' MUHHAMAD SIDDIQUE, J.-It is alleged by the prosecution that Muhammad All appellant wanted to have illicit liaison with Mat. Shiman P. W. Daughter of Sher Muhammad Chowkidar. She was not willing to do so. She informed her parents about this matter. Her father Sher Muhammad Chowkidar conveyed his grievance to Bashir Ahmad deceased and his wife. The deceased was the husband of sister of the appellant. The deceased brought this fact to the notice of Ch. Maqsud Ahmad (P. W. 7) who is the Lambardar of the village. A panchayat was convened in which it was decided that Muhammad Ali appellant should leave the village and discontinue his profession as Mashki (Water-carrier) in the village. The appellant thought that his own brother-in-law Bashir Ahmad deceased was standing in the way of his intimacy with Mat. Shiman P. W. And was responsible for the decision of the village panchayat against him. On the day of occurrence namely 19-6-1975 at about 9.00 a m. The appellant attacked his brother-in-law Bashir Ahmad deceased and inflicted several churri blows. The deceased succumbed to his injuries on the spot.
After injuring the deceased, the appellant ran towards the house of Sher Muhammad Chowkidar where he inflicted churri blows to Mst. Sbiman (P. W. 10). The appellant was apprehended alongwith weapon of offence and blood-stained churri was snatched from him on the spot by the P. Ws.
Maqsud Ahmad Lambardar (P. W. 7) leaving others on the spot went to the Police Station Yasmen and lodged the First Information Report (Exh. P. C.) at 11-45 a.m. On the same day. Head constable Manzoor Ahmad (P. W. 4) after recording the First Information Report, reached the place of occurrence, prepared the inquest report (Ezh. P. D.), injury statement (Exh. P. D. 1) of the deceased and des-patched the dead body to the mortuary for post-mortem examination. He took into possession blond-stained earth from the place of occurrence and sealed it into a parcel vide memo Ezh. P. C. He also took into possession the Mashak (goatskin) of the deceased P. W. 2 vide memo. Ezh. P. H. In the meantime S. I. Muhammad Suleman (P. w. 11) who was present in the Sessions Court, Bahawalpur in connection with some official duty, on receiving information, reached the place of occurrence at about 4 p.m. He took over the investigation from Head Constable Manzoor Ahmad P. W. 4). The appellant was also detained at the place of occurrence.
The Pc lice Officer arrested him. He got removed from the person of the appellant the blood- stained clothes I e., chadar Exh. P. 3, kachha Exh. P. 4 and Banyan Exh. P. 5 which were taken into possession and sealed into a parcel vide memo Exh. P. J. Ch. Maqsud Ahmad (P. W. 7) produced blood-stained churri before the Sub-Inspector and the same was taken into possession and sealed into a parcel vide memo. Bib. P. E. The Investigating Officer then went to the house of Sher Muhammad Chowkidar where Mit. Shiman P. W. Was injured and took into possession blood- stained earth from his home and made it into a sealed parcel vide memo. Exh. P. K. The investigating Officer also got prepared the site plan Exh. P. M., from Rashid Ahmed Patwari (P. W. 3).
He prepared the injury statement of the appellant and got him medically examined. After the usual investigation the Police challenged the appellant under section 302/425/324. P. P. C. He was tried by the Sessions Judge, Bahawalpur, who ride impugned judgment dated 12-11-1975, found him guilty under section 302, P. P. C., and sentenced him to death subject to confirmation by this Court.
The appellant was also sentenced to pay a fine of Rs, 2,000 or in default to undergo further R. I. For two years. The fine if recovered was ordered to be paid to the legal heirs of the deceased as compensation. The appellant was further convicted and sentenced to two years' R. I. Under section 324, P. P. C. He was afro convicted and sentenced to two years' R. I. Under section 452, P. P. C. Both the sentences were ordered to run concurrently, if the sentence of death was not confirmed by this Court. The appellant has challenged his convictions and sentences through the present appeal.
The case is also before us under section 374, Cr. P. C. For the confirmation of the sentence of death awarded to the appellant by the trial Court. This judgment will dispose of the. Criminal Appeal as well as the Murder Reference.
2. On 20-6-19'5, Dr. M. Akram Zahid performed the post-mortem examination on the dead body of Bashir Ahmad deceased and noticed the following injuries on it :-
(1) A stab wound w x x 2' on the left shoulder.
(2) A stab wound 14' x 2' m 14' on the left shoulder near the neck.
(3) A lacerated wound 1'x1' x 4 on the left lateral side of abdomen.
(4) An incised wound 5rx 2' x abdominal cavity deep. Intestines were protruding out. The blood was trotted.
