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Criminal Appeal No.292 of 1984, decided on 11th November, 1986.

---S.302/449/34--Evidence, appreciation of--Witnesses though related to deceased but having no enmity with any of accused--Testimony of such witnesses was disinterested and safely acceptable--Medical testimony corroborating ocular account--Conviction and sentence maintained in circumstances.

--S.302/449/34--Recovery--No crime empties recovered from the spot--Recovery of guns in circumstances had not that incriminatory value which it would have had, any crime empties been found at the spot matching the guns--Ocular account being disinterested, recovery of guns, held, was not without significance and showed that they appeared to be the persons who would have participated in occurrence.--[Recovery].

---S.302/449/34--Evidence, appreciation of--Motive, ocular account, recoveries and medical testimony proving case of prosecution to the hilt--Conviction and sentence maintained.

Abdul Sattar Chughtai for Appellants.

Irshad Ahmad for the State.

Dates of hearing: 30th September; 1st October and 5th November, 1986.

Haq Nawaz, Khuda Bakhsh, Allah Ditta and Ramzan were tried by an Additional Sessions Judge of Bhakkar under section 302/449/34. PPC for trespass into the house of Haq Nawaz, deceased, with intent to commit murder and for murdering the said deceased in his house. Whilst Allah Ditta and Ramzan, accused, were acquitted of the charges. Haq Nawaz and Khuda Bakhsh accused were convicted under section 302/449, PPC. Both the said accused were sentenced under section 302, PPC to life imprisonment each and to pay a fine of Rupees Two Thousand (Rs.2,000) each or in default thereof to suffer further rigorous imprisonment for two years each and under section 449, PPC to three years' rigorous imprisonment each. The fine, if recovered was ordered to be paid to the heirs of the deceased. The appeal (Cr.A. 292 of 1984) preferred by Haq Nawaz and Khuda Bakhsh and the revision (Cr.R.617 of 1984) filed by the State for the enhancement of the sentences of the said two convicts to death are both now before me for disposal.

2. The brief facts of the case are that on 3-9-1982, a short while before sunrise, Muhammad Bakhsh complainant was about to have his bath at the hand pump, where Haq Nawaz and Khuda Bakhsh, accused, both armed with .12 bore guns, and Ramzan and Allah Ditta, accused, both armed with lathis, scaled over the wall of the haveli of Haq Nawaz, deceased, which was adjacent to the house of Hassu. Ramzan, accused, raised a lalkara that the deceased should get ready, as they had come. Simultaneously, Haq Nawaz, accused, fired a shot from his gun, which hit the deceased in the front of his chest, who was sitting on a charpai in the haveli and was smoking hukka. Khuda Bakhsh, accused fired the second shot from his gun, hitting the deceased on the left side of the chest near the left shoulder and the left Jaw. Haq Nawaz, accused, fired the third shot hitting the deceased on the right side of his chest and Khuda Bakhsh, accused, fired the fourth shot hitting the deceased on the right side of his back. The deceased collapsed on the charpai and died soon thereafter. After the first shot had been fired by Haq Nawaz accused. Allah Bakhsh and Ihsan Ullah P.Ws. who were passing by the haveli of the deceased, came into the haveli where they saw the remaining part of the incident.

The motive for the murder was that Haq Nawaz, deceased, had illicit relations with one Mst. Sobhaie who was a widow and was staying in the house of her in-laws, till her marriage to Khuda Bakhsh, accused, about two/three months before the occurrence. After her marriage with Khuda Bakhsh, accused, she did not want to reside with him. Haq Nawaz, deceased, was suspected of having illicit relations with Mst. Sobhaie and, therefore, all the four accused, who were related to each other, murdered Haq Nawaz, deceased.

3. Muhammad Bakhsh complainant PW.4 then proceeded to Police Station Bhakkar to lodge the report, but meeting Muhammad Ali ASI P.W.10 at Chah Alf Sial, he gave his statement Ex.PB to the said officer at 7-10 a.m. On the basis of the said statement, formal FIR Ex.PB/1 was recorded at Police Station Bhakkar by Ghulam Qasim MHC PW at 8-05 a.m.

