P L D 1958 (W (PLP)

HABIBULLAH KHAN, J.‑This is an appeal by one Babu Hussain, resident of Chak No. 2 D. B. District Mianwali, against the order of the Sessions Judge, whereby he has been convicted under section 302, P. P. C., for the murder of Fateh Muhammad and sentenced to death. His sentence is also laid before us for confirmation. The brief facts of the case are, that Babu Hussain appel lant, who is a refugee and an allottee of some land in Chak No. 2 D. B. District Mianwali, used to visit the house of Fateh Muhammad deceased in Kundian village, which is about 3 miles from his residence. , In the course of these visits, he developed illicit connections with Mst. Sahiban (P. W. 7), a sister of the deceased. The deceased was, however, unaware of the illicit connections. In the harvesting season of 1957, the ,appellant engaged the deceased on a lump‑wage of 4 maunds of wheat to cut his wheat crop. Accordingly, the deceased shifted from his house to the Khalwara (threshing floor) of the appellant along with his sister Mst. Sahiban (P. W. 7) and Mst. Aishan (P. W. 6). the wife of his brother Muhammad (P. W. 2), about 2 months prior to the occurrence, and took up temporary resi dence in the jhuggi (a thatched hut‑ or chappar) of the appellant, situated close to his threshing floor. The deceased busied himself with reaping the wheat crop of the appellant, while the two ladies used to work with some other people in the area. Two or three days before the occurrence, one morning the appellant asked the deceased to go to a canal, which was situated at some distance from the threshing floor and fetch water. When the deceased left for the canal, Mst. Sahiban went to the jhuggi followed by the appellant. This was noticed by Mst. Aishan, who saw them in a compromising position The same evening Mst. Aishan informed the deceased of the misconduct of his, sister Mst. Sahibar and the appellant. The deceased apparently resented the misbe haviour of the two, and accordingly he sent Mst. Sahiban and Mst. Aishan back to his village the following morning. When the two ladies were on their way back home, tile appellant met them and enquired from Mst. Sahiban the reasons for their departure from his threshing‑floor. He was void, that they had been sent back by the deceased, who had learnt of his and Mst. Sahiban's misbehaviour in the jhuggi. The ladies went home, while the appellant returned. When the ladies, reached home, Muhammad, husband of Mst. Aishan, enquired then, as to why they had come back without the deceased Mst. Aishan related the story to him. Muhammad apprehending danger of harm to his brother came to the threshing floor of the appellant and counselled the deceased to leave the place and return home. The deceased replied that he was a poor man and could not afford to lose 4 maunds of wheat, which he had not yet collected from the appellant. He, however, promised that after receiving his wages he would return to his house on the following day. Accord ingly, Muhammad came back to his house in Kundian Muhammad waited for the arrival of his deceased brother on the following day, but when he did not return t peshinwela, he (Muhammad) taking Afzal (P. W. 4) and one Ramzan with him went to the threshing floor, where the appellant and Ghulam Akbar (P. W. 3) were present. The deceased was not there. Muhammad enquired from the appellant about his brother. The appellant told him, that the deceased had gone to his village Kundian. Muhammad replied, that he had not returned to his house. Thereupon, the appellant said "the deceased might have gone to village Sajri". Ghulam Akbar immediately contra dicted him that the deceased had not gone to his village, because he himself had come from there. The conflicting replies created suspicion in the mind of Muhammad and his companions. They started a search for the deceased round about the threshing floor, but found no definite clue. They, however, observed some drops of blood in the vicinty of the threshing‑floor and also a portion of a chadar protruding out of the ground. This confirmed their suspicion that probably the deceased had been murdered. Accordingly, Muhammad went‑to Police Post Kundian and lodged a report the same night at about 8‑30 p.m. Ata Muhammad, Head Constable Police Post Kundian (P. W. 13), who was in village Chah Jalal. Khelanwala in connec tion. with the investigation of another case, received a copy of the report, and thereupon. he immediately left for the spot where he reached the following morning at 5 a.m. The appellant was present in his threshing floor. He was arrested. During the course of investigation, the appellant led the investigating Officer to different places, from where the dead body and some incrimina ting articles were recovered. When post mortem examination of the dead body was carried out, it was discovered that the deceased had received one shot on his lower jaw, and another on his forehead. He had also an, entrance wound of a shot on the flexor aspect of the lower 3rd of his left forearm. Besides the shot injuries he had a contused wound on his nose. One