' In the opinion of the doctor, cause of death was due to shock as a result of bleeding due to injuries on abdomen and on the left shoulder extending up to pleura. Probable time that elapsed between injuries and death was 27 to 30 hours and between death and post-mortem examination was also 27 to 30 hours.
' On 20-6-1975, Dr. A. D. Bhatti examined Mat. Shiman Bibi daughter of Slier Muhammad and found the following injuries on her person : -
(1) An incised wound on the back of right leg 2' x X r.
(2) An incised wound on the back of right thigh 1' x 1'x C.
' Both the injuries were caused by sharp-edged weapon and were simple in nature.
' On the same day the same doctor examined Muhammad All appellant and found the following injuries on his person :-
(1) A wound on the nose 1' x x 4'.
(2) An incised wound on the left thumb 1' x x 1/8'.
(3) An abrasion on the right knee 3' x 1'.
' Injury No, 2 was caused by sharp-edged weapon and Nos. 1 and 3 by blunt weapon. All the injuries were simple in nature.
3. The appellant when examined under section 342, Cr. P. C. Denied the prosecution allegations.
Before the committing Magistrate, the appellant when asked as to whether he had committed the murder of Bashir Ahmed deceased, he stated as under :- "It is incorrect. Bashir Ahmed deceased was aggressor and be attacked me and Mat. Shiman. I shall answer in detail in Sessions Court."
' When asked if after committing the murder of Bashir Ahmad deceased, he also committed trespass in the house of Mst. Shiman and caused her injuries with churri Esh. P. 1, he stated as under :- "It is incorrect. The deceased attacked me and list. Shiman."
' Before the trial Court when asked if he was in the habit of teasing Mst. Shiman, and that she made a complaint to her parents whereupon a panchayat was convened and it was decided that he should leave the village and should not work for the villagers, he stated as under :- "I had illicit relations with Mst. Shiman before this occurrence and this fact was known to Bashir Ahmad deceased."
' When asked whether he bore grudge against his brother-in-law Bashir Ahmad deceased who had arranged for the panchayat against him, be stated as under "I had a grievance against Bashir because he had obstructed me from having relations with Mst.
Shiman."
The appellant however admitted that Basbir Ahmad deceased was his sister's husband. When asked why this case was made against him and why the P. Ws. Had deposed against him, he stated as under :- "Mst. Shiman had promised with me that she would meet me on the night between 17/18-6-1975.
Ste was present in the field of sugarcane. I also went there. She removed her shalwar. I was making love affair with her in the sugar-cane field. Maqsud Lambardar had also illicit relations with Ma.
Shiman. The deceased and Maqsud P. W. Previously knew that I was carrying on with Mit. Shiman.
Bashir Ahmad deceased also reached the field of sugar-cane and attacked Mst. Shiman with churri Exh. P.
1. Ho inflicted two/three blows with churri on the thigh of Ma. Shiman. I tried to rescue Mst. Shiman whereupon Bashir gave me a takkar blow on my nose. I fell down on the ground. When I was lying on the ground, Basbir tried to inflict the churri blow on me. I brought out a knife from my pocket and gave him the injuries with knife in my self-defence. Shiman then ran towards her house. Bashir fell down on the ground in injured condition. I went to my house. Maqsud had not arranged for any panchayat. Nobody obstructed me from carrying the water. I had not informed anybody about the murder of Bashir Ahmad. Maqsud Ahmad, however, got the information as some kites etc. Were seen flying over the dead body."
' The appellant however produced no evidence in defence.
4. In support of is case the prosecution produced three eye-witnesses, namely, Muhammad Shafi (P. W. 8), Bashir Ahmad (P. W. 9) and Mst. Shiman (P. W. 10). The prosecution also relied upon the evidence of recoveries, the motive and the medical evidence. The trial Court believed the prosecution evidence and convicted and sentenced the appellant as mentioned above.
5. As indicated above, the Appellant had admitted the occurrence but has given his own version claiming the right of self defence. In a situation like this Court has to see whether the prosecution has proved the guilt of the appellant beyond any reasonable doubt or whether the defence version is probable and believable. We tarsi take up the prosecution version.
6. The motive alleged by the prosecution is that Muhammad All appellant wanted to develop illicit relations with Mst. Shiman P. W. Daughter of Sher Muhammad Chowkidar and Faqir by caste, resident of the same village. It seems she was not a willing party. She informed her parents about the misbehavior of the appellant. The said Sher Muhammad Chowkidar brought this fact to the notice of Bashir Ahmad deceased who was sister's husband of the appellant. The deceased then informed Cb. Maqsud Ahmad Lambardar IP. W. 7) and others about this affair. Accordingly a panchayat was convened in which it was decided that Muhammad All appellant should leave the village and discontinue his work as water-carrier of the village. This motive is proved by Mst.
