P L D 1965 (W (PLP)

MUHAMMAD GUL, J.‑Manzur ‑Elahi, aged 22 years was tried by the learned Sessions Judge, Rawalpindi, . under section 302, P. P: C. for having committed the murders of Muhammad Iqbal and Khan Zaman, on the 30th of October 1963, within a short space of time from each other at two different places 370 karams apart; in the area of village Naugazi, in the District of ‑Rawalpindi. The learned trial Judge acquitted Manzur Elahi on the charge of murder of Khan Zaman but convicted him for the murder of Muhammad Iqbal and sentenced him to death. He appeals against his conviction and sentence and his case is before us for confirmation of death sentence under section 374, Cr. P. C. This judgment will dispose of the appeal and the reference.

2. The prosecution case is that on the 30th of October 1963, at about rotiwela, Muhammad Iqbal deceased was cutting jawar crop in the field belonging to his father, Walayat Khan. The appellant armed with a hatchet appeared on the scene and caused multiple injuries to Muhammad Iqbal with the hatchet on his neck resulting in his instantaneous death. The incident was witnessed by Jem. Abdul Aziz (P. W. 9) and Nizam Din (P. W. 10), who at that time happened to be in their respective fields tending their cattle, not distant from the scene of occurrence. After having killed Muhammad Iqbal, the appellant proceeded to a threshing‑floor near Dhok Mansabdar at a distance of 370 karams from the scene of first murder where he killed Khan Zaman, who was winnowing moong. The appellant caused injuries to Khan Zaman on his head, neck and right arm with the hatchet. This was witnessed by Karam Din (P. W. 12) and Ghulam Alamdar Husain. (P. W. 13), who respectively are son‑in‑law and son of Jem. Abdul Aziz aforesaid.

3. The motive for the double murder by the appellant is that on the 6th of June 1963, Riaz, a brother of the appellant was murdered for which Walayat, father of Muhammad Iqbal deceased; his three brothers, a brother‑in‑law and a cousin and one Jumma, a cousin of Khan Zaman deceased were implicated. The appellant had therefore a strong motive‑to avenge the murder of his brother.

4. Jem. Abdul Aziz after having seen the first murder left for village Naugazi to inform the relatives of Muhammad Iqbal deceased of his murder by Manzur Elahi leaving Nizam Din (P. W. 10) with the body. On reaching the village, he, however, learnt that all relatives of Muhammad Iqbal deceased had gone to Rawalpindi in connection with the proceedings in the case of the murder of Riaz. Not finding the relatives of Muhammad 1c]bal deceased in the village, Jem. Abdul Aziz went to the house of Mir Zaman .where a number of persons had gathered to condole the death of his son who had died earlier in the morning. There Jem. Abdul Aziz found Muhammad Din Chaukidar (P. W. 8) to whom he narrated the incident leading to the murder of Muhammad Iqbal and asked him to go to lodge report of the incident at Police Station, Sang Jani. While Jem. Abdul Aziz was still briefing Muhammad Din Chaukidar, his son Ghulam Alamdar Husain (P. W. 13) also came and informed his father and Muhammad Din that the appellant had killed Zaman Khan at Dhok Mansabdar with a hatchet and that the incident was seen by him and Karam Din (P. W: 12) and that he had left the latter with the dead body of Khan Zaman. Accordingly, Muhammad Din set out for the Police Station, Sang Jani, about 5 miles from village Naugazi, where he made the report Exh. P. G. at 1 p.m. It was recorded by Muhammad Jamil Shah, Head Constable (P. W. 5). Muhammad Akbar Khan (P. W. 14), S. H. O. was not then at the police station. On receiving information of the two murders, he proceeded to Village Naugazi for investigation. He first went to Nallewali field the place where Muhammad Iqbal deceased lay dead and prepared the injury statement Exh. P. M. and inquest report Exh. P. N. From the spot, he took into possession blood‑stained earth, blood‑stained plants of jawar and booti and made them into a sealed parcel vide Memo. Exh. P. E. He also took into possession blood‑stained sickle Exh. P. 5 (with which deceased Muhammad Iqbal was cutting jawar), a pair of chappals Exh. P. 6 and blood‑stained snuff‑box Exh. P. 7 and five bundles of cut jawar Exh. P. 8/1‑5, vide memo. Exh. P. F. Spot inspection relating to the murder of Muhammad lqbal being over, the S. H. O. went to the site of the second murder and there prepared the injury statement of Khan Zaman deceased Exh. P. O. and inquest report Exh. P. Q. He took into possession blood‑stained earth, and grass from the spot and made it into a parcel vide memo: Exh. P. K. blood stained karai (winnowing bar) Exh. P. 9, a pair of chappals Exh. P. 10 and a chadar Exh. P. 11 were also taken into possession vide memo. Exh. P. L. Both the dead bodies were then despatched to the mortuary for post‑mortem examination under the escort of Muhammad Sabir F. C. (P. W. 2). After the post‑mortem examination, Muhammad Sabir F. C. brought back blood‑stained clothes Exh. P. I and Exh. P. 2 worn by Muhammad Iqbal deceased and Exh. P. 3 and Exh. P. 4, worn by Khan Zaman deceased at the time of their respective murders. These clothes were taken into possession vide memo. Exh. P. C.

