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Petitioner: ABDUR REHMAN AND OTHERS VS Respondent: THE STATE
Court Name: Baghdad-ul-Jadid Judge(s): Muhammad Siddiq, Kamal Mustafa Bokhary Title: ABDUR REHMAN AND OTHERS vs THE STATE Case No.: Criminal Appeal No. 662 of 1976/LEIR, Date of Judgment:1977-01-27 Reported As: 1977 P Cr. L J 997 Result: Order accordingly
JUDGMENT
JUDGMENT ' MUHAMMAD SIDDIO, I-Abdul Rahman and Abdul Aziz appellants are real -brothera while Nazi'. _Ahmad appellant is the son of Abdul Rehrnan appellant. Munir Abmad aFpellant, is the son of Abdul Aziz. Mst. Rani deceased was daughter of Abdul Rehman appellant and sister of Nazir Ahmad appellant. She was married to one Mukhtar Akmad. Her age at the relevant time was about 16 years. The second deceased in this case was Saeed Ahmad son of complainant Muhammad Zahid P. W. At the time of occurrence he was student of Second Year in Government College, Bahawalnagar. Both the parties were residents of Mauza Massawala situated within the jurisdiction of Police Station Minchinabad. Their houses were also in the same vicinity close to each other. The motive alleged by the prosecution is that the accused party suspected illicit intimacy between Mst. Rani deceased and Saeed Abmad deceased. On the day of occurrence, namely, 29-7-74, at about 10-30 a. m. Saeed Ahman deceased was present in the house of his paternal aunt Mst. Sughran Bibi P. W. Her house is also close to that of Abdul Rehman appellant. Abdul Rehman appellant scaled over the wall of the house o= said Mst. Sughran Bibi P. W, and then unchained the door of the house from inside. After unchaining the door, Abdul Aziz appellant who was armed wish a hatchet, also entered the house. Both the appellants caught hold of Saeed Ahmad deceased and started forcibly taking him towards their own house. Met. Sughran Bibi P. W., her mother Mst. Sardaran isirce dead) and her niece Mst. Shamshad Begum (given ua P. W.) were present in the house at that time. These women folk raised alarm and sent Mst. Shamshad Begusn (given no P. W.) to inform Muhammad Zahid P. W. About the incident. Accerdinglya Met, Seamslaad Begum went to her house and informed her father complainant Muhammad Zahid P. W. And narrated the incident regarding forcibly taking away of her brother Sexed Ahmad deceased by the two appellants
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towards their own hoarse. On receipt of this information the complainant rushed towards the house of Abdul Rahman appellant and entered the courtyard. To saw that Nazir Ahmad, Munir Abmad and Abdul Rahman appellants were joining Saeed Ahmad deceased and then he was tied to a Shisham tree in the courtyard, Abdul Aziz appellant aimed with a hatchet was also present there. Mst. Sughran Bibi P W. And ,sk1St. Sardaran (since dead) were imploring the appellants eot to beat Saeed Abmad deceased. When complainant Muhammad Zahid P. W. Tried to rescue his sen, 0.) of Mst. Rani deceased and despatched the dead bodies to the mortuary for postanorteea examination. He collected the blood-stained earth from near the dead body of Saeed Ahmed deceased and scaled it into a parcel vide Memo. Exh. P. B. He also took into possession bloastained earth from near the dead body of Mst. Rani deceased and sealed it inte a parcel vide Memo. Exh. P. C. He picked up lock (Exh. P. i.) from near the kotha of Abdul Rehman appellant and a broken chain (Esh. P. 2) of the door. Lie also secured a wooden plank (Exh. P 3) of the door of the said kotha. The e articles were taken into possession vide memo. Exh. P. D. He picked up a pair of shoes (Eth 4/1-2) of Saeed Ahmad deceased and ckdar (WI. P. 5) of Abdul Rahman appellant aid took these articles into possession vide (emo. Exh. P. E. He arrested Abdul Rahman and Abdul Aziz appeliants on the same day. While in police -custody, Abdul Rahman appellant produced blood-stained sow ,Exh. P. 6) his blood-stained shirt (Exh. P. 7) and. Chadar (Exh. P. 8) and the same were taken into posses&on vide Memo Exh. P. F. This police officer then handed over the investigetion to S. H. O. Fereze Qareshi. P. W. On 30-7-1974. Nazir Ahmed, and Munir Ahmad appellants were produced before him and he arrested them. On the same day, Nazir Ahmad appellant while in police custody, got recovered blood-stained ::;,at,ci.Iet (Exh: P. 10), chador (Exh. P. 11), shirt (Exh. P. 12) and sofa (Exh. P. 13) which were taken into possession vide Memo Exh. P. G. He got prepared the site plan (Exh. P. Q.) from the draftsman. After the completion of the investigations, the police challaned all the four appellants under section 302/34, P. P. C, They were tried by the Sessions Judge. Bahawalnagar, Aho vide the impugned sudg,eent dated 2-6-76, convicted them under section 302/34, P. P. C. On two counts and sentenced Nazir Ahmad and Munir Ahmad appellants to death each on two counts subject to confirmation, by this Court, while Aadul Rahman and Abdul Aziz appellants were sentenced to lire imprisonment each on each count. Each of the four appellants was also sentenced to pay a floe of Rs. 2,000 on eech count. In default of payment of the fine each of the appellants was ordered to undergo further rigorous imorisenment for a period of two years on each count. The sentence of imprisonment in case of Abdul Rahman and Abdul Aziz appellants were ordered to ran concurrently. The sentences of imprisonment in default of payment of fine in case of Nazir Ahmed and Munir Ahmad appellants were ordered to run concurrently if the sentence of death was not confirmed. Alt the four appellants have challenged their conviction and sentences through Criminal Appeal No. 662 of 1976. The case is also before us under section 374, Cr. P. C. For confirmation of the sentence of heath awarded to Nazir Ahmed and Munir Ahmad appellants by the trial Court. Complainant Muhammad Zahid P. W. Has filed Criminal Revision No. 66 of 1976 praying that the sentence awarded to Abdur Rahman and Abdul Aziz appellants may graciously be enhanced. Thisdeeision petition was ordered to be heard along with the present appeal. This judgment will dispose of Criminal Appeal, the Murder, Reference and the Criminal Revision. 2. Dr, Muhammad Rafique Zafar on 30-7-74 conducted the post-mortem examination on the dead body of Saeed Ahmed and found the following injuries on it (1) Incised wound 6" x x bone cut completely, oblique in direction, on the right side and posterior surface of the neck starting from just below the angle of right mandible and extending backwards towards the posterior surface of the neck. (2) Incised wound 44" x 3/4' x bone cut on the posterior surface of the head about 1 above and behind the right ear.
