' M. SIDD1Q J.-According to the prosecution, the brief facts of the case are that Mat. Siddician P. W. In her childhood was engaged with Ali Sher appellant by her father Salamat Ali deceased. When she attained puberty, her father refused to marry her with said Ali Sher appellant on the alleged ground that he had seen his wife Mst, Lateen appellant in a compromising position with Ali Sher appellant.
A few months before the present occurrence, Muhammad Astern C. W. Son of Salamat Ali deceased, got employment in the Colony Textile Mills, Muzairarabad, and, therefore, he shifted from village Mahtam, District Dera Ghazi Khan, to Muzaffarabad, District Multan. He brought with him his sister Mat. &Wigan P. W. And his mother Mst. Latifan appellant. After some time bis father Salamat Ali deceased also shifted from Mahtam to Muzaffarabad and started living with his son Muhammad Asiarn P. W. In April, 1971, Salamat Ali decease(' and his brother Nemat Ali P. W. Wanted to take Mat. Siddiqan P. W. To village Mahtam. Muhammad Aslam C. W. And Ali Sher appellant resisted the taking away of Mat. Siddiqan from Muzaffarabad. The matter was reported to the police and consequently the security proceedings under section 107/151 Cr. P. C. Were taken against both the parties by the police. It may be pointed out here that Muhammad Aslam C. W. And Ali Sher appellant were on one side, while Nemat Ali P. W. Was in the opposite group. It seems that later on the parties compromised and Mst. Siddiqan P. W. Remained with Salamat Ali deceased. It is further alleged that after this incident Mat. Siddiqan P. W. Was married to one Heil Nek Muhammad who was a blind man. A few days prior to the present occurrence, she came to Muzaffarabad at the house of Mohammad Aslam C. W. Who was an employee of the mill there. On the night between the 26th and 27th of Ratnzan 1391 (15/16-114911) when Muhammad Aslam C. W. Had gone to the Colony Textile Mills on duty, Ali Sher and Shaukat Ali appellants entered the house. A lantern was burning inside the house at that time. Both the appellants woke up Mat. Latifan appellant who was sleeping in the verandah along with Mat. Siddiqan P. W. On the same cot. Ali Sher and Mst. Latifan appellants went inside the room where Salamat Ali deceased was sleeping on another cot.
Shaukat Ali appellant with a knife in his hand remained standing by the side of Mat. Siddiqan P. W.
Ali Sher appellant pressed the neck of Salamat Ali deceased with one hand and put another hand on the mouth of the deceased, while Mat. Latifan appellant pressed his testicles. The deceased fell on the ground from the cot and died on the spot. Shaukat Ali appellant had threatened Mat.
Siddiqan P. W. That if she made a noise, he would stab her to death with the knife. Ali Sher and Shaukat Ali appellants while leaving the house after killing Salamat Ali deceased told Mat. Siddiqan P. W. That if anybody enquired from her as to how the deceased had died, she should tell that he died on account of pain in his stomach. She was threatend that in case she disclosed that the deceased was murdered by the appellants, they would kill her as well. On the next morning when Muhammad Aslam C. W. Returned to his house from duty, Mst. Latifan appellant told him that his father Salamat Ali had died on account of pain, in his stomach. Mst. Siddiqan P. W. Kept quiet out of fear. The result was that the deceased was buried after the usual funeral ceremonies. Mat. Jafri, another daughter of Salamat Ali deceased, and wife of Ghiasuddin C. W. Also came to Muzatfarabad for condolence. While going back to her house situated at village Ajabawala she took list. Siddician P. W. Also with her. For brother Muhammad Aslam C. W. Also reached there. While at Ajabwala Mst. Siddiyan P. W. Disclosed to her brother Muhammad Aslam C. W., sister Mst. Jafri and her husband Ghiasuddin C. W. That the deceased had been murdered by the present appellants and gave the details how he was done to death. On this Muhammad Asiatn C. W. Sent a message to his uncle Nernat Ali who also reached Ajahwal A. On his arrival, Nemat Khan P. W. Also enquired from Mst. Latifan appellant how the deceased died. She told him that the deceased died due to pain in his stomach. Namat Ali P. W., however, did not feel satisfied with this account. He contacted Master Faiz Ahmed P. W. And Ataullah Butt, a member of the Union Council. They all went to Mst. Latifan appellant and enquired from her about the cause of the death of the deceased. This time she confessed before them that the deceased was done to death by the appellants by strengulation. On this information Nemat Ali went to Police Post., Muaftarabad and lodged the report (Exh. P. A.) there at 3 p. m. On 24-11-1971. S.
