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Petitioner: ARBAB VS Respondent: THE STATEHonorable Justice ABDUL QADIR SHAIKHA. K. Brohi,A. A.-G.
1969 P Cr
1969 P Cr. L J 425
[Karachi]
Before Illahi Bakhsh Khamisani and Abdul Qadir Shaikh, JJ
ARBAB‑Appellant
Versus
THE STATE‑Respondents
Criminal Appeal No. 154 and Confirmation Case No. 41 of 1967, decided on 8th May 1968.
Penal Code (XLV of 1860), S. 302‑‑Murder‑Accusel absconding after incident and remaining absent from his permanent abode for about one month‑‑Evidence of prosecution witnesses inspiring implicit confidence‑Conviction and sentence of death imposed on accused confirmed.
A. K. Brohi for Appellant.
A. A.‑G. for the State.
Date of hearing : 25th April 1968.
JUDGMENT
ABDUL QADIR SHAIKH, J.‑‑This is an appeal by convict Arbab son of Minhon, Mugheri, aged 25 year, who has been sentenced to death by the Additional Sessions Judge, Larkana, under section 302, for the murder of Ghulam Mustafa. He has also been found guilty for offences under sections 458, P. P. C. and 13 (d) of the West Pakistan Arms Act and sentenced to R. I. for five years and one year, respec tively. These sentences have been directed to run concurrently, and would obviously come into force only if the death sentence is not confirmed in this Reference. The prosecution case against the appellant may be briefly stated as under:
Deceased Ghulam Mustafa was married to Mst. Hajran, aged about 17 years, about a month before the incident. Before this marriage, Arbab appellant had demanded the hand of east. Hajran but her parents had refused him. The parties in this case live in separate houses adjacent to each other but surrounded try a common thorn enclosure, in Chandoo Mughari village, Taluka Kamber in Larkana District. On the night between 16th/17th of May 1966, deceased Ghulam Mustafa was sleeping with his wife on the same cot on the roof of his house; his father‑in‑law Gullan and mother‑in‑law Mst. Janet were sleeping down below in the courtyard of the house. Haji Sikiladho maternal‑uncle of deceased Ghulam Mustafa, was sleeping with his sons, Rasul Bux P. W. 3 and Ramz Ali, on the roof of his house adjacent to that of Ghulam Mustafa. Sometime around midnight Haji Sikiladho woke up on shouts raised by deceased Ghulani Mustafa and on flashing his torch in that direction, he saw that Arbab was standing by the side of the cot of Ghulam Mustafa with a gun in his hand and immediately thereafter he fired the gun at Ghulam Mustafa. On the gun report, his sons Rasul Bux and Ramz Ali woke up and they challenged the accused "not go away". Haji Sikiladho then went over to the roof of Ghulam Mustafa's house but in the meantime the culprit ran away. The commotion attracted the neighbours including the parents of Mst. Hajron and Salar P. W. 6. Mst. Hajran told these persons that Arbab had awakened her by taking hold of her hand which disturbed the sleep of her husband, who challenged Arbab "Don't go away" and on this Arbab fired a gun shot at her husband.
Haji Sikiladho then left for Khairpur Jooso village, at a distance of about 2 miles, to inform his Zamindar, Roshan Ali Isran, but on being told that he had gone to Karachi, Haji Sikiladho proceeded alone to the Kamber Police Station covering a distance of 8 miles, and lodged F. I. R. on the next morning the 17th of May 1966, at 7 a.m. which was recorded by S. H. O. Bahar Ali.
The usual police investigation commenced thereafter during which the body of the deceased was sent for post‑mortem exami nation to the Kamber Hospital. The culprit could not be apprehended in spite of best efforts of the police and he was arrested subsequently on the 15th of June 1960. During the police investigation, Ghulam Sarwar produced a licensed gun Article A in the name of Tagio, grandfather of accused Arbab, which was said to be used by the culprit and it was secured by the police under mashirnama Exh. 24 in the presence of mashirs Ali Gohar P. W. 8, and Ghulam Rasul Shah.
The case against the appellant, at the trial, as would be seen from above, rested on the ocular testimony of three eye‑witnesses. Mst. Hajran, Haji Sikiladho and his son Rasul Bux; as corroborated by Ghulan, father of Mst. Hajran and Salar.
Against this, the defence of the
accused was of a total denial of the prosecution case and false implication on account of the enmity with the witnesses. He alleged that his cousin Muria was murdered by a cousin of Haji Sikiladho by the name of Muhammad Ali, and his relations hail also filed a case against Haji Sikiladho.
