows is not in dispute. Dr. Muhammad Aijaz Ali Khan (P.W.13) who had conducted the autopsy on the dead body of Mst.
Gulnaz found 12 incised wounds on her person. The spleen and liver of deceased Mst. Gulnaz were found cut and these injuries were individually sufficient to cause death in ordinary course of nature.
According to the Medical Officer these injuries were ante-mortem in nature and appeared to have been caused by some sharp-edged weapon like knife. It is thus obvious that whoever had caused these injuries to deceased Mst. Gulnaz had no other intention but to commit her murder.
9. There is no eye-witness in this case which rests mainly on circumstantial evidence consisting of the following items:--
(i) That the appellant had a fancy for deceased Mst. Gulnaz and wanted to marry her.
(ii) That the appellant and his brother Muhammad Nawaz who used to reside in the quarter of complainant Shah Nawaz were turned out by him few months prior to this incident.
(iii) That the appellant was seen going to the quarter of Shah Nawaz by Mst. Barfi Khanum (P.W.2) from the roof of adjoining bungalow where she used to work as maid-servant immediately before this incident.
(iv) That the appellant was found running away after scaling over the compound wall immediately after the incident.
(v) That deceased Mst. Gulnaz had made oral dying declaration to Shah Nawaz (P.W.1), Moosa Khan (P.W.3) and Akmal Ahmed (P.W.4), implicating the appellant.
(vi) That the appellant was arrested on the following day of the incident and from his possession one Chhuri which was found to be stained with human blood was recovered.
(vii) That the appellant was found wearing clothes which on examination were found to be stained with human blood.
(viii) That few letters relating to the motive of this case were secured from the possession of the appellant.
(ix) Retracted judicial confession of the appellant which is self-inculpatory in nature.
10. Before examining the evidence adduced in support of the prosecution version, I propose to examine a legal point that has been urged in the course of arguments. It is contended that the appellant was a `child' within the meaning of Sindh Children Act, 1955, and consequently his trial and conviction before the ordinary Criminal Court had no legal sanctity. Reliance is placed upon a copy of school leaving certificate placed on the record of this Court showing his date of birth as 18- 5-1970. This plea was, however, not raised before the trial Court at the proper time. Even Khan Afsar (D.W.2) who is father of appellant has not uttered a word about the age of appellant in his evidence. There is, therefore, an air of utter unreality about this plea of the appellant which was also not seriouly pressed at any stage of the case.
11. Admittedly the parties are related to each other. The evidence of Shah Nawaz (P.W.1), makes it clear that the appellant and his brother Nawaz resided with him in the same quarter. The evidence of Shah Nawaz (P.W.1) and Mst. Barfi Khanum (RW.2), who are father and mother of deceased Mst.
Gulnaz further shows that the appellant had demanded the hand of deceased Mst. Gulnaz, but the same was refused. There is also no dispute that appellant and his brother Nawaz had been residing at Reti Lines, Kala P.1, Karachi, during the days when this incident took place. It is thus clear that the relations of the parties had become strained after the parents of deceased Mst. Gulnaz had refused to marry her with the appellant and this ground furnishes a strong A motive to appellant, an unsuccessful lover, to commit the murder of an innocent girl who had hardly reached the age of puberty.
12. According to the case of the prosecution deceased Mst. Gulnaz was also alone in her quarter when this incident took place. Admittedly Shah Nawaz (P.W.1), father of deceased Mst. Gulnaz was on duty in the school when he heard the cries raised by deceased Mst. Gulnaz and rushed to the place of incident. Mst. Barfi Khanum (P.W.2) mother of deceased Mst. Gulnaz who was working as maid-servant in the adjoining bungalow was present on the roof of that bungalow where she was spreading the washed clothes on the rope, when she saw the appellant going towards her quarter and since the relations between the parties were strained she rushed towards her quarter but by that time every thing was over. The evidence of Mst. Barfi Khanum (P.W.2), is challenged by the counsel for the appellant mainly on the ground that her name was not disclosed in F.I.R. Which was lodged by her husband Shah Nawaz. The perusal of the record shows that the condition of Mst.
Gulnaz was precarious and she was immediately taken to the hospital in an attempt to save her life. The evidence of Shah Nawaz (P.W.1) further reveals that he had gone to lodge F.I.R. (Exh.6) directly from the hospital. It is also proved from the record that Mst. Barfi Khanum (P.W.2) had not gone to hospital alongwith her daughter Mst. Gulnaz. Mst. Barfi Khanum (P.W.2) had, therefore, no time to convey the above facts to her husband, which resulted in this omission. The F.I.R. Is not a comprehensive document. It is only a complaint for the purpose of setting the law in motion and it is only during the course of investigation that all the details of the incident are collected. The omission of the name of Mst. Barfi Khanum (P.W.2) in F.I.R. (Exh.6) will, therefore, not create any doubt I B about the role assigned to the appellant.