4. Muhammad Ali ASI P.W.10 then proceeded to the spot, where he collected blood-stained earth, vide memo PD. After preparing the necessary papers, the police officer sent the dead body to the mortuary for post-mortem examination. The same day at 4-30 p.m. Dr. S.M. Rafi Ullah P.W.5 conducted the post-mortem examination on the dead body of Haq Nawaz, deceased and found seven fire-arm wounds of entry and one of exit and two pellet graze marks on the dead body of the deceased. According to the doctor, two fire-arm wounds of entry on the right side of the chest and one fire-arm wound of entry pear the left clavicle, were found to be individually and collectively sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem. Probable duration between injuries and death was between five to ten minutes and' that between death and autopsy ten to eleven hours.

5. On 11-9-1982 all the four accused were arrested by Sana Ullah S.I. P.W.11.

6. On 13-9-1982, Haq Nawaz, accused, led to the recovery of a gun P.11 and two live cartridges P.11/1-2, which were taken into possession by the police vide memo P.G., in the presence of Ghulam Akbar P.W.8, Muhammad Ali S.I. P.W.10 and Abdul Hafeez (given up P.W.).

7. On 14-9-1982, Khuda Bakhsh, accused, led to the recovery of a gun P.12 and two live cartridges P.12/1-2, which were taken into possession by the police, vide memo PH, in the presence of Muhammad Shafi P.W.9, Sana Ullah S.I. P.W.11 and Amin Ullah (given up P.W.).

8. At the trial, the prosecution produced Muhammad Bakhsh complainant P.W.4 to prove the motive, the said witness and Allah Bakhsh P.W.6 in proof of the ocular account, Ghulam Akbar P.W.8, Muhammad Shafi P.W.9, Muhammad Ali S.I. P.W.10 and Sana Ullah S.I. P.W.11 in support of the recoveries and Dr. S.M. Rafi Ullah P.W.5 in corroboration of the medical testimony.

9. All the accused denied the accusations that were levelled against them, including the recoveries that were effected at their instance. Haq Nawaz, accused, imputed his false involvement to the fact that he had helped the police party of Karachi in arresting Ihsan Ullah, brother of Haq Nawaz, deceased who had murdered a person in Karachi and also due to enmity between the landlords of the area. The other three accused imputed their false involvement due to the enmity between the landlords of the area.

10. The learned trial Judge, whilst not accepting the motive, but relying upon the ocular account, the recoveries and the medical testimony, convicted and sentenced Haq Nawaz and Khuda Bakhsh, as stated in para. 1 above, and acquitted Allah Ditta and Ramzan, accused.

11. I have heard the arguments of the learned counsel for the appellants and the State and have perused the record. The evidence as regards motive is furnished by Muhammad Bakhsh complainant F.W.4. According to him, his brother Haq Nawaz, deceased, had illicit relations with one Mst. Sobhaie, who was married to Khuda Bakhsh, appellant about two three months before the occurrence. Mst. Subhaie, prior to her marriage with the said appellant, was a widow staying in the house of Hassu, father of her deceased husband, who, after her marriage with Khuda Bakhsh, appellant, did not live with him, but continued to stay at the house of Hassu, which house was adjacent to that of the deceased. He also stated that about a week prior to the occurrence, Mst. Haqqo, wife of Iraq Nawaz, deceased, had left the deceased's house for that of her parents. The said witness was not cross-examined at all about the motive, other than the fact that Khuda Bakhsh, appellant, in his statement under section 342, Cr.P.C. denied the said motive and stated that Mst. Sobhaie was living with him in his house. In the absence of any proper cross-examination on the part of the appellants to disprove that Mst. Sobhaie had no illicit relationship with the deceased, the mere fact that at some stage Mst. Sobhaie also lived in the house of Khuda Bakhsh, appellant, does not show that she had no immoral relations at all with the deceased. The evidence of Muhammad Bakhsh P.W.4, therefore, sufficiently establishes the motive.

