1977 PLP 356 (SCMR)

ANWARUL HAQ, J.‑This appeal, by the leave of the Court, is directed against the acquittal of the respondent Mohammad Khan by a learned Judge of the Lahore High Court of the charge of murdering a young girl named Mst. Mumtaz Begun, daughter of Mohammad Abbas (P. W. 4) and niece of Haq Nawaz (P. W. 5), The respondent had been convicted by the learned Sessions Judge, Sargodha, and sentenced to undergo transportation for life but the conviction and sentence have been set aside by the High Court by its order dated the 17th of May 1973. Leave to appeal was granted to consider the contention that the High Court had rejected, on pure conjectures and surmises, the ocular testimony of witnesses who had no reason whatsoever to falsely implicate the respondent and whose presence at the spot was natural. At the time of granting leave to appeal it was noticed that the petition filed by the appellant Haq Nawaz to challenge the respondent's acquittal was barred by 98 days. However, delay was condoned, subject to all just exceptions, by the order of this Court dated 25th of February 1974. The respondent then filed an application for recalling the order granting leave to appeal on account of the aforesaid delay, but this application was dismissed by this Court on the 24th of June 1974. It was held that the petition for leave to appeal had, in fact, been submitted in time, and it should not have been returned to the appellant for filing the certified copy of the ground of revision submitted in the High Court for the enhancement of the sentence as imposed by the trial Court, as this document was not necessary for the purpose of the petition directed against the acquittal of the respondent. Mr. Qurban Sadiq ihram, learned counsel appearing for tilt; respondent, submits that the orders made by this Court on the 25th of February 1974 and the 24th of June 1974 are not final oil the question of condonation of delay in filing the petition out of which the present appeal has arisen, and that the Court should dismiss the present appeal as being barred by time, as it has been the consistent view of this Court that the acquittal of an accused should not be placed in jeopardy if the same has not been challenged within the time allowed by law. He contends that only ten days time had been given to the appellant Haq Nawaz to file the grounds of revision which he had submitted in the High Court for the enhancement of the sentence, but he neither informed the Court that the filing of this document was not necessary nor did he file a certified copy thereof within the time allowed, which expired on the 13th of July 1973, and instead supplied the necessary copy several months later on the 18th of October 1973. It appears to the learned counsel that in these circumstances, the appeal cannot be permitted to proceed on merits. We find that it is correct that the order dated the 25th of February 1974 was not final on the question of delay, as at that time the delay was condoned subject to all just exceptions, and the order was made in the absence of the respondent. However, the position changed when the Court considered this question once again on the application of the respondent, and finally held that the petition filed by Haq Nawaz had been presented within time, and that it should not have been returned to him for filing the grounds of revision as such a course was not warranted by tine Rules of the Court. We cannot see how the order made by the Court on the 24th of June 1974 should not be treated as a final order in so far as the question of delay is concerned. It seems to us, therefore, that it is not open to the respondent to raise this point again at this stage. However, in view of the gravity of the offence, alleged against the respondent, we have once again considered the matter and we are in respectful agreement with the order made by our learned brothers on the 24th of June 1974. Under rule 2 of Order XXIII of the Pakistan Supreme Court Rules, 1956 a criminal petition for leave to appeal has to be accompanied by a certified copy of the judgment or order appeal against. This Rule does not contemplate filing of any other documents in this behalf. However, rule 13 of the same Order contemplates that other rules relating to civil petitions for special leave to appeal shall also apply in criminal matters so far as may be. Accordingly, a reference has to be made to rule 4 of Order XIII which requires that the petition shall include the judgment and order sought to be appealed from together with grounds of appeal or application before the High Court, and the order of the High Court refusing grant of certificate under Article 58(2)(x) of the Constitution, if any. It appears that it was under this rule that the office required the petitioner Haq Nawaz to file a certified copy of the grounds of his revision petition in the High Court. It will be seen that the present appeal, and the petition out of which it has arisen, had been filed only to challenge the acquittal of the respondent of the charge of murder, and not for the enhancement of the sentence imposed upon him by the trial Court. In these circumstances, the documents required to be filed with the petition for leave to appeal were the judgment and order sought to be appealed from and the grounds of appeal or application before the High Court. 