1985 PLP 484 (SCMR)

Amar Raza Khan, Advocate Supreme Court and Muhammad Aslam Chaudhry, Advocate‑on‑Record (absent) for the Appellant. Mian Inamul Haq, Advocate Supreme Court for Advocate‑General (Punjab) and Rao M. Yousuf Khan, Advocate‑on‑Record for the State. Date of hearing: 3rd December, 1984. ZAFFAR HUSSAIN MIRZA, J.‑‑ Appellants Rasib and Gulzar were convicted by the learned Additional Sessions Judge, Mianwali under section 302/34 of the Pakistan Penal Code for committing the murder of Mohammad Feroz on 27‑5‑1975. The trial Court sentenced Rasib to death and Gulzar to imprisonment for life. Both convicts were also directed to pay fine of Rs.10,000 each which, if realized, was ordered to be paid as compensation to the heirs of the deceased. The facts are that the deceased was employed in Textile Mills at Bhakkar and was residing with his uncle Habib (P.W.7) alongwith their families in village Razaishah about four miles away, within the jurisdiction of Police Station, Bhakkar. He went to work at the mills every day at 8.00 p.m., and returned the next morning at about 7.00 a.m., after which he, psed to take meals and go to sleep in the Baithak. The appellant Rasib was married to Mst. Sitara (P.W.9) who was the sister of the deceased and was living with her husband at Bhakkar at the time of the occurrence. It is the case of the prosecution that about six months before the occurrence appellant Rasib :vas instrumental in getting the deceased married to Mst. Jamilan, sister of the other appellant Gulzar. Subsequently a dispute arose between the deceased and the appellants on the payment of Rs.4,000 which the appellants were demanding from the deceased as a compensation for arranging his marriage. The appellants then forced the deceased to divorce Mst. Jamilan. As earlier stated the occurrence took place on 27‑5‑1975 at 1.30 p.m., when the deceased, in accordance with his usual routine was sleeping in the Baithak after taking his morning meals. At Dopehrwela Mst. Rashidan (P.W.8) wife of Habib (P.W.7) heard commotion from the Baithak and on peeping through the window saw appellant Gulzar holding the deceased on the ground and appellant Rasib inflicting injuries on him with a dagger. On the alarm raised by her the appellants decamped from the scene. In the meantime Abdul Latif (P.W.10) and one Sultan were attracted to the scene who are also said to have seen the appellants running away from the scene of occurrence. Appellant Rasib was bare footed and was holding a dagger and the clothes of both appellants were besmeared with blood. The deceased succumbed to his injuries on the spot. On learning about the occurrence Habib (P.W.7) came to the house and was informed about the occurrence by Mst. Rashidan (P.W.8), Abdul Latif (P.W.10) and Sultan. Subsequently he lodged the F.I.R. with Bhakkar Police Station. The appellants were arrested on 29‑5‑1975. At the spot the Investigating Officer found a dagger sheath and a pair of Chappals which articles were stained with blood. Appellant Rasib is said to have led to the recovery of a blood‑stained dagger from a steel box lying in a locked room of his house. The Chemical Analyser found the dagger and the pair of Chappals to be stained with human blood. On the post‑mortem examination the Medical Officer found six incised wounds on the front and the back of the chest, lumber region, shoulder and knee as well as multiple abrasions on the body of the deceased. The appellants proclaimed their innocence and alleged that they had been falsely implicated due to strained relations with Habib (P.W.7) on account of their refusal to give the hand of Mst. Jamilan in marriage to the deceased. They also gave the same reason to explain the evidence of Mst.Sitara (P.W.8) wife of appellant Rasib who had deserted her husband. No evidence in defence was, however, produced. At the trial the prosecution relied upon the ocular testimony of 'Mst. Rashidan (P.W.8), the Wajtakar evidence provided by Abdul Latif (P.W.10) and the testimony of Mst.Sitara (P.W.9) who deposed that her husband appellant Rasib had taken a Chhurra from his house which was kept in a leather‑sheath and both appellants had left the house together thereafter. They returned to the house at about Zuharwela and appeared to be preplexed and confused. Their clothes were wet and seemed to have been recently washed. Appellant Rasib did not bring back the Chhurra and was not wearing his Chappals. She also identified the pair of Chappals and the leather‑sheath lying at the spot to be that of her husband appellant Rasib. In addition the prosecution also relied on the recoveries of