13. The other ground of attack on the evidence of Shah Nawaz (P.W.1), and Mst. Barfi Khanum (P.W.2) is that both of them are close relatives of deceased Mst. Gulnaz and are thus interested in the prosecution. That no c doubt is true, but their testimony cannot be brushed aside on the ground of relationship alone, particularly when it is corroborated by independent evidence and other circumstances of the case. I am, therefore, not prepared to disagree with the view of the learned Additional Sessions Judge in treating the evidence of these witnesses as reliable.
14. The F.I.R. (Exh.6) recites that the appellant was seen running away by complainant Shah Nawaz who escaped after scaling over the compound wall of ABSA School. Shah Nawaz (P.W.1), when examined in Court has not stated a word about it, which has come on record through Moosa Khan (P.W.3) and Akmal Ahmed (P.W.4). Akmal Ahmed (P.W.4) who is an independent witness has, however, confined himself to the fact that soon after the incident he saw one person running away.
Moosa Khan (P.W.3) is husband of the sister of Mst. Barfi Khanum. He worked as mechanic and quite admittedly resided at Hyderabad (Sindh). His arrival at the place of occurrence only to meet Mst. Barfi Khanum smacks of a crude attempt to assert his presence. Since he is a chance witness, it is not safe to accept his evidence when he stated that he saw the appellant running away after scaling over the wall.
15. As regards the evidence of oral dying declaration there is evidence of Shah Nawaz (P.W.1), Moosa Khan (P.W.3), and Akmal Ahmed (P.W.4). Out of them Moosa Khan (P.W.3) is a chance witness and his evidence is already discarded by me in para 14 ante, while discussing other piece of evidence. Shah Nawaz (P.W.1) was on duty in the school when he was attracted by the cries raised by deceased Mst. Gulnaz. He rushed to the Wardat alongwith others and found his daughter Mst. Gulnaz bleeding profusely. She, however, collapsed on his feet, but before going unconscious she stated to her father that `Irshad has stabbed her'. Akmal Ahmed (P.W.4) who is completely an independent person has also testified in the above terms. If indeed this witness was inspired by malice against the appellant to give false evidence, there was nothing to prevent him from claiming to have identified the appellant while running away. He has confined himself to what he had heard from deceased Mst. Gulnaz. Akmal Ahmed (P.W.4) had in fact carried injured Mst. Gulnaz to the hospital in his Suzuki van, when she succumbed to her injuries on the way.
16. The evidence of dying declaration furnished by Shah Nawaz (P.W.1), and Akmal Ahmed (P.W.4) is assailed on two-fold grounds, firstly, that it was in conflict with the medical evidence which discloses that the incident could have taken place at 6-00 a.m. Or 7-00 a.m. And secondly, that the evidence of dying declaration was not supported by Mrs. Salima Riaz (P.W.7), Mrs. Nazli Farooqui (P.W.8), and Muhammad Rafique (P.W.10) who are independent witnesses and were present within the precincts of school at the relevant time. As regards the conflict between the medical evidence and the evidence of Shah Nawaz (P.W.1), and Akmal Ahmed (P.W.4) about the dying declaration, the entire case is built up on the admission made by Dr. Muhammad Aijaz Ali Khan (P.W.13) in the following words:-- "It could be that the girl might have died at 6-00 or 7-00 a.m. On the same day."
Dr. Muhammad Aijaz Ali Khan (P.W.13) has, however, not given any data for arriving at this conclusion. His admission that he was unable to fix the time of death of the girl destroys the whole theory of the defence built on the strength of evidence of Muhammad Rafique (P.W.10), who testified as follows:-- "This incident took place about 3-1/2 years ago. In those days I was working as mason alongwith P.W. Nasiruddin in A.B.S.A. School, Defence Housing Society, Karachi. I cannot say if there was any Chowkidar of the school or not. While I was putting the shuttering inside the school, I found the dead body of girl lying on the ground. I reported the matter to the school authorities. I was examined by the police."
17. Mr. Fazal Dad Khan, learned counsel for the appellant has with great energy put before me reasons for disbelieving the evidence of dying declaration and has endeavoured to show that Mst.
