' ASLAM Ruiz HussAiri, J.-Ghulam Mohyuddin alias Panah son of Ismail, aged 60 years was tried by the learned Sessions Judge, Sultan for the murder of Mst. Daulatey deceased. The learned trial Judge, by his judgment dated 1st of November 1972, convicted him under section 302, P. P. C., and sentenced him to death. Ghulara Mohyuddin has filed an appeal against his conviction and sentence. The matter has also been referred to us under section 374, Cr. P. C. For confirmation of the death sentence. We propose to dispose of- the appeal as well as the murder reference by a single judgment.
2. The facts of the prosecution case as mentioned in the F. I. R. Exh. P. A., are briefly that at peshiwela on 16-7-1970 Mst. Daulatey, deceased, was present in her house in Chak No, 188-EB, (Police Station Vehari), Distt. Multan, along with her husband Sher Muhammad P. W. 8, her daughter Mst. !Munira P.
W. 7 and her an-in-law Khushi Muhammad (P. W. 9), who was married to another daughter of the deceased named Mst. Bashiran. She was washing some clothes and went out to purchase some soda for that purpose. Her daughter, Mst. Munira P. W. 7, also went out in the bazar to purchase something. She as going in the same direction as her mother. She saw that when her mother (Mst.
Daulatey deceased) passed near the house of Ghulam' Mohyuddin appellant, the latter dragged her inside the house. On seeing this Mst. Munira rushed back to her house and raised hue and cry, informing her relatives of the incident. There upon her father Sher Muhammad P. W. 8, and brother- in-law Khushi Muhammad (P. W. 9), rushed to the spot. They heard the report of a gunshot and when they reached in front of the door of the appellant's house, they saw him firing two shots at the deceased. On seeing the aforementioned P. Ws. The appellant threatened that if anyone came near him, he will be killed.
' The motive for the occurrence is stated to be that the appellant had developed illicit relations with Mst. Daulatey since quite some time. The appellant wanted her to marry him but she laid down a condition that she would marry him only after he had divorced his wife. The appellant, thereupon, divorced his wife some months prior to the occurrence. But even then Mst. Daulatey refused to marry him. This enraged the appellant and he, therefore, killed her.
' The F. I. R. Was lodged by Mst. Munira P. W. 7, the daughter of the deceased. It was recorded by Mr. Zia Ahmad Bokhari S.
1. P. W.
11. After recording the same he went to the spot and found that Muhammad Panah Lambardar P. W.
5 was present in front of the appellant's house, alongwith Ghulam Mohyuddin appellant. According to the prosecution, the appellant had confessed his guilt before Muhammad Panah Lambardar P.
W.
5. The S.
1. Arrested the appellant. He then collected some bloodstained earth from the place where the dead body was lying in the house of the appellant and sealed it into a parcel vide memo Exh. P. B.
He also picked up and took into possession three empties Exh. P. 1 to P. 3 and sealed them into a parcel vide memo Exh. P. C. He also found 11 pellets, Exh. P. 4 to P. 14, lying near the northern wall of the appellant's house and took them into possession vide memo Exh. P. D. Muhammad Pariah Lambardar P. W. 5 produced before him a gun P. 19, belonging to the appellant, along with four live cartridges Exh. P. 15 to P.
18. The S. I. Took the same into possession vide memo Exh. P. E. He found that the clothes of the appellant, i,e, Chadar Exh. P. 20 and shirt Exh. P. 21, were stained with blood. He therefore, got the same removed from his person and took them into possession vide memo Exh. P. F. He prepared the inquest report and the injury statement relating to the deceased and sent her dead body to the mortuary for post-mortem examination.
3. Dr. Meraj Din P. W. 12 conducted the post-mortem examination. He found the following injuries on the person of the deceased.
(1) An inlet wound of fire-arm in front of right lowest chest 3" away from midline and five inches above the umbilicus as a single hole with contused margins black coloured due to unconsumed gun powder measuring 1' xlex going into the chest cavity with coils of intestine and omentum protruding through the wound of entry with black coloured area round the wound.