1. Muhammad Nawaz after recording the statement of Nemat Ali P. W. Sent the same to Police Station Mumtazabad where formal F. I. R. (Fxh. P. A/1) was registered at 4 p. In. On the same day. The police officer reached the place of occurrence, took into possession lantern (Exh. P. 1) from the house of the deceased vide memo. Exh. P. B. On the same day he submitted an application (Exh. P.
C.), for the exhumation of the dead body of the deceased. On 20-11-1971, Syed Masood Ahmed Magistrate supervised the exhumation proceedings. When the dead body was taken out from the grave, the Investigating Officer prepared the inquest report Bah. P. J. Or. Altaf Hussain Gardezi on 26-11-1971 at 4 p. In. Performed the post-mortem examination on the dead body of Salamat Ali and found the following injuries on it !-
(1) There was no visible mark of ligature but there was a swelling x 1/2' on the left side of the
(2) Trachea was highly congested.
(3) Both the lungs were congested and decomposed.
' In the opinion of the doctor the cause of the death was asphyxia due to conviction of the throat by some blunt constricting agent. Time between injury and death was within few minutes to half an hour and between death and post-mortem examination about 10 to 12 days. The Investigating Officer got prepared the site plan Exh. P. F. He arrested all the three appellants on 25-11-1971. After the usual investigation, the police challaned the present appellants under sections 3r.)2/201/34, P.
P. C. They were tried by the Sessions Judge, Multan, who vide the impugned judgment dated 28-7- 1973, convicted them under section 302/34, P. P. C. And sentenced Ali Sher appellant to death subject to confirmation by this Court and Shaukat Ali and Mst, Latifan appellants to life imprisonment. Ali the appellants were further sentenced to pay a fine of Rs, 500 each payable to the heirs of the deceased as compensation or in default to undergo rigorous imprisonment for a period of three months each. Ali Sher appellant has challenged his conviction and sentences through Criminal Appeal No, 571 of 1973, while Mst. Latifan appellant filed Criminal Appeal No, 750 of 1973 and Shaukat Ali challenged his conviction and sentences through Criminal Appeal No, 759 of 1973. The case is also before us under section 374, Cr. P. C. For confirmation of the death sentence awarded to Ali Sher appellant by the trial Court. This judgment will dispose of the murder reference as well as the three Criminal Appeals.
2. The appellants when examined under section 342, Cr. P. C. Denied the prosecution allegations. Ali Sher appellant admitted that Salamat Ali deceased was his uncle and Mst. Latifan appellant was his wife and Shaukat Ali appellant was his cousin. He further admitted that Mst. Siddique P. W. Was the daughter of Salamat Ali deceased. He also admitted that Mst. Siddigan P. W. In her childhood was engaged with him. When asked about security proceedings taken under section 107/151, Cr. P.
C. Against him and others, he stated as under :- "It is correct except that Salamat deceased was not a party to the proceedings. Nemat and Khushi Muhammad P. Ws. Were keen to marry Mst. Siddig an with Hafiz Nek Muhammad."
