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Petitioner: ISHAQ VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Munawar Ali Khan, Syed Sajjad Ali Shah Title: ISHAQ vs THE STATE Case No.:Criminal Appeals Nos. 70 (Hyd.), 112 (Kar.) and Confirmation Case No, 24 of
JUDGMENT
Reported As: PLD 1985 Karachi 595 Result: Appeal dismissed Judgment JUDGMENT ' MUNAWAR ALI KHAN, J.-The appellant Ishaque and co-accused Dino, both Mirbahars by caste, were tried for the murder of Mst. Azizan, daughter of Allah Rakhio and sister of the appellant's wife. By his judgment dated 46=8-1984, the learned Sessions Judge, Thatta convicted the appellant under section 302, P. P. C. And awarded him death penalty and sentence of fine of Rs, 5,000 or in default R. I. For two years. However, co-accused Dino was acquitted. By the learned trial Judge by the same judgment. The appellant has preferred appeal from his conviction and sentence. The learned Sessions Judge has also referred the case to this Court for confirmation of the death sentence. This judgment will dispose of both the appeals and the reference. As disclosed in the F. I. R. Lodged by complainant, Loung on 14-4-1981 at 9 a.m., the prosecution case is that Allah Rakhio, father-in-law of the complainant had promised to give his daughter, Mst. Azizan in marriage to Rajib, his relative. All the necessary arrangements were made for their marriage which was scheduled to take place on 15th of the lunar month. However, the appellant who is also son-in-law of Allah Rakhio had pressed the latter to get Mst. Azizan married with co- accused Dino, the appellant's maternal uncle. On his refusal to accede to such demand both the appellant and co-accused get annoyed declaring their intention to kill Mst. Azizan. The complainant party took up the matter with Uris father of the appellant Ishaque and Hassan, brother of co-accused Dino, who assured them that the accused would not misbehave. Thus, the complainant party went a head with the projected marriage of Mst. Azizan with Rajib. The complainant and his brother Saleh who is also married with Allah Rakhio's daughter had brought their families to their father-in-law's house for participating in the said marriage one day prior to
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the murder of the deceased. On the day of occurrence at about 7-30 a.m. The deceased Mst. Azizan took a pitcher and went to fetch water from the nearby canal. After a short while she raised cries whereupon her brother Muhammad, besides complainant Loung and Saleh rushed to the Vardat. They saw appellant Ishaque dealing hatchet blows to Mst. Azizan who fell down and expired at the spot. The co accused Dino who was also present at the Vardat was found to be instigating the appellant to finish the deceased. Both the accused then fled away. ' Leaving Saleh and Muhammad at the Vardat ,ro keep watch over the dead body, the complainant Loung went to the police out post Pir Patho, seven miles away from the place of occurrence and lodged F. I. R. With the police. A. S. I. Muhammad Aslam who was In charge of the police outpost made the necessary entries in the Roznamcha and sent a copy thereof to the Police Station Ghora Bari for incorporation in the book maintained under section 154, Cr. P. C. He then proceeded to 'the Vardat, where he prepared inquest report (Exh. 19) of the dead body of Mst. Azizan. He despatched the dead body to the Medical Officer, Ver for post-mortem examination. P. C. Pir Muhammad took the dead body to the hospital. The A. S. I. Took into his custody the empty jar lying at the Vardat in presence of Mashirs Jabli and Khamiso. He also secured blood-stained earth from there and sealed it in presence of the same Mashirs. He drew up Mashirnama of Vardat (Exh. 20). He made enquiries from Saleh, Muhammad, Allah Rakhio, Murid, Uris and Hassan. On the same day he arrested appellant Ishaque from his village and secured blo 'd-stained shirt from his person in presence of the aforesaid Mashirs under Mashirnama (Exh. 21). In presence of same Mashirs the appellant led the A. S. I. To Jar tries on the east of his house and procured blood-stained hatchet from the bushes and produced the same before the police. The A. S. I. Took the hatchet into his custody and sealed it under Mashirnama (Exh. 22). Thereafter, he arrested co-accused Dino. He then handed over the case papers to the S. H. O. Fateh Ali Shah who sent sealed parcels of blood- stained shirt, hatchet and earth to the Chemical Examiner for his opinion. The Chemical Report received from the Expert is positive. The S. H. O. After completing the remaining investigation, challaned the accused in Court of law. ' Dr. Bashir Ahmed (P. W. 7) who was Medical Officer incharge of Government Dispensary. Ver on the relevant day conducted the post mortem examination of the dead body of Mst. Azizan. He discovered following surface injuries on her person : (1) Incised wound 9.5 c.Ms. x 2 c.Ms. x cutting the scalp, Skull bone meninges and brain matter over left front parietal region