1. ANWARUL HAQ, C. J.---The appellant Riasat Khan was convicted by the learned Sessions Judge, Gujrat, fair, the murder of Mst. Noor Begum, wife of Ghulam Muhammad (P. W. 7) and sentenced to death. His appeal was dismissed by a Division Bench of the Lahore High Court by its judgment dated the l1th of April 1974, and the sentence of death was confirmed.
2. The prosecution case was that the deceased, who was the second wife of Ghulam Muhammad had promised the hand of her daughter Anwar Begum (P. W. 4) to the appellant, but her husband did not agree to this proposal. There was accordingly a quarrel between the deceased and her husband, whereupon she left her husband's house and started living with her parents During her absence, Ghulam Muhammad married off Mst. Anwar Begum to his brother's grand son named Sikandar. It is said that a few months after this marriage the deceased became re-canceled with her husband and returned to the matrimonial home. The appellant tried to persuade the deceased to help him in eloping with Mst. Anwar Begum, but the Deceased refused. It is alleged that the appellant became annoyed with the deceased, and charged bar with dishonesty and deception, complaining that from the very outset she had no intention of giving her daughter to the appellant in marriage. The appellant is said to have threatened the deceased that he would take revenge for this insult.
3. The actual incident is alleged to have taken place at about Chhawela on the 22nd of May 1971, when the husband of the deceased was away from his house to Jhelum, and her daughter Mst.
4. Anwar Begum had gone out to the village well for fetching water. As the girl entered the courtyard of her house, she heard shrieks of the deceased coming from inside a room, and she saw the appellant infliction knife blows on the abdomen of her mother. On her alarm bar step brother Mian Khan and a relation Rehmat Khan (P. W. 6) came rushing and also saw the appellant causing injuries to the deceased. The appellant, however, managed to escape from the shot.
5. The first information report was lodged by Ghulam Muhammad (P. W. 7) at 12-45 p m. At Police Station, Kharian, at a distance of five miles, after he returned from Jhelum, and was informed of the incident. The appellant was arrested the next day, and led to the recovery of the blood-stained knife as well as his blood-stained shirt and Tehband.
6. The post-mortem examination of the body of the deceased, performed at 8-25 a.m. On the 23rd of May 1971, showed that she had suffered ten injuries, most of which bad been caused by a sharp edged weapon. According to the medical witness time between death and post-mortem examination was about 24 hours and it could also be between twenty to twenty-eight hours, thus indicating than death may have occurred between 4-30 a.m. And 12-30 p.m., on the previous day.
7. The doctor, however, noticed that the stomach of the deceased was empty, that bar bladder was also empty, and the small intestines contained some faucal matter. The condition of these internal organs appears to indicate that while the deceased had evacuated shortly before her death, she had not yet taken any meals.
8. While pleading not guilty at the trial, the appellant admitted his presence at the spot at the time of tae occurrence, stating that be bad developed an illicit liaison with the deceased, as a result of which the latter wanted him to marry her daughter and to live with her as a khana damad. He did not agree to this proposal, but, however, continued his illicit liaison, and used to visit her house in the absence of her husband and children. He added that at the time of the occurrence he had been summoned by the deceased, and that when they were in a compromising position in a room of the house, they were surprised by Mian Khan, the step son of the deceased. While the appellant managed to run away Mian Khan killed the deceased. The appellant asserted that he had been falsely implicated in the case because of his illicit relations with the deceased. He did not, however, lead any evidence in defence.
9. At the trial, the prosecution gave up Mian Khan as unnecessary, and placed reliance on the ocular evidence of Mst. Anwar Begum (P. W. 4) and Rehmat Khan (P. W. 6) besides the incriminating recoveries of the blood-stained knife and clothes at the instance of the appellant. The learned trial Judge believed this evidence, but the learned Judges in the High Court found it impossible to believe that Mian Khan and Rehmat Khan could actually see the; appellant causing injuries to the deceased. They also discarded the incriminating recoveries mainly on the ground that they were not supported by independent witnesses of the locality. However, they placed full reliance on the solitary evidence of Mst. Anwar Begum observing that she was a natural witness, and had no motive to falsely implicate the appellant. They also relied on the motive suggested by the prosecution.
