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Criminal Appeal No. 3 and Murder Reference No. 2 of 1968, decided on 4th June 1968.
---S. 112-Murder-Sentence Motive of offence established-Accused conducting himself in desperate and brutal manner, inflicting nine dagger blows on his own daughter anti killing another person by wanton aggression by using seven injuries to him-Death sentence, held, only appro priate sentence, in circumstances of case.
Kambar Ali Shah v. The State P L D 1959 Kar. 460 and Bahadur v. The State P L D 1959 Kar. 578 distinguished.
Muhammad Ahmad Mirza and Mir Muhammad Khan Ralsani for Appellant.
S. M. Bashir, Addl. A. G. for the State.
Dates of hearing: 29th and 30th May 1968.
-Mehraj-ud-Din, appellant, was convicted under section 302 of the Pakistan Penal Code and sentenced to death for the murder of Tasarruf Gull by order dated the 6th of April 1968, of the learned Sessions Judge, Quetta. He was convicted also under section 307, P. P. C., and sentenced to five years rigorous imprisonment for having made murderous assault on Mst. Suraya and Ibadat Gul. The appellant has preferred an appeal against the judgment of the learned Sessions Judge and the case has been referred to this Court by the learned trial Judge under section 374 of the Code of Criminal Procedure, for confirmation of the sentence of death passed by him. The appeal and the reference for confirmation wilt be disposed of by this order.
2. The prosecution case against the appellant was that on the 20th of April 1966, at Sibi Railway Station, he had com mitted murder by causing the death of one Tassaruf Gut and also caused injuries to Mst. Suraya, his daughter and Ibadat Gul, his son-in-law, with a dagger, with an intention to cause their death, on the same day. The facts leading to the incident, as disclosed by the prosecution, are that Mst. Suraya (P. W. 8) the daughter o Mehraj-ud-Din accused was married in February 1966, to Ibadat Gul (P. W. 6) son of Tasarruf Gul, deceased. At the time of marriage, Ibadat Gul executed a deed Exh. D/1 agreeing that he would live with the appellant as his Khana Damad. Mst. Suraya was however, sent to Sukkur after marriage at the request of Tasarruf Gul, father of the Ibadat Gul and otherwise the first cousin of the appellant. The deceased was living in Sukkur having his own business there. The appellant followed them to Sukkur and Mst. Suraya returned to Quetta with him after her stay of seven days. The appellant alter that, it was alleged attempted to outrage her modesty once when her mother was in confinement for the delivery of it child. Ibadat Gul also returned after a few days. The appellant committed sexual intercourse with her at two occasions against her will and notwithstanding her strong protests. She felt disgusted with her life due to the conduct of her father and attempted to commit suicide. She took insecticide which was in the house for killing rats and started vomiting when her father intervened and made her drink the mixture of ghee and milk with the result that she vomited out the insecticide. She informed her husband Ibadat Gut about the act of her father on his return in the afternoon from duty. Ibadat Gut wrote a letter to his father informing him of the conduct of the accused and requested him to come to Quetta so that he should take Mst. Suraya away. Ibadat Gul afterwards left for Sukkur and returned the next day with the deceased, Misal Khan; his brother (P. W. 11) and one Khair Zaman (He was not examined as a witness in the case). They requested the appellant to send Mst. Suraya to Sukkur and oil his refusal by a mutual agreement, a Panchayat was convened in the house of Amjad Mahmood (P. W. 3). Mst. Suraya was not present in the Panchayat. The immoral conduct of the appellant was also disclosed in the Panchayat. The Panchayat was attended to, amongst others, by Amjad Mahmood (P. W. 3) and Haji Yar Muhammad (D. W. 1). They ascertained the views of Mst. Suraya who was in the house of her father. She expressed the desire to leave the house of her father and to live with her husband. The appellant consequently turned her out of the house and she along with others shifted to the house of Amjad Mahmood. The appellant used to come to the house of Amjad Mahmood and asked Ibadat Gul to divorce Mst. Suraya and threatened him otherwise. Apprehending danger at his hands, Ibadat Gul and Mst. Suraya after three days stay in the house of Amjad Mahmood left for Sukkur. To avoid any possible encounter with the appellant, they did not go by train and instead reached Sibi by a bus. The deceased purchased three railway tickets for Sukkur and they were to board the train; Ibadat Gul was ahead of them followed by the deceased and Mst. Suraya.