Shiman (P. W. 10) and Ch. Maqsud Ahmad Lambardar (P. W. 7). Mst. Shiman P. W. Has given her ago as 15 years. It is not denied even by the learned defence counsel that in our society especially in rural areas, generally an allegation of this type Le. Illicit intimacy with a young unmarried girl is not made unless it is true. According to the defence the prosecution should have produced Sher Muhammad Chowkidar, the father of the girl who should have proved this motive. We are however satiated that in the circumstances of the case Mst. Shiman P. W. Herself is the best witness to prove the motive as she is the person who was approached by the appellant to have illicit liaison with him. She could not be espected to make false allegation of this typo against the appellant especially when she bad no previous enmity or grudge against the appellant to involve him in this case. Similarly Ch. Maqaud Ahmad P. W. Is Lambardar of the village having no animus or grudge against the appellant. He has stated that Bashir Ahmad deceased brought this fact to his notice and then he convened the panchayat of the village which decided that the appellant should leave the village and should give up his job of water-carrier in the village. The appellant, and his brother- in-law Bashir Ahmad deceased were the water-carrier of the village (Mashki) while Sher Muhammad Chowkidar father of Mst. Shiman P. W. Was a Faqir by caste. Thus both these families belonged to Kami class of the village. Ch. Maqaud Ahmad P. W. Was the Lambardar of the village.
In the village community a complaint of this type is generally brought to the notice of the Lambardas or some other respectable of the village. Therefore, there was nothing unusual for the parents of Mst. Shiman P. W. To complain about the misbehaviour of the appellant to the deceased who was the brother-in-law of the appellant and ;or the deceased to convey the same further to the Lambardar or the village (Ch. Maqsud Ahmad P. W.). On receipt of this information, the Lambardar did the right thing by convening a panchayat. After going through the statements of Mat. Shiman and Ch. Maqsud Ahmed P. Ws. We are satisfied that the prosecution has established the motive against the appellant.
7. After the decision of the panchayat the appellant Muhammad Ali felt aggrieved and he thought that it was his own brother-in-law Bashir Ahmad deceased who was responsible for the action taken against him by the panchayat. It was in this background that the appellant, on 19.64975 at about 9-00 a.m., while the deceased was going in the street with a mashak, attacked him with a churri P.
1. On the receipt of blow the deceased fell on the ground. The appellant inflicted more blows while the deceased was lying on the ground. Muhammad Shafi (P. W. 8) at that time was going towards the shop of Mistri Barka. He saw the occurrence, raised an alarm which attracted Bashir Ahmad (P.
W. 9) who also reached the spot and saw the appellant inflicting churri blows to the deceased.
After inflicting churri blows to the deceased, the appellant ran towards the house of Mst. Shiman P.
W. Muhammad Shaft P. W. Went to inform Ch. Maqsud Ahmad Lambardar (P. W. 7) about the occurrence. Accordingly Cb. Magsud Ahmad Lambardar (P. W. 7) along-with Muhammad Shaft (P.
W. 8) went towards the house of Mst. Shiman P. w. Bashir Ahmad (P. W. 9) also followed the appellant to the house of Mst. Shiman P. W. Muhammad Ali appellant atter entering the house of Sher Muhammad Chowkidar attacked Mst. Shiman P. W. And inflicted churn blows to her. She and her mother raised hue and cry which attracted Bashir Ahmad P. W., Abid Hussain and Sain Malang (given up P. Ws). These persons apprehended the appellant on the spot. During the scuffle and grappling between the appellant and the P. Ws., the appellant also sustained some injuries on his person. In the meantime Ch. Maqsud Ahmad Lambardar (P. W. 7) and Muhammad Shafi (P. W. 8) also reached there. Ch. Maqsud Ahmad Lambardar P. W. Snatched away the churri P. 1 from the appellant. Thus the occurrence in the house of Sher Muhammad Chowkidar was witnessed among others by Bashir Ahmad (P. W. 9), Sain Malang and Abid Hussain (given up P. Ws.). However the best witness is Mst. Shiman P. W. Herself. She had categorically stated that it was the present appellant who inflicted injuries to her with churn, P. 1 in her own house on the day of occurrence at the time suggested by the prosecution. She has denied the defence suggestion that she and the appellant were present in the field talking with each other and that Bashir Ahmad deceased came there and attacked her and then Muhammad Ali appellant attacked the deceased to save herself and also in his self-defence. She further denied the defence suggestion that Maqsud Ahmad Lambardar was trying to have relations with her. According to the learned defence counsel the prosecution should have produced Sain Malang and Abid Hussain (given up P. Ws.) who allegedly apprehended the appellant at the spot and that for their non-production adheres inference be drawn against the prosecution. We do not agree with him. As mentioned above Mst. Shiman P. W.