10. Leave to appeal was granted to consider whether in the facts and circumstances of the case the conviction of the appellant could be safely based on the uncorroborated testimony of a solitary witness who was so closely related to the deceased.
11. It is submitted by Ch. Fazal-e-Haq, learned counsel appearing for the appellant, that the deceased appears to have teen murdered during the hours of darkness, that the crime was not witnessed by any body, and the first information report was considerably delayed on that aunt, and the appellant implicated on suspicion. He submits that if indeed Mian Khan or Rehmat Khan had witnessed the incident on an alarm having been raised by the daughter of the deceased, then there apps to be no explanation for either of them not having reported the matter at the Police Station which was only five miles away. He next submits that the statement made by the appellant at the trial as to the circumstances of the crime finds support from the fact that the loin-cloth of the deceased was not found on her person, and even her shirt was not on her body, as no corresponding cut marks were found on it. He contends that the failure of the prosecution to produce Mian Khan as a witness at the trial, even though be had been named in the first information report, must lead to an adverse inference against the prosecution.
12. After hearing the learned counsel for the appellant and the learned Assistant Advocate-General for the State, and perusing the entire evidence recorded at the trial, I am of the view that the appellant has been rightly convicted on the basis of the evidence of Mst. Anwar Begum.
13. It is true that the first information report was not made until 12-45 p.m but it seems to ms that the learned Judges in the High Court have rightly come to the conclusion that this delay could not be regarded as being fatal to the prosecution case. Ii will be seen that the husband of the deceased was away from his home, and the assailant was a relation, being descended trot" the same common ancestor. The step sin of the deceased as well as the `t other relations of Ghulam Muhammad were, therefore, bound to wait for his return before reporting the matter. I also find that theta was Indeed no motive for either Ghulam Muhammad or his daughter Mst. Anwar Begum to falsely implicate to a appellant in this crime. The girl had clearly stated that she had no objection to marrying the appellant, but the decision bested with her parents, and her father married her to Sikandar. In the circumstance, the delay per se in the first information report would not lead to an inferred that the appellant had been easily substituted for the real culprit.
14. It will be seen that the appellant admits his presence in the house of the deceased at the time of the Occurrence, but asserts that it was in fact Mian Khan who killed the deceased as he bad surprised the appellant and the deceased in a compromising position. Although the learner' counsel for the appellant has mile much of the fact that the loin-cloth of the deceased was found to have bean united and her shirt was also not covering her body men when knife blows were inflicted on bar, yet it is significant that the creased was found lying murdered on the floor inside the room. If indeed she had been having intercourse with the appellant at the time she was killed, there does not appear to be any explanation why she was found on the ground and not on the Charpal in the room. The High Court also has taken note of the fact that there were no marks on trio body of the appellant to show that he was having intercourse with the deceased on the ground. It seems to me that there appears to have been a struggle between the deceased and the e appellant, as a result of which she was thrown on the ground and then assaulted. In this process her loin-cloth and her shirt must have been dislodged. The absence of cut marks on the shirt, therefore, does not lead to the conclusion that the deceased had in fact taken it off for the purpose of having sexual intercourse with the appellant. Similarly, the fact that the loin--cloth had become untied would not show that it was for the same purposeit could have easily been the result of the struggle during which the decease was thrown on the ground.
15. The fate of the case really turns on the evidence of Mst. Anwar Begum. From the contents of the stomach as well a, the bladder and the intestines of the deceased it does appear that she was murdered at a time when she had evacuated, but had not yet taken her meals. This would appear to confirm Mst. Anwar Begum's story that the time was about Chhawela and it would also corroborate her statement that she bad gone out to fetch water from the village well. The incident having taken place inside the house of the deceased, Mst. Anwar Begum would appear to be a natural witness, if she returned from the well at that time. A perusal of her cross-examination, shows that her story is natural and convincing sic may be closely related to the deceased, but she had no live what---s never to falsely implicate the appellant. Her brother Mian Khan may have been reluctant to give evidence against the appellant, as the appellant wan descended from the same common ancestors and the was only Mian Khan's step-mother. The absence of Mian Khan's evidence is, therefore, susceptible of an explanation. I am therefore of the view that the Courts below were right in placing full reliance on the ocular testimony of Just. Anwar Begun as she was a natural witness and tire account furnished by her finds support from the medical evidence as to the nature of the injuries sustained by the deceased, and the condition of the internal organs.