'The revision petition filed by the appellant Haq Nawaz in the High Court for the enhancement of the sentence not at all being the subject‑matter of the petition filed by him in this Court, the office was in error in returning the petition for filing a certified copy of the grounds of revision. If Haq Nawaz failed to comply with this requisition in time it would not render time‑barred the petition which he had already presented in this Court in time, and with proper documentation as required under the relevant rules. We are, therefore, of the view that the preliminary objection raised by Mr. Qurban Sadiq Ikram to the competence of the present appeal is not well‑founded. Accordingly we proceed to consider the appeal on merits. The deceased Mst. Mumtaz Begum was about 15 or 16 years of age at the time of the murder, and was a student of the Tenth Class. She was previously engaged to be married to the respondent, but a few months before the occurrence this engagement was broken off by her father Mohammad Abbas, and the girl was instead betrothed to her cousin War, son of her paternal uncle Haq Nawaz (P. W. 5). It is the case of the prosecution that this broken engagement was the motive for the present crime. The murder took place at about 5 p.m. on the 27th of January 1970 on a path in village Shumar, at a distance of four miles from police station Gunjial in Sargodha district. At that time the deceased was coming to the village well for fetching water and for this purpose she was carrying on her head an earthen pitcher and a piece of rope for drawing water from the well. As she neared the well, the respondent emerged from behind the parapet of the well and fired at her with a pistol from a fairly close range. On receiving the shot she fell down and the respondent escaped from the spot. The attack was witnessed by Haq Nawaz (P. W. 5), Dost Mohammad (P. W. 6) and Hasti Khan (P. W. 7) who were all returning to the village from the nearby town of Quaidabad. Haq Nawaz promptly reported the matter at the police station at 6‑30 p.m. naming the respondent as the sole culprit. On inspection of the spot, the police officer not only took blood‑stained earth from the place of murder, but also found the broken pitcher, a piece of rope and a pair of Chappels of the deceased, lying near the dead body. The respondent was arrested on the 29th of January 1970, when he produced an unlicensed pistol, but as no crime empty had been recovered from the spot, the said weapon has not been connected with the crime. While pleading not guilty at the trial, the respondent asserted that he had been falsely implicated owing to enmity generated by litigation between his relative Ghulam Khawaja and the witness Haq Nawaz, to whom the other eye‑witnesses were related. He also stated that the deceased was in love with him and wanted to marry him, and had been writing love letters to him which he had already produced in Court. He suggested that in fact the deceased had been murdered by her cousin Zafar, son of her paternal uncle Haq Nawaz, as she was not willing to marry him. The learned trial Judge accepted the presence of motive, and held that the letters produced by the respondent appeared to have been written by the deceased girl, even though her handwriting was not admitted by her father, Mohammad Abbas (P. W. 4) nor was any admitted writing brought on the record for the purposes of comparison. He also believed the evidence of the eye‑witnesses, holding that they had no motive to falsely implicate the respondent, and that their presence at the spot appeared to be natural, as in the ordinary course of things they would be returning to their village at about sunset time. White convicting the respondent for murder, he, nevertheless, gave him benefit in the matter of sentence on account of the provocation that must have been caused to him by the breaking of the engagement. The learned Judge in the High Court has, however, reversed these findings. He has, in the first place, expressed the view that the motive suggested by the prosecution had not been satisfactorily proved, as Mohammad Abbas the father of the deceased, admitted at the trial that he had agreed to the engagement of the deceased to the respondent as an exchange arrangement, and therefore, he could not have easily broken off the same at the instance of his brother Haq Nawaz with whom his relations were strained at the time of the engagement of the deceased to the respondent; and that in any case the love letters said to have been written by the deceased to the respondent showed that she was willing to marry him, and, therefore, the grievance, if any, would have been against the father of the girl or her uncle Haq Nawaz and not against the deceased herself. The learned Judge has also rejected the testimony of the eye‑witnesses, as it appeared to him that it was too much of a coincidence that all the three men happened to return together to the village in time to witness the occurrence. Raja Mohammad Anwar, learned counsel appearing for the appellant Haq Nawaz, submitted that the conclusions reached by the High Court as to the motive and the reliability of the eye‑witnesses are based merely on conjectures and surmises. He contends that the statements made by the father and uncle of the deceased that the engagement of the deceased with the respondent was broken off could not be lightly disregarded, and that the eye‑witnesses had no motive whatsoever to falsely implicate the respondent, especially when one of the witnesses, namely, Dost Mohammad, was some what related to the respondent. Mr. Anwar further submits that the High Court is also in error in considering the eye‑witnesses to be chance witnesses, as in fact they were natural witnesses in the sense that their residences were in the same locality, and in the ordinary course of things they would be expected to return to their homes by about sunset in the month of January. Finally, the learned counsel contends that sufficient corroboration was also available in the fact that pieces of a broken pitcher and a piece of rope were found at