obliquely. (2) Incised wound 5.5 c. Ms. x 1.5 c. Ms. x cutting the scalp, skull, meninges and brain matter over left temporo occipital region. (3) Incised wound 6.5 c.Ms. x 1.5 c.Ms. x cutting the scalp, skull bone, and brain matter over left occipital region. The wound was continuous with Injury No, 2 and the brain matter which was stained with blood was projecting out of the wound. (4) Incised wound 5 c.Ms. x 1.5 c.Ms. x 3 c.Ms. Cutting the muscles and lying vessels over left side of the neck 2 c.Ms. Below left ear obliquely. (5) Incised wound 4 c. Ms. x C.M. X scalp deep over right occipital region. ' The doctor was of the opinion that the death of the deceased was due to shock and heamorrhage resulting from the injuries found on her person. He further opined that all the injuries were ante mortem and were caused with sharp cutting weapon such as hatchet. According to the doctor all the injuries were individually as well as collectively sufficient to cause death in normal course. Thus, from the medical evidence it is established that the deceased Mst. Azizan died of the injuries found on her person. This fact has not been contested even by the accused. ' The crucial point to be determined is whether the appellant had inflicted the fatal injuries to the deceased. To prove his coinplicity with the deceased's murder, the prosecution have sought to
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build their case on: ocular evidence, recovery of blood-stained articles, evidence of motive and judicial confession. ' As for the judicial confession, it would appear that it did not find favour with the trial Court. The reasons given for exclusion of the judicial confession from consideration are reflected in the trial Court's observations which are reproduced as under :- "The confession is nothing but the reproduction of statement of accused before police which shows that Magistrate played as a tool in the hands of the police and he did not care to discharge his duties honestly and judicially but for the best reasons known to him he simply copied out the statement of the accused and did not perform the legal requirements of recording the judicial confession." ' Apart from above, it was also noticed by the learned trial Judge that the Magistrate who had recorded the confession admitted in his cross-examination that the confession does not disclose that he made it clear to the accused that he would not be remanded to police custody regardless of whether he confessed to his guilt or not. The learned trial Judge also found that the Magistrate had not disclosed his identity to the accused nor had he appended the necessary certificate showing that the confession was true and voluntary. ' Support of the observations made by the trial Court as reproduced above,' the learned counsel for the appellant cited the case of Ghulam Hussain v. The State (1). In which the basis for conviction of the accused (1) PLD 1974 Kar. 91 ' was his retracted judicial confession. The accused in his statement under section 342, Cr. P. C. However stated that the judicial confession was nothing but a reproduction word by word of his statement made to police. It was held : "After all if a Court comes to believe that a subsequent judicial confession is almost a verbatim reproduction of earlier confessional statement made to the police, the Court would be very reluctant to act on the judicial confession." ' We have also examined the judicial confession in the light of the above criticism which, in our opinion is not without substance. We would like to add that some very important links in respect of the incident, are missing from the confession. It is silent as to presence of eye-witnesses at the time of occurrence. It also does not show if blood-stained shirt and hatchet were secured from the appellant. Accordingly we are satisfied that the judicial confession has been rightly discarded. ' After ruling the judicial confession out of consideration the other evidence worthy of attention is the ocular evidence. The complainant Loung (P. W. 1) Muhammad (P. W. 2) and Saleh Muhammad (P. W. 3) claim to be eye-witnesses of the occurrence. According to them they were sitting in the house of Allah Rakhio at the time of occurrence when Mst. Azizan went to fetch water from the nearby Naseerwah. They have been consistent in stating that after a short while from her departure they heard cries of Mst. Azizan whereupon they rushed towards cries and saw that appellant Ishaque was giving hatchet blows to her and co-accused Dino was instigating him not to spare the deceased. After the accused decamped they found Mst. Azizan having died of the injuries she had received. According to them Saleh and Muhammad stayed back at the dead body and Loung went to lodge report with police. ' The learned counsel for the appellant launched a severe attack on the evidence of the above eye-witnesses contending that their evidence is completely unreliable. He submitted that apart from the fact that they are chance witnesses, their evidence does not inspire confidence for the additional reason of being interested and discrepant. He further submitted that it has already been disbelieved by the trial Court in respect of co-accused Dino. Therefore, according to him, it cannot be acted upon for convicting the appellant in absence of reliable corroborative evidence which is not forthcoming. It goes without saying that all the three eyewitnesses are not only related inter se
