' JAMALUDD1N H. AHMAD, J.-The appellant Ali Sher son of Sadruddin who described himself as inhabitant of Liaquatabad, Karachi, has been convicted by the Ex-Officio Additional Sessions Judge, Karachi, for offences under sections 302 and 324, P. P. C. And has been respectively sentenced to death and R.
1. For 10 months under these sections. The latter sentence is to be enforced only if death sentence is not confirmed.
' This is a case of double murder and the appellant is alleged to have caused the death of Rustam his maternal uncle and father-in-law, besides that of one Islamuddin, a neighbour, who came up only to intervene. He also caused a simple injury to his mother-in-law Mst. Akhtari with the churri (knife) that he had. This incident had taken place on 11-5-19o9 at about 8-30 p.m. In the jhuggi
(hut) of deceased Rustam which was situated near Gujjar Nala in the Golimar Area, and the F. I. R.
For it was lodged at 9-05 p.m. By the injured Mst. Akhtari herself, at Golimar Police Station, after covering a distance of about miles. S. H.
0. Syed Hassan Ahmed registered the report for offence under section 307, P. P. C., and he immediately sent the two injured, who though drenched in blood, were still in a state of unconsciousness, to the Civil Hospital through A. S. I. Mohammad Ishaque. The two persons, Imamuddin and Mohammad Fateh Chisti, who had accompanied Mst. Akhtari and brought the injured in Motor Rickshaw, also went with him.
' The F. I. R. Shows that the appellant was married to Mst. Kausar, the daughter of Rustam and injured Akhtari Begum, and started living with them in their hut. However, within a short time differences between them developed, and there had been a quarrel amongst them in the month of Ramazan, whereafter he had completely separated from them. This matter was also taken to Court but no settlement had yet been reached as the appellant was not attending the proceedings. In the month of Baqra-Eid the family had come to the jhuggi at Gujjar Nala where also the appellant had come and had planned to take away Mst. Kausar, but she was not willing to go with him. On the day of incident the appellant had come at about 8-30 or 8-45 p.m. And as Mst. Akhtari asked him the purpose of his visit, he struck her with a curri in her left arm pit and injured her. Rustam, her husband got up to catch him but the appellant fell him down on the cot and began to give him blows with the same churri. Mst. Akhtari raised cries and the people of the Mohalla came up one of whom was Islamuddin, who wanted to intervene. The appellant gave chard blows to him also.
Rustam and Islamuddin had become unconscious, and Met. Akhtari taking them, alongwith other Mohalia people including Imamuddin and Mohammad Fateh Chishti came to the Police Station and lodged her report. M the time of the incident according to her report, her daughter Kausar and her 11 years old son were present in the house. The appellant however ran away on arrival of the Mohalla people, but he left behind his cycle on the spot. The motive for causing this offence was shown as enmity on account of the refusal of Mst. Kausar to go with the appellant.
' Having sent the injured to Civil Hospital, as stated, the S. H.
0. Took Mst. Akhtari with himself and came to her jhuggi, where he inspected the wardat and found blood, on and beneath, the cot inside the jhuggi. Blood was also found near the door outside the hut. A cycle and one pair of sponge chappals were also found outside the but which he seized. He thereafter received information that the two injured in the Civil Hospital had died.
' He went there and inspecting the dead bodies of both Rustam and Islamuddin prepared such memos and also inquest reports which are all signed by Imamuddin, Mohammad Fateh Chishti and Ikrainuddin and as these documents were produced by witness Imamuddin at the trial, they show his association with the investigating police till 11-00 p.m. On that day. The S. H.
0. Returned to the wardat once again where he recorded the statements of witnesses, including that of Imamuddin.
' Now somewhat unusually in this case, the sketch of the scene is not prepared by a tapedar or any other expert and what has been produced as Exh. 50 at the trial is only a rough sketch prepared by the S. H.
