' Z. A. CHANNA , J.-Appellant Muhammad Ibrahim an ex-employee in the Defence Forces, has been convicted by the learned Ex Officio Additional Sessions Judge, Tharparkar at Mirpurkhas, of an offence under section 302, P. P. C., for committing the murder of his wife, Mst. Razia, on the 26th of November, 1975, at about 9-30 p. m. In the town of Mirpurkhas, and has been sentenced for the said offence to imprisonment for life and to pay a fine of Rs, 1,000 or in default to suffer further R. I. For one year. The fine, if realised, was directed to be paid as compensation to the heirs of the deceased The learned Sessions Judge did not award capital sentence to the appellant firstly because he found that only one fatal injury had been caused by him to the deceased, and secondly, the appellant was deprived of the Company of his wife and children for over a year by his in-laws, who were apparently not prepared to return them to him and with whose conduct he was apparently not satisfied.
2. The prosecution version, shortly stated, is that the appellant had married the deceased some 5 or 6 years back and bad a son and a daughter from her. About a year prior to the incident, the relations between the appellant and the deceased became strained in consequence of which the deceased left the appellant and came along with her two children to Mirpurkhas and started residing with her parents. Some attempts were made at reconciliation but they proved unsuccessful. It is alleged that on the day of the incident, at about 5-30 p. m., first informant Shafi Muhammad, who is the father of the deceased, was returning to his house along with prosecution witnesses Hayat and Photo, after making purchases from a nearby shop, when he heard cries coming from his house, whereupon he, Hayat and Photo ran towards the house and are said to have seen the appellant giving knife blows to the deceased. The witnesses are also said to have seen Mst.'Hamida Begum, the mother of the deceased, present at the spot. She was raising cries.
' On seeing the witnesses, the appellant threw away the knife and escaped from the house through the door of the otak. It is alleged that he was chased by the witnesses but he managed to make good his escape. Mst. Razia was found to have succumbed to the knife injuries sustained by her. A report of the incident was lodged within an hour of the incident at Mirpurkhas Police Station, which was recorded by A. S. I. Tasadduq Husain Shah. He proceeded to the house of the complainant where he found the dead body of Mst. Razia lying on a cot in the courtyard of the house. There was blood in the courtyard as well as in the room of the house. The A. S. I. Secured the blood,stained knife which was lying under a Neem tree near the cot in the courtyard. The A. S. I. Sent the body of the deceased to the Civil Hospital, Mirpurkhas, for post-mortem examination and thereafter recorded at the vardat the statements of Mst. Hamida and Photo. On the following day, he recorded the statement of P. W. Hayat. The A. S. I. Searched for the appellant in Mirpurkhas but was unable to find him. Accordingly, he proceeded to Mirpur Mathelo where he arrested the appellant on 29-11-1975, at the Bus-stop. On completion of the enquiries, the appellant was challaned.
3. The autopsy on the deceased was conducted on 27-11-1975 by Dr. Abdul Sattar, who found the following two injuries on the person of the deceased :- "(I) Incised wound 1" x i" x chest cavity deep on the mid axillary line on left side of chest.
(2) Incised wound 1" x 34" muscles cut on left buttock."
4. Both the above injuries, in the opinion of the doctor, appeared to have been caused with a sharp-cutting weapon like a. Knife. On internal examination, he found the pericardial cavity full of blood, the apex of the heart perforated and perforations and echhymosis in the basal part of the left lung. In the opinion of the doctor external injury No, 1 was sufficient in the ordinary course of nature to cause death.
5 The appellant denied having any band in or knowledge of the murder of Mat. Razia, and claimed that at the time of the incident he was not even at Mirpurkhas but far away at Mirpur Mathelo where he was employed by Rais Ahmad Ali Pitafi as a Tractor driver. In his defence he has examined Ahmed Ali Pitafi, who while supporting the appellant in regard to the latter's employment by him as a. Tractor driver, admitted that the appellant was residing about 5 or 6 miles away from his village and that he did not know whether after the wife of the appellant had left him the appellant had gone to visit first informant, Shafi Muhammad. He also admitted that he had no personal knowledge of the arrest of the appellant but obtained this information from his Munshi, Sharif.