Meanwhile, the appellant on the 20th of April 1966, i.e., the eventful day, went to the house of Amjad Mahmood and finding that Mst. Suraya was not there, rushed towards the railway station. He purchased platform ticket and searched for his daughter. Since he could not trace them and the train was, about to leave he purchased a ticket for Muchh and boarded the train. He did not find his daughter in the train and got his ticket extended for Sukkur. On seeing Mst. Suraya and other, at Sibi Railway Station, he attacked Mst. Suraya with dagger Exh. P/1 and inflicted a number of injuries on her person. The deceased Tasarruf Gul tried to intervene so as to protect Mst. Suraya when the accused attacked him with the dagger. Ibadat Gul who was holding an attache-case in his hand, threw it and rushed to save his father when the accused inflicted a second blow on him when he was caught by the police and Aulia Khan (P. W. 5) snatched the dagger from his hands.
Mst. Suraya fell down unconsciously and the deceased collapsed on the platform.
3. Muhammad Yusuf (P. W .4), Aulia Khan (P. W.5) Dilbagh Hussain (P. W. 10), Riasat Beg (P. W. 15) and Ghulam Sarwar (P. W. 18) are all police constables. They accompanied by Ibadat Gul (P. W. 6) reached the police station with the accused. The First Information Report (Exh. P/A) was recorded by Muzaffar Hussain, Sub-Inspector of Police (P. W. 19) who was posted as Station House Officer at Railway Police Station Sibi. He also took the dagger Exh. P./1 into his possession vide inventory Exh. P/H. He searched the person of the appellant and among other things, which are not relevant for the purpose of this case, found two photographs (Exhs. P/5 and P; 6) of Mst. Suraya, the daughter of the accused, one platfrom ticket of Quetta Railway Station (Exh. P/21), a third class railway ticket from Quetta to Muchh (Exh: P/ 19) and one extension memo. (Exit. P/20) from Muchh to Sukkur, and took them into possession tide inventory Exh. P/l. He secured blood-stained shirt of Ibadat Gul (Exh. P/2) vide inventory Exh. P/D. It had a cut upon it. He also took into possession the attache-case Exh. P/7 and a pair of ladies shoes.
4. The deceased and Mst. Suraya had been removed to the Sibi Hospital. The Investigating Officer reached the Hospital and found that Tasarruf Gul had died. He prepared the inquest report Exh. P/G. On search, he took into possession from the person of the deceased a letter Exh. P/3 (enclosed in a postal envelope) and three railway tickets from Sibi to Sukkur (Exhs. P/1.t to P/16) vide inventory Exh. P/F.
5. Dr. Syed Mansoor Ali. Medical Officer, incharge Civil Hospital, Sibi (he was examined as P. W. 22 in the Court of Committing Magistrate) conducted the post-mortem examination of the deceased Tasarruf Gul and found the following, injuries on his person.
(1) Punctured wound with its track passing subcutaneously having wounds of entry and exit each measuring " x " x " situated in the middle of the front of the left upper arm. The direction of the wound was from outside inwards. The injury was simple in nature and fresh when examined.
(2) An incised wound " x " x " on the external side of the left upper arm below the shoulder-joint. The injury was simple in nature and fresh when examined. Caused by sharp weapon.
(3) An incised wound 1" x " x " on the external side of the left upper arm below the mecial half of the left clavicle. The direction of the wound was downwards and outwards. Injury simple in nature caused by a sharp weapon and fresh when examined.
(4) Incised wound " x " x 2 " on the front of the right side of the chest three inch below the outer 1/3 (one-third) of the right clavicle. The direction of the wound was inwards down wards and backwards. Injury simple in nature and fresh when examined, and caused by sharp weapon.
(5) An incised wound " x " x 4 " on the left side of back-of the chest on the posterior axillary line in the 5th left inter space directed downwards, backwards and inwards. Injuries simple, fresh and caused by sharp weapon.