5. The appellant disappeared from the village and remained at large until he was apprehended and arrested in Rawalpindi City on the 4th of December 1963, by Muhammad Akbar Khan. This was not until proceedings under sections 87 and 88, Cr. P. C. were taken against him.

6. Dr. Maqsood Khan, Medical Officer, District Headquarters Hospital, Rawalpindi*, performed the autopsy on the dead body of Muhammad Iqbal deceased on the 31st of October 1963 and found the following injuries:‑ (1) An incised wound at the right of the base of the neck ranging from inter clavicular fossa to the back of right side of the neck cutting the cervical vertebrae vessels of the right side of the neck. Neck attached to the body only by a piece of skin on left side. (2) An incised wound on the right side of the face and skull going from below upward 3 " x " x cutting the bones. (3) An incised wound 2" x ` x over the left supra clavicular fossa. In the opinion of the doctor death was due to shock and haemorrhage resulting from injury to the vital structure of the neck (2) injuries to the skull. The injuries on the deceased were inflicted by some heavy sharp‑edged weapons and were ante-mortem and sufficient to cause death in the ordinary course of nature. On the same day the doctor also performed the autopsy on the dead body of Khan Zaman and found the following injuries:‑ (1) An incised wound, 2 " x 1" x cutting the cervical column or vertebrae centre of neck in front directed from side to side. (2) An incised wound, 3" x 1 " x cervical deep on the left side of the neck. (3) An incised wound 2 ' x ' x cutting .the bones and left a ear directed before backward. (4) An incised wound, 3 " x ' x cutting bones of skull on the left parietal region. (5) An incised wound, 2' x " x cutting the bones underneath on the centre of forehead. (6) An incised wound, 1" x " x " over the right supra clavicular fossa. (7) An incised wound, 1 " x " x ", over the right forearm in middle. (8) An abrasion, 2'' x ", over the left forearm. In the opinion of the doctor death was due to shock and haemorrhage, resulting from (1) injury to the skull bone and brain. Injury No. (2) was on vital structures of the neck. The weapon used on the deceased was some heavy sharp‑edged weapon. All the injuries were ante-mortem and sufficient to cause death in the ordinary course of nature.

7. At his trial and also before the committing Magistrate, the appellant pleaded not guilty and stated that his enemies had engineered this case against him. He, however, did not name his enemies nor did he produce any evidence in his defence.

8. The learned Sessions Judge disbelieved the evidence of Karam Din and Ghulam Alamdar Hussain, the two eye‑witnesses to the murder of Khan Zaman by the appellant at the threshing‑floor near Dhok Mansabdar Khan. He opined that these two witnesses were not present at the spot and that their evidence was also at variance with the medical evidence. There were a number of other infirmities in their evidence. Therefore, he reached the conclusion that no reliance can be placed on the evidence of these two witnesses. Accordingly he acquitted the appellant of the charge relating to the murder of Khan Zaman.

9. The eye‑witnesses account relating to the murder of Muhammad Iqbal as given by Jem. Abdul Aziz is that on the day of occurrence at about rotiwela, he and his son Zulfiqar Hussain were in his field called Nallewali. His son was engaged in cutting jawar crop and himself was tending his two mares grazing at a distance of some 200 yards from him. The appellant who carried a hatchet passed at some distance from him and went towards the held where Muhammad Iqbal deceased was cutting jawar. In the meantime, Jem. Abdul Aziz saw his mares trespassing into another jawar field and he ran after them to prevent the trespass. As he came close to his mares, he suddenly heard cries of Muhammad Iqbal and saw the appellant inflicting repeated hatchet blows on his neck. Jem. Abdul Aziz raised alarm and the appellant shouted that he had avenged the murder of his brother. Before Jem. Abdul Aziz actually reached the spot the appellant left taking the hatchet with him. Muhammad Iqbal's death was instantaneous.

10. Nizam Din (who was also tending his grazing cattle also reached the spot) has also testified in the same strain.

11. Despite some discrepancies in matters of detail not affecting the substance of the transaction resulting in the instantaneous death of Muhammad Iqbal, the learned Sessions Judge, after what appears to be careful analysis, believed the eye‑witnesses' account given by Jem. Abdul Aziz and Nizam Din and treated them as genuine eye‑witnesses. He also found their evidence consistent with the medical evidence. Support was also sought from the evidence of strong motive for the murder. The combined effect of this evidence, according to the learned Sessions Judge was that the charge relating to the murder of Muhammad Iqbal by the appellant was proved beyond any reasonable doubt.