16. I am, therefore, satisfied that this is a case in which the solitary testimony of Mat. Anwar Begum could safely be relied upon. The appellant has, therefore, been rightly convicted and sentenced. I would, dismiss this appeal.
17. MUHAMMAD HALEEM, J.---I agree.
18. QAISER KHAN, J.-After going through the judgment proposed by my Lord the Chief Justice to be delivered in this case it is with re3pect that I have to state that I do not find myself in agreement with it. I shall therefore record my own Judgment. The fact of the case need not be reiterated as these have already been given by my Lord the Chief Justice in detail in his proposed judgment. I shall straightaway proceed with the discussion of the case.
19. The prosecution evidence in this case consists of the following pieces;
(1) Ocular testimony of Mst. Anwar Begum P. W. 4 and Rehmat P. W. 6.
(2) Recovery of blood-stained knife and blood-stained clothes at the instance of the accused.
(3) Motive for the offence.
(4) Medical evidence.
20. So far as the recoveries are concerned these have not been believed by the High Court and in my opinion rightly too because it does not stand to reason that after committing the murder the accused could have kept these articles blood-stained in his house to be recovered the next day.
21. Besides no independent person was made a witness the recoveries despite the fact that even according to the statement of Raj Wali P. W. 9 many were present at the time of the recovery. Raj Wali is a close relation of the deceased and his statement could have no value whatsoever. The statement of Pir Muhammad S. H. O. P. W. 10 in this respect too could not be relied upon as he did not act fairly by not making independent person as recovery witnesses when they were available.
22. The evidence regarding the recoveries is therefore kept out of consideration.
23. So far as the medical evidence is concerned does not prove anything with respect to the commission of the offence of the accused. The P. W. Did see the occurrence before reporting the matter and the fact that the doctor found stab wounds and incised wounds on the person of the deceased would not show that the P. Ws. Did see the actual stabbing. The medical evidence is thus of no help to the prosecution. It on the other hand lend somewhat support to the version of the accused in that the deceased was stabbed inside a room and there were no cuts on her clothes despite the fact that a large number of injuries were caused to her which normally appears to be the work of a person very much enraged instantaneously.
24. Now coming to the motive it is quite clear that the accused had no motive whatsoever to murder the deceased. Even if it be assumed that the accused wanted to marry Mat. Anwar Beguan to which the deceased was agreeable but the father was not and he married her to Sikandar, this cannot become a motive for the accused to kill the deceased. It is in the prosecution evidence that when the father did not agree to give his daughter in marriage to the accused the deceased left the house of her husband and did not come to it for tour months. She also according to the prosecution evidence did not take park in the marriage of her daughter. Now under these circum-- stances it could not lie in the mouth of any body to say that the accused would be annoyed with her. On the other hand he would feel very much obliged to her for the great consideration shown to him by her. If the accused was to kill any body it could either be Ghulam Muhammad the father of the girl who had refused to get his daughter married to him or the girl herself so as not to allow her to enjoy her married life. The allegation that the accused got annoyed as the deceased would not help him in enticing Mst. Anwar Begum is simply ridiculous. If the girl was willing to come with him then there was no need for the help of the mother and if the girl was not willing and she had to be abducted then the help of the mother was neither necessary nor of any commence. Beside --there is no evidence worth the name regarding the fact that the accused had requested the deceased to help her in the abduction of leer daughter acid that can the refusal of the deceased the accused threatened her. The statement of Mst. Anwar Begum P. W. 4 shows that this did not happen in her presence and that she was informed by her mother of this and that she in turn informed her father about it. The F. I. R. On .The other hand with which Ghulam Muhammad was confronted shows that it was not Mst. Anwar Begum P. W. Who had informed her father but it was the deceased who had conveyed this information both to Ghulam Muhammad and Met. Anwar Begun, It Is therefore abundantly clear that there was no motive whatsoever for the accused to kill the deceased. On the other bald it can be gathered from the statement of the accused coupled with the statement of Ghulam Muhammad P. W. That the accused had illicit connections with the deceased and that it appeared to be on that account that the deceased had been turned out of her house by her husband for quite some time. In this connection it is to be remembered that the deceased was the second wife of Ghulam Muhammad P. W. And that there wag great disparity between their ages.