(6) Incised wound " x " x " on the left hip near the anterior-superior-iliac spine directed downwards and inwards. Injury simple, fresh in nature and caused by sharp weapon.
(7) A stab wound " x " x 6" in the fourth left inter space " from the lateral external line directed backwards. This injury was dangerous, fresh and caused by a sharp weapon.
In the opinion of the doctor, the death occurred due to shock and haemorrhage as result of injury affecting the heart, described at No. 7 above.
The same day, he examined Mst. Suraya, and found the following injuries on her person :--
(1) A punctured wound " x " x 1" in the seventh axillary line directed inward and forwards.
(2) A punctured wound " x " x 1 " in the 8th left inter costal space on the anterior axillary line directed inwards and forward.
(3) A punctured wound " x " x " in the 6th right inter costal space directed backwards.
(4) A punctured wound " x " x " on the front of the right forearm 4 inches; below the elbow-joint directed backwards.
(5) A punctured wound having an, entry and that of exit each measuring; " x " x " on the front of the right arm and situated subcutaneously.
(6) A punctured wound " x " x " on the back of the right side of the chest at the level of the inferior angle of the right scapula directed posterio-interiorly
(7) A punctured wound " x " x 1 " on the back of middle the right forearm directed forwards.
(8) A punctured wound " x " x " on the median line of the back at the level of the eleventh thoracic vertebra directed forward.
(9) A punctured wound " x " x 1" at the left of left lumber region directed inwards and downwards.
According to the doctor, the injuries were simple and were caused by a sharp-edged weapon.
Ibadat Gul was also examined by the same doctor on the same day, and he found the following injury on his body
(1) A punctured wound " x " x 1 " on the left side of the chest over the 8th and 9th ribs directed downwards and forwards, the track of the wound being situated subcutaneously.
The injury, according to the report, was simple having, been caused by a sharp-edged weapon.
6. The prosecution examined 19 witnesses in support of its case. The Public Prosecutor tendered the statement of Dr. Syed Mansoor Ali and the report of the Chemical Examiner to tie read as evidence in the case.
7. Muhammad Sadiq (P. W. 2), Ticket Collector at Sibi Railway Station, Aulia Khan (P. W. 5) police constable hosted at Sibi Railway Station, Ibadat Gul (P. W. 6) the son-in-law of the appellant and the son of the deceased, Mst. Suraya (P. W. 8) daughter of the accused, Fazal-ur-Rehman (P. W. 12), Sanitary Inspector, Pakistan Western Railway, Sibi, Abdur Rashid (P. W. 13) Cigarette Vendor, Railway Station Sibi, and Muhammad Din (P. W. 16), Soda Water Dealer at Sibi Railway Station, are the eye-witnesses of the incident.
Muhammad Shah (P. W. 1), Ticket Collector, Sibi Railway Station, Muhammad Yusuf (P. W. 4) Foot Constable, Railway Police Station, Sibi, Bashir Ahmed (P. W. 9), Assistant in the office of the Political Agent, Loralai, Dilbagh Hussain (P. W. 10), police constable, Railway Police Station. Sibi, Riasat Beg (P. W. 15), constable, Police Line (Railway) Quetta, and Ghulam Sarwar (P. W. 18) constable, Railway Police Station. Sibi, are the witnesses whoa arrived at the scene of occurrence immediately after the commission of the offence.
Mst. Suraya (P. W. 8) and Ibadat Gul (P. W. 6) beside being eye-witnesses had also deposed the facts and circumstances which led to the incident. Ahmad Mahmood (P. W. 3) and 1-lisal Khan (P. W. 11) are also witnesses to the same effect.
