' MUHAMMAD SIDDIQ, J.-The brief facts of the case, according to the prosecution, are that hist.
Wallian deceased was initially wife of Umar Din (brother of Wali Muhammad P. W.). After the death of said Umar Din, she started living with his brother Wali Muhammad P. W. As wife. Wali Muhammad P. W. Was already married to Mst. Begum, sister of the wife of Hakim All appellant. She resented to the living of Mst. Wallian deceased with her husband Wali Muhammad P. W. And as a protest left his house. Due to this motive, the appellant is alleged to have murdered Mst. Wallian between the night of 20th and 21st of October 1971, in the house of Wali Muhammad P. W. Situated in Lakarmandi, Vehari. Abdul Razzak P. W. Lodged the F. I. R. (Exh. P. A.) on 21-10-1971 at 2-30 a.m. S. I. Ashfaq,)e Ahmed after recording the report reached the spot, prepared the injury statement (Exh. P. K.) and inquest report (Exh. P. L.) in respect of the deceased and despatched the dead body to the mortuary for post-mortem examination. He took into possession blood-stained dopatta (Exh. P. 13), blood-stained chaddar (Exh. P. 14) and blood-stained cot (Exh. P. 15) vide memo. Exh. P. C. He recovered one empty cartridge (Exh. P. 8) lying in the courtyard near the outer passage and took into possession and sealed into a parcel vide memo. Exh. P. E. He also took into possession lamp (Exh. P. 9) vide memo. Exh. P. F. He collected blood-stained earth from under the cost of the deceased and sealed into a parcel vide memo. Exh. P. G. He got prepared site plan (Exh. P. B.) from the Draftsman. Hakim Ali appellant could not be arrested immediately after the occurrence as he was not available. The Investigating Officer deputed A. S.
1. Bashir Hussain Shah on 21-10-1971 to trace the appellant. On the same day, at about 8 p.m. He arrested the appellant from near the Adda of Chak No,
32. On his search, the police officer recovered one pistol (Exh. P. 11) and two live cartridges which he took into possession and sealed into a parcel vide memo. Exh. P. J. After the usual investigation, the police challaned the present appellant under section 302, P. P. C. He was tried by the Sessions Judge, Multan, who vide the impugned judgment dated 17-11-1973 found him guilty for the murder of Mst. Wallian and sentenced him to death subject to confirmation by this Court. He has challenged his conviction and sentence through the present appeal. The case is also before us under section 374, Cr. P. C. For confirmation of the sentence of death awarded to him. This judgment will dispose of both the Criminal Appeal as well as the Murder Reference.
2. Dr. Meraj Din on 21-10-1971 at 11 a.m. Performed the postmortem examination on the dead body of Mst. Wallian and found the following injuries on it : -
(1) There were five separate wounds over the front of her right upper chest. The uppermost wound was 2' below the right clavicle and 2' above the nipple of her right breast. (The lowest wound). The distance from the midline was 24" of the inner most wound. The area of five wounds measured 24' x 11" corresponding to the marks over her chaddar, khes and her shirt. The coagulated blood was seen over the front of her chest and the right axilla and left chest and left axilla. There were innumerable fine marks of tattooing seen over the front of her neck, right side and to some extent on the left side of neck, front of chin, lower lip (right) right side of nose, tip of nose, right cheek and right lower eyelid and over the front of right external ear, right cheek due to sunburnt grains of gun powder.
' The measurements of the wounds were as follows :-
(1) A lacerated wound with ecchymosed edges measuring 1/2' x 1/2' x going into the chest cavity.
(2) A lacerated wound with ecchymosed edges 1/2' X 1 /3. x going into the chest cavity.
(3) A lacerated wound with ecchymosed edges 1/2' x 1/3' x going into the chest cavity.
(4) A lacerated wound with ecchymosed edges on the inner side 1/2' x 1/3. X going into the chest cavity.
(5) A contused area over the upper most part of the site of whole wound measuring 3/4' x 1/2".
Death in the opinion of the doctor occurred due to shock and haemorrhage caused by five wounds collectively from a single fire of firearm. These injuries were sufficient to cause death in the ordinary course of nature. Time between the injuries and death was about five minutes and between death and post-mortem examination within 12 hours.