of his toes was void of skin and the distal digit was missing. The large intestines were full of faecal matter. At the trial, the appellant completely denied the charge and attributed it to his alleged enmity with Jemadar Muhammad Sharif Lambardar (P. W. 5). It has been contended by the learned counsel for the appel lant, that the entire story of illicit connections between the appellant and Mst. Sahiban, the suspected murder of the deceased at the threshing floor, and the subsequent recoveries of the dead body and the incriminating articles was false, and was concocted at the instance of Jemadar Muhammad Sharif Lambardar, and that his client was absolutely innocent. We, however, on careful examination of the evidence brought on the record ate of different view and we will presently give our reasons in support of it. If the motive, namely, the ill‑feelings created by the illicit connection between the appellant and Mst. Sahiban and its subsequent disclosure is eliminated from consideration, as the learned counsel for the appellant wishes us to do, then the relations of the deceased have definitely no cause to concoct a false story; enter into conspiracy with the other witnesses and police, and to falsely involve the appellant in the murder. Gut if, on the other hand, this story' is correct, then the appellant had a very strong motive to kill the deceased. When we consider the fact, established beyond any reasonable doubt, that all the witnesses appearing in the case are absolutely disinterested and impartial persons. We are led to the irresistible conclusion, that the witnesses have given out a true story, and that they have not made the slightest attempt to depose falsely against the appellant. It has been suggested by the appellant's counsel that the charge has been levelled against his client at the instance of Jemadar Muhammad Sharif Lambardar (P. W. 5), but there is nothing on the record to prove that this witness has got any enmity with the appellant, or any connections with the deceased's family. The same is true of Ghulam Akbar (P. W. 3) and Afzal (P. W. 4), who are absolutely neutral persons. There is also nothing on the record to cast suspicion on the integrity of the Investigating Officer, who made the recoveries at the instance of the appellant. The record reveals, that when the appellant was arrested on the morning of 7th June, 1957, he voluntarily led the Investigating Officer to a field, situated at a distance of about 355 karams from his threshing floor and pointed out a place where the dead body was buried. This place was dug out, and in consequence the dead body of Fateh Muhammad deceased was recovered. According to the prosecution, the deceased was murdered on the night between 5th and 6th June, and the post mortem examina tion was conducted on the 7th June, at about 6‑35 p.m. According to the Doctor, who conducted post mortem examina tion, the death had occurred about 48 hours earlier, and this considers with the approximate time of the murder given by the prosecution. The fact that the large intestines of the deceased were found full of faecal matter clearly shows, that lie was murdered at night time, when he was presumably in his bed at the threshing floor and had not yet evacuated bowels. We take notice of these facts, because they are very significant and have an important bearing on the recovery of other articles. After the recovery of the dead body, the appellant lea the Investigating Officer to his jhuggi, from where on his showing an 11‑shot magazine rifle of 303 bore. 3 live cartridges. and 2 empties wrapped up in a chadar and buried under the ground, were recovered. In the same ihuggi was found a dismantled charpoy with its pawas and bazoos (legs and arms of the charpol l These have been found by the Chemical Examiner and Serologist to be stained with human blood. This finding clearly suggestion that in all probability the deceased was snot dead, when he was lying on the Marpoy and the same was dis‑assembled after the dead body was removed and buried. The appellant also produceu from the jhuggi a kassi (khahi). It is not suggested, that this implement has been used in the murder of the deceased, but it is possible that it had been used for digging the pit where the dead body was buried. It is also in evidence that at the instance of the appellant, the Investigating Officer recovered a pillow, a durree and some ban (kundar with which a charpoy is woven) from a place near the bhusa stack of the appellant in the vicinity of the threshing floor. These were buried under the ground. The pillow and durree have been identified by the witnesses to belong to the deceased, and all these three articles have been found to be stained with human blood. It appears that the ban, which had blood on it, had been cut off from the charpoy and buried there alone with the pillow and durree of the deceased. The chadar of the deceased has also been recovered from another place where it was buried. It is clear from the record that the deceased used. to sleep at the threshing floor of the appellant at night time, and