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(3) Two incised wounds 2' x 1/3' and 1r x 1/3" x nausele deep on the right side of the beck about 2' below and behind the right ear. (4) Incised wound 1' x 4" x skin deep on the right side of three head about 3" above and behind the right ear. (5) Incised wound ?4" x x skin deep on the posterior surface of the neck about 3' below and behind the left ear, transverse in direction. (6) Incised wound 3/4' x 4' x skin deep on the palmer surface of the proximal inter phalycgeal Joint of left ring finger. (7) Two incised wounds 3/4" x r and x 4" x skin deep on the palmer surface of the middle phalynx of left index finger and middle finger respec tively. (8) Incised wound lr x 1/8' x skin deep, transverse in direction on the front of left forearm about in the middle. (9) Incised wound l' x 1/3' x muscle deep longitudinal in direction on the posterior surface of the left elbow-joint. (10) Incised wound 11" x 4" x skin deep on the outer aspect of left hip-joint. (11) Incised wound 4" x 4" x skin deep, transverse indirection on tne palmer surface of the middle pholynx of right little finger. (12) Two incised wounds 4" x 1/8' each x skin deep on the palmer surface of the proximal phalynx of right ring and middle fingers respectively. (13) Incised wound 4" x r x skin deep on the dorsal surface of the middle phalynx of right index finger. (14) Incised wound 14' x 4' x skin deep on the front of the abdomen about 1 lateial to the umblicus. (15) Puncutured wound 3/4" x r x 14' on the back of the left chest about 44" below the inferior angle left scupula. (16) Lacerated wound 1' x x skin deep on the outer aseect of right eye-brow. (17) Lacerated wound 1r x 4" x scalp deep on the right side of the forehead about 14' above the right eye-tero (18) Lacerated wound 2' x 1/3' x scalp deep on the left side of the head about 34 above and front of left-ear. (19) Lacerate 1 wound x r x skin die" on the left side of the head about 44" above the left ear, (20) Lacerated wound 3/4' x 1/4' x skin deep on the posterior surface of the head about 4' above and behind the left ear. (21) Lacerated wound 4" x x skin deep on the left side of the head about 14" above and behind the left ear. (22) Contusion mark 3' x 14 with lacerated wound 1/3' x 1/8' x skin deep over the left cheek, just below the lower eyelid of left eye, (23) Contusion mark 2' x 1r over the right upper and lower eye-lids, and over the right cheek just below the lower eye-lid of right eye. (24) the root of the nose, with fracture of nasal nose. (25) Contusion mark 1" x 3/4' on the dorsal surface on the middle phalynx of left little finger. (26) Two contusion marks 4" x 1' and 34" x 1' on the outer aspect of left upper arm about 3r above the left elbow-joint. (27) Contusion mark 5' x 2" over the right scapular region and also posterior surface cf the right shoelder joint. (28) Contusion mark 2r x 1" on the posterior surface of right upper arm about r above the right elbow-joint. (29) Contusion mark 14' x 3/4' over the right side of upper lip.
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In the opinion of the doctor the cause of death was severe haemorrhage and shock due to injury No. 1 which was sufficient to cause death in the ordinary course of nature. Injuries Nos. 1 to 14 were caused by a share edged weapon, while injury No. 15 was caused by a sharp poicted weapon and injuries Nes, 16 to 29 were caused by a blunt weapon. Probable time between injuries and death was instantaneous, while between death and POE,- modem examination it was 24 hours. 3. The same doctor on the same day at 11-15 a. m. Conducted the postmortem examination on the dead body of Mst. Rani and found the following injuries on it (1) Prised wound 3" x 3/4' x bone cut on the head about 3" above-and behind the left ear, oblique in direction. (2) Incised wound 24' x 3/4' x bone cut over the lower part of the left ninna and over the left side of the face. (3) Incised wound 5' x 3' bone x cut completely, oblique in direction on the left side and posterior surface of tee neck about 4' below the left ear. (4) Incised wound 3/4' x 3/4' x f.TUISOie deep on the posterior surface the eeck about 3/4" below the injury No. 3 oblique in direction. (5) Incised wound 2f" x 3/4' x muscle deep transverse in direction over the left scapular region, (6) Incised wound If" x 1/3' x muscle deep on the front of the left side of the neck just above the medial end of k=it clavicle. (7) Incise! Wound 34' x 1/16' x superficial skin deep on the front of the right chest, just blow the medial end of right clavicle. (8) Leched wound 4' Al 4' x skin dee? Cai the dorsal surface or the proximal phalynx of right little finger. (9) Incised wound 1' et skin deep on the pahra. Surface of the middle and dorsal phalynx of right finger. (10) Incised wound 4' x x skin deep on the dorsal surfae,e of the proximal phalynx of right ring finger. 