0. Himself with no reference to actual measurements, and which can only show that the house of deceased Rustam and the house of deceased Islamuddin were adjacent. Significantly the house of Imamuddin who is the real brother of deceased Islamuddin has not been shown in this sketch, though it has come in evidence that there was only one other house intervening their houses. This fact assumes importance for the later claims to have seen the appellant striking the deceased in front of the jhuggi of Rustam. The sketch, ho Never, does show the snot outside the but where there was blood and where Islamuddin had fallen.
' Athough, the F. I. R. Disclosed only three persons who witnessed the appellant causing injuries to the two deceased, and the names of the Mohalla people who came alongwith Islamuddin in the but were not disclosed, the prosecution examined in all seven persons, at the trial, as witnesses of the incident. These could easily be categorized into two groups; the one, of those who are relations of deceased Rustam and therefore also of the appellant and were inside the hut, and the other, of relations of Islamuddin who were outside the hut, and some of whom claim to have seen the appellant, striking deceased Islamuddin there. And, as the first group did not support the prosecution case at the trial, it would be convenient first to examine the evidence of the other group of witnesses which is connected with deceased Islamuddin, and they are P. W. 1 Imamuddin the brother of deceased Islamuddin, P. W. 2, Liaquat, his nephew, P. W. 3, Mst. Anwari, his wife and P.
W. 4, Mohammad Sarwar, his son.
' Now, Dr. Mohammad Umar Khan, who examined the dead body of Islamuddin found the following injuries on his person :- "(1) Stab wound on right side back at the level of 5th thoric spine 2" lateral to mid line transverse in direction 11" x 3/4" x cavity deep. (2) Abrasion on left knee 11" x 3/4".
' In his opinion the first injury was sufficient to cause death in the ordinary course of human nature.
As the abrasion on the left knee could be attributed to his fall on the ground, the main question for consideration would be whether the single blow, which proved fatal, was caused within the hut, or outside and within the sight of these witnesses as stated by them at the trial. For this reason their evidence is also to he examined in the context of the other facts and circumstances appearing in the case. Now, except Imamuddin, none of the other three witnesses, is named in the F. I. R., and although the S. H.
0. Visited the place twice on the day of incident, P. W. Anwari and P. W. Sarwar were admittedly examined by him only on 15-5-1969; and even then they did not state that they had seen the appellant giving the blow to Islamuddin. The defence by confronting the witnesses, successfully proved that Mst. Anwari did not state before the police that she saw appellant giving churri blows to her husband and similarly P. W. Sarwar had not said that be saw appellant running away after giving churl.: blows to his father, which was their case at the trial. Their statements, even otherwise are not reconcilable, for according to P. W. Anwari, Sarwar had preceded her while P. W. Imamuddin bad reached 2-3 minutes after she reached the spot, in which situation P. W. Sarwar should have been more specific than he is, about seeing the appellant giving the actual injury and, on the other hand, P. W. Imamuddin may not have seen anything. But quite contrary to all this, P. W. Imamuddin though not an eye-witnes', according to the F. I. R. Was more descriptive about the manner in which injuries were caused to Islamuddin, and he stated: "I found accused Ali Sher in the grip of Islamuddin. Islamuddin was holding him from back. Within my sight accused Ali Sher who had a churri with him struck at Islamuddin on his bask. Islamuddin had fallen down after receiving injuries." No wthis statement is patently incompatible with the location and type of the injury found on Islamuddin by the Medical Officer and even the learned Assistant Advocate General, who appeared for the State, in spite of making several attempts to explain, couli not positively conceive of a position in which this particular injury could have possibly been caused in the manner as described by this witness. As discussed earlier, this witness had come to the Police Station alongwith the complainant and two injured, and was in contact with the S. H.
0. Till late in the night, but obviously he had not disclosed to him what he stated at the trial and that seems to be the reason why the S. H.
0. Did not examine P. W. Anwari and P. W. Sarwar, earlier; particularly when they were available all the time. Possibly in that case he would also have shown his house in the sketch Exh.