6. The case against the appellant mainly rests on ocular and corroborative evidence. The eye- witnesses examined are first informant Shafi Mahomed, his wife Mst. Umedi, their neighbour Photo and Hayat. The corroborative evidence is provided by the first informant's minor daughter, Mst.
Zarina. The prosecution had also examined one Noor Muhammad, who along with one Adam is said to have seen the appellant running away from the vardat and to have chased him, but the evidence of this witness was not relied upon by the trial Court, firstly, because neither his name nor that of Adam were mentioned in the F. I. R., and secondly, the police statements of these witnesses were recorded on 3-12-1975, that is a week after the incident and no explanation has been furnished for examining them after so much delay.
7. The evidence of first informant Shafi Mohammad, Photo and Hayat is to the effect that on the day of the incident, sometime after 5-00 p. m., they were returning together to the house of the first informant from the nearby shop of one Alimuddin, where the first informant had made purchases, when on nearing the house of the first informant, they heard cries coming from his house, whereupon they ran up to the house and saw the appellant giving knife blows to the deceased, who had been felled on a cot in the courtyard of the house. The witnesses have further testifed that on seeing them the appellant threw away the knife with which he had struck the deceased and escaped through the door of the otak of the house and though they chased him, he managed to elude them and escaped. The testimony of Mst. Hamida is that on the day of the incident, her husband had gone out to make purchases from the nearby shop while she and /list. Razia were sitting in a room of the house and the children were playing outside in the verandah, when suddenly the appellant entered the house and asked Mst. Razia to accompany him, and on her refusal to do so in the absence of her father, the appellant took out a knife and attempted to assault Razia, who thereupon ran towards the verandah, but the appellant overtook her in the verandah, threw her on the out and caused her knife injuries. The witness has further testified that on her cries, her husband, Photo and Mahomed Hayat arrived whereupon the appellant threw away the knife and ran away through the door of the otak and though he was chased by her husband, Photo and Hayat, the appellant made good his escape.
8. Both Mst. Hamida and first informant Shafi Mohammad have also deposed that the marrilge of the deceased with the appellant had taken place 'about 5 or 6 years back, that two children were born out of the wedlook, but about a year prior to the incident disputes arose between the couple, in consequence of which the appellant left the deceased and her children at their house and though he subsequently made efforts to get back the custody of his wife and children, they refused to give him back his wife and children unless he brought some good men to vouchsafe for his conduct.
9. The evidence of Mst, Zarina, who was about 12 or 13 years of age at the time of the incident, is that on the day of the incident, at about 5 or 5-30 p. m. She and her younger brother were studying in one of the rooms of their house, when the appellant entered the house and asked Mst. Razia, who was sitting with her mother, to accompany him, but she refused on the ground that she would await the return of her father who had gone to the Bazar. The witness has further deposed that on this the appellant attempted to take out something from the folds of his trousers whereupon she and her younger brother got frightened and ran out of the house and sought refuge in the house of Wadhu Odh, who resides opposite their house, and they returned to their house at about 7-00 or 7- 30 p. m. When the commotion had subsided.