25. Furthermore the circumstances, the place and the manner in which the deceased was killed would dot suggest that the accused came to the house and stabbed her. In that case the accused could never have gone on giving the deceased asp many blows as ten and could never have dragged her to a room inside another room which had no door of its own towards the courtyard. In this connection this fact is also to be taken into consideration that according the prosecution evidence the loin-cloth of the deceased was not tied on her body and no cut was found on any part of the shirt despite the fact the all the ten blows were given almost on the abdomen. The above circumstances clearly suggest that the deceased was not stabbed by a stranger who just came from outside to stab her and then ran away. Be that as it may it is abundantly clear that the accused had no motive to kill the deceased.
26. We are therefore left with the ocular testimony of Mat. Anwar Begum and Rehmat. Mst. Anwar Begum is the daughter of the deceased and while Ghulam Muhammad husband of the deceased is the son of the aunt of Rehmat P. W. Both the P. Ws. Are therefore close relations of the deceased: Both the Courts below have held that they were not interested as they had no motive for falsely charging the accused. I however do not agree with them in this respect. On a close perusal of the whole of the evidence on file, I have come to the conclusion that the two P. Ws. Had an interest in charging the accused. I shall however revert to this aspect of the case after I have dealt with the statements of the two P. CJs. As they are. In this connection it is worth mentioning that though Mian Khan was an ocular witness and a resident of the house where the occurrence took place yet he was abandoned by the prosecution. It eras the duty of the Court to have examined him as a Court witness. From his neon-production it can be assumed that had he been produced he could riot have supported the prosecution case or at Last something could have been brought out from him which could damage the prosecution case.
27. Be that as it may Rehmat P. W. Can easily be termed as a chance witness as he bad no business to be on or near to spot at the tine of the occurrence. His house is more than 200 years away from the spot and his assertion that he was taking cattle for watering was not at ail mentioned by hint to the police. There was a well and there ware three water pumps in his Mohalla and the two cattle which he alleges to have been taking for watering could easily have been watered in the house by the females. Now if it be assumed that he came to the spot at the time of the occurrence then the version of the occurrence given try him and Mss. Anwar Begum does not seem to be plausible and best besides there is no independent corroboration in its support. On the other hard there are circumstances which-totally belie the said version;
(1) The occurrence took place on 25-5-71. Sunrise time on the day of occurrence was round about 5-30 a.m. The occurrence is alleged to brae taken place at Chhawela which can roughly be at 6- 30 or 7. Under these circumstances the deceased must have taken her early morning tea etc. The statement of the doctor however shows that her stomach was empty 'this clearly suggests that she was killed much earlier before she had taken anything which would belie the statement of the P. W.
(2) It is the prosecution evidence that on the noise of Mst. Anwar Begum both Rehmat P. W. And Mian Khan came to the house, entered the Kotha and saw the accused stabbing the deceased.
28. First of all it is highly improbable for the P. Ws. To have seen the accused still stabbing the deceased if they had come on the noise of Mst. Anwar Begum who had already seen the stabbing of the deceased, for the stabbing could have been over within a few seconds. Secondly if the two H.
29. Ws. Mian Khan and Rahmat or for that matter Mst. Anwar Begum had seen the accused stabbing the deceased in the room in which she was found dead it was very easy for them to close the door of the room and trap him there. Their not doing so makes their statements devoid of any force.
30. Who deceased was stabbed in a room which has no door to the courtyard bpd that room had an approach through another room from where P. Ws. Allegedly saw the accused stabbing the deceased.