50. On the other hand, P. W. 2, Liaquat, his son and a youth of 24 years, who was also taking meals with him when they heard commotion, and who also followed him stated that he found Islamuddin lying in front of the door of his house in a pool of blood. According to him, Imamuddin, Sarwar and Mst. Anwari were also there and it was in his presence that Islamuddin was removed in a rickshaw by lmarnuddin and Sarwar; but the information that it was the appellant who had stabbed both Rustam and Islamuddin was given to him by Mst. Akhtari at the time he entered their jhuggi after the departure of his father. Neither Imamuddin nor Sarwar informed him about the appellant. Even Mst Anwari who admittedly remained at the spot did not give him the name of the appellant. These are features which appear to he consistent with the conclusion that these witnesses had not seen the appellant stabbing Islamuddin.
' The overall impression created by the evidence of these for witnesses is thus not one of inspiring any confidence about the truthfulness regarding their claim that they actually saw the appellant stabbing Islamuddin and in view of their earlier contrary versions it can by no means be safe to rely on their testimony in that respect.
' The other category of witnesses consists of P. W. Mst. Akhtari, who was the wife of deceased Rustam at the time of incident, but thereafter married one Mahmood Qureshi, P. W. Mst. Kausar wife of the appellant and P. W. Muhammad Rashid son of the deceased Rustam, who according to the first information report were all inside the house and had seen the appellant causing injuries not only to deceased Rustam but also to Islam ud.Din and to Mst. Akhtari. These witnesses however did not support the case of the prosecution at the trial.
' According to the medical evidence, deceased Rustam had the following dnjuries on his person:- "(1) Incised wound on right iliac fossa 1" x x cavity deep with a loop of intestine protruding out.
(2) Incised wound back of left thigh 2i" below the fold of left buttock 2" x 2" x through x through, probably two stabs united, cutting, the structures and muscle underneath. (Wound of inlet). ,(3) Incised wound on medial side of left thigh 1' x 1" x whole thickness and the margin were averted.
(Wound of exit).
(4) Incised wound on left inguinal region deep.
(5) Tiny incised wound left side chest x I" x skin deep.
(e) Abrasion on right mid tibia (leg) 1" x r." do the opinion of the doctor Injuries Nos. 1 and 2 were collectively and individually sufficient to cause death in the ordinary course of nature. The presence of blood on and below the cot, as already stated, would show that the injured was given blows within the but and these three witnesses were also admittedly within the but at that time and could have naturally seen the culprit. But at the trial, all these three witnesses stated that Rustam was murdered outside the jhuggi and they could not therefore see the person who caused the same. P. W. Akhtari who was the complainant in this case was herself medically examined for the injury that was caused to her.
' According to Dr. Mohammad Alimul Haque, who examined her the 'injury was caused by a sharp edged weapon and was 1" x f" x muscle deep on left axilla, with corresponding cut marks on the clothes. In Court she resiled from what she stated in her F. I. R. As well as in the committal proceedings. She admitted that there was a quarrel between Mst. Kausar and the appellant about a fortnight before the incident, and during that interval Mst. Kausar had obtained a Khudmukhtiari from the Court; but, so rfar as the incident of murder itself is concerned she gave a complete go- bye to her previous version and said: "At about 8-30 p.m. Or 9-00 p.m. I was .Offering prayer in my hut; Rashid and Kausar were taking meals; my husband had gone out; at that time I heard commotion. I had finished my prayer and saw 2 or 3 persons running away. Their backs were towards me, my husband Rustam was lying dead outside the hut." Now this story ..Obviously does not fit in with the circumstances of the existence of blood on the cot, within the house, and more than anything else the existence of injury on Mst. Akhtari herself. She admitted to have lodged the report at the Police 'Station and thumb marked the same, but could not vouchsafe its contents as she was not in her proper senses. In these circumstances, she was declared hostile and confronted with the statement that she made in the committal Court, and that statement was placed on the record under section 288, Cr. P. Code. In that statement, amongst other things she had said that her ?Husband was lying on the cot and the appellant started inflicting injuries on him with churri.