(2) Another wound of entry of fire-arm on the left side of lowest part of chest 2- away from midline and 44" away from injury No, 1 and 54' above umbilicus measuring le x 1' going into the chest cavity with coils of intestine protruding through the oval wound alongwith omentum.
(3) An exit wound over an area of 3' x 34' on the back of right lumber region. There were six separate wounds of exit within an area of x 34' liver matter was protruding through one of the exit wounds of fire-arm. The measurement of each is as follows :- ' From above downward 1/5' x 1/6', 1/5' x 1/6', 1/4' x 1/5', 1/5' x 1/4', 1/5'x 1/6" and 1/5' x 1/4".
4. The gun P. 19 and the empty cartridges P. 1 to P. 3 were sent to the Forensic Laboratory. Sheikh Muhammad Din P. W. 1, the Fire-arms Expert, who had examined the same, opined that .12 bore crime empties Exh. P. 2 and Exh. P. 3 had been fired from the right barrel of P. 19, while the crime empty Exh. P. 1 had been fired from the left barrel of the same gun. The blood-stained clothes of the appellant were sent to the Serologist who found the same to be stained with human blood vide his report Exh. P. S.
5. After the completion of the investigation, the appellant was challaned and was ultimately committed to stand his trial before the Court of Session.
6. At the trial, the prosecution produced 12 witnesses in support of its case. The prosecution evidence consists of :-
(1) the evidence of motive,
(ii) the ocular evidence,
(iii) the evidence as to the recoveries of gun P. 19 and crime empties coupled with report of the Fire-arms Expert ;
(iv) the recovery of the blood-stained clothes of the appellant which were found by the Serologist to be stained with human blood, and the Medicals Evidence.
7. The accused when examined denied his guilt and pleaded innocence and stated that he had been falsely involved in this case due to enmity. He also denied the recovery of the gun P. 19 and blood-stained clothes. The appellant also denied having made an extra-judicial confession before Muhammad Panah, Lambardar, P. W.
5.
8. We have heard the learned counsel for the parties and have also gone through the record with their help. Sher Muhammad P. W. 8, the husband as well as Mst. Munira P. W. 7, the daughter of 31st.
Daulatey deceased have deposed that she, (i,e, Mst. Daulatey), had been having illicit relations with the appellant since quite some time. Mst. Munira has stated in her cross-examination that her mother had herself told her about her illicit relations with Ghulam Mohyud-Din appellant. She added that the appellant wanted to marry her and had even divorced his wife for this purpose, but Mst. Daulatey dilly-dallied and finally, refused to marry him. The testimony of Mst. Munira and Sher Muhammad P. Ws. Is more than sufficient to prove that the appellant had a motive to kill Mst.
Daulatey.
' As a matter of fact, the fact that illicit relations existed between the deceased and the appellant, was admitted before us by the defence counsel who took up the plea that on the day of occurrence Sher Muhammad P. W. 8 happened to see them (i,e, the appellant and Mst. Daulatey) "embracing" each other in the house of the appellant ; that on seeing this Sher Muhammad P. W.
Went away ; that Ghulam Mohyuddin appellant then left the house to take a bath, but Mst.
Daulatey remained lying on a cot inside the appellant's house and that Sher Muhammad then turned up, picked up the gun belonging to the appellant and killed her with the gun of the appellant, which was lying in his (appellant's) house.
9. It is more amply proved that Ms:. Daulatey was found dead inside the house of the appellant.
Even Muhammad Panab P. W. 5 and Noor Muhammad P. W. 10, who were declared hostile, have admitted this fact. The Investigating Officer has also stated that be found the dead body in the appellant's house. It cannot, therefore, he said that the appellant is under no obligation, whatsoever, to explain how the dead body came to be present there. As mentioned at the end of paragraph No, 8 above, the learned defence counsel has tried to give an explanation and, in the process, he has admitted that Mst. Daulatey was killed in the appellant's house though not by him.
' What has to be considered now is whether the prosecution case stands proved, beyond reasonable doubt and secondly whether the aforementioned defence version put forward by the learned defence counsel before us, has any merit in it.
10. We have carefully considered the entire evidence on the record. We have also considered the aforementioned defence version, which we shall discuss presently.