the incriminating articles. The trial Court accepted the evidence of Mst. Rashidan (P.W.8) as reliable and held that she was a natural witness admittedly living with her husband in the house in which the occurrence took place. She had fully supported the prosecution version and her testimony went unchallenged except for an assertion that she was not present at the spot when the deceased was done to death. There was, however, no cogent reason to disbelieve her testimony. Above all she had no motive to falsely implicate the appellants, as she had no grudge against them. The evidence of Abdul Latif (P.W.10) who was attracted on the cries of Mst. Rashidan was also found to be trustworthy and untainted by any animosity towards the appellants. This witness is a resident of Razaishah and there was no question of his not being present at the time of the occurrence. Similarly, Mst. Sitara (P.W.9) was believed that the appellants had left the house after arming themselves with dagger and returned in the suspicious circumstances described by her. The suggestion that she had left the house of appellant Rasib was held to be unfounded. The trial Court also relied upon the evidence of recoveries but rejected the evidence of motive as unconvincing. Being aggrieved by their convictions the appellants filed an appeal before the Lahore High Court which was heard alongwith the reference for confirmation of death sentence awarded to appellant Rasib. Before the High Court it was contended on behalf of the appellants that the ocular account as to the time of occurrence was contradicted by medical evidence. In this connection reference was made to the opinion of the doctor that the deceased had taken his meals about one to two hours before his death, whereas according to the prosecution evidence he had taken meals at sunrise time. The learned Judges, however, repelled this contention on the ground that the doctor's opinion was "based on a very scanty data" and did not, therefore, detract from the credibility of the ocular testimony. Having thus accepted the ocular version furnished by Mst. Rashidan, the learned Judges found corroboration in the evidence of Abdul Latif (P.W.10) and Mst. Sitara (P.W.9). They also found no reason for these witnesses to falsely implicate the appellants in a heinous crime of murder. The learned Judges found no justification in the challenge offered by the defence as to the veracity of evidence of recovery. The recovery witnesses besides being respectable residents of the locality were found to be independent witnesses having no grudge against the appellants. Accordingly, the High Court dismissed the appeal of the appellants and confirmed the sentence of death imposed on appellant Rasib by their judgment and order dated 10‑1‑1979. Leave was granted in this case in order to examine the veracity of the ocular testimony, in view of the medical evidence to the effect that food was found present in the small intestine as well as in the stomach of the deceased, whereas the deceased was said to have taken his meals in the morning at about sunrise and thereafter gone to sleep until his murder. It has been contended on behalf of the appellants that in view of the medical evidence the time of the occurrence at 1.30 p.m. was wholly incompatible with the ocular testimony furnished by Mst. Rashidan, which destroys the entire prosecution case. According to the learned counsel for the appellants, the murder seems to have been committed in the house of Habib (P.W.7), the complainant in the case, who in order to avoid his responsibility of explaining the same implicated the appellants who had refused to marry Mst. Jamilan to the deceased. It was pointed out that the deceased was the real nephew of Habib (P.W.7) and Mst. Sitara (P.W.9) was the real sister of the deceased and had been deserted by appellant Rasib. With the assistance of the learned counsel we have gone through the evidence on record. The relevant portion of the evidence of doctor Abdul Qayyum (P.W.1) who performed the post‑mortem examination on the body of the deceased is as under: In the abdomen peritoneum was punctured was at the right lobe of liver‑ Diaphragm was punctured on the right side Food was present in the half of the stomach. The small intestines also contained food matter. Liver was punctured up to 4" at the right lobe. Rest of the organs of the abdomen were healthy and normal..............................Taking into account the presence of food in the small intestines as well as in the stomach it can be opined that the deceased had taken his meals one or two hours before his death." According