01) incised wound 4' x f' x skin deep on the dorsal surface of the middle phalynx of right middle finger. (t2) Incised wound 34' x 1/8' x skin doze on the nosterior surface of left thigh about 9' above the left knee-joint. (13) Two incised wounds 24' x 1/16' x skin deep and 3' x /e6' x skin deep on the back of the left side of the chest, just below and medial to interior angle of left scapula. (14) Contusion mark 2' x over the top of left shoulder-joint. (15) Contusion mark 11' x 3/4' over the right cheek. (16) Contusion mark x 1' on the outer aspect of left thigh about on the upper half. In the opinion of the doctor the cause of death was severe haemorrhage and shock due to injury No. 3 which was sufficientto cause death in the ordinary course of nature. Iniuries Nos 1 to 13 were caused by a sharp, edged weapon while injuries Nos. 14 to 16 were caused by a blunt weapon. Probable time between injuries and death was instantaneous, while between death and post- mortem examination, it was 24 hours. 4. The appellants when examined under ssction 342, Cr. P. C. Deried the prosecution allegations. Nazir Ahmed appellant in his statement before the Committing Magistrate ,rhen asked the following questions, stated as under .- "Q. No. 5.-Is it correct that on 30-7-74 at the time of your arrest you got recovered chadar P. 11, shirt P. 12, Sofa P. 13, all blood-stained and then a hatchet P. 10, this also blood-stained and all the articles belong to you. Ans.-Correct. Q. No. 6.-Why this case against you ?
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Ans. On the day of occurrence who I reached home, I saw Rani and Saeed commit adultery, I was suddenly and gravely rrovoked over the situation. I picked up a hatchet from the same kotha and murdered both of the accused. Just after the occurrence Bakhshai, Abdul Hag, Qutaaba P. Ws. Came there whom I narrated the whole story. None of the other accused was at the spot." Before the trial Court when asked why th:s case was made against him, he stated as under :- "The prosecution version of the occurrence is incorrect. The true facts are that on the day of oceurrence at about 10-0:01-00 a. m. My sister Rani deceased was all shone in our house who was putting up with us because her husband was minor and the other family members were out in the fields I came to my house per chance when I saw the doer of the room of my house bolted from inside. I peeped threugh the ,'oor and saw Mst Rani and Saeed Ahmad in compromising positien on one and the same cot, I lost my control and picked up a hatchet from the courtyard of my house. I broke open the door and killed both the deceased persc:s inside the room under grave and sudden provocation. My co-accused were not present at the spot. After killing the deceased persons I myself reported the matter to the police. The police in collusion with the complainant fabricated the facts and registered a false case againt myself and my co-accused. I had thrown the hatchet at the spot after killing the deceased petsons." Munir Ahmad, Abdul Rehman and Abdul Aziz appellants in their atatemehts before the trial Court stated that they were falsely implicated due to enmity with P. Ws. And relationship with co-accused Nazir Ahmad who had kilned the deceased persons under grave and sudden provocation. They further stated that they were present (sic) on the spot at the relevant time. Tney, however, admitted their relationship inter se and that of Mst. Rani deceased. The appellants, however, produced no evidence in defence. 5. In support of its case, the prosecution produced four eye-witnesses, namely, Muhammad Zahid Oh W. 61, Mst. Sughran Bibi (P. W. 7), Sardar Shah (P. W. 8) and \ uhammad Zeman (P. W. 9). Tee prosecution also relied upon the recoveries, the motive and the medical evidence. The trial Court believed the prosecutioc evidence and convicted and sentenced the appellants as mentioned above. 