P L D 1977 Supreme Court 538 (PLP)

MUHAMMAD AFZAL CHEEMA J.-Muhammad Ashraf and Muhammad Hanif, appellants, were tried by the learned Sessions Judge, Multan, for the double-murder of Muhammad Akram Saeed, a young man of twenty years, and his sister-in-law (wife's younger sister) Mist. Mussarrat alias Rani aged about 15/18 years, allegedly committed by them at about 3-30 a .m. on l-8-1973, near a place known as Put Chatha, one and a half miles short of Police Station Makhdoom Rashid, on the main Multan Vehari Road. Both were convicted under section 302/34, P. P. C. and were awarded a sentence of death on each count vide judgment dated 12-3-1974. Ira appeal and reference, the conviction and sentences were upheld vide High court judgment dated 22-4-73, and their appeal was dismissed. Leave to appeal was granted by this Court order dated 18-11-1975. According to the prosecution, Muhammad Ashraf appellant echo was a son of the maternal uncle of Mot. Rani deceased, and Muhammad Hanif appellant, whose daughter was married to Mst. Rani's uncle, were respectively interested in seeking the hands of Mst. Rani and her sister Mst. Khurshid of whom the latter was married to Muhammad Akram Saeed deceased about five or six months prior to the occurrence. Muhammad Akram Saved was also suspected of having illicit connection with Mst. Rani, the younger sister of his wife Mst. khurshid, and on the previous day had taken her to Multan to consult a doctor as she suspected to have developed tuberculosis. Having spent the day at Multan the two deceased chose to travel back to their village during night on the pretext of avoiding summer neat in the month of August and accordingly left by bus around 3 a.m. accompanied by Fatah Muhammad (P. W. 8), uncle of Muhammad Akram Saeed. After covering a distance of about 18 miles the bus stopped at Pul Chatha where the two deceased and Fatah Muhammad alighted in order to go to their village Bazadarwala. While the two deceased were still on the main road, the appellants suddenly appeared on the scene, of whom Muhammad Ashraf, who was armed with a toka, attacked Muhammad Akram Saeed, while Hanif, who carried a hatchet, gave blows to Mst. Rant killing them at the spot. Besides Fatah Muhammad, the occurrence was also soon by Ghulam Hassan (P. W. 9), arid Hassan Muhammad who was given up as having been won over. Leaving the other two witnesses with the dead bodies, Fateh Muhammad repaired to Makhdoom Rashid Police Station and within an hour of the occurrence lodged the initial repart at 4-30 a.m. giving an eye-witness account. Besides referring to the frustration of the two appellants as unsuccessful suiter, a secondary motive, mentioned by Fateh Muhammad in the F. I. R. and later deposed to at the trial was that the appellants also suspected a romance between the two deceased. On their arrest on 3-8-73, Muhammad Ashraf lei to the recovery of toka. (P. 14) and the ashes of his burnt clothes which were presumably stained with blood before they were put to fire. Muhammad Hanif led to the recovery of hatchet (P. 15), and his blood-stained clothes, i.e. Cheddar (P. 16) and shirt (P. 17). The blood on the two weapons of offence and the clothes of Muhammad Hanif appellant was traced to human origin while no traces of human blood could be found in the ashes of the burnt clothes of Muhammad Ashraf appellant. The medical evidence revealed five incised wounds on the dead body of Muhammad Akram Saeed of which two were on the head, one on the left aids of neck, and two above the right ear. Mst. Rani was found to have sustained three incised wounds of which two were on the head and one on the left side of the face below the left eye. The post-mortem examination of the two deceased reveled complete identity of stomach contents which contained fluid. Chime was present in their small intestines while faecal matter in the large intestines, and their bladders were empty. At the trial, the prosecution case rested on the ocular testimony of Fateh Muhammad (P. W. 8) and Ghulam Hassan (P. W. 9), the evidence of recoveries, the medical evidence and that of motive. While denying the guilt and the recoveries, no specific plea was raised by the appellants nor did they examine any witness in defence. Both alleged that the two deceased were suspected of having a liaison and it was suggested that on that account the relations of Mst. Rani might have been responsible for the double murder. Muhammad Hanif attributed his false implication to the refusal of his father to vacate the lands of Muhammad Naair (P. W.) father of Mat. Rani and his brother Sharif, Lambardar, and further stated that he was arrested by the Police on the 1st of August 1972. The learned Sessions Judge placed reliance on the ocular testimony, to which were believed to be genuine. Although it was a case of night occurrence, moron light was held to be sufficient to enable identification of the accused from close quarters by witnesses who were intimately known to them. The appraisal of evidence by the trial Court was fully endorsed t)y the High Court which accordingly upheld the conviction and sentences. In the leave granting order dated 18-11-1915, the sudden appearance of the appellants at 3-30 a.m., a rather unusual hour, in the absence