8. The accused was examined and lie admitted that lie travelled by Quetta-Rohri passenger train to Sibi on the 20th of April 1966, and got down at Sibi Railway Station at about 3-00 p.m. He also admitted that he was arrested by the police at the Railway Station. He admitted that he had the photograph of Mst. Suraya with him. He, however, denied to have caused any injury to Mst. Suraya or the deceased. As to the injuries suffered by Ibadat Gut and the deceased, he stated: I got down from the train at Sibi Railway Station. I saw Misal Khan, Khair Zaman, Tasarruf Gul, Ibadat Gul and Suraya going on the platform. Ibadat Gul, Khair Zairian and Misal Khan seeing me took out their knives and attacked me. To save; myself I caught hold ibadat Gut and Khair Zairian's knife struck Ibadat Mst. Suraya ran away. My uncle Tasarruf Gul called out that I should not be killed. I entered in the compartment to hide myself from them. The police arrived and arrested me from the compartment. Misal Khan and Khair Zaman killed their father as he wanted to save me. Khair Zaman and Misal Khan then ran away and the police took me to the police station. He denied the allegations made against him as to his immoral behaviour towards his daughter and stated that false allegations had been made against him so as to render the agreement D/1 further. He admitted that Mst. Suraya had taken poison and also that lie had administered to her the mixture of ghee and milk. He, however, explained that she lead done so because she and her husband had taken a vow that they would sacrifice themselves for each other and that she had taken poison to have a lead." He also admitted that Ibadat Gut had stated in the Panchayat that lie had some doubts about" him.
He examined Haji Yar Muhammad (D. W. l), Nasir Hussain (D. W. 2), Asghar Ali (D. W. 3) his son, Zar Baha Begum (D. W. 4), his wife, and Amina (D.W. 5), mid-wife, in his defence. Haji Yar Muhammad and Nasir Hussain are the witnesses of Panchayat and they stated that the appellant was not willing to send his daughter. They further stated that the appellant was adamant that she had to live with him according to the terms of the agreement executed at the time of marriage. Zar Baha Begum, his wife, deposed that her daughter had never complained to her about her (witness's) husband and she further stated that she was delivered a child at 5 or 5 a.m., and that Mst. Suraya remained with her on the night of confinement. Amina, the mid-wife, also deposed that the child was delivered at about 4 a.m., and site and Mst. Suraya were in the room. Asghar Ali (D. W.) also deposed that Mst. Suraya had never complained to him about the father and also that on the night when her mother was confined, his father was sleeping with him under the other children.
9. The evidence of Zar Baha Begum, Asghar Ali and Amina, the mid-wife, was led to belie the allegation of Mst. Suraya that the appellant attempted to outrage her modesty on the night when her mother was in confinement. The evidence of the other two witnesses was only to the effect that the accused insisted that the agreement Exh. D/I should be acted upon.
10. Learned counsel for the appellant contended that there was no truth in the allegations made against the appellant that the had immoral designs towards his daughter or that he attempted to outrage her modesty once and that he committed sexual intercourse with her on two occasions. His case is that these allegations were put in the mouth of Mst. Suraya at the instance of her husband Ibadat Gul who was anxious to be relieved of his obligations under the agreement Exh. D/1 by which he had bound himself to remain in the house of his father-in-law as his Khana Damad. The learned Sessions Judge has not believed the prosecution case as to the immoral behaviour of the accused towards his daughter.
We have decided to determine the culpability or otherwise of the accused by other evidence independent of the allegation which had been made against the accused that he hail committed rape on his daughter, and would advert to this allegation later, in another aspect.
11. The incident at Railway Station Sibi, is admitted. The accused also admitted his presence at the time when it happened. He also admitted that lie was arrested. The case of the prosecution is:--
(a) That the deceased was murdered by the appellant. The appellant on the other hand claims that lie was murdered by Misal Khan, his son, and Khair Zairian, another person;
(b) that the accused also admits that Ibadat Gul was injured. But he says that he received the injuries at the hands of Khair Zaman who attacked the appellant, but the knife strucked Ibadat Gul who had intervened to save him; and
(c) that about the injuries on the person of Mst. Suraya, he denied to have inflicted them. But he has not named the person who, according to him, might have injured her.
12. The scope of the inquiry is thus narrowed down to the determination of questions (a) whether the appellant killed the deceased or that he was murdered by his son Misal Khan and one Khair Zaman; (b) whether Ibadat Gal received the injury at the hands of the appellant or as a consequence of the knife blow of Khair Zaman; and (c) whether Mst. Suraya was injured, and if so, who caused the injuries.