that the appellant also lived there during those days. There was no third person living there. The learned counsel for the appellant has made a suggestion, that it is possible that at dead of night some enemy of the deceased had come to the threshing floor and had shot him dead. If that were the case, the shots must have awakened the appellant, and if it was not possible for him to see and identify the culprit, he must have at least come to know that Fateh Muhammad had been murdered. In that case, he would have behaved differently and informed the relations of the deceased of the incident. We, however, find that the appel lant not only kept quiet but tried to put the relations of the deceased, when they approached him, on a wrong track by telling them that he had gone to Kundian, or .village Sajri. This conduct of the appellant leads us to the irresistible conclusion, that the deceased was not murdered by anybody else. When we closely consider the circumstances of the case as to how the appellant led the Police to different places, from where the dead body of the deceased, the rifle and ammunition, parts of the dismantled charpoy, and the pillow and durree of the deceased, all stained with human blood, were recovered, it is not possible for us to escape the conclusion, that it was the appellant who had murdered the deceased, and ‑that if the deceased had been murdered by somebody else, the appellant would not have conducted himself in the manner discussed above and could not have had the knowledge of the places, where the dead body and other incriminating articles were buried. After having fully considered the evidence on the record, we feel convinced that the appellant shot dead the deceased because of the disclosure of his illicit connections with Mst. Sahiban and the obstacle which the deceased had placed between the two, and that the recoveries of the dead body and the incriminating articles are genuine and made at the instance of the appellant without any inducement or pressure. No doubt, when in a case there is only circumstantial evidences consistent with two theories, one favourable and the other unfa vourable to the accused, the theory favourable to the accused must be accepted. But when the circumstantial evidence is reasonably inconsistent with the innocence of the accused, and is consistent only with his guilt, the circumstantial evidence can form the basis of conviction. We are firmly of the opinion that in the particular circumstances of the present case, the motive, the conduct of the appellant, and the recoveries all considered together, are inconsistent with the innocence of the appellant, and are quite sufficient to warrant his conviction on the charge of murder. Consequently, the appeal is dismissed, and the death sentence is confirmed. MUHAMMAD SHAF1, J.‑I agree with my learned brother Habibullah Khan, J. that this appeal must be dismissed and the sentence of death confirmed. Babu Hussain appellant, being a refugee, was allotted some land in Chak No. 2, D. B. Kundian. He was on friendly terms with Fateh Muhammad deceased whom he used to visit in Kundian, situated at a distance of about two kos from the aforementioned Chak. In the end of the month of March or the beginning of April, 1957, when the harvesting season started, Babu Hussain invited the deceased to help him, on the payment of a share in the harvested crop. The deceased agreed and went to the appellent's Chak taking along with him his 35‑year‑old sister, Mst. Sahiban (P. W. 7) and his brother Muhammad, P. W. 2's wife, Mst. Aishan (P. W. 6). They remained there for about two months when one day Mst. Aishan saw her sister‑in‑law, Mst. Sahiban (P. W. 6) becoming incontinent with the appellant. The incident is described thus by both the aforementioned women. They were all sitting together when Babu Hussain requested the deceased to go and fetch some water from the canal situated at some distance away from the threshing floor. No sooner the deceased left than Mst. Sahiban sneaked into a but situated closeby, followed by Babu Hussain appellant. Both the women say that Babu Hussain committed sexual intercourse with Mst. Sahiban in the but, but Mst. Aishan in her statement before the police had definitely stated that they had only kissed and cuddled each other. Considering the circumst ances prevailing in this country it is really immaterial whether these two persons were satisfying their lust or simply hugging each other, because both of them are considered it repre hensible. Shortly afterwards, the deceased returned with the water and Mst. Aishan informed him of what she had observed, whereupon he ordered both the women to return to home in Kundian. Reaching there, Muhammad (P. W. ?) and them as to why they had come without the deceased on which Mst. Aishan informed him that it was because the appellant and Mst. Sahiban had misbehaved with each other. Muhammad (P. W. 2) became apprehensive of the life of his brother and so he went to Chak No. 2 and counselled his brother to return immediately to his village. The deceased, however, told him that the