Was the hest person to depose about her own injuries. She has fully supported the prosecution and has denied the defence suggestion. She is further supported by Bashir Ahmad P. W. Who alongwith said Sain Malang and Abid Hussain (given up P. Ws.) apprehended the appellant on the spot. It is not denied even by the learned defence counsel that the persecution is not bound to produce each and every witness cited in the calendar. Further no particular number of witnesses is required under the Evidence Act to prove a certain fact. It is the quality and not the quantity which matters.
Mst. Shiman and Bashir Ahmad P. Ws. Have fully proved this part of the prosecution case. The statements of Mst. Shiman and Bashir Ahmad are also corroborated by Cb. Maqsud Ahmad Lambardar and Muhammad Shaft P. Ws. Who 8 reached that house immediately. Recovery of blood-stained earth from inside the house of Sher Muhammad Chowikdar, father of Mst. Shiman P.
W. Has also been proved by Cb. Maqsud Ahmad a P. W. In addition to the Investigating Officer. This recovery of blood-stained earth also corroborates the statements of Mst. Shiman and Bashir Ahmad P. WL that she was injured by the appellant in her own house. After going through the relevant material available on the record we are satisfied that Mst. Shiman P. W. Was injured by Muhammad All appellant in her own house as alleged by the prosecution. As mentioned above the earlier part of the occurrence viz., causing churri blows to Bashir Ahmad deceased was witnessed by Muhammad Shaft and Bashir Ahmad P. Ws. Both these witnesses are resident of the same village. Both are cultivators while the appellants and the deceased belonged to Kami class being water-carrier. These witnesses had no relationship or friendship with the deceased. The only thing suggested to them by the defence is that they were deposing against the appellant on account of their friendship with Ch. Magsud Ahmad Lambardar P. W. And that Met. Shiman P.W. Was taken by the said Lambardar from the Police Station as surety. Similarly they bad no enmity or motive to falsely implicate the appellant. After going through their statements we are satisfied that they are independent, truthful and disinterested witnesses and have been rightly believed by the trial Court.
The Investigating Officer found the dead body lying at the place of occurrence and also recovered the Mashak (Exh P. 2) of the deceased from near the dead body. He also recovered the blood- stained earth from this place. These recoveries fully established the place where the deceased was done to death by the appellant by inflicting the churri blows. The statement of Ch. Maqsud Ahmad Lambardar P. W. Corroborates these eye-witnesses. As mentioned above Muhammad Shafi P. W.
Immediately informed the Lambardar that the appellant after inflicting the injuries to the deceased had run towards the house of Sher Muhammad Chowkidar. The main criticism leveled against the ocular evidence by the learned defence counsel is that their statements are contradicted by the medical evidence. The doctor who performed the post-mortem examination gave the estimate of time that elapsed between the injuries and death as 27 to 30 hours while" according to the eye- witnesses the deceased succumbed to his injuries on the spot immediately after the occurrence.
This point was also raised before the learned Sessions Judie who has dealt with it exhaustively. In addition to the reasons already advanced by the trial Court, another ground which can be advanced in this behalf is that if Bashir Ahmad deceased remained alive on the spot for 27 to 30 hours then some efforts should have been made to province some medical aid to him in one form or the other. The deceased belonged to the same village and his relatives or friends either should have taken him to some hospital or otherwise rendered some first aid to him. If the complainant could go to the Police Station for lodging the First Information report, he or somebody else could also take some steps to remove the injured to the hospital. Immediately after the occurrence many people gathered at the spot. If the deceased was alive then he could not remain unattended.
Moreover Head constable Manzur Ahmad (P. W. 4) on reaching the spot found the dead body lying at the spot. In view of the direct evidence of most independent and reliable witnesses, we feel that the estimate of time given by the doctor has been rightly ignored by the trial Court. We also endorse that view. The learned defence counsel has tried to point out certain discrepancies and contradictors in the statements of the eye-witnesses. We do not attach much importance to these minor discrepancies which do not materially affect the prosecution case which otherwise stands established against the appellant. After careful scrutiny of the statements of eye-witnesses, we are fully satisfied that they have been rightly believed by the trial Court.
