1969L35 (PLP)

MUHAMMAD SIDDIQ, J.‑Muhammad Luqman, aged about 19 years, was tried by the Additional Sessions Judge, Multan, under section 302, P. P. C. for the murder of his elder brother Qurban Ali on the night between 20th and 21st of June 1966, while he was sleeping in the house in the abadi of village Puthi, Chak No. I‑H, Police Station Saddar, Multan. He has been convicted for the offence of murder and sentenced to death subject to confirmation by this Court. He was further ordered to pay a fine of Rs. 500 and in default to undergo R. I. for six months. He has come in appeal against his conviction and sentence. The case is also before us under section 374, Cr. P. C. for the confirmation of the sentence of death. This judgment will dispose of the Criminal Appeal as well as the Murder Reference.

2. According to the prosecution, the appellant and Qurban Ali deceased were the only two sons of Taj Muhammad and were living in the same house. Qurban Ali, who was aged 22 years, was married but had no child. The appellant was unmarried. The deceased suspected some doubtful relations between his wife and the appellant. There was some altercation on the matter a few days before the occurrence. The deceased had, also according to the F. I. R. given a beating to the appellant. On the night between the 20th and 21st of June 1966, the deceased and the appellant were sleeping in the house with other members of the family. There was a religious meeting (Mehfil‑e‑Milad) in the village mosque which was attended by the people of the village and some others from the neighbouring villages. According to Agha Muhammad Yusuf (P. W. 4), who prepared the site‑plan Exh. P. G/1, the distance between the mosque and the house of the appellant is 230 feet. At about midnight Fayyaz Ali Muhammad Ali and Bunyad Ali (P. Ws. 5 to 7) had left the Milad for their places. When they were passing near the house of the appellant they heard a sudden shriek from inside the house and the three ran into that house and saw the appellant butchering his brother Qurban Ali with a chhuri. On seeing the witnesses he tried to run away but the witnesses overpowered him along with the chhuri. The appellant threw the chhuri on the ground. Qurban Ali died at the spot. Bunyad Ali went to inform the village Lambardar Akbar Ali (P. W. 8) who came to the spot and found Qaisar Abbas (P. W. 9) also present there. The appellant, who was wearing blood‑stained clothes, was secured at the spot and he confessed in his (Akbar Ali's), presence that two days earlier the deceased had an altercation with him, had given him a beating and had accused him of having an evil eye on his wife. The appellant confessed that he had murdered Qurban Ali for the said reason. Akbar Ali Lambardar P. W. went to inform the Police. On the way, he met A. S.

1. Muhammad Sadiq (P. W. 13) at village Tatepur and made to him the statement Exh. P. A. which was recorded on the 21st of June 1966 at 10‑30a. m. The A.S.I. immediately proceeded to the spot and forwarded the statement Exh. P. A. to Police Station Saddar, Multan, where the formal F. I. R. Exh. PA/1 was recorded at 1‑05 p. m. on that day.

3. A.S.I. Muhammad Sadiq reached the spot at 12.30 p. m. and prepared the injury statement Exh. P. M. and the inquest report Exh. P. L. in respect of Qurban Ali deceased. He sent the dead body to the mortuary for post‑mortem examination. He found at the spot the appellant present in the custody of the witnesses and arrested him. The shirt Exh. P. 7 and the chadar Exh. P. 8, which were worn by the appellant, were blood‑stained. The A. S. I. got these clothes removed from the person of the appellant and took them into possession and sealed them into a parcel vide memo. Exh. P. E. Bunyad Ali P. W. produced before him the blood‑stained chhuri Exh. P. 1 which was also taken into possession and sealed into parcel under memo. Exh. P. B. The A. S. I. also collected blood‑stained earth from the spot and sealed the same into parcel under memo. Exh. P. C. The bedding on which the deceased was lying was stained with blood and was taken into possession. The A. S. I. also took into possession the pillow Exh. P. 3, the mattress Exh. P. 4, the cot Exh. P. 5, and the chappal of the deceased Exh. P. 6, vide memo. Exh. P. D. He got the statements of Fayyaz Ali, Muhammad All, Bunyad Ali and Qaisar Abbas recorded under section 161, Cr. P. C. and also got the site‑plan prepared by Agha Muhammad Yusuf (P. W. 4).