6. As mentioned above, Nazir Ahmad appellant has admitted the killing of the two deceased persons but has given his own version, while the remaining three appellants have totally denied the charge and have denied even their presence on the spot. There are, therefore, two versions of the same oesturrence one given by the prosecution and the other suggested by Nazir Ahmad appellant. In this situatiea, we have to examine whether the prosecution has establilhed the guilt of the appellants beyond doubt and whether the plea taken up by Nazir Ahmed appellant is probable and believable. The first nark of the prosecution store is supportei by Mst. Sughran Bibi P. W. According to her, on the day of occurrence Saeed Ahmad deceased was present in their house and she had served aim with meal, Abdul Rehman appellant entered the courtyard after scaling over the wall of her house. He then unchained the door of her house from inside. Abdul Aziz appellant who was armed with a hatchet, there entered her house. Both Abdul Rehman and MilUi Aziz appellants caught hold of Saeed Ahmed deceased and forcibly took him towards their own house. Mst. Sughran P. W., her mether Mst. Sardaran (since dead) and Mst. Shamshad Begun' a minor daughter of complainant Muhammad Zahid P. W. Raised alarm, Mat Shamshad Begun, (given up P. W.) was sent by Mst. Sughran P. W. To inform her fatter Munammad Zahid (P. W.). /list. Sughran P. W. And her mother (since dead) followed Abdul Rahman and Abdul Aziz appellants and kept on shouting. Saeed Ahmad deceased was taken into the house of Abdul Rehman appellant where Nazir Ahmad and Munir Ahmad appellants were already present. According to Mst. Sughran alibi, she and her mother were asking the accused persons not to beat Saeed Ahmad deceased. In the meantime, complainant Mulaametad Zahid P. W. Also reached the spot. Abdul Aziz appeilaat then pushed Mst. Sughran Bibi, P. W. And her mother Mst. Sardaran (since dead) out of the Haveli
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and bolted the door from inside, She and her mother kept on raising alarm, bat she does not claim to have men anything after this. The main attack of Mr. M. Anwar, the learoed defeece counsel, against her statement is that she is contradicted by the medical evidence regarding last meal taken by Saeed Ahatad deceased in her house and that no marks of dragging were found on the person of Saeed Ahmad deceased by the doctor. It is further argued that the Investigating Officer did not sea any marks of scaling over the wall by Abdul Ratimaa appellant. We do not attach much importance to the absence of dragging marks, because no witness has stated that the deceased had fallen down and he was dragged by the t so appellants while lying on the ground. If a person is dragged forcibly while lying on the ground, he will definitely receive some scratches or abrasions, but if a person is forcibly taken while standing, it is not necessary that he should receive dragging marks on his person. Since Mst. Sughran Bibi, P. W. Has not stated that Saeed Ahmad deceased had fallen down and was then dragged by the two appellants, her statement is not, therefare, contradicted by the medical evidence on this point. It seems that the deceased was taken into japha and forcibly taken by the two appellants towards the house of Abdul Rahman appellant. Tnus, the absence of dragging marks on the dead body of Sued Ahmad does not conflict with the medical evidence, The other argument of the learned defence counsel is that according to Mst. Sughran Bibi P. W. Saeed Ahmed deceased had taken his last meal shortly before his death, while the doctor found six ounces of digested food in the stomach and the large intestine containing faeces. According to the learned defence counsel, the doctor's evidence goes against the statement of this witness. We have given our anxious tlaaught to this argument, but find no force in it. No doubt, Mst. Sughran Bibi P. W. Had stated in cross-examination that Abdul Rahman appellant had entered her courtyard about ten minutes after Saeed Ahmad deceased had taken the meal in her house, but the estimate of time given by her cannot be tie same as understood by literate persons in the cities. She is an illiterale rustic village woman and her guess about the time cannot be the same as stated by her and understood by civilized persons. About the duration of occurrence also the witnesses have given different estimate of time some have said half an hour, while the others about one hour. Reliance in this behalf can safely be placed upon the following observation made by their Lordships of the Supreme Court in Gul Sher's case "It seems to me that this argument was based on the statements of the witnesses that the occurrence took place at about 1 a. m. These village folk, especially women witnesses, gave the time not by watch but by mere guess and hence much would not turn on such statements." Further, we find that there is nothing on the record to show the exact natere of food taken by Sseed Ahmad deceased. The State Counsel suggests that the deceased being a