10. Mr. Sadik Ali Khoja, the learned counsel for the appellant, has assailed the evidence of first informant Shafi Mohomed on the grounds that he is a shifty witness, being an ex-policeman, and that in view of the many admittedly false and incorrect statements made by him his evidence is of no value whatsoever. From the mere fact that the witness is an ex-Head Constable of Police no adverse inference that he is an untruthful and unreliable witness can be drawn. Rather it would be legitimate to draw the reverse inference. There is, however, no doubt that the witness has made certain contradictory and incorrect statements. The most material of these is in regard to the part played in the incident by one Bachu Bai. In his F. I. R. The witness has stated that when he, Photo and Muhammad Hayat rushed to his house on hearing the cries, not only they found Bachu Bai standing outside the house, but further, when they were pursuing the appellant, this Bachu Bai threatened to kill anyone who pursued the appellant and ultimately took away the appellant on his cycle. In his evidence in Court, however, the witness went back completely on this statement and denied that he saw Bachu Bai standing outside his house or that Bachu Bai gave out any threat to the persons pursuing the appellant or took away the appellant on his cycle. The witness has also made contradictory statements on the point whether Mst. Razia was left at his house by the appellant or she came of her own accord. He has also made divergent statements in regard to the cause of dispute between the deceased and the appellant. In his F. I. R. The witness has stated that because the appellant used to maltreat and harass Razia, therefore, she left her husband at Mirpur Mathelo and came and stayed along with her children at the witness's house at Mirpurkhas, while in his evidence he has stated that it was the appellant himself who had left Razia at his house as they were not pulling on well and that Razia had complained to him that the appellant used to beat her and ask her to get him money from her father and to persuade her father to transfer his land to him. Except the contradictions in regard to the role in the incident played by Bachu Bai, the other contradictions are minor and could perhaps be explained in regard to the cause of dispute between the appellant and the deceased that the reason for the appellant beating the deceased was that he coveted the lands of her father, and in regard to how the deceased came to his house that the witness was anxious to show that it was not the deceased who had abandoned her husband but that it was the latter who had abandoned her. In any case, neither these contradictions nor even the fact that the witness had tried to falsely implicate (though somewhat indirectly) an innocent person are valid grounds for the total rejection of the evidence of the witness, as the learned counsel for the appellant invited us to hold. These circumstances, however, require exercise of greater caution in the appraisal of the evidence of the witness. The doctrine of falsus in uno falsus in omnibus has long since been abandoned by the Courts in Pakistan for the more realistic approach of separating the grain from the chaff, on a more realistic view of otter social conditions and in particular the deteriorating standards of truthfulness, as pointed out by their Lordships of the Supreme Court in Piran bitta v. State (1) and Bakka v. State (2). The first informant in the instant case is residing in the house where the incident occurred. Furthermore, he is a retired man. As such he is a natural witness and there is no valid reason to doubt his word that he had seen the incident, specially as he is supported on this point by two independent witnesses, namely Hayat and Photo. It may also be pointed out that the witness had lodged the F. I. R., which contains full details of the incident, within an hour of the incident, which could hardly have been possible if he had not been an eye-witness to it. The learned Sessions Judge has carefully analysed the evidence of the witness and has, in our view, correctly reached the conclusion that, notwithstanding the fact that the witness had in the F.
1. R. Falsely attributed the role of abettor to Bachu Bai, his evidence that the appellant had caused the fatal injuries to the deceased is substantially true. Of course if there had been only the evidence of the witness against the appellant we would not have been satisfied as to the guilt of the appellant, but then the witness is supported by his wife, his daughter Zarina and the two independent witnesses, Photo and Hayat.
11. The learned counsel for the appellant has assailed the testimony of Mst. Hameeda and Zarina on the ground that they are respectively the wife and daughter of the first informant and therefore under his influence they have falsely implicated the appellant. He further impugned the evidence of Mst. Zarina on the ground that her name does not transpire in the F. I. R. And even in his evidence in Court the first informant has admitted that he neither saw Mst. Zarina in the house during the incident nor even when he brought the Police at the Vardat. We find no substance in these submissions. The evidence of Mst. Zarina is consistent with the above evidence of the first informant and the absence of her name from the F. I. R. As already pointed out, she has testified that she was studying in her house when the appellant turned up and asked the deceased to accompany him but when the appellant became angry on her refusal to accompany him and attempted to take out something from the folds of his trousers she became frightened and ran to the house of her neighbour, Wadhu Oad, where she was kept by the women of the house till 7-00 or 7-30 p.m. We find her evidence natural and straightforward. If she had been influenced by her father to falsely implicate the appellant she could easily have stated to having seem the appellant causing knife blows to the deceased or at least taking out a knife, which she has not done. We may also mention that neither the first informant nor his wife, Mst. Hameeda, were anxious to mention the name of Mt. Zarina, apparently because they wanted to avoid her being brought to the Court, being a young, girl, and it was only in the cross-examination of Mst. Hamida that her name transpires. In any case the presence of Mst. Hamida in her own house cannot be doubted. The mere fact that she has stated that the deceased was given three knife blows when the medical evidence establishes that she was given only two blows or that according to her the deceased was given knife blows in the Verandah (courtyard) whip the evidence of the Mashir of the Vardat and the Investigating Officer is to the effect that blood stains were found both inside the room as well as in the courtyard of the house, do not, in our opinion, shake her evidence or make it unreliable as these discrepancies are evidently due to want of proper observation on the part of the witness {{FOOT NOTE}}
(1) PLD 1976 SC 300 (2)1977 SCMR 150 {{FOOT NOTE}} who must have been greatly agitated and confused at that time on account of the tragic and fatal assault on her daughter.