4. Dr. Imtiaz Ahmad (P. W. 12) performed, on the 22nd of June 1966, at 11‑30 a. m., the post‑mortem examination on the dead body of Qurban Ali and found the following injury thereon:‑ "An incised wound, 5" x 2" x ", in front of the neck extending towards both sides of the middle line. Trachea was completely cut. The injury was ante‑mortem, and caused by a sharp‑edged weapon." According to the doctor, the stomach contained semi‑digested food and the time between death and injury was almost immediate and between death and post‑mortem, from 24 to 48 hours. The doctor was further of the opinion that the injury on the person of the deceased could be caused with the chhuri Exh. P. 1 and that the deceased must have raised cries before the injury had cut the trachea. He, however, did not see any marks of struggle on the dead body. Exh. P. J. is the correct carbon copy of his post‑mortem report.

5. According to the report of the Chemical Examiner, the shirt Exh. P. 7 and the chadar Exh. P. 8 removed from the person of the appellant and the blood‑stained earth taken from the spot and the chhuri Exh. P. 1 were found‑stained with blood. According to the report of the Government Serologist, the shirt Exh. P. 7 and chador Exh. P. 8 were found stained with human blood vide Exh. P. Q., while no report of the Government Serologist as produced with regard to the blood‑stained earth and the chhuri Exh. P. 1. 6. 'The appellant in his statement under section 342, Cr. P. C. admitted that he and Qurban Ali deceased lived to gether in the same house along with his father. He denied the other allegations of the prosecution as also the recoveries and further stated that he had been falsely implicated in the case due to his enmity with Akbar Ali P. W. and that he was not present in the house at the time of the occurrence and was working at that time as a labourer in the Muzaffarabad Mill at Multan. He alleged that he had been arrested by the police when he had gone there in the morning. He did not produce any evidence in his defence.

7. The special features of this case may be mentioned at this stage. Taj Muhammad had only two sons, out of whom the deceased was married but had no child. The appellant is unmarried. All were residing together in the same house. Akbar Ali P. W. is a Lambardar of the village and is related to Taj Muhammad. The occurrence had taken place at about midnight but the first information to the police was given at Tatepur at 10‑30 a. m. on the following morning and this report was made not at the instance of any member of the family but at the instance of the Village Lambardar who probably apprehended some action against him if he did not report the matter to the police. Learned counsel tried to argue that the benefit of this delay in lodging the F. I. R. should go to the appellant. Such a benefit is available to the accused where the identity of the accused was in doubt and time was consumed in consultation to fix the identity or build up a story to rope in! some particular individuals. This is not a case of that nature. The difficulty in this case was that the whole house was facing extinction. The deceased was married but was issueless. The appellant was unmarried and was to face a trial for murder. The inmates of the house would naturally be in a very awkward position to decide whether to make a move in the matter or to keep mum. The report was lodged with the police by Akbar Ali Lambardar P. W. and the police took the obvious precaution of having the statements of the important eye‑witnesses recorded under section 161, Cr. P. C. In spite of it the loyalty of our witnesses to the cause of truth was put to the severest test and the statements in the Court of the committing Magistrate and those made at the trial, evidence, an effort on the part of the complainant and the eye‑witnesses to torpedo the prosecution case. The eye‑witnesses had come from the Milad and the very place of Milad meeting has been distorted. According to Qaisar Abbas and Fayyaz Ali P. Ws. the Milad was held in the village mosque. According to Muhammad Ali P. W. it was held in the open ground and according to Bunyad Ali P. W. it was held at the place of Hevaldar Bunyad Ali. This was probably intended to cut at the very root of the case so that if the very holding of the Mehfal‑e‑Milad becomes doubtful, the arrival of the eye‑witnesses at the time of the occurrence would become highly improbable. According to the F. I. R., the appellant had confessed his guilt in the presence of Akbar Ali Lambardar and others present at the spot. Everybody forgot completely about this extra judicial confession. Every effort was made to make the recovery of the chhuri and the blood stained clothes doubtful and the witnesses of the recovery have tried to cause as much damage to this piece of evidence as they possibly could. No member of the family of the deceased has come forward to appear for the prosecution, although none of them has appeared in defence either. It is in the light of these circumstances that we have to find if there is still any material left on the record, on which the conviction of the appellant can be based.