(3) The occurrence took place in broad daylight inside the village Abadi and the accused was alleged to have been armed only with a knife. Two sturdy full grown close relates of the deceased saw the accused leaving the house after the murder end the two did not take a step to pursue him for arresting him 'the first instinct in such a case is to pick up such weapon as is available and to pursue the accused. Now it these two young men had picked up even axes or sticks they would easily have overtaken the accuse at some little distance and arrested him. As a matter of fact on their noise the whole village would have been in pursuit of the accused and the accused could not have disappeared in thin air. The fact that the accused was not pursued or arrested clearly shows that the two stalwarts Rehmat and Mian Khan were never present on the spot.
(4) It is la the statement of Rehmat P. W. That a large number of persons of the locality arrived at the spot soon after the accused left but not a single one of them has been produced to depose to at least this much that he either saw the acceded running away or that the accused was charged at the spot soon after the occurrence.
(5) The Police Station according to the F.1, R. Was five miles from the spot but according to the statement of Raja Khan P. W. It was only 2 --miles away. Now if the occurrence had taken place say P.W 7 a.m. Then the report should have been lodged in the Police Station at the latest by 8 a.m. As the place was connected with Kharian by Road. The re sort wag actually lodged at 12:45 hours and this extreme delay out of all proportion had not at all beta explained by the prosecution in any plausible way. The assertion that they were waiting for the arrival of Ghulam Muhammad is simply ridiculous. Nobody had be sent after him, to Jhelum and no body knew as to when he would be coming. He may not have arrived till the evening then does it mean that the P. Ws. Had to wait till the evening for reporting the matter and after all of what help could he be in reporting the matter when he had not seen alia occurrence. Two young grows-tip men close relatives of the deceased had seen the occurrence and it is not understood as to why did they not go to the Police Station for reporting the matter. As a matter of fact Ghulam Muhammad after his arrival should riot have himself reported the master but should have taken one of the two witnesses who had seen the occurrence to report the matter. Raja Khan P. W. 3 a close relation of the deceased was sent for from Kharian though a barber who informed him of the occurrence but it is very strange that neither this Raja Khan reported the matter in the Police Station situated close to his house nor was the master reported even after his arrival in the village. The only logical conclusion of this is that ether the culprit had not been seen by the P. We. And consultations and celebrations were required for fabricating evident and a story for charging the accused or that the deceased had been done to death by Mian Khan as alleged by the accused and none could dare report the matter against him till the father bad been consulted. Now if the deceased toad been stabbed by Mian Khan which probable and which I shall presently discuss then there was certainly a motive for the P. Ws.
31. To charge the accused to save Mian Khan, Mst. Anwar Begum could not dare charge Mian Khan out of fear of reprisal and since the deceased bad been killed inside the house she had to explain as to who killed her. The accused was thus the only target as there is evidence on file to show that he had illicit relations with the deceased rind secondly he was charged after consultations and deliberations. Under these circumstances the two close relatives of the deceased and Ghulam Muhammad could not therefore be termed as disinterested witnesses. Their statements therefore required independent corrobo--ration which was lacking.
32. If the accused had come to the house of the deceased in broad day--light to kill her he would straightaway have given her a few blows in the courtyard of the house and then run away. The fact that the decreased wasp done to death in a Kotha inside a Kotha and then a large number of injuries were inflicted on her cot of which none had out her loincloth or shirt and that her stomach was found empty lances great support to the defence version as given by the accused. This version finds further support from, the fact that on the night preceding the day of occurrence Ghulam Muhammad was away from his house and an approach to the deceased for illicit purpose was easy. At any rate the statement of the two interested P.Ws. In the circumstances of the case without independent corroboration could not be considered sufficient for bringing home the charge to the accused beyond a reasonable doubt. Giving the accused the benefit of doubt I would therefore find him not guilty and setting aside his conviction and sentence acquit him.
33. ORDER OF THE COURT According to the view of the majority, the appellant has been rightly convicted and sentenced, and this appeal is dismissed.