the spot, clearly supporting the prosecution case that the deceased girl was at that time proceeding to the well to fetch water. Mr. Riaz Ahmed, the learned Assistant Advocate‑General, appearing for the State, supports the appeal, and submits that the murder having taken place near the village path coming from Quaidabad, the presence of the eye‑witnesses could be regarded as natural, and their testimony could not have been rejected on the ground that they were chance witnesses. Mr. Qurban Sadiq 1kram, appearing for the respondent, contends that apart from the fact that the eye‑witnesses are related inter se as well as to the deceased, and could not for that reason be believed, their evidence stands contradicted by the medical evidence which shows that the deceased must have died at 2 or 3 p.m. and not at 5 p.m. and accordingly the witnesses could not have seen the occurrence as, on their own showing, they returned to the village at sunset time. The learned counsel also contends that there is hardly any evidence to show that witness Dost Mohammad was in any manner related to the respondent; on the contrary there is evidence to show that Haq Nawaz was litigating with a relative of the respondent, thus giving rise to enmity between the two families. The learned counsel also supports the finding of the High Court as regards the absence of motive on the part of the respondent. After hearing the learned counsel for the parties as well as the learned Assistant Advocate‑General appearing for the State, and perusing the entire record, we have arrived at the conclusion that the acquittal of the respondent cannot be maintained as the findings recorded by the High Court are clearly not supportable on the record. As observed by this Court in Farid v. Aslam (P L D 1977 S C 4) in such a case interference by us is not only justified but necessary in the interest of justice. We shall first take up the question of motive. As already stated, the fact that the deceased girl was previously engaged to be married to the respondent was deposed to at the trial by her father Mohammad Abbas (P. W. 4) and her uncle Haq Nawaz (P. W. 5). It is significant that even the respondent himself admitted that the girl was in love with him and had been writing letters to him, thus showing that there was some kind of an arrangement between the deceased and the respondent. That the engagement was broken is also made out by the evidence of the two witnesses just named. The observations made by the High Court that the engagement of the deceased with the respondent was a beneficial arrangement as respondent's family had agreed, by way of exchange, to give the hands of two females to the family of the deceased, and, therefore, the engagement could not have been broken off by Muhammad Abbas proceeds on a mere conjecture, in disregard of the fact that if the two brothers Mohammad Abbas and Haq Nawaz had patched up their differences, then it would be natural for them to arrange the mutual marriages of their grown up children. In the face of the positive evidence of the father and uncle of the deceased, and in the absence of any other fact brought out in cross‑examina tion to shake their statements in this behalf, the learned Judge in the High Court was clearly in error in coming to the contrary finding and holding that the motive was not proved. It seems to us, on the contrary, that the attempt of the respondent to place on the record certain love letters suppose to have been written to him by the deceased, clearly brings out the strength of the motive which impelled him to commit this crime. As to the time of death of the deceased, the submission made by Mr. Qurban Sadiq Ikram is that the Investigating Officer had found rigor mortis present all over the body when he prepared the inquest report at 8‑30 p.m. thus showing that the death must have taken place between 4 to 6 hours before his examination. In support of this submission, he relies on the observations appearing on p. 125 of Modi's Medical Jurisprudence (11th edition) to the effect that rigor mortis sets in‑between three to six hours after death in temporate climates and it may take two to three hours to develope. The learned counsel, therefore, argues that if rigor mortis was found in the body at 8‑30 p.m. by the investigating officer then death must have taken place not later than 2‑30 p.m. We regret we cannot accept this submission for the reason that on the same page, Modi has also observed that "In India it usually commences in one to two hours after death, and takes one to two hours to develope." If this statement is correct, then rigor mortis could have been found in the body at 8‑30 p.m. even if death had taken place at 6‑30 p.m. It appears, therefore, that the presence of rigor mortis does not necessarily negative the eve‑witness account as to the time of the incident. The argument also overlooks the fact that the occurrence had taken place on a cold winter evening in the month of January and, therefore, stiffness must have set in due to the cold weather. As observed by Modi on p. 126 of his book (as cited above) "the stiffness of the muscles occurs in a body from solidification of its fat when it is exposed to a freezing temperature." It is in evidence that it was so cold that the witnesses, who were keeping watch over the dead body, had to light a fire to keep themselves warm. It, therefore, appears that the stiffness of the body must also have been caused partly due to the extreme cold at that time of the evening in the month of January. We find that the doctor, who conducted the post‑mortem examination at 10‑30 a.m. on the 28th of January 1970, expressed the view that the time between injury and death was about 30 to 45 