' When asked why this case was made against him, he stated as under :- ' I am innocent. Mst. Siddigan was betrothed to me. Khushi Muhammad wanted her marriage with his brother Haft Nek Muhammad, a blind fellow. Niamat complainant is a close relation of Khushi Muhammad. They have all joined into a conspiracy and are forcibly keeping Mst. Siddigan in the house of Hafiz Nek Muhammad without any Nikah. They have falsely involved me and Mst. Latifan to achieve their object and Shaukat Ali has been involved because he refused to accede to their desire to give a statement against us."
' Shaukat Ali appellant also made a similar statement. When asked why this case was made against him, he stated as under :- "Nimat Ali and Khushi Muhammad asked me to appear as a witness against Ali Sher and list.
Latifan and on my refusal they falsely involved me in this case."
' Mst. Latifan appellant also made a similar statement. She denied the allegation that she had developed illicit intimacy with Ali Sher co-accused on account of which Salamat Ali deceased had refused to marry Mst. Siddigan P. W. With Ali Sher appellant. When asked why this case was against her, she stated as under :- "Niamat Ali complainant wanted to marry Mst. Siddigan with Nek Muhammad, a blind fellow, who is also a brother of Khushi Muhammad P. W. Mst. Siddigan was living with her sister at Mauza Ajabwala at the time of the death of Sslamat Ali. In order to remove me and Ali Sher with whom Siddigan was betrothed from their way the complainant party falsely involved us in this case and also removed our household belongings forcibly."
' The appellants, however, produced no evidence in defence.
3. After the conclusion of the trial and hearing of the arguments the learned Sessions Judge on 12- 6-1973 passed the following order :- "On going through the record of the case, I feel that it would be expedient in the interest of justice to examine Muhammad Aslam and Ghiasuddin who are respectively, the son and son-in-law of the deceased as well as Mu. Latifan accused. They have been cited by the prosecution in the calendar of witnesses, but they have neither been examined by the learned P. P. Nor given up by him.
Therefore, they shall be summoned for 25-6-1973. The police shall be asked to take special steps to effect service on these witnesses."
' On 25-6-1973 the trial Court passed the following order in- "An application has been filed on behalf of the accused urging that the statements of Muhammad Aslam and Ghiasuddin P. W. Would be inadmissible in evidence in view of the principle enunciated in Habibullah v. The State PLD 1969 SC 137."
' I have heard the learned defence counsel. The above objection will be considered at the time of arguments after recording the statements of the witnesses.
' Muhammad Aslam and Ghiasuddin P. Ws, are present. Their statements be recorded.
' At this stage it has transpired that the statement of Muhammad Aslam P. W. Recorded by Mr. Masood Ahmad Shah, Magistrate, on 1-12-1971 under section 164, Cr. P. C. Is not on the file. Both the learned P. P. And the learned defence counsel request that this statement may be summoned from the Court concerned before recording his statement. Therefore, the case is adjourned to 28-6-1973.
The committing Court shall be asked to submit in original the statement of Muhammad Aslam recorded under section 164, Cr. P. C. Before the next date.
' The witnesses shall be bound down. The Public Prosecutor gave up Muhammad Aslam and Ghiasuddin P. Ws. As having been won over by the accused. In fact, on 4-6-1973 he had given up Ghiasuddin as having been won over by the accused, but his name was inadvertently mentioned as ShahabDin instead of Ghiasuddin. On 28-6-1973, the statement of Muhammad Aslam and Ghiasuddin were recorded as C. W. I and C. W.
2. The prayer of the accused for recalling Nemat Ali and Mst. Siddiqan P. Ws. Was granted by the trial Court and consequently the supplementary statements of these two witnesses were recorded on 11-7-1973. After recording the statement of Muhammad Aslam and Ghiasuddin C. Ws. And the supplementary statement of Nemat Ali and Mst. Siddiqan P. Ws., supplementary statement of the present appellants were also recorded on 11-7-1973, but again they produced no evidence in defence.
4. In support of its case, the prosecution relied upon the ocular testimony of Mst. Siddiqan (P. W. 4) and the statement of Muhammad Aslam and Ghiasuddin C. Ws. The prosecution also relied upon the medical evidence and the motive. The trial Court believed the prosecution version and convicted and sentenced the appellants as mentioned above.