He received injuries and was lying in a pool of blood.. That she raised cries when many people assembled including Islamuddin who intervened and was stabbed whereupon he fell down and died. She stated: "On the day of incident he (appellant) came to or house at about 8-90 to-8-30 p.m. I was sitting. My daughter was also there. Fearing, my daughter ran away and accused attacked me with the churri which struck in the left hand girdle." She however, admitted to have stated in her previous statement that appellant Ali Sher had come on a cycle which he left there along-with the chappal and ran away. In cross-examination, her explanation about the first information report was that it was recorded at the instance of Imamuddin, and about the statement in the committal Court, she said, that it was not read out to her and that she did not know English. In the same manner Mst. Kausar, the wite of the appellant turned hostile in the-trial Court, but made a conflicting statement with that of her own mother.
' She said that the appellant had left for Punjab about two months prior to this incident. About the murder itself she adopted the version of her mother and said that her father deceased Rustam was not in the house at that time. She was also confronted with her statement made in the committal Court-where she had said, "The accused came to or house at about 8-30 p.m. On. The day of the incident. At that time I was sitting in my house alongwith my mother, father and younger brother Rashid. My father was lying on a cot. My younger brother was taking meal. My mother asked the accused as to-why he had entered the house without permission and immediately he attacked my mother with a churri on right hand girdle. My mother fell down and my father got up. The accused made him lying on the cot it. Struggle and he inflicted clurri injuries on his person. We raised cries and many Mohalla people came there. One of them Islamuddin intervened but he was also stabbed. Accused then ran away after leaving his cycle and chappal there " Her statement was also placed on record under section 288 Cr, P. Code at the request of the prosecution.
Mohammad Rashid, the son of deceased Rustam, also gave a totally different description of the occurrence- at the trial and said that he was in the house alongwith others including, Rustam, but he did not know as to who came in the house. Islamuddin was-fighting with somebody and his father went out whereafter somebody killed his father in the house. Obviously, he admitted that the murder took place within the house, but only he was not able to identify the culprit. However,. In the lower Court he had also given the same story as others, and had stated that the appellant had come in the evening at 8-00 p.m. To their jhuggi when he, his sister Kausar and his mother Akhtari and his father Rustam were present in the house, and that after entering the house the appellant injured his mother with a churri, and stabbed his father who was on a cot with the churri.
Islamuddin came and intervened and the appellant. Murdered him and ran away. He admitted to have said that all of them had raised cries and that Mohalla people gathered there and that his father and Islamuddin were taken in a rickshaw to the hospital. He was confronted with his further statements where he said "my father did not strike the-accused with anything," and "I had thrown a Iota on him." The statements also showed that the witness had seen the murderer inside the hut.
His-statement made in the committal Court was also brought on the record under section 288, Cr.
P. C.
' The trial Court in its judgment, treated the lower Court statements of these witnesses as evidence under section 288, Cr. P. Code holding that these.: witnesses had resiled from their earlier statements with a view to save the appellant on account of their close relationship, and which was natural on. Account of lapse of time.
' Mr. Mohammad Hayat Junejo, the learned counsel for the appellant. Who wever, attacked the use of these statements as evidence against the appellant, and relying on Sikandar Azam v. State (1), argued that these witnesses stood self-condemned as liars by making contradictory statements, and should not for that reason be believed at all; and their evidence should be totally discarded.
He contended that there is no justification for treating their earlier version as truthful, because their evidence at the trial is equally reconcilable with the circumstances of the case. Besides this, the trial Court had not given proper and satisfactory reasons for making its choice in favour of Ihe earlier version. He relied on the observations made by their Lordships of the Supreme Court in the case Alim v. State (2) that, "the facility afforded by section 288, Cr. P. Code is not to be mechanically employed and that it still remains for the trial Court to consider the case in all its aspects to determine whether the earlier statements which were not recorded in its presence were preferable to those, which the trial Court himself saw and heard the witnesses making and further to examine the question what reason could there be for the witnesses to introduce variations into their statements.. .."