3. The appellant when examined under section 342, Cr. P. C. Denied the prosecution allegations.
Before the committing Magistrate, the appellant admitted that Mst. Begum was legally wedded wife of Wali Muhammad P. W. When asked whether in the presence of Mst. Begum, Wali Muhammad P. W had performed second marriage with Mst. Wallian deceased which caused grievance to Mst. Begum who went to her parents' house at Chistian, he stated that Wali Muhammad P. W. Had not married Mst. Wallian deceased, but had illicit liaison with her. The appellant also admitted that said Mst. Begum was his sister-in-law (wife's sister), but denied that he was in any way annoyed due to bad relations between Wali Muhammad and M31. Begum. When asked the following questions before the committing Magistrate, he stated as under {{URDU TEXT}} ' In his statement before the trial Court, he admitted that he was married to the sister of Mst.
Begum, the first wife of Wali Muhammad P. W. To the following question he stated as under :- "Q. No, 3.-It is in evidence that after the death of the husband of the deceased, she married Wali Muhammad P. W. As a result of which Mst. Begum, his first wife, became annoyed with him and leaving him went to the house of her parents. What have you to say about it?
A.-After the death of the husband of the deceased, she developed illicit relations with Wall Muhammad P. W. And it was on this account that Mst. Begum left Wali Muhammad P. W. And went to the house of her parents."
' When asked why this case was made against him, he stated as under :- "The deceased had developed illicit relations with Wall Muhammad who had turned out Mst.
Begum, his wife, from his house, Ramzan, brother of Mst. Begum, and Abdul Razzak, son of the deceased, were feeling offended due to these relations. They murdered the deceased and falsely implicated me in this case."
' The appellant, however, produced no evidence in defence.
4. In support of its case, the prosecution relied upon the statement of solitary eye-witness, namely, Abdul Razzak (P. W. 1). The recoveries are supported by Abdul Majid (P. W. 8) and Muhammad Nawaz (P. W. 10) in addition to A. S. I. Bashir Hussain Shah P. W. Reliance was also placed on the statement of Mufti Munk, Examiner of Firearms, Forensic Science Laboratory, according to whom, crime empty (Exh. P. 8) was fired from istol (Exh. P. 11). The trial Court believed the prosecution version and convicted and sentenced the appellant as mentioned above.
5. As mentioned above, the appellant in his statement under section 342, Cr. P. C. Has stated that Mst. Wallian deceased had developed illicit relations with Wali Muhammad P. W. Who had turned out his legally wedded wife Mst. Begum from his house and that due to this fact Ramzan, brother of Mst. Begum, and Abdul Razzak P. W., son of the deceased from her previous husband, felt offended and they, therefore, murdered the deceased, but falsely implicated the appellant in this case. We have given our careful consideration to this defence suggestion, but find no substance in it.
According to Wall Muhammad P. W., his elder brother Umar Din who was the husband of Mst.
Wallian, died about years prior to the present occurrence. After the death of her previous husband Mst. Wallian deceased is alleged to have married Wali Muhammad P. W. Who started living with her in her house in Vehari. It is alleged that in fact there was no regular marriage of the deceased with Wali Muhammad P. W.. But she was having illicit intimacy and was living in adultery. If her brother Ramzan and son Iekbdul Razzak P. W. Had any grievance due to the alleged intimacy of the deceased with Wali Muhammad P. W., then they had ample opportunity to do away with the deceased earlier during the period of 2i years. Further, they would have also killed or at least taken some action against Wali Muhammad P. W. Who was equally responsible for the alleged illicit intimacy. It is a* admitted fact that after the death of his father Umar Din, Abdul Razzak P. W son of the deceased, has been throughout living in the same house with Wali Muhammad P. W. And her deceased mother till her death. This shows that the relations between Abdul Razzak P. W. And Wali Muhammad P. W. Were cordial and they have been living together peacefully for the last several years. Further, we had that if Ramzan brother of the deceased, and Abdul Razzak P. W. Had murdered her, then Wall Muhammad P. W., the alleged husband of the deceased, would have no soft corner for the murderers of his wife and could not be expected to let them off. There is nothing on the record to show that Wali Muhammad P. W. Had any motive not to implicate said Ramzan and Abdul Razzak W. If they were really the murderers. He could enlarge the net of accused persons but could not leave out the real murderers. In that case, Wali Muhammad should have lodged the F. I. R. Against the assailants. Similarly, there is nothing on the record to show why Wali Muhammad P. W. Should falsely implicate the present appellant if he was not the actual assailant. It is an admitted fact that Wali Muhammad is closely related to the appellant being his wife's sister's husband. Judged from ordinary human conduct point of view, Wali Muhammad could not falsely involve the appellant in this murder if he had not actually done so. After going through the relevant material available on the record, we are clearly of the view that the defence suggestion is highly improbable and unbelievable and, therefore, we feel no hesitation to reject the same.