of any evidence to show that they were keeping track of the deceased, was apparently found to be intriguing. .Besides, the conspicuous absence of the doctor's prescription who was allegedly consulted by the two deceased, or, for the master of that, any medicines purchased by them was also found to be significant. Accordingly, it was considered necessary to re-examine the entire evidence which formed the basis of conviction. After taking us through the evidence, learned counsel contended before us that the Courts below had fallen in error in placing reliance on the two eye-witnesses, namely, Fateh Muhammad (P. W. 8) and the first informant, Ghulam Hussain (P. W. 9) as the former being admittedly an old man of about 80 years with weak eye-sight should not have chosen to travel during the night while the latter was a mere chance witness. Challenging the genuineness of the recoveries, learned counsel contended that although the F.1. R. was shown to have been promptly lodged within an hour of the occurrence wherein the two appellants were specifically named as the murderers, yet on his own showing Maqbool Beg, Sub-Inspector (P. W. 10). took no steps to visit their village in order to arrest them for the first two days and even on the third day when he reached there he found them quietly sitting at home ready to Court arrest. It was argued that this conduct of the Sub-Inspector coupled with the assertion made by Muhammad Hanif appellant in his statement under section 342, Cap. P. C. that tie was arrested on 1-8-173 would go a long way to show that in fact the two appellants had already been secured by the Sub-Inspector on the same day and not two days later. A further argument advanced in this context was that admittedly the dead bodies were not despatched to the mortuary till 1-30 p.m. and the delay was sought to be explained away by the Sub-Inspector on the untenable pretext that he kept on waiting till the arrival of the father of Muhammad Akram Saeed deceased. From this it was argued that in all probability the report was recorded after preliminary investigation as further supported by the rather doubtful entry of numeral 4 in the column of time in the F.1. R. which clearly indicated an overwriting. A concession made by Asal Din Foot Constable (P. W. 2) who accompanied the Sub-Inspector to the spot was also sought to be capitalised to show that when the police reached the spot none of the eye-witnesses was present there. It was contended that in all probability it was a case of an unwitnessed occurrence of which the precise time might as well be 11 p.m, on the previous night of 31-7-1973 a possibility admitted by the doctor. In order to assail the prosecution version, some support was also sought to be gathered from the non-production of Hassan Muhammad and Khan Muhammad (P. Ws.) of whom the latter had also allegedly arrived at the scene soon after the commission of the crime. Learned counsel also tried to build up a defence version on the basis of the admitted suspicion of illicit connection between the two deceased and suggested that in all probability while trying to elope they were surprised by the relations of the girl as suggested by the appellants in their statements under section 342, Cr. P. C. Having carefully considered the contentions raised by the learned counsel in the light of the evidence on the record we ate convinced that no fault could be found with the concurrent assessment of evidence by the two Courts below to which considerable weight would normally attach. In Noora v. State P L D 1973 S C 469 this Court has elaborately explained the principles governing its interference with the trial Court's appraisal of evidence endorsed by the High Court as a result of its own assessment. Normally this Court stays its hands in a case of concurrent findings based on proper appraisal of evidence by the Courts below, unless a serious question of law arises or the findings are otherwise palpably perverse and untenable flowing either from consideration of irrelevant facts and circumstances or on account of disregard of relevant material on the record resulting in grave miscarriage of justice. Learned counsel agreed with us that Fateh Muhammad (P. W. 8) was the star witness of the prosecution and once we come to the conclusion that the Courts below were justified in placing implicit reliance on his testimony it would be difficult for him to assail the conviction and sentences. We would be inclined to hold that the two deceased did perhaps have an illicit connection and their purported visit to Multan for consulting a doctor on suspicion of the girl suffering from tuberculosis was perhaps merely a pretext to have an opportunity of a pleasure trip to sultan in exclusive company o each other to which the parents of Mst. Rani did not appear to have objected. This would explain the absence of any prescription or medicines from their person after they had been killed. In fact, Fateh Muhammad (P. W. 8) had clearly stated that the two deceased accompanied by Mst. Shafqat and Mst. Kalsoom, the grand daughters of his brother Ahmed Din, had gone to tie Cinema and returned late in the night when he had already gone to sleep in the house of his brother Ahmed Din, a Canal Ziladar, who lived in