minutes and between death and post‑mortem was about eighteen hours. This estimate would take us back to about 4‑30 p.m. on the 27th of January 1970, thus corresponding with the eye‑witness account. We consider, therefore, that merely on account of the presence of stiffness all over the body of the deceased, it cannot be said that the crime was committed at a time when the witnesses could not be returning to their village. On the question of the credibility of the witnesses appearing for the prosecution, there is no doubt that they are connected with the deceased, but it has to be remembered that the family of the deceased had no motive whatsoever to falsely implicate the respondent. The grievance, if any, was on the part of the respondent. Haq Nawaz (P. W. 5) had already succeeded in getting the agreement of the father of the deceased for her engagement with his son Zafar, and he could not, therefore, be interested in getting rid of the respondent, unless, of course, he had seen him com mitting the present offence. Similar is the position with Dost Mohammad (P.W. 6) and Hasti Khan (P.W. 7). We agree with the learned counsel for the respondent that Dost Mohammad is not related to the respondent in any close degree, but the fact remains that he has asserted some kind of a relation ship, which we see no reason to disbelieve. He has stated that while his sister was married to witness Haq Nawaz and died about twenty years ago, his first cousin Mst. Mehar Khatoon, is wife of one Ghulam Jilani who is a cousin in the second degree of the father of the accused. He also stated that his cousin Ahmed Yar was married to a sister of Ghulam Jillani. It appears, therefore, that he was related, in varying, degress to both the sides, and could not have any reason to falsely implicate the respondent. As observed by this Court in Lalu v. The State (P L D 1959 S C (Pak.) 258) and Fazalur Rehman v. The State (1974 S C M R 261) the fact of the relationship of a witness with the accused cannot be ignored in making proper evaluation of his evidence. In the circumstances of the present case, Dost Mohammad's relationship with the respondent, even though not very close, would appear to lend assurance to his evidence. Not only did the witnesses not have any motive to falsely implicate the respondent as the sole assailant, their presence at the spot must also be regarded as natural for the reason that they were all returning from the neighboring town of Quaidabad. At the relevant time, Haq Nawaz was working as Headmaster of a school, whereas Dost Mohammad was also working as a teacher, and Hasti Khan had gone to make some purchases. An attempt was made in cross‑examination to establish the fact that all the three of them had taken up residences in Quaidabad, but the suggestion was denied by all of them. There is no material at all to hold that the three witnesses had indeed migrated from their village and taken up residence in Quaidabad. Another significant factor, which militates against such an assertion is that the first information report was promptly lodged by Haq Nawaz after covering a distance of four miles, and all the three witnesses were examined by the Investigating Officer that very evening. If indeed they had not witnessed the occurrence and were not residing in their houses, situated in the locality where the murder took place, then it may not have been possible for Haq Nawaz to become the first informant so promptly, and for their statements to be recorded without delay. These circumstances have been overlooked by the learned Judge in the High Court. The learned counsel for the respondent also submitted that the account given by the eye‑witnesses could not be believed for another reason, namely, that no broken pitcher was found near the dead body, as its presence is not mentioned in the inquest report. It is true that the presence of the broken pieces of pitcher near the dead body is not recorded in the inquest report, but the fact is filly supported by the evidence of Sardar Khan (PW 8) who was not put a single question on this point. He asserted that in his presence the Investigating Officer had taken into possession a pitcher as well as rope, besides the Chappels of the deceased. The presence of the pitcher was also deposed to by the Investigating Officer Mohammad Abdullah (P. W. 11). It appears to us, therefore, that even if the presence of these articles is not mentioned in the inquest report vet the recovery, as evidenced by the relevant recovery memo, and supported by witness Sardar Khan cannot be doubted. It thus appears that the deceased girl was indeed coming to the well with the pitcher on her head. In any case, the material 'factor is 'that she was done to death near the village well at a time when the three eye‑witnesses could well be returning home, namely, at about sunset in the month of January. On a consideration of the reasons and circumstances outlined above, we are clearly of the view that the learned Judge in the High Court had acted on conjectures and surmises in rejecting the evidence as to the motive for the crime, as well as the eye‑witness account furnished by Haq Nawaz, Dost Mohammad and Hasti Khan. They had no reason to falsely implicate the respondent, and their presence at the spot was natural as their houses were located in the vicinity where the murder took place. The order of acquittal passed by the High Court has, therefore resulted in a grave miscarriage of justice. We would accordingly accept this appeal, set aside the order of the High Court, and instead restore that of the trial Court by which the respondent stood convicted under section 302 of the Pakistan Penal Code and sentenced to transportation for life. Appeal accepted.