to Mst. Rashidan's evidence. the deceased had taken his morning meals in her presence early in the morning at about sunrise time and immediately after taking his meals, he had gone inside the Baithak to sleep. On the other hand, in his cross‑examination Habib (P.W.7) stated that he was not able to give even approximately the time of the arrival of the deceased from the mills on the day of occurrence. He stated that the deceased used to go to his mills at about 8.00 p.m. He further stated that the deceased consumed his morning meals on the day of occurrence about half an hour after his arrival in the house. In the F.I.R. he had stated that he usually returned at 7.00 a.m. Taking all these facts into consideration the time lapse between the taking of meals by the deceased and his death at 1.30 p.m., was about six hours. The contention is that it takes four to five hours for food to leave the stomach and the small intestines in the process of digestion and if that is so then the murder did not take place at 1.30 p.m. but at about 11.30 a.m. Modi's Textbook of Medical Jurisprudence and Toxicology has the following relevant passage with reference to the time of death calculated according to the degree of digestion of the stomach contents: "It has been ascertained by physiologists that a mixed diet containing more of animal food and less of vegetable food as ordinarily taken by a European leaves the stomach in four to five hours after it is completely digested while a vegetable diet containing mostly farinaceous food as usually taken by an Indian does not leave the stomach completely within six to seven hours after its ingestion. But this cannot always be relied upon in determining the time of death, inasmuch as the power of digestibility may remain in abeyance for a long time in states of profound shock and coma. Food has been seen in the stomach remaining undigested in persons who received severe head injuries soon after their meal and died within twelve to twenty‑four hours afterwards. In one case the food consisting chiefly of rice and Dal (pulse) remained in the stomach for about forty hours without undergoing digestion. It must also be remembered that the process of digestion in normal healthy persons may' continue for a time after death. From the quoted passage it would appear that much depends upon the type and character of the food taken by the deceased, to determine the time taken by the food to leave the stomach. Apparently vegetable diet as must have been taken by the deceased would not completely leave the stomach within six to seven hours after its ingestion and in any case according to the opinion of the expert it is but an unreliable test to determine the time of death. It is reasonable to think that various factors affect the digestive process, which may be stowed down in the case of a man in sleep as compared to a person who is up and doing. But even taking into consideration the time factor relied upon by the learned counsel for the appellants the time of death comes to 12.30 p.m., which is a very marginal difference, accordingly, insufficient to furnish basis for throwing overboard the testimony of a witness whose presence at the time of the occurrence cannot be easily denied. After all medical evidence is expert evidence based upon certain physical data and as in the present case if the data lacks insufficiency, it cannot be given overriding effect upon oral evidence coming from unimpeachable source This Court in Yaqoob Shah v. State P L D 1976 S C 53 preferred direct evidence as against the expert evidence which is in the nature of confirmatory or explanatory evidence. We, therefore, agree with the High Court that the medical opinion relied upon proceeds on insufficient data and even otherwise is inconsequential so far as direct ocular testimony in this case is concerned. We are satisfied that the assessment of evidence in this case by the trial Court and the High Court proceeds on recognized principles of law and the evidence fully sustains the conviction of the appellants for the reasons assigned by these Courts. Learned counsel lastly urged that the sentence of death awarded to appellant Rasib needs to be reviewed and substituted, but we find no extenuating circumstances on the record for awarding the lesser sentence. The appellant acted in a dastardly manner killing the deceased, while he was helplessly sleeping in cold blood by inflicting multiple injuries with a knife in a cruel manner. The ends of justice fully justified the death penalty in his case. In the result the appeal fails and is dismissed. M. Z. M. Appeal dismissed.