Nawan Shehar, Multan. A reference was also made in the F. I. R. to the suspicion of a romance between the two deceased. But this would be hardly of any advantage to the defence. Having carefully gone through the statement of Fateh Muhammad who was subjected to lengthy cross-examination by two learned Advocates, we have not been able to find in it anything doubtful or unnatural. Ho was an old man with a weak eye-sight and visited Multan for bringing fertiliser to be made available by his nephew Anwar Saeed, an employee of the Burmah Shell Oil Company. He could not bring the fertilizer as his nephew had no money to spare and was waiting to get his pay on the 4th of August. He was, therefore, told to return to the village and bring the money as well as the transport. He clearly stated that but for the Company of the two deceased who were closely related to him he would have chosen to travel in the morning rather than stumble in the darkness. He purchased three tickets which were not produced by him before the Sub-Inspector. The point was not pressed further during cross-examination as to whether he was not called upon to produce or if so desired by the Sub-Inspector had destroyed or misplaced the tickets. Nor was any such question put to the Sub-Inspector. tae frankly admitted that his vision was weak but asserted that he could identify a person from a distance of ton karams with spectacles and three or four karam without spectacles. It was not disputed that the night was moon-lit. Significantly enough his statement that on getting down from the bus Mst. Rani put off her Burka found support from the recovery of the Burka which was found lying under the armpit of her dead body. In order to reach Makhdoom Rashid Police Station for lodging the report, he had just to cover a distance of about one and a half miles can the metalled road. The report was promptly lodged within an hour of the occurrence giving an eye-witness account wherein the two appellants were specifically mentioned. It would be pertinent to observe that if in point of fact, as suggested by the learned counsel, the witness had not accompanied the two deceased on the fateful night and was later set up as an eye-witness after a clue had been found from some other source, and by withholding the entries in the Roznamcha his statement was shown to have been recorded on 4-30 a.m. there is no earthly reason why at all this old man with defective vision should have been selected for the purpose. He stood up well to a very lengthy and searching cross-examination by two ell porien C Advocates and there was hardly anything to doubt his credibility whim remained unshaken. Accordingly, we feel no hesitation in enaorsing the view of the two Courts below that he was a truthful witness and gave a correct and convincing account of the occurrence. Ghulam Hassan (P. W. 9) is the second eye-witness whose credibility was challenged on the ground of his being a chance witness. He asserted that the two appellants were known to him and were clearly identified by him as the assailants. In order to explain his evidence he anted that he wanted to board a bus for Multan as he had to buy a pipe for his tube-well and was keen to return as early as possible. He and Hassan Muhammad, another eye-witness who was not produced, were left by Fateh Muhammad with the dead bodies while he himself proceeded to the Police Station to lodge the report. In view of the sudden interposition of this tragic occurrence I the witness did not proceed on his errand towards Multan but stayed to join the investigation and was one of the witnesses of the recovery of the blood-stained toka, hatchet and clothes, etc. He too was subjected to a lengthy cross-examination and appears to have remained unshaken. Significantly enough not a word was suggested to him to indicate his interest in the complainant party or animus against the appellant. No doubt, the Courts have been rather cautious in accepting the testimony of chance witnesses and that too not without corroboration but chances do occur in life and more often in frequented public places like bus stands, railway platforms, level crossings etc. The presence of a witness at such public resorts would considerably detract from the prejudice usually attached to the testimony of a witness casually appearing at the scene which of course hay to be subjected to the well-settled tests of credibility. Having been taken through his statement, we have not been able to find any disregard of accepted principles of appraisal of evidence by the two Courts in this regard, but even if, as a matter of abundant caution, we were to exclude his testimony, we are fully convinced that the statement of Fatehi Muhammad (P W. 8) supported by the evidence of motive deposed to by? Muhammad Nazir (P. W. 7) father of Mst. Rant and father-in-law of, Muhammad Akram Saeed, to which further support is lent by medical evidence and that of recoveries, fully established the guilt of the appellants. There is nothing on the record to show that buses did not ply during the night between Multan and Makhdoom Rashid. There is nothing unusual either that in order to avoid heat of the day in summer people would prefer to travel during night. An additional reason in the case of