Mr. A. K. Brohi, the learned counsel for the appellant firstly asserted that Haji Sikiladho could not have possibly identified the assailant even with the aid of the torch as it was a dark night and he was sleeping at some distance from the deceas ed. He therefore urged that the possibility of mistaken identity cannot be overruled in this case, specially in the background of the motive suggested by the prosecution itself as Haji Sikiladho way have in the dead of night suspected the assailant to be Arbab.
The learned counsel further pointed out that on his own showing Rasul Bux cannot be believed to have seen the actual firing as he woke up on the gun report. The learned counsel then contended that Haji Sikiladho in view of the previous litigation between the parties cannot be relied upon explicitly and the character of his son Rasul Bux as a witness would be on the same footing. It was finally urged that the motive advanced by the prosecution cannot be believed as the appellant, well knowing that Mst. Hajran was recently married to Ghulam Mustafa, could not have come up to the roof where she was sleeping with her husband to have sexual intercourse with her.
In order to appreciate these contentions, it is firstly to be noted that the house of Arbab accused is adjacent to that of deceased Ghulam Mustafa, separated only by the house of Achar; and the house of Haji Sikiladho is next to that of the accused Arbab, with a courtyard in between. The distance between the cot on which Haji Sikiladho was sleeping and the one on which deceas ed was sleeping with his wife, according to the sketch produced by Haji Khan Tapedar is only 92 feet, the witnesses however put this distance to the maximum of 20 paces. The house of Salar is next to that of the deceased, on the other side, and all these houses are surrounded by a common thorn enclosure in a village consisting of about 8/9 houses. The parties are thus next door neighbours. Not only this but they are also closely related to each other. Deceased Ghulam Mustafa was the son of Haji Sikiladho's sister, while accused Arbab is the son of his Phupki as well as a nephew of his cousin Ghulam Sarwar. The accused is a mast of' Gullan, the father of Mst. Hajran, and similarly P. W. Salar is also a cousin relation. It is therefore clear that Haji Sikiladho his son Rasul Bux, and the two witnesses P. W. Gullan and Salar had as much interest by way of relationship with the deceas ed as in the accused Arbab.
As to the alleged hostility between the parties on account of previous litigation, it may be said that Haji Sikiladho admitted that Tagio had filed a Mara Mari case against him and others, but he explained that it was an old matter of six years and the dispute was compromised between them. It appears that Haji Allah Rakhio, sister's son of Haji Sikiladho, had filed a criminal case against Arbab accused and others on the 10th of January 1960; and that Azim, a relation of Haji Sikiladho was involved in a murder case in the case of State v. Ramzan in the year 1953. But, it clearly appears from the judgment (Exh. 36) on which reliance in this connection was being placed that the parties had compromised with each other and the case was withdrawn by the prosecution and disposed of accordingly on the 25th of January 1954. The copy of Judgment in the case of State v. Shafi Muhammad and others (Exh. 33) produced by the accused also shows that the accused in that case were dischar ged for want of evidence against them. The statement of Haji Sikiladho that the parties had compromised these cases, therefore, appears to be true, and it is further supported by the fact that all these persons continued to live in the common enclosure, their cordial relationship having been restored, there being no unpleasant incident between them leading to a case before a Court of law for about six years prior to the incident. We are, therefore, of the opinion that the evidence of Haji Sikiladho, his son Rasul Bux P. W. Gullan and Salar is not tainted on account of any hostility against the accused.