8. Reference at this stage can be usefully made to the terms "evidence", "proved" and "disproved" as given in the Evidence Act, 1872. In spite of the juggleries that our witnesses may perform, the ultimate responsibility to come to the necessary findings of fact rests with the Court and when the case is no tried with the help of jurors, this responsibility is undivided and complete. The term "evidence" is defined in the Evidence Act to include oral and documentary evidence and out of the two categories more weight is attached to the documentary evidence for the unfortunate reason that men may perjure but documents may not. The definitions of the words "proved" and "disproved" however do not make the findings of the Court dependent upon "evidence" alone. The authors of the Evidence Act in their wisdom did not mention the term "evidence" while defining the words "proved" and "disproved" and according to the definition of the term "proved", a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists". The definition of the word "disproved" proceeds on similar lines. The Court is there fore not bound to look for its findings on the "evidence" alone as defined in the Evidence Act, but has to see to the high probabilities regarding the existence or non‑existence of a fact after considering "the matters before the Court". The Court may be impressed by the demeanour of a particular witness more than by his words and in the circumstances like those of the present case, may consider the oral evidence in the light of the heavy pressure under which the witnesses in the case are placed.

9. It appears from the F. I. R. that the prosecution in this case could rely on‑ (a) the eye‑witnesses; (b) the recovery of the weapon of offence; (c) the recoveries of the blood‑stained garments of the appellant; (d) motive; and (e) extra judicial confession.

10. The prosecution witnesses were however in a different mood when the trial started and there is no mention of motive indicated in the F. I. R. Nor is there any evidence in support of the extra‑judicial confession. These two categories of evidence have become totally extinct.

11. With regard to the recovery of the chhuri, the evidence of recovery has been damaged and the prosecution failed to produce the report of the Government Serologist as to whether the blood found by the Chemical Examiner on the chhuri Exh. P. 1 was of human origin. The evidence of the recovery of the chhuri Exh. P. 1 therefore is also of no avail to connect the appellant with the offence.

12. This would leave the oral evidence or what was left of it and the evidence with regard to the recovery of the garments of the appellant.

13. Out of the three eye‑witnesses, Fayyaz Ali (P. W. 5) and' Bunyad Ali (P. W. 7), who belong to the village, were declared hostile. The statement of Bunyad Ali made in the Court of the Committing Magistrate was not transferred to the Sessions record as contemplated under section 288, Cr. P. C. Hence the said statement made by the witness during the commitment proceed ings cannot be made use of against the appellant. Qaisar Abbas P. W. was also declared hostile and his statement made in the Court of the Committing Magistrate was transferred to the Sessions file under section 288, Cr. P. C., but the requirements of section 145 of the Evidence Act were not complied with and the contents of that statement therefore, cannot be utilized to contradict the statement made by the witness at the trial. This witness was not at all examined at the trial with regard to the extra‑judicial confession or with regard to the recoveries made in his presence, and since the discrepancies between the statement made by him at the trial and one made by him during the commitment proceedings, had not been put to him, the statement made by him in the Court of the Committing Magistrate can also not be made use of in this case vide Fateh Beg v. The Crown (P L D 1952 Lah. 275), Hakim Gul v. The State (P L D 1964 Pesh. 1) and Said Munir v. The State (P L D 1964 Pesh. 194).

14. Fayyaz Ali (P. W. 5) stated at the trial that he had seen nothing with his own eyes. He was declared hostile, was cross‑examined and was confronted with his earlier statement made by him during the commitment proceedings. In view of the special features of this case, I prefer the statement made by the witness before the committing Magistrate to his complete denial made at the trial. In his statement made before the committing Magistrate he has stated that he was returning at about midnight from the mosque after participating in the Moulud and had heard a shriek near the house of Taj. He went inside and saw the, appellant trying to scale over the boundary wall in an attempt to run away and he overpowered him. He saw the chhuri under the cot of Qurban and found Qurban dead and his neck cut. He also says that Bunyad Ali was accompanying him at that time and that others had arrived later on. He further stated that Bunyad Ali had gone to call Akbar Ali P. W., that he had lost his consciousness and could not say whether Muhammad Ali P. W. had come to the scene of the murder or not. He admitted, however, that Muhammad Ali P. W. was present in the Moulud. He also stated that Akbar Ali Lambardar was related to the father of the appellant. The note of the Court indicates that the witness had started trembling and was given time to rest. Fayyaz Ali P. W. therefore admits that there was Moulud in the village mosque on the night in question which was partici pated in by Muhammad Ali P. W. He also says that he left the Moulud at about midnight, had heard a shriek inside the house of the appellant and on going there had found the deceased dead with his neck cut, the chhurl under his cot and the appellant in an effort to scale over the wall to run away. He secured the appellant at the spot and Bunyad Ali P. W. had gone away to call in Akbar Ali P. W.