5. Ali Sher appellant is the son of real brother of Salamat Ali deceased, while Shaukat Ali appellant is real sister's son of the deceased. Mst. Latifan appellant is the widow of the deceased. Mst.
Siddiqan P. W. Is the real daughter of Mst. Latifan appellant. She is the most important witness in this case as she claims to be an eye-witness of the occurrence. According to her, she was present in the house with her parents, namely, her father Salamat Ali deceased and her mother Mst. Latifan appellant. On the night between 26th and 27th of Ramzan the deceased after saying his taraveeh prayers went to sleep inside the room, while she and her mother Mst. Latifan appellant slept on one cot in the verandah. Her brother Muhammad Aslam C. W. Had gone on duty at that time. At about midnight, Ali Sher and Shaukat Ali apaellants entered the house and woke up Mst. Latifan appellant.
Ali Sher and Mst. Latifan appe'lant went inside the room, while Shaukat Ali appellant with a knife in his hand remained standing near the cot where Mst. Siddiqan P. W. Wos sleeping she had also woken up when the two appellants had entered the house. She has further deposed that Ali Sher appellant pressed the neck of Salamat Ali deceased, while Mst. Latifan pressed his testicles. The deceased fell on the ground and died there. Shaukat Ali appellant threatened her that if she made a noise, he would kill her. Ali Sher and Shaukat Ali appellants while. Going out said that if anybody enquired from her as to how the deceased had died, she should tell that he died on account of pain in his stomach. She was further threatened that in case she told that the appellants had killed the deceased, they would kill her as well. On the next morning when Muhammad Aslam C. W. Came to the house Mst. Latifan appellant told him that Salamat Ali deceased had died on account of pain in his stomach. Mst. Siddiqan P. W. Kept quiet out of fear. Subsequently, her elder sister Mst. Jafri came for condolence. When Mst. Jafri went to her house at village Ajabwala, Mst. Siddiqan P. W.
Also accompanied her. Four or five days after the occurrence Nemat Ali P. W. Met her at villege Ajabwala and then she disclosed that the deceased was murdered by the present appellants. She narrated the entire story how the deceased was done to death by the appellants. We have minutely scrutinized her statement. She is the real daughter of ,Mst. Latifan appellant. As mentioned above, she is also closely related to the remaining two appellants. The first question which arises for consideration is whether. Mst. Siddiqan had witnessed the occurrence and if so, whether she had deposed the truth. The defence has not seriously doubted her presence on the spot at the relevant time. The main objection raised by the defence against this witness is that she falsely involved the present appellants under the influence of Nemat Ali P. W. It may be mentioned that Nemat Ali P. W. Is the real brother of Salamat Ali deceased, Basit Ali (father of Ali Sher appellant) and mother of Shaukat Ali appellant. Thus Nemat Ali P. W. Is equally related to Mst. Siddiqan P. W. As well as the present appellants. The defence has not been able to bring on record any meterial to show the enmity of Nemat Ali against the appellants. The only thing urged against him by the learned defence counsel is that Nemat Ali P. W. Was interested to marry Mst. Siddiqan P. W. With Hafiz Nek Muhammad in order to get some money in return. Since she was engaged in her childhood with Ali Sher appellant and Mst. Latifan appellant wanted to marry her with him, Nemat Ali P. W. In order to defeat the object of these appellants and succeed in his own mission, got falsely involved Ali Sher and Mst. Latifan appellants in the present case. He was cross-examined at length after minute scrutiny we find no material available on the record to establish his enmity with these appellants to fasely implicate them in such a heinous crime. As mentioned above, he is closely related to all the appellants. In order to falsely involve them in a murder case, there must be very strong material or motive which is missing in this case. We repeatedly asked the learned defence counsel to point out from the file any material to show the enmity of this witness with the appellants, but he failed to do so. He has, however, verbally tried to argue that in normal circumstances there could be no jurisdiction for marrying a young girl of 17 with a blind man of 35 and according to him, this witness must have obtained substantial monetary gain for arranging such a marriage. We have given our anxious thought to this argument, but find no substance in it.