13. Ibadat Gul stated that he had entered the compartment at Railway Station and on hearing the noise he came out anti saw his wife "lying on the platform near the gale wildly throwing their legs and bleeding from the injuries." He at the same time saw the appellant striking blows to his father can the back. He rushed toward, his father and the accused inflicted a dagger blow on his left side causing him an injury, and he was about to give a second blow when he was caught by the police. He identified the dagger Exh. P/I as the weapon of offence. He also proved the F.I.R. Exh. P/A.
Learned counsel for the appellant contended that the witness had fallen out with the deceased. The appellant wanted that according to the terms of the agreement his daughter should remain with him and that Ibadat Gal should also live with hits as Khans Damad. But the witness had adopted all sort of means, fair and foul, to be relieved of his obligations and had gone even to the extent or making scandalous allegations against the appellant.
The incident took place in the broad day-light at Railway Station, Sibi. It is inconceivable that the witness should have substituted his-father-in-law for someone else might have caused the injuries to his father. According to . the appellant, the deceased was killed by Misal Khan, his son, and Khair Zaman. No question-was, however, put to this witness in defence. We find nothing in the evidence of the witness to discredit him as to the incident at the Railway Station, Sibi. He is, moreover, corroborated in his evidence by Mst. Suraya (P. W. 8). She has unmistakably stated that the deceased was killed by the appellant. According to her statement, she was attacked by the appellant who inflicted 9 or 10 injuries to her and that the deceased when tried to intervene was also attacked by the appellant and was inflicted injuries. She denied that Misal Khan and Khair Zaman were present at the Railway Station. She was cross-examined at length, but the questions were mostly with reference to her allegation as to the immoral behaviour of her father. No attempt was made in the cross-examination to dis credit her as to the actual incident. She is the daughter of the appellant, and it is inconceivable that She should have implicated him falsely. There is hardly any reason that she should have substituted her father for some other persons if they had been the real assailants. Besides the evidence of Mst. Suraya and Ibadat Gul, there is the evidence of Sadiq (P. W. 2), Aulia Khan (P. W. 5), Fazal-ur-Rahman (P. W. 12), Abdur Rashid IP. W. 13) and Muhammad Din (P. W. 16) who have all seen the occurrence. They are all independent and disinterested witnesses. They came forth to depose what they had actually seen. Their statements independent of the testimony of Mst. Suraya and Ibadat Gal bring home the offence to the appellant. These witnesses further stated that the appellant was arrested on the Railway Station and the dagger Exh. P/1 which was stained with blood was recovered from him. No question was put to them if any other person had caused injuries to the deceased, or Ibadat Gul or Mst. Suraya.
14. It is unnecessary to refer to the other evidence, but we may, however, observe that Mahmood Shah (P. W. 1), Muhammad Yusuf.(P: W. 4), Bashir Ahmad (P. W. 9) Dilbagh Hussain (P. W. 10), Riasat Beg (P. W. 15) and Ghulam Sarwar (P. W. 18) were the witnesses who reached the spot immediately after the occurrence. They saw the accused in the police custody and they also saw Mst. Suraya and the deceased in an injured condition. We have do doubt whatsoever that the appellant was the real assailant in the case and he had injured the deceased, his daughter Mst. Suraya and his son-in-law Ibadat Gul.
15. Learned counsel then argued that the motive in the case was not proved and he by relying on Kambur Ali Shah v. Pie State (P L D 1959 Kar. 460) and Bahadur v. The State (P L D 1959 Kar. 578) contended that a lesser sentence of transportation for life should be awarded to the appellant.
Even if it be held that the allegations made as to the- immoral behaviour of the appellant were not correct, yet the motive, according to the appellant himself, was there. He was adamant to enforce the terms of agreement Exh. D/1 and wanted his daughter to live with him. On finding that she had been taken away from Quetta, he followed them frantically. as is evident from his own statement that he came to the Railway Station, Quetta, reached Muchh and not finding them there proceeded to Sukkur after them. We must have felt aggrieved by the conduct of his daughter in that she did not want to stay wills Iii m and preferred to leave his house for her husband. She was the first to be attacked and that shows the mental attitude of the appellant he had, therefore, followed them not without a motive. He has, moreover, conducted himself in a desperate and brutal manner and attacked his daughter, inflicted nine blows on her and killed the deceased by wanton aggression by causing as many seven injuries. The sentence of death is the only appropriate sentence in the case and the order of the learned Sessions Judge directing as such is entirely justified.