college student, may have been offered biscuits or some such like light food by her aunt Mst. Sughran Bibi P. W. No question was put to her in cross-examination as to the exact kind of food taken by the deceased in her house. Further, also it is not denied that digestion works differently with different people. The possibility that the process of digestion A continued even after the death also cannot be ruled out. The doctor was not preperly cross-examined on this point. In the circumstances of the case, we attach no imporance to this argument advanced on behalf of the defence. After going through her statement and keeping in view the situation of her house, being close to the place of occurrence, Mo. Sughran Bibi P. W. Seems to ite a natural witness as the occurrence started from her house. It may be observed that she has clearly admitted in her statement that the accused persons had not murdered Saeed Ahmed deceased within her view. This shows that she did not try to make a false statement to depose regarding the actual killing of the two deceased persons. She had not enmity to falsely depose against the appellants. If the occurrence had not started from her house, the prosecution could not fabricate this story by introducing a woman withess who is coesidered to be weak evidence arid whose testimony can easily be shaken through cross-examination by the1
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defense. We find that Mat. Sughran Bibi P. W. Has been rightly believed by the trial Court. We also endorse that view. 7. The second part of tie prosecution vennen relates to the pinhaing and tying of Sneed Ahmad deceased to a tree and giving hieei eeating in the courtyard of Abdul Rahman appellant. The eye- witnesses claim to have witressed this part of the case from over the wall of one Allah Ditta which is common with Abdul Rahman appellant. In the site plan Bah. P. Q. This -place is shown at Point No.2. At that time, Mahammad Zahid P. W. Was also accoaspanied by Sardar Shah and Mohammad Zaman P. Ws. According to the learned defence counsel, if those witnesses really had been there, then they could not remain as mere spectators but would have taken some steps to save Saeed Ahmad deceased from the clutches of the appellants. No doubt, Muhammad Zahid complainant is the father of the deceased while Sardar Shah is husband of Mst Sughran Bibi P. W. Who is real sister of Muhammad Zahid P. W. And Muhammad Zaman P. W. Is also related to the complainant being uephew of the father-in-law of the complainant, but they may be persons of weak nerves or coward and, therefore, did not dare to go near the appellants and may be afraid of receiving injuries themselves. Moreover, as observed by their Lordships of the Supreme Court in Nura's case all persons do not have the heart to risk their own safety in such situations. Further, after chaining the outer door it was not quite easy to reach the courtyard of Abdul Rahman appellant. They may also have thought that the deceased would not be killed but may be given a thrashing only to teach him a lesson to behave in future. It is also argued by the learned defence counsel that no blood was found by the Investigating Officer from the courtyard, although the appellants are alleged to have given some blows to the deceased while pinioning and tying him to a Shisham tree. Similarly, no marks of dragging were witnessed by the Investigating Officer. Again we do not attach much importance to the omission of these things as it is not clear bow the deceased was dragged whether he was lying flat on the ground or was just forcibly taken while standing. Similarly, the blood coming out of the injuries at that stage may have been absorbed by the clothes of the deceased. Same is the position of Mst. Rani deceased. The prosecution could not introduce these things unless Sated Ahmad deceased was actually pinioned and tied to the tree, because by doing so, the prosecution was exposing this part of their story to be witnessed by other people. The time and place of occurrence are not disputed by the defence. The occurrence, therefore, could not remain towitnessed, 7. As regards the actual killing of the two deceased persons inside the kotha, it is vehemently argued by Mr. M. Anwar that the eye-witnesses could not see as to who inflicted which injury and to whom. Since the occurrence took place in broad daylight at about 10-30 a. m. And the witnesses were on a hirer level being on the wall of the courtyard of the place of occurrence, there was nothing in-between them and the place of occurrence to obstruct them from…
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