Nemat Ali is not an enemy of Mst. Siddiqan P. W. Or of the appellants. He is, as mentioned above, closely related to all of them. Mst. Siddirian appeared as a witness in this case before the Committing Magistrate as well as before the trial Court. She has frankly conceded that she was not opposed to her marriage with the said blind man. If this marriage had been against her wishes, she had ample opportunity to denounce the same. It may be mentioned here that her husband Nek Muhammad is Hafiz-i-Quran and spiritually she might have liked this marriage with him. She has admitted that she was engaged with Ali Sher appellant in her childhood. It was later on when her father Salamat Ali deceased saw her mother Mst. Latifan in a compromising position with Ali Sher appellant that he refused to marry her with Ali Sher appellant. She has supported this aspect of the prosecution case. It seems that she honestly believed that her mother Mst. Latifan appellant was seen by her father Salamat Ali deceased in a compromising position with Ali Sher appellant. If she was in favour of marrying Ali Sher appellant and was against her marriage with the blind man (Hafiz Nek Mohammad) she could do so as she had ample opportunity to express her desire in that behalf. It is not denied that she has supported the prosecution from the very beginning in her statements under section 161 and 164, Cr. P. C. And then before the Committing Magistrate and finally before the trial Court. Her stand has been consistent throughout. The defence has not been able to bring on record any material as to why she has been deposing against the appellant. The learned defence counsel has admitted that normally a daughter will not falsely depose against her real mother in a murder case unless it is actually true. We have given our anxious thought to the statement of Mst. Siddiqan P. W. In the absence of any material on the record to show that Mst.
Siddiqan had a motive to falsely implicate her own mother in this case, the only irresistible inference is that she is a truthful witness and as such has been rightly believed by the trial Court.
After considering the factual background of the case, we feel no hesitation to hold that Mst.
Siddiqan P. W. Did witness the occurrence and that she is a truthful witness. The conviction of the appellants can be maintained on her testimoney alone, because under the Evidence Act the number of witnesses to prove a certain fact is not necessary. In the circumstances of the case, Mst.
Siddiqan P. W. Is the most natural and reliable witness. She had no motive to falsely implicate her own mother and other closely related persons in a murder case. The defence allegation that she falsely implicated the present appellant under the influence of her uncle Nernst P. W. Is also not believable, because as mentioned above, Nemat himself is equally closely related to both sides.
Even if he was inimically disposed towards the appellants, Mat. Siddiqan P. W. As an ordinary human being could not be expected to go to the extent of pleasing her uncle at the cost of her own mother in a murder case.
6. After believing Mat. Siddiqan P. W., the real daughter of Mst. Latifan appellant, and a close relation of Ali Sher and Shaukat Ali appellants, further corroboration is not necessary, but the same is available from the medical evidence as well as the motive. Dr. Altaf Hussain Gardezi who performed the post-mortem examination, has in clear terms stated that in his opinion the cause of death was asphyxia due to constriction of the throat by some blunt agent. It may be mentioned that his doctor was cross-examined both before the Committing Magistrate and the trial Court, but the defence failed to get anything favourable out of his evidence. The doctor had sent the viscera to the Chemical Examiner to find out whether or not it contained any poisonous matter. The report of the Chemical Examiner was not received by him. Due to the fact of sending viscera to the Chemical Examiner it was suggested by the defence that the cause of death could be poisoning as well. The doctor, however, in cross-examination stated that the primary cause of death of the deceased was asphyxia caused by injury No, I. He further stated that if viscera had been found to be containing poisonous matter, it would have been an additional cause of death. Thus, we find that the doctor is quite clear that the cause of death of the deceased was asphyxia. This fits in with the statement of Mst. Siddiqan P. W. That Ali Sher appellant killed Salamat Ali by pressing his neck.