6. The mere rejection of the defence version will not automatically prove the prosecution case. The onus is always upon the prosecution to prove the guilt of an accused person beyond reasonable doubt. Now we proceed to consider whether in the instant case the prosecution has discharged that onus. No doubt, Abdul Razzak P. W. Is the solitary eye-witness in this case. However, it is admitted by the learned defence counsel that under the Evidence Act there is no number of witnesses fixed to prove a certain fact. In other words, no number of witnesses is prescribed by the Act to establish a certain fact. Abdul Razzak P. W. No doubt is the so a of the deceased, yet his mere relationship is not sufficient to discard his evidence unless we find that he has also animosity against the appellant to falsely implicate him in this case. The learned defence counsel has not been able to point out any material on the record to show the enmity of this witness with the appellant. Rather we find that this witness is also related to the appellant being the son of the appellant's sister-in-law. It is not denied that at the time of the occurrence this witness was residing with her mother in her house. In fact, after the death of his father Umar Pin, it was his own house. It is nobody's case that on the night of the occurrence this witness had gone out of his house. He was sleeping in the courtyard of his house when the occurrence took place. In this background he will be a natural witness to see the occurrence. The dead body was found in the courtyard of his house by the Investigating Officer. Blood-stained earth and the empty were recovered from the same place. The venue of occurrence being the courtyard of the house of Abdul Razzak P. W., therefore, stands amply proved. The occurrence took place at about midnight.
At that hour of the night, usually the inhabitants of the house are the natural witnesses to see if anything happens in that house. Abdul Razzak P. W. Sleeping in the courtyard was a natural witness to see the murder of his mother who was also sleeping in the same courtyard on a separate cot close to his own cot. After minutely going through his statement, we are convinced that ho was present on the spot at the relevant time and had witnessed the occurrence. He has been rightly believed by the trial Court. We also believe his testimony,
7. It is vehemently argued by the learned counsel for the appellant that coming and staying of the appellant with Wali Muhammad during the night of occurrence is not believable because of the previous bad relations between the two. However, we find that there is ample material on the record to establish this fact. Abdul Razzak P. W. Has stated in examination in-chief as under :- "About two years ago, the accused came to our house at about 7-30 in the evening to see Wali Muhammad. He stayed for that night in our house."
' Similarly, Abdul Majid P. W. In his statement stated as under :- "Hakim Ali accused had come to the house of the deceased on that day at about 7-30 P. W. I had seen him when I had come to my house to take my evening meals."
' The position of Wali Muhammad P. W. Is also the same. He has stated that the accused came to his house at 7 p.m. To meet him and he stayed for the night with him. Thus,, all the three material witnesses including Abdul Majid P. W. Who is an independent and disinterested witness, have unanimously stated in clear terms that the appellant came to the house of the deceased in the evening and stayed there for the night. The coming to and staying of the appellant in the house of the deceased during the night of occurrence is very significant to establish the motive. He must have come to persuade Wali Muhammad P. W. Not to live in that house as husband of Mat. Wallian deceased at the cost of his legally wedded wife Mat. Begum. It is an admitted fact that after the death of his elder brother Umar Din, Wall Muhammad P. W. Had given up his residence in the village and came to Vehari and stayed with the deceased in her house. Mat. Begum had gone to her parents' house. In this background, it is clear that Wali Muhammad P. W. Had deserted his previous wife Mat. Begum and had given preference to the deceased. Although he claims to have contracted a regular marriage with the deceased, yet there is no positive proof of any regular nikah with her. He himself has admitted that his marriage with the deceased was never registered and he did not remember the name of the Nikah Khwan or the names of the witnesses of the nikah.