the two deceased might as well have been to avoid being seen together as a rumour about their romance had already gone round. The recovery of blood from underneath the dead bodies fixed beyond doubt the venue of the crime, and the time stood convincingly established by the stomach contents P of the two deceased who appeared to have taken their evening meals on return from an evening Cinema shoe. Left to himself, Fateh Muhammad uncle of Muhammad Akram Saeed, would have chosen to travel in the morning as stated by him, but felt persuaded to go in the company of his nephew and his sister-in-law. In the circumstances, therefore, there seems to be hardly any element of doubt as to his arrival at the Police Station at 4?30 a.m. In view of the above position, the Courts below were fully justified in believing the account furnished by Fateh Muhammad. An stated earlier, the genuineness of recoveries was assailed on the ground that on his own showing, the Sub-Inspector did not care to make an attempt to arrest the two appellants, who ware specifically named in the F. I. R. and lived within a couple of miles of the Poll" Station, either on the 1st or on the 2nd of August and for no good reasons chose to wait for their arrest till the 3rd of August, 1973. In the same context, the averment made by Muhammad Hanif appellant that lie was arrested on 1-8-1973 was also pressed into service. No doubt, normally one should have expected the Sub-Inspector to take necessary steps for securing the two accused appellants as easy a' possible and we are also mindful of the rather familiar investigatory tactics of the Investigating officers to secure accused persons without immediately showing their arrest on the record which is usually postpones to a convenient tithe suiting the exigency of the investigation, but In the instant noise, unfortunately for the defence the point was not pressed further during cross-examination of Maqbool Beg, Sub-Inspector, so as to enable him to explain his inability to arrest to appellants earlier. If questioned, he might have been able to offer a convincing explanation the postponement of his raid. In the circumstances, therefore, no inference adverse to the prosecution could be drawn merely on the basis of an inferential possibility based on a familiar practice. The keenness of a murderer to do away with his bloodstained clothes or the blood-stained weapons of offence so as to cause disappearance of evidence is a matter of common observation in consonance with normal human conduct. The recovery of ashes of the burnt clothes of Muhammad Ashraf appellant at his instance appears to us to be motivated by a similar instinct and is of. peculiar significance, Likewise, the other recoveries of blood-stained toka and hatchet and the blood-stained clothes of Muhammad Hanif appellants, on all of which the blood was traced to human origin, were incriminating circumstances of considerable evidentiary value lending strong corroboration to the ocular testimony of Fateh Muhammad (P. W.). Lastly, we come to the defence version sought to be spelt out by the learned counsel on the admitted suspicion of illicit intimacy between the two deceased. It was submitted, as also suggested by the appellants in their statements under section 342, Cr. P. C., that in all probability the two deceased were surprised by the relatives of the girl and were done to death while trying to elope. The theory appears to have no basis on the record nor has it otherwise anything to commend itself. Muhammad. Nazir (P. W. 71. father of the unfortunate girl and father-in-law of the unfortunate young man, clearly stated that the two deceased had gone to Multan to consult a doctor as the girl was suffering from bronchitis. Whatever the purpose of their visit, the fact remains that the parents of the girl do not appear to have taken exception to their meeting or) travelling together particularly having regard to their relationship. Assuming that the suspicion of illicit connection was not wholly unfounded a9 already observed by us, placed in a rather happy situation of being married to one sister and have a romance with the other unhindered there was hardly any occasion for Muhammad Akram Saeed to run away with the younger sister of his wife. Again, there appears to be no earthly reason as to why the two appellants should have been falsely implicated notwithstanding their close relationship with Muhammad Nazir (P. W. 7) and his brother Sharif, Lambardar. Assuming that the relations of the girl had done away with the two delinquents who hail brought dishonour to the family why at all should they have gone out of the way to falsely implicate the two appellants. It is in evidence that Mst. Maryam wife of Muhammad Nazir and mother of Mst. Rani deceased was the father's sister of Muhammad Ashraf appellant whereas the wife of Sharif, Lambardar, brother of Naair, was the sister of Hanif appellant whose father was also a collateral of Naair and Sharif besides being their tenant. This suggestion had, therefore, no basis either in common sense or on the record. As a result of the foregoing discussion, we see no force in this appeal which is hereby dismissed. S. A. H.?????????????????????????????????????????????????????????? Appeal dismissed.