12. Learned counsel appearing for the appellant questioned the above appraisal of the ocular evidence in the case. It was urged that Jem. Abdul Aziz was a stock witness of the police, unworthy of any credit: that there was delay in the F. I. R. and the interval was utilized in cooking up the prosecution story and procuring eye‑witnesses to support the prosecution case: that in Jem. Abdul Aziz the police found a willing supporter who not only volunteered himself but also procured his son Ghulam Alamdar Hussain (P. W. 13) and son‑in‑law Karam Din (P. W. 12) to appear as eye‑witnesses to the murder of Khan Zaman and that even the second eye‑witness to the murder of Muhammad Iqbal, namely, Nizam Din, was distantly related ‑to him. It was also urged that Jem. Abdul Aziz was not a natural witness inasmuch as according to his own admission he was a homoeopath and, therefore, he should have normally been at his shop at the relevant time and not in his field doing the job of rustic. Lastly that there was inordinate delay in recording the statements of eye‑witnesses by the police and this affected the entire prosecution case making it wholly doubtful.

15. We have given our anxious consideration to the above contentions of learned counsel but in our opinion the criticism is not well‑founded. It is incorrect to dub Jem, Abdul Aziz as stock witness at the beck and call of police, Besides the Instant case, he appears to have been cited as a witness by the police only in the murder case of Ijaz, in which his evidence is purely of formal character. Ire is not proved to have appeared In any other police case in the recent past, That he has appeared as witness for the opposite faction in a murder case establishes his neutrality and independence as a witness, Evan otherwise, is observed by learned Sessions Judge, he is a retired army officer and a member of Union Council which invests him with respectability and credit‑worthiness. Indeed learned counsel for the appellant could not point out to any possible motive for false implication of the appellant by him. Ha had no axe to grind. The more fact that his son and son‑in‑law were disbelieved by learned Sessions Judge as eye‑witnesses to the second murder per so is no reason to disbelieve his evidence also. All that is required to be considered is whether he is a natural witness and saw the occurrence? In this behalf learned counsel wanted to make capital out of an admission by Jam, Abdul Aziz that he is homoeopath, From this it was sought to be inferred that he should have been at his shop. This assumes that Jam, Abdul Aziz runs a shop. But there is no warrant for any such assumption, It is not even clear whether Jam. Abdul Aziz practises homoeopathy as regular profession or takes interest as an amateur, Prom the plan Exh. P. H, prepared by the, Patwari, it is clear that Jam. Abdul Aziz has his Told at a distance of about 175 karams to the south of the field in which the deceased was cutting jawar at the time of his murder, A consideration of all these factors leaves no doubt in our mind that Jam. Abdul Aziz is a genuine witness of the occurrence. Ibis testimony also confirms the presence of Nizam Din near the spot.

14. Likewise there is no substance in the contention that the F. I, R. was unduly delayed, It was recorded at the police station at 1 p.m. It may be, that Police Station, Sang Jani, is at a distance of only 5 miles from village Naugazi and is connected by metalled road and bus and tonga traffic. But it is in evidence that on reaching village, Jam, Abdul Aziz first tried to contact the relatives of Muhammad Iqbal deceased, Not finding them in the village, he enquire about Muhammad Din Chaukidar whom he found at the house of Mir Zaman, Then the information received regarding the second murder by the appellant must have hold up the Chaukidar for a while, before he set out on the errand to the police station. Secondly, there appears to be no unreasonable delay in recording the statements of eye‑witnesses by the police, if we bear in mind the fact that the S. H. O. had to visit two places 370 karams apart to prepare the injury statement and inquest reports before actually addressing himself to the task of recording the statements of eye‑witnesses, These proceedings must, have taken time and were not merely mechanical.

15. Lastly the appellant remained a fugitive is also significant factor for which the appellant had no explanation whatever to offer. This fact coupled with other evidence on the record discussed above goes along way in the case, for which the appellant has no explanation to offer.

16. The above consideration of evidence both direct and circumstantial in our opinion establishes the guilt of the appellant for the murder of Muhammad Iqbal beyond any reasonable doubt. We are also in agreement with the learned Sessions Judge that murder committed by the appellant is calculated and cold -blooded and he does not deserve any lienancy. The appeal against appellant's conviction for the murder of Muhammad Iqbal, therefore, fails and is dismissed. The death sentence passed on him is hereby confirmed. A. H. Appeal dismissed.