whole work had finished and that he would return on the following day after he had taken his share of the harvested crop which was four bags of wheat, This happened on the 6th of June, 1957. On the following day, Muhammad (P.W. 2) waited for his brother's return till about peshin time and when he did not turn up, he felt perturbed which was quite natural in the state of mind that Muhammad (P. W. 2) was, and so taking along with himself his co‑villager. Muhammad Ramzan (given up at the trial as an unnecessary witness) and Muhammad Afzal (P. W. 4), he went to Chak No. 2 where lie found Babu Hussain appellant sitting in the threshing floor talking to his another labourer, Ghulam Akbar (P. W. 3). Fateh Muhammad deceased was absent and so he inquired from the appellant as to where he had gone, on which he received reply that he had gone to Kundian. This Muhammad (P. W. 2) refuted by saying that he had just come from Kundian and his brother had not arrived there. The appellant thereupon said that he must have then gone to Sajri, but here too he was contradicted by Ghulam Akbar (P. W. 3), who said that he had just returned from that place and he knew that the deceased had not gone there. This made Muhammad (P. W. 2) suspicious, and so in company with his two companions and Ghulam Akbar (P. W. 3) he started looking here and there in or about the threshing floor. They discerned a few drops of blood lying on the south of the threshing floor and. a corner of the deceased's chadar protruding out of the earth near a hay‑stack. Muhammad's fears were confirmed that his brother had come to some harm, probably death, and so he hastened to Police Post Kundian, and lodged a report there which was recorded by Ghulam Abbas Constable (P. W. 11). The investigation was conducted by H. C. Ata Muhammad (P. W. 13) who arrived at the spot at 5 p.m. the same day. The first thing which he did was to arrest the appellant, because in the first information report, Muhammad (P. W. 2) had specifically stated that he suspected some foul play in respect of his brother on account of his sister's incontinence with the appellant. Babu Hussain, who is 35 years of age, then led the'` investigating officer together with Muhammad (P. W. 2), Ghulam Akbar (P. W. 3), Afzal (P. W. 4) and Jemadar Muhammad Sharif, the Sarbarah Lambardar of Kundian (P. W. 5), who had also joined in the investigation, to a place situated at a distance of 355 karams from the threshing floor. He pointed out a place from where the dead body of Fateh Muhammad was dug out The appellant then led the said party to his but froth where a rifle with three live cartridges and two empty shells was recovered. He then himself dug out a loosened charpai, its me legs and one arm. These three articles were found to be stained with human blood. The appellant then led the party to a hay-stack and pointed out a place from where the pillow and durree of the deceased and the barn of the loosened charpai were recovered They were also stained with human blood. The investigation officer then took into his possession the chadar which had been noticed by Muhammad (P. W. 2) before he went to lodge the report. It was also stained with human blood: The accused has denied all these recoveries, but the evidence of investigating officer and the four persons mentioned above leaves no room to doubt that it was either by the accused himself or at his instance that these articles were recovered. All these five persons are absolutely disinterested and have no reason to falsely incriminate the appellant. The accused appellant has also denied his connection with Mst: Sahiban, but on this score too, one can hardly entertain any doubt, because Muhammad would not have attributed such a stigma to the character of his own sister unless it was true, and he was com pelled by the force of circumstances to do so. Barring this incident, Muhammad had no enmity whatsoever with the appellant. Ghulam Akbar (P. W. 3), who was a labourer of the appellant, and does not even belong to the same village as the deceased, had absolutely no malice against the appellant. On the contrary, he should have supported him if he was absolutely innocent. Similarly, Jamadar Muhammad Sharif, the Sarbarah Lambardar, had no reason whatsoever to falsely implicate the accused‑appel lant, because he bears no grudge, malice or ill‑will towards him. The statement of the 'accused that he had had some sort of trouble with this witness when they both were in the army stands completely unproved. It will, therefore be perfectly safe to accept the evidence of this witness in respect of the circumstances under which the recovery of the incriminating object was made. It is true that with a little effort of the investigating officer, if he possessed ordinary intelligence, these articles sooner or later would have been found out, because they were not buried in an out of the way place, but then this would have taken sometime. With the assistance of the person who hid and buried them it was done without any difficulty, and any loss of time. These recoveries provided food for three