12. The ocular account in this case is furnished by Muhammad Bakhsh, complainant P.W.4, and Allah Bakhsh P.W.6, who happen to be the brother and brother-in-law respectively of Haq Nawaz, deceased. Ehsan Ullah P.W. was, however, given up and not produced. Their narrative of the occurrence is given in para. 2 above and need net be repeated. The following submissions have been made by the learned counsel for the appellants with regard to the evidence of the eye-witnesses. First, that the occurrence took place in the early hours of the morning when it was dark and nobody saw the occurrence. In this connection it is submitted that when the post-mortem examination was conducted, Dr. S.M. Rafi Ullah P.W.5 found rigor mortis present all over the body and post-mortem staining present to some extent on the back. It is, therefore, contended that the death occurred at the least more than twelve to thirteen hours prior to the post-mortem examination. Second, that the witnesses are closely related and, therefore, cannot be relied upon. It is also submitted that their statements are contradictory. In this connection it is submitted that Muhammad Bakhsh P.W.4 and Allah Bakhsh P.W.6 are the brother and brother-in-law, respectively, of the deceased, and therefore, are interested witnesses. It is further submitted that Allah Bakhsh P.W.6 in his police statement Ex. DA stated that he had just come out of his house early in the morning for answering the call of nature when he heard a gun shot from the direction of the haveli of Haq Nawaz, deceased, and proceeded to his haveli, when he met Ehsan Ullah (given up P.W.), who had also reached that haveli, whereas in his statement at the trial he stated that when he was going to his field early in the morning to ease himself and was passing in front of the haveli of the deceased, he heard the gun shot and he and Ehsan Ullah (given up P.W.) went to the haveli of the deceased. It is submitted that since the house of Allah Bakhsh P.W.6 was twenty karams away from the haveli of the deceased and he had also travelled about five karams towards the field, therefore, he was twenty-five karams away from the haveli of the deceased and his statement at the trial conflicts with that given by him to the police, which shows that he is a liar. It is also submitted that Allah Bakhsh P.W.6 entered the haveli of the deceased through the door which was in the south-west corner of the haveli and which has no shutters, whereas it is unbelievable that the appellants should have entered the haveli by scaling over the wall separating the deceased's house from that of Hassu, his neighbour. It is also contended 'that Muhammad Bakhsh P.W.4 did not live in the haveli of the deceased, but in his own house and his reason for being in the haveli of the deceased just before sunrise, namely, to take a bath at his hand-pump, appears to be a false story in order to justify his presence there. It is also submitted that both the witnesses are inimical to the appellants as Aman Ullah, a brother of Muhammad Bakhsh P.W.4 was an accused with Haq Nawaz, appellant, in a murder case at Karachi about one and a half months before the present occurrence and as Aman Ullah was arrested at Karachi at the instance of Haq Nawaz, appellant, as suggested by the said appellant in his statement under section 342, Cr.P.C., the witnesses were inimical to the appellants. Third and last, that independent witnesses living in the houses towards the west of the haveli of the deceased, as admitted by Allah Bakhsh P,W.4, were not produced and this, therefore, strongly reacts against the truth of the prosecution case. With regard to the first submission, Modi's Medical Jurisprudence clearly shows that rigor mortis sets in between three to six hours after death in temperate climates and lasts anywhere between twenty-four to forty-eight hours in winter and eighteen to thirteen hours in summer. Since the occurrence took place in September, which is a temperate month, rigor mortis would have begun to set in from 8.15 a.m. to 11.15 a.m. and would have remained anywhere from twenty-one to forty-two hours. Since the post-mortem examination was conducted at 4.30 p. m. on 3-9-1982, the medical testimony does not conflict with the time of occurrence. This submission has, therefore, no force. With regard to the second submission, it is true that Muhammad Bakhsh P.W.4 and Allah Bakhsh P.W.6 are related to the deceased, but they have no enmity with any of the appellants. The suggestion of Haq Nawaz, appellant, that he helped the police party of Karachi in getting Aman Ullah, a brother of Haq Nawaz, deceased, arrested who was wanted in a murder case of Karachi, cannot be accepted, as no such suggestion was put to the witnesses in cross-examination. On the contrary, it appears