The most important witness in this case, however, is Mst. Hajran, the recently married wife of deceased Ghulam Mustafa. No question she must have been in bed with the deceased on the night of occurrence when the assailant came with a gun arid shot at her husband. The motive advanced by the prosecution is that Arbab appellant had proposed for her hand but he was refused and she was married to the deceased. The case of Mst. Hajran as supported by her father is that even after her marriage, Arbab tried to contact intimacy with her. Arbab must have been very well known to her and it does not stand to reason that she could have made a mistake as to his identity if he was the assailant of her husband. She must have come in very close contact with her husband's assailant. She has asserted that Arbab woke her up by taking hold of her hand. There was no reason whatever for Mst. Hajran to falsely substitute Arbab for the real assailant and immediately give his name falsely to the persons who reached the spot soon after the occurrence. It was urged that Arbab could not have come on the night of occurrence to have sexual intercourse with her as is the prosecution case which has also found the favour of the learned Additional Sessions Judge for he must have known that the newly‑wedded wife was sleeping with her husband. This conclusion reached by the learned Additional Sessions Judge is based on the statement of Mst. Hajran that "at midnight accused Atbab awakened me by taking hold of my hand obviously for the purpose that I should have sexual intercourse with him." This was only an inference drawn by the girl from the fact that Arbab took hold of her hand and woke her up. But, in this connection, the entire conduct of Arbab cannot be ignored. He came armed with a gun and used it as soon as Ghulam Mustafa who was sleeping on the same cot with his wife woke up. The intention of a man can only be gathered from his actions and the result achieved by him, taking into consideration all the surrounding circumstances. It is not the case of the prosecution that Mst. Hajran was on illicit terms with Arbab before or after her marriage with Ghulam Mustafa. Surely Arbab did not come with a previous arrangement to meet the girl for in that case there was no reason for him to come armed with a gun near the cot of Ghulam Mustafa and wake up Mst. Hajran. The intention that can be attributed to him from his conduct can be no other than the result he achieved by his deliberate act of shooting at the deceased as a disgrunted lover of Mst. Hajran.
The oral testimony of Mst. Hajran is in our opinion quite sufficient on which the guilt of the accused for the murder of Ghulam Mustafa can be based beyond any reasonable doubt. But there is also no reason why Haji Sikiladho and his son Rasul Bux should not be believed as truthful witnesses. Haji Sikiladho was sleeping not far away from the cot of the deceased. According to him he had a torch which he flashed towards the side of the deceased's cot and thus he clearly identified Arbab standing near the cot of Ghulam Mustafa with a gun. "The sleep of his son Rasul Bux must have been disturbed by the gun‑report and his claim that he identified the assailant of Ghulam Mustafa to be Arbab is not unnatural. Arbab was not only their close neighbour but also a relation, and in the circumstances there could not be a mistake as to his identity. No doubt Rasul Bux in his examina tion‑in‑Chief stated that he woke up on the gun‑report, while in the cross‑examination he said that he saw the accused firing gun shot at the deceased. But to a villager who sees an assailant immediately after his firing a gun, it may equally mean that lie actually saw the firing these differences to him are unimportant and meaningless. This discrepancy is therefore not very impor tant, and even otherwise there are bound to be slight exaggera tions and variations in the statement of villagers who are subject ed to cross‑examination as to the details of an incident. This discrepancy is also not such as would take away the entire effect of the testimony of Rasul Bux which is not otherwise contradicted by his previous statement. P. Ws. Gullan and Salar who are also accused's relatives have fully corroborated the testimony of the three eye‑witnesses in this case. These persons must have come on the commotion raised due to the incident and it could not be long after the assailant took his heels. P. W. Gullan was sleeping in the courtyard of the same house, while P. W. Salar is only the next door neighbour. We have, therefore, no hesita tion in affirming the conclusion of the learned Additional Sessions Judge that the evidence of these prosecution witnesses inspires implicit confidence and that what they have spoken against the accused is true.
It was urged that these witnesses have falsely deposed to the dying declaration by deceased Ghulam Mustafa, it being impossi ble in view of the medical evidence for the deceased to have spoken a single word. According to Dr. M. A. Moid the death of Ghulam Mustafa appeared to be instantaneous and that the deceased could not have been able to speak. But it is asserted by all the witnesses that the deceased did utter the few words that he had been fired at by Arbab, and immediately thereafter he expired. It is significant that this has also been mentioned in the First Information Report. But even if this piece of evidence is considered as an exaggeration on the part of the witnesses and is excluded from consideration on that account, their testimony is otherwise fully convincing and reliable that it was appellant Arbab who had fired the gun shot at the deceased and had caused his murder.
Another circumstance which has been relied upon against the accused by the learned Additional Sessions Judge is his absconsion after the incident. His absence from his permanent abode amongst the prosecution witnesses for a period of about one month on the facts of this case is not totally insignificant, but this is only a piece of circumstance which is to be read along with the prosecution evidence which is otherwise sufficient in our opinion, to connect the appellant with the crime.
This appeal thus has no merit and is dismissed, with the result that the death sentence imposed upon the appellant under section 302, P. P. C. is confirmed and so also his convictions under section 458, P. P. C. and section 13 (d) of the West Pakistan Arms Act.
Appeal dismissed.