He has also admitted that he had not obtained the consent of his previous wife Mst. Begum for his marriage with the deceased. Even Abdul Razzak P. W. Son of the deceased, has admitted that the nikah of the deceased with Wali Muhammad P. W. Was not registered, but it was oral. He has also admitted that he did not know the name of Nikah Khwan. In these circumstances, the suggestion that Wall Muhammad P. W. And the deceased were living in adultery without any regular nikah, cannot be excluded. It was in this background that the visit of the appellant to the house of Wall Muhammad P. W. Becomes relevant. He must have come to persuade Wali Muhammad P. W. And the deceased to discontinue their illicit relations and that Wali Muhammad must live with his legally wedded wife Mst. Begum in his own house in the village. In fact, Wali Muhammad P. W.
Himself has admitted in examination-in-chief as under :- "Hakim All accused is married to the younger sister of Mat. Begum. He used to ask me to divorce the deceased but I refused."
' Thus, the coming of the appellant to the house of the deceased and staying there during the night of the occurrence and the purpose of his visit to persuade Wali Muhammad P. W. To leave the deceased and her house but live peacefully with his legally wedded wife Mst. Begum in his own house in the village, stand proved. It seems that Wali Muhammad P. W. Did not accede to his request and, therefore, he may have planned to do away with the deceased in order to please his wife (the sister of Mst. Begum, wife of Wali Muhammad P. W.). As regards the actual occurrence, Abdul Razzak P. W. Has given full details how the appellant tired a shot from his pistol at the deceased. According to the site plan, the cost of the deceased and this witness were close to each other. He would, therefore, be in a position to identify the assailant. He claims to have chased the appellant. Abdul Majid P. W. Also joined him in that pursuit, but they could not succeed to capture the appellant who made good his escape. As stated above, Abdul Majid is a neighbour and he was attracted to the spot by the fire shot. His house is in front of the house of the deceased across the lane. This witness is not related to the deceased and is not in any way inimical towards the appellant. He had no motive to falsely implicate the appellant if he had not actually fired at the deceased. Although the statement of Abdul Razzak F. W. Requires no corroboration, yet we find that the statement of Abdul Majid P. W. Is a strong corroborative piece of evidence. The motive has also been established by the prosecution which can also serve as corroboration. The medical evidence can also corroborate the ocular testimony of Abdul Razzak P. W. Although in the F. I. R. The word used is " as-" and in his statement before the Court Abdul Razzak used the word "revolver", yet we have ourselves examined this weapon and find that in fact it is a carbine in which only '12 bore cartridge can be used. It is not a pistol or a revolver as used in the general sense. It is a country- made sort of pistol with a long and broad barrel for using .12 bore cartridge. It was, therefore, a .12 bore cartridge which was fired at the deceased from a close range and the pellets caused five separate wounds on her chest. These injuries are possible with a .12 bore cartridge fired from a short distance.
8. The learned counsel has vehemently argued that the F. I. R. Was recorded after deliberations. In this behalf he has referred to the admission made by Abdul Razzak P. W. That he went to the police station and informed the tkanedar who came with him to the spot and made inquiry and then they again went to the police station and there at that time his statement was recorded. The Investigating Officer has denied this suggestion. Even if the report was recorded after the Investigating Officer had visited the spot, it will not materially affect the main prosecution case A The F. I. R. Is not a substantive piece of evidence and, therefore, can he kept out of consideration.
The main thing is whether the prosecution has established the guilt of the appellant by producing sufficient material before the Court.
9. The learned defence counsel has also contended that the recovery of pistol (Exh. P. 11) and of the empty (Exh. P. 8) from the place of occurrence should not be believed. We agree with him, because the Firearm expert has stated that he received a sealed parcel on 5-11-1971 while the said recoveries were made on 21-10-1971. The prosecution has not been able to explain this inordinate delay ; hence we attach no importance to the opinion of the Expert that the alleged empty (Exh. P.
8) was fired through the pistol (Exh. P. 11).
10. After hearing the counsel for the parties and going through the relevant material available on the record. We have reached the conclusion that the prosecution has established its case beyond doubt against the appellant. He was rightly convicted and sentenced by the trial Court under B section 302, P. P. C. For the murder of Mat. Wallian. Accordingly, while maintaining his conviction under section 302, P. P. C. For the murder of Mat. Wallian, we dismiss this appeal and confirm the sentence of death awarded to the appellant by the trial Court.