16. Having come to conclusion that the appellant is guilty of murder of the deceased and also that he has caused the murderous assault on Mst. Suraya and Ibadat 6ul independent on the circumstances whether or not lie had immorally and indecently behaved towards his daughter, we would like to say a few words about this aspect.
Mst. Suraya has stated (cc) that on the night where her mother was in confinement, she and her father were asleep in the same room when at about midnight she found that somebody was touching her breasts and on switching the light on she found that her father was moving away from her bed ; (b) that one evening when she was sitting with the appellant and her husband in one of the rooms, the appellant told Ibadat Gul to go to the other room and he thereafter committed sexual intercourse without her consent or will ; and (c) that on the next morning when her husband had gone out to duty, the appellant caught hold of her and committed sexual intercourse. She felt disgusted with her life and, therefore, took poison to kill herself, but she started vomiting when the appellant made her drink the mixture of ghee and milk and was saved. She told about the incident and its cause to her husband who wrote a letter Exh. P/3 to his father and he also left for Sukkur and returned with his father. Since the appellant did not agree to separate his daughter, the Pancha yat was convened and consequently Mst. Suraya left the house of leer father.
Mst. Suraya in her police statement had only stated that her father made attempts thrice to outrage her modesty. She did not state that lie in fact had committed sexual intercourse with her. Ibadat Gul also in the First Information Report stated that the appellant attempted to outrage .her modesty and did not say that lie had actually committed the sexual intercourse.
17. At times the truth is stranger than fiction. Therefore even if the incidents to which Mst. Suraya referred to have happened on the night of the confinement of her mother and the evening when her husband was asked to go to the other room with the Radio, really look stranger. It is inconceivable that the appellant on those occasions and in such circumstance, should have resorted to such a thing. We are, therefore, not prepared to believe this part of the evidence. There is the third incident when the appellant was alone with Mst. Suraya and, according to her, he committed sexual intercourse. To say that he actually committed sexual intercourse with her on that morning is rather difficult. We, however, entertain no doubt as to the fact that something did happen on that day. According to her, she took poison in disgust due to the misconduct of her father. The appellant admitted that she had taken poison, but he explained in his statement that she and her husband had decided to give life in sacrifice to each other and that she had taken the lead. It is an absurd explanation. If she were to take any such step, she would have taken care to do so in the presence of her husband rather than in his absence because if she had died there was no person to certify that her act was towards the accomplishment of their decision to sacrifice their lives for each other. There are otherwise circumstances which strongly point out to the fact that the appellant misbehaved towards her. She complained to her husband and this borne out by the fact that Ibadat Gul pin the same day wrote letter Exh. P/3 to his father. It is un mistakably stated in the letter that the appellant had misbehaved towards Mst. Suraya and, therefore. He should come to Quetta it, intervene. The letter with the postal envelope was recovered from the pocket of the deceased on the day of incident he the Sub-inspector. Ibadat Gul also left for Sukkur after that. The appellant admits the fact that Ibadat Gul Sukkur after Mst. Suraya had taken the poison. He also admitted that he then returned with his father and brother 1isa1 Khan. He also admitted in his statement that the Panchayat was convened :at the instance of these persons and Ibadat Gul made allegations against him. Though it cannot be said that the appellant had actually committed intercourse with her dauhter, yet there are reasons to suggest that he had misbehaved' towards her. It is highly unnatural for a father to conduct in this manner, but it is equally not conceivable that a daughter should make such all allegation against her own father. If they, really wanted to he relieved of the obligations under the agreement Exh. D/1, there could be many other courses open to them to adopt, and by no means a daughter would go to the extent of not only bring her father to an ignominy but also to exposed herself to a perpetual ,end permanent social sarcasm and criticism.
18. We rind no merit in the appeal which is dismissed in entirely. The sentence of death is confirmed.
Appeal dismissed
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