' Now the trial Court, besides, taking account of the factor of relation--ship of these witnesses with the appellant and the opportunity to resile Afforded by lapse of time, as stated above, has in fact examined this question and given its reasons. The first of these is that P. W. Mst. Akhtari who was proved by medical evidence to be injured, and had filed her F.
1. R. Without loss of time, denied the said injury and posed not to have seen anything. Being busy in her prayers. The other reason, consists of the circumstances of presence of blood, on and beneath, the cot, which was seen by S. H.
0. And witnesses of the wardat very soon after the occurrence. The third reason was based upon certain questions put in cross-examination, which suggested the appellant's involvement and his presence at the spot. This last reason, however, cannot be sustained as valid, but the manner by which 'these for witnesses have changed, in the trial Court does undoubtedly put 'them under that category of witnesses who can be said to "have introduced visible and artificial variations to destroy the value of their evidence", and it is not difficult to conclude that the earlier statements made by them were nearer the truth.
' The learned counsel then contended that the rule of prudence still required that some independent corroboration should be sought, which according to him was lacking in this case. He relied on the following observation in Mohammad Ahmad v. State (3) :- "As a rule of prudence, the superior Courts in this country have laid down from time to time that since a witness who makes one statement before a committing Court and conveniently changes it at the trial stands self-condemned as a liar, his former statement transferred under section 288, Cr.
P. C. Cannot be unreservedly accepted with implicit faith and hence the need for its corroboration by some independent source." in this respect the evidence of the neighbouring witnesses, though independent, is not of much value as they stated that it was P. W. Akhtari who told -them about the appellant, but she herself was not questioned on that point. P. W. Akbar Khan, one of their neighbours, stated that he had gone inside {{FOOT NOTE}}
(1) PLD 1967 Kar. 242 (2) PLD 1967 SC 307
(3) PLD 1970 SC 72 {{FOOT NOTE}} the but of Rustam and lifted him. He took him in the Rickshaw, and had placed his head on his lap.
At that time Rustam was in senses and accoding to the witness, he informed him that his son-in- law Ali Sher had stabbed' him. The witness further said that he consoled him and brought him to the Police Station. This part of his evidence has not been challenged; but what is of greater importance as an independent source of corroboration, is the circumstance of the cycle being secured at the wardat which was traced to be of P. W. Sabir Khan who has a cycle shop and whose name and address were inscribed on the handle of the cycle. This witness deposed that he had given this cycle on hire to the appellant on the day of incident, but he did not return. He knew the appellant before, being introduced through one Baboo Roiwala, whereafter he used to take the cycle on hire from him. His testimony is supported by the entries in the register, which he maintains at the shop and wherein the time of taking the cycle was mentioned. The names of the customers who hire cycles are not entered, which shows that he gave his cycles only to known persons. This evidence appears to be unshakeable and although it was argued that he was kept at the Police Station from morning till 10.00 p.m. Only to coerce him to falsely implicate the appellant, the witness himself has explained that the delay in his examination was caused because the S. H. O.
Was busy in investigation. Even otherwise, the name of the appellant and the eye-witnesses being already disclosed at that time there was no reason for using any compulsion on this witness, as is suggested.
' Apart from this, the appellant had obviously absconded as he was arrested by Quetta police at the Railway Station on the night between 23rd and 24th of May 1970, a year after the date of offence. He denied this allegation but examined D. W. Sher Mohammad, who made an unsuccessful attempt to show that the appellant was at Multan at the time of the murder.
' The upshot of all this discussion is that the evidence of the above mentioned eye-witnesses brought on record under section 288, Cr. P. c. Is A materially corroborated through an independent source i.e. P. W. Sabir All and thus there is no reason to disbelieve them.
' In the result, therefore, this appeal is dismissed, and the convictions and sentences under sections 302 and 324, P. P. C. Are maintained. The sentences of death is confirmed and the reference is accepted.
' MUHAMMAD HALEEM, J.-I agree.