15. Muhammad Ali (P. W. 6) also says that he left Moulud at about midnight and was accompanied by Fayyaz Ali and Bunyad Ali. Near the house of the appellant he heard a cry at which Fayyaz Ali and Bunyad Ali P. Ws. immediately went in and he followed them. He saw Qurban lying dead and the appellant standing in the compound of the house. He did not see anything in the hand of the appellant. According to this witness also Bunyad Ali had gone to call in Akbar Ali Lambardar who had reached immediately and saw the appellant there. The witness further says that the police had secured the clothes of the appellant in his presence and that the same were sealed into a parcel. The police had also, according to the witness, taken into possession the blood‑stained earth and the chhuri which were also sealed into parcels. The witness had attested the memos. Exhs. P. B. P. C., and P. E. The witness also says that the chadar secured by the Police from the person of the appellant was the same as produced at the trial.

16. A s against the above, the witness also says that he had not seen any stains of blood on the clothes which were worn by the appellant and that the shirt worn by him was white while the one produced at the trial was black. He also stated under cross‑examination that he had left the place for some time and that the clothes had been secured by the police before he had arrived at the spot again and that he had merely thumb‑marked the recovery memo. Exh. P. E. which had not been read over to him. He further stated that Qaisar Abbas P. W. had also not signed the memos. in his presence. He again stated that the appellant used to visit his tube‑well and to damage his crops on some occasions and that he had given him a beating. He states at the end that it is not a fact that he had not seen the incident.

17. In view of the circumstances of the case, we accept his claim that he had witnessed the incident and that he had seen, on being attracted to the place of occurrence from the street along with Fayyaz Ali and Bunyad Ali P. Ws. Qurban lying dead, the appellant standing in the compound and had attested the recovery memos. Exhs. P. B., P. C. and P. E. We also accept his claim that the chadar Exh. P. 8 was the same which was found on the person of the appellant. We are, however, unable to accept his testimony that the shirt worn by the appellant was white instead of the black which was produced in Court as the police had no occasion or motive to substitute a black shirt for a white one and the witness is falsified by the recovery memo itself, which he had attested. We have similarly no reason to accept the statement made by him under cross‑examination that the clothes recovered from the person of the appellant were not recovered in his presence as was claimed by him under his examination‑in‑chief. We are also not inclined to attach any weight to his statement to the effect that the appellant had been damaging his crops and that he in turn, had given a beating to the appellant.

18. Qaisar Abbas (P. W. 9) is a Lambardar of the adjoining village and says that he had joined the Milad Sharif in the village mosque on the night in question. When he was leaving the place he heard a commotion and went to the house of Taj Muhammad (father of the appellant) where many people were present. He saw Qurban lying dead on the cot and the appellant already apprehended there. According to this witness, Bunyad Ali P. W. had gone to bring Akbar Ali Lambardar who had reached the spot in his presence. He claims to have left the place thereafter. He also says that many persons had made inquiries from the appellant in his presence and that he (appellant) was quiet all the while that he was there.

19. This witness also proves the holding of the Mehfal‑e Milad on the night of occurrence and his own presence there. He also claims to have reached the place of occurrence immediately after the occurrence and to have seen Qurban lying dead and the appellant apprehended by the people present there. The people present there were making enquiries from the appellant and he was giving no reply.