8. The prosecution has also relied upon the recoveries in this case. As upon mentioned above at the time of apprehension of the appellant at the spot churri, P. 1 was snatched away from him by Ch. Magsud Ahmad Lambardar P. W. And the same was produced before the Investigating Officer who took the same into possession ride memo. Exh. P. E. Similarly the bloodstained clothes of the appellant viz. Chadar Exh. P. 3, kachha Exb. P. 4 and vest Exh. P. 5 were got removed from his person and were taken into possession ride memo. Exb. P. J. a tacked by the same set of witnesses. Ch. Maqsud Ahmad P. W. Is the lambardar of the village. Ho and the Investigating Officer had no motive to plant these recoveries upon the appellant. After going through the relevant material we are convinced that the prosecution has established these recoveries satisfactorily.
9. We have also considered the defence version as taken up by the appellant in his own statement under section 342, Cr. P. C. As well as suggested to eye-witnesses in cross-examination. He has stated that he had illicit relations with Mst. Shiman P. W. Before this occurrence and this fact was known to the deceased Bashir Ahmed. About the actual occurrence the appellant has stated that Mst. Shiman P. W. Had promised with him that she would meet him on the night between 17/18.6- 1975. Accordingly she was present in the sugar-cane meld. The appellant also west there. She removed her shalwar and he was making love affair with her in the said sugar-cane field. Bashir Ahmed deceased and Maqsud Ahmed Lambardar P. W. Previously knew that the appellant was carrying on with Mst. Shiman P. W. Bashir Ahmed deceased also reached the field of sugarcane and attacked Mst. Shiman with churn: P. 1 and inflicted two/three blows on her thigh. The appellant tried to rescue her whereupon the deceased gave him a takkar blow on his nose. On this the appellant fell down on the ground and when lying on the ground the deceased tried to inflict churri blows to him. He took out a knife from his pocket and inflicted injuries to the deceased with that knife in self-defence. Mst. Shiman P. W. Then ran towards her house. Bashir Ahmed deceased fell down on the ground in injured condition. The appellant went to his house. He did not inform any one about the murder of Bashir Ahmed deceased. Ch. Maqsud Ahmad Lambardar P. W. However got the information as some kites etc. Were seen flying over the dead body. The main argument advanced by the learned defence counsel in support of this version is the estimate of time given by the doctor between the injuries and death. According to the learned defence counsel this estimate given by the doctor tally with the defence plea. We have already held above that this estimate of time between the injuries and death of the deceased given by the doctor is false. It may be observed that the appellant did not take up this plea either during the investigation or even before the committing Magistrate. He stated before the Committing Magistrate that Bashir Ahmed deceased was aggressor and he attacked him and Mst. Shiman P. W. The other E details are missing in that statement. The most important circumstance in this case is the arrest of the appellant. The defence is completely silent as to how the appellant was arrested by the police.
According to the prosecution he was apprehended on the spot alongwith the weapon of offence and produced before the police. If the occurrence had taken place during the night in the sugarcane field and the appellant had gone to his house, he should have explained as to how he was taken into custody by the. Police. Further if the dead body remained in the sugarcane field during the night then some wild animals like jackals or dogs etc. Should have eaten part of it. It is not denied that there should have been some signs of biting etc. On the dead body by the insects in the sugarcane field. Farther it is not clear how the dead body could be located by flying of kites etc. Looking at the exact location of the nose injury shown in the pictorial diagram it could not be caused by a takkar blow as it is quite close and at the corner of the left eye. It is not denied that takkar is generally given either on the forehead or on the top of the nose on its frontal side. It is not clear how this injury at that part of the nose close to the eye could be caused by a takkar. On the other hand it is quite clear that the injuries of the appellant could be caused during scuffle when he was apprehended by the witnesses.
Moreover the defence did not take any step to show the said place in the sugarcane field to the Investigating Officer from where the blood-stained earth could be taken if the deceased had in fact been injured there. We have given our anxious thought to the defence plea but are clearly of the view that the same is highly improbable and unbelievable. We have therefore no hesitation to reject the same.
10. After hearing the counsel for the parties at length and going through the entire material available on the record, we have reached the conclusion that the prosecution has established its case against the appellant beyond any shadow of doubt. He has been rightly convicted by the trial Court. We also maintain his conviction under section 302, P. P. C. For the murder of Bashir Ahmed deceased. There are no mitigating circumstances to justify lesser penalty. Accordingly while maintaining the conviction under section 302, P. P. C. We confirm the sentence of death awarded to Muhammad Ali appellant by the trial Court. His convictions and sentences under sections 324 and 452, P. P. C. Are also maintained. These two sentences shall run concurrently.
' The result is that this appeal fails and is hereby dismissed.