' It was contended that the eye-witnesses are interested witnesses as they are closely related to the deceased. No doubt it is true that Mst. Munira P. W. 7 is her daughter, Sher Muhammad P. W. 8 is her husband and Khushi Muhammad P. W. 9, is her son-in-law. They can even be assumed to have had a grudge against the appellant, but it cannot be said that they had such bitter enmity with the accused (appellant) that even if Mst. Daulatey had been murdered by someone else, they (i e. The aforementioned P. Ws.) would have insisted on substituting him for the real murderer. As stated by her at the trial, Mst. Munira P. W. Knew about her mother's affair with the appellant. It is, therefore, quite likely that she had deliberately followed her mother to see if she was not going to meet her paramour and thus happened to see the appellant dragging her inside his house. She has given all the details of the incident, first in the F. I. R., then before the committing Magistrate and, finally, at the trial. When she saw the appellant dragging the deceased inside his house, she ran back to her house and raised alarm, on bearing which Sher Muhammad P. W. 8 and Khushi Muhammad P. W. 9 rushed to the spot and reached in time and saw the occurrence. They, too, have supported the prosecution version. The defence has not been able to dislodge them during,-their cross- examination or to bring out any material discrepancy or inconsistency in their statements.
' In view what has been discussed above, we find that they are reliable and trustworthy witnesses.
We find no defect in their testimony and see no reason to disbelieve it.
11. The learned counsel for the appellant also contended that no independent witness, residing in the Mohallah or running a shop in the street in question, has been produced by the prosecution in support of its version, and that this casts a serious reflection on the credibility of the prosecution case. We are not impressed by this contention. It is now well known that, generally, people in our country hesitate to come forward as witnesses and give evidence in such cases, because they do not wish to get themselves involved in other people's problems. Probably there is good reason for their hesitation, because by appearing as witnesses in criminal cases one is likely to incur the wrath and attract the enmity of the accused persons and their party-men. We have come across a large number of cases where people were murdered simply because they had dared to appear as witnesses in such cases. What is still more disheartening I that the law enforcing agencies in the country hardly afford any protection to those who have the requisite public spirit and are willing to come forward and testify against criminals and thus incur their hostility. We have also noticed, in a large number of cases, that whenever the F. I. R. Contain the names of some 'independent' or 'unrelated' persons as eye-witnesses of the occurrence, along with some relatives of the deceased, who saw tilt occurrence, the former usually resale from their earlier statements or, at least, tend to make concessions in favor of the accused and have quite often to be declared 'hostile'. The cause for this appears to be the same as mentioned above, namely, that 'independent' or 'unconnected' witnesses see no reason to endanger their lives for what they consider to be 'none of their business' and in many cases such witnesses are proved to be won-over by inducements or to resile under threats. We are convinced that this is what happened in the case of Muhammad Panah P. W. 5 and Noor Muhammad P. W. 10, both of whom turned hostile and had to be examined by the Public Prosecutor.
Once it is recognized that such conditions are prevailing in the country and that some pressure, by way of inducement or threat, has been put on some prosecution witnesses, it cannot be said that an adverse presumption must necessarily arise against the prosecution for not having produced nearby shop-keepers or the residents of the Mohallah and if the Court, finds that some "related witnesses", who are also said to have witnessed the occurrence, have withstood the test of cross- examination and their testimony is corroborated by reliable circumstantial evidence, then it, (i,e, the Court), should not hesitate to believe them and rely upon their testimony. As observed above, we have found the afore-mentioned three eye-witnesses to be reliable and trust-worthy witnesses, who can be safely relied upon.
12. As already mentioned Muhammad Panah P. W. 5 and Noon Muhammad P. W. 10, who resiled from their earlier statements, had to be declared hostile. The statement made by Muhammad Panah P. W. 5 before the committing Magistrate was transferred to the Sessions file under section 288, Cr. P. C. But the statement of Noor Muhammad P. W. 10 could not be so transferred. We notice, however, that in spite of his attempt to help the accused in his statement at the trial, Muhammad Panah P. W. 5 has supported a considerable portion of the prosecution case. He has admitted that when he reached the spot of hearing the alarm, he saw the appellant in the custody of the Chowkidar. He has also admitted that the appellant had made an extra-judicial confession before him, although he slightly changed the narration. He said at the trial that when he asked the accused as to why he had murdered Mjt. Daulatey, he replied that he had done so under provocation. It may be mentioned that this witness had deposed about the extra-judicial confession even before the police and the committing Magistrate. He had stated before the committing Magistrate that the accused had told him that he had murdered Mst. Daulatey becuase she had refused to obtain divorce from her husband and marry him (i,e, the appellant).