In these circumstances, the medical evidence provides a very strong and independent corroborative piece of evidence.
7. The motive in this case was that Salamat Ali deceased had engaged his daughter Mst. Siddiqan P. W. In her childhood with Ali Sher appellant. Subsequently, however, the deceased found his wife Mst. Latifan appellant committing sexual intercourse with Ali Sher appellant. After this, the deceased refused to marry his daughter with Ali Sher. However, Mst:. Latifan appellant was insisting to marry Mst. Siddiqan P. W. With Ali Sher appellant. The deceased, however, succeeded in marrying his daughter with Hafiz Nek Muhammad a few months prior to the occurrence. It was after this marriage that Ali Sher appellant felt aggrieved and committed this murder. The learned defence counsel has tried to argue that in fact Mst. Siddiqan P. W. Was not married with said Nek Muhammad. We have minutely gone through the relevant material available on the record. Mst.
Siddiqan P. W. Herself is directly concerned with this fact and she has categorically stated from the very beginning that she was married by her father with Hafiz Nek Muhammad. No doubt one witness has tried to create doubt that this marriage had not actually taken place, although Mst.
Siddiqan had been living with Hafiz Nek Muhammad as his wife. As mentioned earlier, in April 1971, Security proceedings were taken against the parties regarding this girl Mst. Aiddician P. W. Exhs. P.
H. And P. H./1 are the copies of those proceedings. In these two documents it is mentioned as under:- {{URDU TEXT}} ' thus, a perusal of these documents prepared about seven months before the present occurrence shows that at that time Salamat Ali deceased had refused to marry his daughter Mst. Siddiqan P. V.
With Ali Sher appellant and wanted to marry her elsewhere. It may further be observed that in those security proceedings Muhammad Aslam C. W. Was supporting Ali Stier appellant. After going through the relevant material available on the record, we have reached the conclusion that although Salamat Ali deceased had engaged her daughter .Mst. Siddiqan P. W. In her childhood with Ali Sher appellant yet, several months before the occurrence he had refused to marry her with Ali Sher appellant. We are further of the view that in fact Mst. Sidchqaa P. W. Had been married to Hafiz Nek Muhammad before the occurrence. Her marriage with the said blind man stands proved mainly by her own statement in addition to the statements of other witnesses. Thus, we find that the prosecution has proved the motive in this case beyond any doubt and this motive serves as an independent piece of corroboration to support the oral testimony of Mst. Siddiqan P. W.
8. As regards the statement of Muhammad Aslam (C. W. 1) and Ghiasuddin (C. W. 2) it is vehemently argued by the learned counsel for the appellants that these statements apart from being inadmissible in evidence under section 151 of the Evidence Act, also materially prejudiced the defence case as they were recorded when the case had already been closed by the parties. It is not denied that section 165 of the Evidence Act, gives ample power to the Court to examine any witness at any stage of the case in order to do justice in the case. In the instant case, the learned Sessions Judge at the close of the trial may have felt the necessity of summoning Muhammad Aslam and Ghiasuddin as Court witnesses. We, therefore, find nothing wrong in examining these persons as Court witnesses, because it was in the interest of justice. However, even if the statements of these two C. Ws are kept out of considerations, it does not adversely affect the 4 prosecution case. We need not go into further details of this aspect of the case, because as held earlier, the statement of Siddician P. W. Who actually saw the occurrence corroborated by the medical evidence and the motive, establishes the guilt of the present appellants beyond any doubt.
9. After hearing the counsel for the parties and going through the entire relevant material available on the record, we have come to the conclusion that the prosecution has established its case against the appellants beyond any shadow of doubt. Accordingly, we find no substance in these appeals and the same are hereby dismissed. The convictions and sentences of the appellants awarded by the trial Court are maintained. The sentence of death of Ali Sher appellant is confirmed.