20. It would appear from the statement of the aforemen tioned witnesses namely, Fayyaz Ali, Muhammad Ali and Qaisar Abbas P. Ws. that there was a Mehfal‑e‑Milad in the village mosque on the night of occurrence, that they had left the place at about midnight, that there was a sudden shriek received from the house of the appellant which had attracted inside the house Fayyaz Ali and Muhammad Ali P. Ws., who had on going inside seen Qurban lying dead, the chhuri also lying there and Fayyaz Ali had seen the appellant trying to scale over the wall to run away and had secured him there and Muhammad Ali had seen the appellant in the compound of the house and the deceased and the chhuri as mentioned above, Qaisar Abbas P. .W. was also attracted to the house of the appellant by a commotion and had found Qurban lying dead and the appellant apprehended by the people present there and not giving any replies to the queries made from him. It is admitted by the appellant in his statement at the trial that he was joint in residence with the deceased who was his brother (Question No. 2 and the answer thereto). There is not the slightest suggestion that any other inmate of the house had committed the murder of Qurban Ali at the time and place of occurrence and that the appellant has been falsely implicated. He claimed at the trial and in the Court of the Committing Magistrate that he had been falsely involved because of his enmity with Akbar Ali Lambardar P. W. No such enmity has been proved or even alluded to and Akbar Ali P. W. was not cross- examined on this point. He, according to Fayyaz Ali P. W., is related to the appellant's father and like other eye‑witnesses has tried to go all out to save the appellant and had even stated that the statement Exh. P. A. which bears his signatures, was made by him not at Tatepur but at the place of occurrence. We have not been able to place any reliance on this claim of Akbar Ali P. W. which is falsified by the statement Exh. P. A. and by the A. S. I. Muhammad Sadiq (P. W. 13). In these circumstances an explanation is due from the appellant about the cause of the death of the deceased especially when he was seen in the house immediately after the occurrence and apprehended while trying to scale over the wall to run away. Section 114 of the Evidence Act enables the Court to raise certain presumptions regarding the existence of any fact which the Court thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, etc. Illustration (a) under this section is relevant and lays down "that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession". This illustration is an exception to the rules relating to burden of proof and casts a duty on a person found in a certain set of circumstances to speak out and explain in his own defence. Illustration (h) to the same section is in the following terms: "that, if a man refuses to answer a question which he is not compelled to answer bylaw, the answer, if given, would be unfavourable to him." Qasir Abbas P. W. says that the people present at the place 61 occurrence were making enquiries from the appellant, presumably about the occurrence, and that the appellant was keeping mum. This silence on his part would also indicate against his innocence. Considering the place and time of occurrence and the circumstances in which the appellant was found by the aforementioned P. Ws. and considering the fact that there is not the slightest suggestion with regard to any false implication or substitution, the evidence of the aforementioned P. Ws. points unmistakably towards the guilt of the appellant.

21. As already mentioned the chhuri Exh. P. 1 has not been connected with the offence and the evidence of extra judicial confession and motive is also not available. The recoveries of the blood‑stained shirt Exh. P. 7 and the blood‑stained chadar Exh. P. 8 from the person of the appellant under the memo. Exh. P. E. are, however, a strong piece of evidence connecting the appellant with the murder. Out of the two recovery witnesses, Qasir Abbas P. W. who was declared hostile, was not examined on this point and Muhammad Ali P. W. has stated that the two clothes had been recovered by the police in his presence and that he had duly attested the recovery memo. Exh. P. E. We have rejected his efforts to damage this recovery evidence by saying that the clothes had not been recovered in his presence or that the shirt was of a different colour or that the shirt and chadar did not bear stains of blood. These claims of the witness are falsified by the recovery memo itself which is attested by him and there is not the slightest suggestion against the investigating police as to why they should be dumping false evidence on the appellant. According to the reports of the Chemical Examiner and the Serologist, the shirt Exh. P. 7 and the chadar Exh. P. 8 which had been recovered from the person of the appellant, were found stained with human blood.

22. Another circumstance suggesting against the innocence of the appellant: is that none of the members of the family has come forward to depose in his favour. The failure of the members of the house to appear for the prosecution can be understood, as they had to support a murder case against their own dear one and to face the total extinction of the house. But the failure of the members of the house to appear for the defence cannot be explained except by the fact that the murder had been committed by no one other than the appellant.

23. The appellant stated at that trial that he was at the time of the incident working as a labourer in the Muzaffarabad Mill at Multan. If this was correct, he could have easily examined oral and documentary evidence from the said mill to establish his alibi.

24. In view of the aforementioned evidence and the circum stances of the case we are satisfied that the appellant was rightly convicted under section 302, P. P. C. Learned counsel for the appellant has submitted that the age of the appellant as recorded in the statement before the Committing Magistrate was 15 years and in the statement at the trial it was mentioned as 19 years. It was further submitted that according to the F. I. R. the deceased had levelled a serious charge against the appellant and had given a beating to him two days before the occurrence. It was also pointed out that the members of the family seem to have reconciled themselves with the present situation and have not taken any action against the appellant which might result in the total extinction of the house through the male line being exhausted. Learned counsel for the appellant submitted on the basis of the special features of this case that the extreme penalty, r, of death may not be exacted from the appellant. To this learned counsel for the State had no objection.

25. In the result we uphold the conviction of the appellant under section 302, P. P. C. for the murder of his brother Ali deceased but alter the sentence imposed on him from death to transportation for life. The appeal is accepted to this' extent. The sentence of death, is not confirmed. K. B. A. Appeal partly accepted.