lines of thought :‑ (1) the deceased's dead body and the other incriminating articles were buried at three different places which fact was within the knowledge of the accused‑appellant, (2) that he was informed by somebody else that the evidence of this gruesome murder was hidden `and buried at these three places, and (3) that he himself committed the murder and buried the dead body and the other articles in the places from where they were subsequently recovered at his instance. In case of No. 1, either the murder was committed with the connivance of the accused, in which case he will be equally guilty, or not in which case he should not have any scruples in disclosing are the name of the offender to the police. If he chose to conceal the name of the real offender, even though he be his relation or friend, then his complicity in the affair being a most natural inference, will automatically be presumed. In case of No. 2, the accused should not have felt any conscientious objection in revealing the name of his informer, which if done, would have led to the apprehension of the real culprit. In these circumstances, a duty was cast on the accused appellant to speak, and if he prefers secrecy and silence over the speech, then he has to blame himself, if fraudulent intent is inferred therefrom. Apart from that, no evidence is brought upon the record to bear that somebody else was interested in doing away with the deceased. It is, however, very difficult to believe that while somebody else was committing the murder of the deceased and burying him and the other incriminating articles, he was standing there as an innocent spectator. In the circumstances, therefore, both these eventualities must completely be excluded from consideration. We are then left to accept the third line of thought which very rightly my learned brother has accepted. The accused definitely has had a motive, weak or strong, to commit the murder of the person who was an obstacle in his way in carrying on with Mst. Sahiban. The deceased had sent away the object of his lust and was himself preparing to go on the following day. In these circumstances, it is reasonable to presume that after the two women left either in the evening or at night some sort of angry talk took place between the two which created an extremely bad blood. The conduct of the accused also indicates that the murder must have been committed by him. The evidence produced by the prosecution shows that the deceased used to sleep in the threshing floor on a cot which must have been provided by the appellant. Babu Hussain may have been sleeping in his own house which is situated in the Chak at a distance of about 540 karams from the threshing floor, but then when he came to the threshing floor in the morning, he must have discovered that the deceased, his bedding and his cot had all disappeared. If he was an innocent person, these disappearances alone should have perturbed him and actuated him to make a search for the missing man, particularly when he had disappeared at night and without taking his share of the harvested wheat. On the contrary, we find that the accused not only did not take any step to find out missing man but actually tried to put his brother off the track. The absence of the deceased made Ghulam Akbar quite curious, because he inquired from the appellant as to where he had gone and it should have made the appellant definitely much more curious than him. To Ghulam Akbar too, the appellant had replied that the deceased had gone to Kundian. He repeated the same lie to Muhammad (P. W. 2) and others, but when it was contradicted, the accused concocted another story at the spur of the moment and said that he had gone to Sajri. This lie was also found out, because luckily Ghulam Akbar had just returned from there and he was in a position to contradict it. It is thus, clear that the circumstantial evidence which has been produced upon the record incomplete with the innocence of the accused and is not capable of any reasonable hypothesis other than the 11tlill of the appellant. There is, however, one circumstance, which he a disturbing effect and, that is that even after Muhammad left in order to make the report, the accused continued to remain in the threshing floor until the police arrived on the next day making any attempt to make good his escape and during this period he remained calm and quiet and actually at one time engaged himself in his husbandry work as if nothing extraor dinary had happened. This conduct of the accused is certainly incompatible with his guilt, but nobody can prove the state of a person's mind or what is passing in it. It may be that he had now here to go, or he was afraid of the people who were left behind by Muhammad P. W., and thought that if he made an attempt to escape, they would prevent him from doing so, and last but not the least, he may be wanting to deceive people by assuming honest airs. Shakespeare says "Murder though it have 110 tongue will speak in most miraculous accent", and in this particular case it has unmistakably spoken. A.H. Appeal dismissed.