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but are also closely related to the deceased Mst. Azizan. The complainant Loung and his brother Saleh are admittedly married with sisters of the deceased and Muhammad is the latter's brother. However, it is a settled law that mere relationship of witness with the victim of the crime is no ground to discredit his B testimony. In this connection the contention of the learned counsel for the appellant was that it is the prosecution's own case that ever since Allah Rakhio refused to give the deceased in marriage to co-accused Dino, as was demanded by the appellant, the relations between the parties were far from satisfactory and both the appellant and the co-accused had even declared their 'intention to take the life of the deceased. In view of such animosity between the parties, the learned counsel urged, no implicit reliance can be placed on the uncorroborated word of the above eye witnesses. In support of his view point, the learned counsel placed reliance on following three authorities : (1) Mangio v. The State 1976 P Cr. L J 243. (2) Lashkari and 4 others v. The State PLD 1981 Kar. 1. (3) Muhammad Azam and another v. The State PLD 1983 SC 193. ' In the first case of Mangio, D. B. Of this Court took the view that if eye-witnesses are closely related to the deceased, the testimony of such witnesses cannot be explicitly relied upon without independent corroboration ' In the second case of Lashkari, it was held by D. B. Of this Court : "It would thus be seen that three eye-witnesses are deeply interested and inimical to the appellants Lashkari, Guloo and Murad Ali. The rule in regard to corroboration of the evidence of the interested and inimical witnesses, although a rule of prudence has virtually ripened into a rule of law. The Supreme Court has, on numerous occasions stated the rule and cautioned against acceptance of such testimony without corroboration for the reason that false implication is not very rate in this country." ' In the third case of Muhammad Azam, two eye-witnesses were closely related to the deceased and were inimical towards the accused. The third witness was evidently stock witness. It was held : "As such before it can be relied upon, the testimony of these three witnesses would require independent corroboration which is not forthcoming from the record of this case." The rule laid down in the above cases is so prominent, that it need not be re-emphasized. But the factual position obtaining in the instant case being different, the strict application of the said rule is not attracted. / In the case in hand the eye-witnesses are not only related to the deceased C but are equally closely related to the accused. Like P. Ws. Loung and Saleh, the appellant is also married with daughter of Allah Rakhio. Therefore, P. W. Muhammad is appellant's brother-in-law and other two eye-witnesses are husbands of his wife's sisters. The witnesses with such;2 close ties with the accused cannot be expected to involve him in falsely murder charge entailing death penalty. Conversely it is quite possible that the witnesses bearing such close relationship with the accused would spare no effort to save him even from a true charge and if need be, would go to the extent of even perjuring themselves for his sake. Thus, when close relatives figure as witnesses against the aroused, their evidence cannot be lightly dismissed unless motive of exceptional nature is attributed to them for false implication of the accused. The question is whether the motive attributed to the eye-witnesses is so strong that they would not hesitate even to send the accused to gallows. As stated above the appellant and co-accused Dino were annoyed on Allah Rakhio's refusal to give the hand of his deceased daughter Mst. Azizan in marriage to co-accused Dino. They had even vowed to exterminate the said deceased girl. If this was the motive, it was obviously the motive for the accused to avenge the insult and humiliation they had suffered in the wake of Allah Rakhio's refusal. It was certainly not the motive for witnesses to have falsely implicated the accused and