that Haq Nawaz, appellant, was a co-accused with the said Aman Ullah, the brother of Haq Nawaz, deceased, in the murder case at Karachi. It is not possible to believe that Haq Nawaz, appellant, or for that matter Khuda Bakhsh, appellant, would have got Aman Ullah arrested. In fact, on behalf of the appellants it was suggested to Muhammad Bakhsh P.W.4 that Haq Nawaz, deceased, had held Allah Bakhsh P.W.6, Muhammad Shafi P.W.9 and Ehsan Ullah (given up P.W.) as responsible for the arrest of his brother Aman Ullah and that the deceased had threatened to kill them, which suggestion was denied. It is, therefore, obvious that the two eye-witnesses had no enmity with the appellants in respect of the Karachi incident in which Haq Nawaz, appellant, and Aman Ullah, a brother of the deceased, were co-accused. No further enmity having been proved between the witnesses and the appellants, it is clear that the eye-witnesses, apart from being related to the deceased, are not inimical to the appellants and that, therefore, they are disinterested witnesses. There is no sharp contradiction in the testimony of Allah Bakhsh P.W.6 at the trial from that given in his police statement. He was living only twenty yards away from the haveli of the deceased. Whether he was proceeding towards the fields or towards the haveli of the deceased, when he heard the first gunshot, is hardly of any consequence for, in any case, he would have run to the haveli of the deceased and being so near would have seen a good portion of the occurrence. It also makes no difference to the case why the appellants entered the Haveli of the deceased by scaling over the wall of Hassu's house, instead of entering through the door of the haveli, which was towards south-west, and which had no shutters. Since Khuda Bakhsh, appellant, was married to Mst. Subhaie, whose earlier father-in-law was Hassu, with whom it was alleged that she was then living, perhaps the accused found it more convenient to scale over the low wall of Hassu's house, which was two and a half feet high, in order to escape being seen by their co-villagers. No question was put to Muhammad Bakhsh P.W.4 to show how far was the distance of his house from the haveli of the deceased, nor was he put any question to show why he had come to the house of the deceased to take a bath. Nothing, therefore, turns on the suspicion raised by the learned counsel for the appellants in this behalf. As regards Allah Bakhsh P.W.6 and Ehsan Ullah (given up P.W.), it is clear that they resided only twenty karams and ten karams away from the deceased's haveli. It, therefore, appears that all the witnesses were residing very near to the haveli of the deceased. As regards the third and last submission made by the learned counsel for the appellant, nothing appears on the record to suggest that persons living in the houses towards the west of the haveli of the deceased saw the occurrence. In these circumstances, their non-production does not appear to be fatal to the prosecution case. Taking all circumstances into consideration, the ocular account clearly supports the prosecution case. Both the witnesses having no enmity with any of the appellants, their testimony is disinterested and can be safely accepted.

13. Since no crime empties were recovered from the spot, the recovery of the two guns at the instance of Haq Nawaz and Khuda Bakhsh, appellants, does not have that incriminatory value which it would have had, had any crime empties been found at the spot which would have matched with the guns. However, since the ocular account is disinterested, the recovery of the two guns at the instance of the two appellants is also not without significance and shows that they appear to be the persons who would have participated in the occurrence.

14. The medical testimony furnished by Dr. S.M. Rafi Ullah P.W.5 clearly shows that Haq Nawaz, deceased, received gun shot wounds, both on the front and back of his chest, the number and nature of which correspond with the testimony given by the eye-witnesses. It also shows that more than one assailant was involved. The medical testimony, therefore, corroborates the ocular account.

15. The upshot of the above discussion is that the motive, the ocular account the recoveries and the medical testimony prove the case of ''the prosecution to the hilt against Haq Nawaz and Khuda Bakhsh, appellants, They appear to have been properly convicted and sentenced.

16. For the foregoing reasons, there being no merit in this appeal, the same is dismissed.

17. There being no merit in the revision petition (Cr.R. 617 of 1984) filed by the State for enhancement of the sentence of the appellants, the same is dismissed in limine.

M.A.K./H.613/L Appeal dismissed.

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