But at the trial Muhammad Panah P. W. 5 stated that the appellant had told him that Mst. Daulatey had illicit connections with him (i,e, with the appellant), but later on she developed similar connections with another person, which had provoked him to murder her. Muhammad Panah P. W.
5 has admitted another part of the prosecution story at the trial, namely, that he had handed over gun P. 19 and four live cartridges, belonging to the appellant, to the Investigating Officer.
' However, in his statement before the Committing Magistrate. (which has been transferred to the Sessions file under section 288, Cr. P. C.) Muhammad Panah P. W. Has fully supported the prosecution case. The learned Sessions Judge has not relied upon either of his statements, specially the parts relating to the recovery of the gun P. 19 and extra-judicial confession made by the appellant before him (i,e, before Muhammad Panah P. W. 5). We are, however, not inclined to agree with the learned trial Judge as regard his above-mentioned finding. No doubt Muhammad Panah P. W. Tried to help the accused at the trial, by making concessions in favour of the appellant and it is obvious from the manner in which concessions are made that he was won-over, sometime after his statement before the committing Magistrate but prior to the trial. However, the fact that he was influenced into resiling from his earlier statement and making a statement favourable to the accused at the trial, does not necessarily discredit him altogether because most probably he had to make the concessions act., under the stresses and strains, to which independent witnesses are usually subjected, and, was compelled to resile. But it cannot be lost sight of that he fully supported the prosecution case before the committing Magistrate and even before the learned trial Judge he admitted certain important and crucial facts supporting the prosecution case. As a result, even if it is not considered safe to rely on his testimony at the trial, we see no reason to discard his statement before the learned committing Magistrate. As such we accept his testimony before the committing Magistrate and place reliance on it.
13. The case of Noor Muhammad P. W. 10 is quite different inasmuch as his statement before the committing Magistrate was not transferred to the Sessions file. As a matter of fact he does not appear to have been produced before the committing Magistrate at all. Moreover, he took a complete somersault and did not support any part of the prosecution case at the trial. He can be appropriately described as false witness and his testimony was, therefore, right!), ignored. As a result we feel that the conflict between his testimony and that of Muhammad Panah P. W. 5 with regard to the production of gun P. 19 should not be considered as affecting the latter's testimony.
For the fore-going reasons we feel that the extra-judicial confession made by the appellant before Muhammad C Panah P. W. 5 stand proved.
As to the recovery of gun P. 19, the blood-stained clothes P. 20 and P. 21 belonging to the appellant and the empty cartridges P. 1 to P. 3 recovered from the appellant's house, it may be mentioned that Masan Muhammad, P. W. 6, Khushi Muhammad P. W. 9 and Zia Ahmad Bokhari P. W. 11, who signed the recovery memos of these articles, have fully Supported the factum of the aforementioned recoveries as well as the fact that they had attested the relevant recovery memos.
No substantial criticism was offered by the learned defence counsel against their testimony. As a result we feel that these recoveries have been amply proved. As already mentioned, the empty cartridges P. 1 to P. 3 were found by the Firearms Expert to have matched with the gun P. 19 belonging to the appellant. Moreover, the Serologist has found the clothes P. 20 and P. 21 of the appellant to have stained with human blood. The reports of the Ballistics Expert and the Serologist, therefore, connect the appellant with the offence.