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that too in the murder case. Assuming for the sake of argument that due to Allah Rakhio's attitude, the relations between the parties had become tense. But mere tension in the parties' relations was enough to spur the witnesses to involve their closest relative in the murder charge.1 Accordingly we are convinced that the witnesses had no such reason to take extreme step of falsely implicating the accused, their close relative in the murder case. The alternative argument of the learned counsel for the appellant that the appellant has become the victim of the suspicion of the witnesses is equally unconvincing. We are unable to believe that the appellant being husband of the deceased's sister would be involved by the witnesses merely under suspicion. After all such involvement of the appellant was a question of life and death for him. As Allah Rakhio would not like to see his daughter turn widow by getting the appellant, her husband, hanged, so also the witnesses, one of whom is son and other two are sons-in-law of Allah Rakhio, would be unwilling to be party to enactment of such tragedy. ' The next point to be considered is whether presence of the above eye-witnesses at the time of occurrence was beyond any reproach. The contention of the learned counsel for the appellant was that since they do not belong to the locality where the incidant occurred, their presence was doubtful. The learned counsel also stated that their evidence with regard to their presence at the Vardat, is discrepant and contradictory and, therefore, no definite conclusion could be reached on such ' evidence. The Ivlasuirnama of Vardat shows the location of the Vardat, being the bank of Naseer Wah, in Tapo Khan, Taluka Ghora Bari. According to the sketch prepared by the Tapedar, Hyder Ali (P. W. 9) the house from where the complainant Loung and other eye-witnesses were attracted was only 250 paces away from the Vardat. Thus, if the complainant and other eye- witnesses were available in the said house their presence at the Vardat at the time of the occurrence could not be doubted. So far P. W. Muhammad is concerned, he being son of Allah Rakhio and brother of deceased, Mst. Azizan was admittedly living in the aforementioned house. We have, therefore, no doubt that he must have been) attracted on cries of the deceased and his presence at the Vardat at the time G of occurrence looks rather natural. ' The complainant Loung as per his own admission resides 1 miles away from the village of Allah Rakhio. Similarly P. W. Saleh who is brother of complainant was working as Beldar or Seepage drain near Ver Village in the days of the incident. Since both the complainant Loung and his brother Saleh were not residents of Allah Rakhio's village, the learned counsel for the appellant thought that their position was not better than that of chance witnesses. We are not impressed by his argument. We do not subscribe to the view that merely because they did not belong to the locality where the murder had taken place, their evidence must be rejected on that ground. There is no universal rule that the evidence of a chance witness should always be viewed with mistrust and rejected as unworthy of credit. In our opinion it depends upon facts and circumstances of each individual case. If the Court is convinced that the presence of a chance witness at Vardat was satisfactorily explained, it would not be justified to dismiss his evidence as incredible. ' In the instant case the evidence of complainant Loung shows that he and his brother Saleh had brought their families to Allah Rakhio's house to attend the ceremony of fixation of the date of the deceased's marriage with Rajib. It further shows that after the ceremony was over they were detained by Allah Rakhio (their father-in-law) for participating in the marriage which was to take place 10-15 days after the said ceremony, According to him the deceased's murder took place on the next day of the date-fixation ceremony. This is how the complainant and his brother Saleh happened to be present at the time of the occurrence. The learned counsel for the appellant, however, pointed out that as disclosed in the F. I. R. The complainant's earlier version he and his brother Saleh had come to Allah Rakhio's house for participating in the marriage and not for fixing the date of the marriage and as such in view of the inconsistency between two versions as to the purpose of their visit to Allah Rakhio's house, it was doubtful that he and his brother were present at
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the time of occurrence. In order to appreciate the learned counsel's argument it would be advantageous to reproduce the language in which the complainant has expressed the purpose of his visit to Allah Rakhio's house in the F. I. R. It reads as under :- "On the fifteen Sindhi date, Mst. Azizan was got to be married with Rajab and the date was fixed and clothes and ornaments were ready for the marriage. I and my brother Saleh were also came at the house of our father-in-law with our families for this marriage." ' On comparing the above statement contained in the F. I. R. With complainant's statement in Court, we do not see any inconsistency between the two statements. It is an admitted position that the F. I. R. Was lodged after the date for the marriage of the deceased had been fixed. Therefore, if the complainant stated in the F. I. R. Which followed the date-fixation ceremony that ' the date was fixed and clothes