Gulnaz was murdered at about 7-00 a.m. And her dead body was for the first time discovered by Muhammad Rafique (P.W.10) who was a total stranger and had no reason to depose falsely to oblige the appellant. The facts as disclosed by Muhammad Rafique (P.W.10) appear to be inherently absurd. There was no reason for the prosecution witnesses including those who have not implicated the appellant to have changed the venue of incident and the time of occurrence. The evidence of Dr. Muhammad Aijaz Ali Khan (P.W.13) makes it clear that semi-digested food was found in the stomach of deceased Mst. Gulnaz, which belies the defence version about the time of incident. It may be added that it takes about four hours to digest food and . If it is presumed that deceased Mst. Gulnaz took breakfast at 7-00 a.m., the time of incident must have been 10-00 a.m.
The Mashirnama of Wardat (Exh.14) duly proved by Akmal Ahmed (P.W.4), and Muhammad Usman S.H.O. (P.W.12) further makes it clear that the place of Wardat was in the Verandah of the servant quarter of complainant Shah Nawaz (P.W.1). The only fact that Muhammad Rafique (P.W.10) had no apparent reason to depose falsely cannot be a sure guarantee that whatever he has deposed is nothing but truth.
18. Much capital was sought to be made out from the fact that both Mrs. Salima Riaz (P.W.7) and Mrs. Nazli Farooqi (P.W.8) who had reached to the Wardat have not testified about the dying declaration made by deceased Mst. Gulnaz. A careful examination of the evidence available on record shows that all these persons had reached the place where Mst. Gulnaz had collapsed from different spots and at different time and it is nobody's case that all of them were present when deceased Gulnaz informed her father about the name of the assailant. Upon general principles affirmative evidence is to be preferred than the evidence of the witnesses who are silent on any particular point of D evidence. As observed above Akmal Ahmed (P.W.4) is completely a disinterested witness and he gave an account which is untarnished by any exaggeration and which finds support from the circumstances of the case. If the dying declaration is believed it by itself affords a sufficient basis for the E conviction, but the case is supported by other evidence also, which I have discussed earlier, and which will be discussed at the appropriate time.
19. I now proceed to examine the evidence of recoveries which the prosecution has tried to prove through M. Fareed (P.W.5), Ghayur Khan alias Qayyum Khan (P.W.6), and Muhammad Usman S.H.O.
(P.W.12). These recoveries have not been relied upon by the learned Additional Sessions Judge who has advanced cogent reasons for discarding the testimony of the above witnesses on this limited point.. In fact the evidence of M. Fareed (P.W.5) who is a nephew of complainant Shah Nawaz and has acted as one of the Mashirs has given rise to grave doubts about such recoveries and I see no reason to take a different view from the one taken by learned Additional Sessions Judge.
20. Lastly, there is evidence of retracted judicial confession of appellant (Exh.52), which is sought to be proved through Mr. Khursheed Naeem Malik (P.W.14) who was working as A.C.M. (South) Karachi and who recorded the confession after observing the legal formalities and after being satisfied that it was made voluntarily. The most important point that the learned counsel for the appellant has been able to bring out is that, the confession was recorded on 21-11-1984 after one week of the arrest of appellant who was admittedly taken into custody on 14-11-1984. No time as to the recording of the confession is prescribed by law and delay simpliciter in recording of a confession is not fatal. F It appears that feeling the prick of conscience, the appellant was obviously actuated by an extreme sense of regret and remorse of having murdered a girl to whom he loved blindly and thus sought the expiation of his sin. The observations made in the case of Sher Zaman alias Shero v. The State reported in 1983 P Cr. L J 2519, are relevant on the point in issue.
21. The version put forward by the defence appears to be absurd on the face of it. It is beyond imagination that the complainant would screen the real culprit, viz. Ghayur Khan alias Qayyum Khan (P.W.6), and would involve falsely his own relative for no obvious reason. Cases do arise, no doubt, where false additions are made, but the implication of a person who is innocent in place of a guilty is a very rare thing and much more convincing evidence is G required than the one produced in this case. The evidence adduced in defence is vague and sketchy and hardly deserves any credence.
22. On going through the record most carefully and weighing the evidence produced on both the sides, I am disposed to think that while the story related by the defence witnesses is improbable and untrue, there is no reason to disbelieve the above prosecution witnesses.
23. For all the above reasons, I see no merits in this appeal which is accordingly dismissed. In fact the appellant was lucky to get lesser punishment. The appellant will serve out the sentence awarded to him.