12. The learned counsel also submitted that inasmuch as Mst. Zarina was not cited as a witness in the challan and was examined in the Sessions Court on the application made in this behalf by the learned Public Prosecutor, therefore, her evidence is legally inadmissible and should be excluded.
The learned counsel was unable to refer us to any provision of the Evidence Act or other law in support of his submission but he attempted to seek support for his contention from the decisions reported in Sabu v. State (1), Muhammad Ashraf v. State (2) and Rab Nawaz v. State (3). None of these authorities, however, lend any support to the submission of the learned counsel. In the Karachi case, the evidence of the alleged eye-witnesses was not relied upon because of the absence of the names of some of the accused from the F. I. R. And further the antecedents a the witnesses were not good. In Muhammad Ashraf's case, the evidence of a witness was disregarded as a copy of his Police statement was not made available to the defence counsel though he had applied for its copy. In Rab Nawaz's case the practice of producing and examining in the Sessions Court a witness who was given up in the committal Court, without the permission and approval of the Court and without his being summoned, was disapproved mainly on the ground that such course is bound to cause prejudice to the accused in his defence. In the instant case an order was passed by the Court on the application of the learned Public Prosecutor, after hearing the objection of the defence counsel, for summoning Mst. Zarina. No possible prejudice could thus be caused, in our opinion, to the defence by her examination.
13. The learned counsel for the appellant has also assailed the testimony of P. Ws Photo and Hayat on the ground that they are chance witnesses. P. W. Hayat may possibly fall into that category since he admittedly resides at a distance of two furlongs from the scene of offence but not P. W.
Photo as he is a neighbour of the first informant, his house being about 100 paces from the house of the first informant. Moreover, not only the names of both the witnesses appear in the F. I. R. But when the Investigating Officer went to the vardat he found both the witnesses present there.
However, the fact that the statement of Hayat was recorded by the Investigating Officer on the day following the incident does cast the shadow of doubt on his evidence. No such suspicion, however, can be reasonably entertained in regard to the testimony of P. W. Photo, who appears to us to be an independent and reliable witness and has been rightly believed by the trial Court. His evidence lends strong support to the testimony of the first informant and Mst. Hameeda.
14. The incident occurred during broad daylight and hence the possibility of the witnesses being mistaken as to the identity of the culprit, who was well-known to them, is ruled out. We would also rule out the possibility of the witnesses having falsely implicated the appellant and exhonerated the real culprit, as suggested to the first informant and Mst. Hamida in their cross-examination, specially in view of the fact that the appellant was not only their son-in-law, but even otherwise was very closely related to them, being the son of the brother of the first informant and of the sister of Mst. Hamida. {{FOOT NOTE}}
(1) PLD 1966 Kar. 637 (2) PLD 1968 Lah. 694
(3) PLD 1976 Lab. 1240 {{FOOT NOTE}}
15. We have carefully considered the evidence in the case and are satisfied that it establishes the guilt of the appellant beyond reasonable doubt. The appellant has already been given by the trial Court, in the matter of sentence, the benefit of the extenuating circumstances in his favour. We would accordingly confirm the conviction and sentence of the appellant and dismiss his appeal.