14. The medical evidence also supports the prosecution version, inasmuch as the autopsy revealed that Mst. Daulatey nad died of a firearm E injury which had been caused by shots fired from close quarters. Although it is admitted in his so called defence version put forward by the learned defence counsel that Mst. Daulatey had been killed by a firearm. Yet it cannot be argued that the medical evidence supports both, the prosecution as Well as well as the defence version for the reasons given in the next pare;
15. Since the dead body of Mst. Daulatey was found lying in the appellant's house, where he resided alone at the relevant time, he is certainly under some obligation to explain as to why she was found dead in his house. Of course, the appellant's counsel has attempted to furnish an explanation for the same in the defence version put forward by him before us (refer paragraph No, 8 above), but it does not appear to us as having any merit whatsoever. In the first place we notice that the appellant neither took up this plea at the inquiry before the committing Magistrate nor before the learned trial Judge where he only pleaded "false involvement due to enmity". As observed by our Supreme Court in State v. Mushtaq Ahmad (1) the principles laid down in Safdar Ali v. Crown (2) as to the manner in which the burden of proof, placed on the accused by section 105 of the Evidence Act, can be discharged by him and as to the manner of appreciation of evidence by the Court, with regard to the correctness or otherwise of the defence version, is applicable only to the facts and circumstances of that particular case (namely, Safdar Ali's case) and that in a case where the accused did not specifically raise a plea of self-defence or did not produce any evidence in his defence, the possibility of any "reaction" on the prosecution case is excluded altogether. It would be useful to reproduce here the exact words used by their Lordships. At page 426 of Mushtaq Ahmad's case of the reported judgment the learned Court enunciated the principles governing the applicability of precedents, especially in circumstances, in the following words :- "Everything said in a judgment and more particularly in a judgment in a criminal case must be understood with great particularity as having been said with reference to the facts of that particular case."
' Later at page 429 of the said reported judgment, the learned Court discussed the applicability of the principles laid down in Safdar Ali's case as in the following words :- "Thus, it will be seen that in both cases the pleas of self-defence were not only specially raised but evidence was also led in support thereof though such evidence was found, in each case, to be inadequate to {{FOOT NOTE}}
(1) PLD 1973 SC 418 (2) PLD 1953 FC 83 {{FOOT NOTE}} ' bring the cases under any general exception. It was in that context that the learned Judges of the Federal Court laid down the rule that in a criminal case ev n if the plea of self-defence has failed, nevertheless the Court was b and to take into account, all the facts appearing on the record I eluding the evidence led for the defence with a view to finding out whether as a result of such review, the prosecution case has been affected with a reasonable doubt, in which case the accused will be entitled to its benefit.
' The question then is, whether on the facts of the instant case, a foundation was laid for application of the rule in Safdar Ali's case. There can be no manner of doubt that the answer must be in the negative. As pointed out already the respondent did not specifically raise a plea of self-defence, nor did he produce any evidence in his defence. Therefore, the possibility of any "reaction" on the prosecution case, is excluded altogether.
In other words, it is not open to the accused person to raise any plea that he chooses, at any stage that he likes ; and a plea raised by him at the appellate stage, can be considered in the light of principles laid down in Safdar Ali's case only if the accused had taken that particular plea before the committing Magistrate, or at least before the learned trial Court, and had also produced some witnesses or evidence in support thereof. In the present case the appellant did not take any such plea at the trial, as is being pressed by his counsel before us. Nor was it suggested, in its present form, to the prosecution witnesses during their cross-examination. As such the appellant cannot be permitted to put up the afore-mentioned plea at this late stage, before us for the first time. In any case the said defence, version is just too absurd to be believed. It is too much to expect us to swa llow that while Ghulam Mohyuddin appellant went out to have a bath immediately after the alleged "embrace", Mst. Daulatey kept on lolling in the bed, in his house. Keeping in view the ordinary human conduct, it is Msr. Daulatey who should have been anxious to dress up hurriedly, after the alleged intimacy with the appellant, and to return to her house as quickly as possible.
' For the foregoing reasons we see no merits whatsoever in the defence version put forward by the appellant's counsel and reject it as absurd.
16. ry The net result of the above discussion is that we believe the prosecution evidence and are of the view that the guilt has been brought home to the appellant beyond reasonable doubt. We, therefore, dismiss the appeal and maintain the conviction. The sentence of death imposed upon the appellant is justified in the circumstances of this case and is, therefore, confirmed.
17. This disposes of the appeal as well as the murder reference.