and ornaments were ready and he and his brother had come alongwith their families to their father-in-law's house for this marriage", he would not be held to have said anything in conflict of his statement in Court. Apart from above it could not be overlooked that the F. I. R. Was lodged with utmost promptitude. If the complainant were not available at the Vardat at the time of the occurrence, we would have seen the lodging of the F. I. R. Delayed. Therefore, the speed shown in lodging of the F. I. R. Tends to confirm the presence of the complainant at the time of occurrence. Unless he was readily available at the Vardat the F. I. R. Could not be lodged so swiftly. ' The learned counsel for the appellant drew our attention to some contradictions appearing in the evidence of the eyd-witnesses arguing that their evidence therefore, does not provide safe basis for conviction of the appellant. For appreciating the efficacy of his argument, we think it necessary to examine the alleged contradictions. It was pointed out to us, that according to Loung the date of the deceased's marriage was fixed for 15th of the lunar month but unlike him, his brother Weft has given the date to be 20th of the lunar month. Again Loung was required by his father-in-law to stay on until the date of the marriage whereas Saleh was told to stay for only two days, although both are unanimous that the marriage was to take place within 8-10 days' time. Muhammad gives entirely different story stating that Loung and Saleh were detained only for one night. Apart from above Muhammad and Saleh are also at variance on timing of date-fixation ceremony. According to Saleh it took place at 9 p.m. Whereas Muhammad has stated that it was .Held during the day. Furthermore, the evidence of the complainant shows that the appellant's wife had attended the function of date-fixation but according to Muhammad she was not present in the said function. We have given our best thought to the above discrepancies and their possible effect. In our opinion they are not so vital as to create any doubt the credibility of the said witness. In fact they look natural and are bound to occur particularly when the recording of the evidence in Court was withheld for quite some time. It would be noticed that the incident occurred on 14-4-1981 whereas the statements of all the three eye-witnesses/ were recorded after lapse of nearly three years, on 5-1-1984. Human memory is always short. It was quite natural that they might have forgotten certain particulars during intervening period. After all they were not expected to relate all the details connected with the incident with scientific precision. We are, therefore, of the view that the above inconsistencies are of no consequence and can easily be ignored. We have no doubt in our mind that the aforesaid three eye-witnesses were present at the Vardat and had witnessed the occurrence. Their evidence can be safely relied upon. Although we do not think that the ocular evidence discussed above is in the need of any corroboration, yet despite the said evidence the co-accused Dino was acquitted by the trial Court. Therefore, as a precautionary measure, if any corroboration is needed to reinforce the ocular evidence it is provided by recovery of blood- stained shirt and hatchet from the' appellant. For proving these recoveries, the prosecution have examined] Mashir Jabli (P. W. 6) and A. S. I. Muhammad Aslam (P. W. 10). According to them the appellant was arrested from his house and bloodstained shirt was secured from his person. It is
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also in their evidence that the appellant led the police to Jar trees near his house and from the said trees took out blood-stained hatchet, and produced the same before the police. Their evidence also shows that the blood-stained shirt and hatchet which the A. S. I. Took into his custody were properly sealed at the time of recovery. The Mashirnamas Exh. 21 and Exh. 22 authenticating L the said recoveries corroborate the evidence of the Mashir and the A. S. I. It further appears from the evidence of S. H. 0. Fateh All Shah (P. W. 8) that the above articles were later sent to the Chemical Examiner whose report (Exh. 29) discloses that the said articles were stained with human blood. ' The learned counsel for the appellant assailed the evidence of recoveries as unreliable,for two reasons: firstly that the place of the accused's arrest is doubtful and secondly that the Mashir Jabli apart from being closely related to the deceased does not belong to the locality where recoveries were made. As regards the accused's arrest the learned counsel referred to the evidence of the Magistrate, Ghulam Muhammad (P. W. 5) who recorded the judicial confession and also the judicial confession (Exh. 17), to show that the arrest of the appellant Ishaque was made from Ver village and not from his own village as has been deposed to by the Mashir of the arrest and the A. S. I. Who had made…
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