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Petitioner: MUNSHI AND ANOTHER--Convict VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Muhammad Afzal Zullah, Aslam Riaz Hussain Title: MUNSHI AND ANOTHER--Convict vs THE STATE Case No.: Criminal Appeal No, 764 and Murder Reference No, 225 of 1969 Date of Judgment:1971-02-19 Reported As: PLD 1971 Lahore 781 Result: Appeal accepted
JUDGMENT
JUDGMENT ASLAM RIAZ HUSSAIN, J.--Munshi, aged 22 years and. Taj Din son of Nawab, aged 18 years, were tried by Mr. Shamas-ud-Din, Additional Sessions Judge, Lahore, for an offence under section 302/34, P. P. C. for the murder of Taj Din son of Nathu, aged about 25 years. The learned trial Court convicted both of them under section 302/34, P. P. C. vide his order dated the 30th of September 1969, and sentenced them to death. Both of them have filed joint appeal against their conviction and sentence. The matter is also before us under section 374, Cr. P. C. for confirmation of the death sentences. We propose to dispose of the appeal as well as the murder reference by a single judgment. The facts of the case as stated in the F. I. R. are, briefly, as follows :- Taj Din deceased was betrothed with Mst. Siddiqan, the daughter of Mst. Hanifan P. W. 10 about 7/8 years before the occurrence. The marriage of the deceased with Mst. Siddiqan took place about 7/8 days prior to the occurrence at village Saraich, Police Station Kahna, District Lahore. The deceased took Mst. Siddiqan to his house in Chak No 30/S. P, District Sahiwal, where she stayed with him for three days. Thereafter, in accordance with the general custom, she was taken back to the house of her parents, in village Saraich, by her husband Taj Din deceased. Mst. Allah Rakhi, the mother of the deceased and Mst. Fatima, the sister-in-law (brother's wife) of Allah Rakhi P. W., also accompanied them. They reached the house of Faqira (the father of Mst. Siddiqan), in the evening. Munshi and Taj Din son of Nawab, appellants, used to visit Faqira's house. They came and took out Taj Din deceased with them, a couple of times. On the 10th of February 1968, at about Nimashamwela, the appellants again came to the house of Faqira and took Taj Din with them for a walk. When the deceased did not return till late in the night, his mother and the other relatives
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became apprehensive and went out to search for him. They also visited the houses of the appellants and found that they too had not returned. Thinking that being young men they must have gone to Lahore, Mst. Allah Rakhi P. W. and others, went back. At digarwela on the next day i,e, on the 11th of February 1968, Munshi and Taj Din appellants came back to the village but the deceased did not return. His mother Mst. Allah Rakhi inquired about him from the appellants, but they beat about the bush. Mst. Allah Rakhi became suspicious and went to Rana Muhammad Hanif Lambardar and Rana Muhammad Hussain (the respectables of the village), and narrated the facts to them. A search for the deceased was started and soon afterwards his body was found lying in a wheat field, at a distance of 3 (1/2) furlongs towards the west of village Saraich. The body was absolutely naked, with incised injuries on its neck. Leaving Rana Muhammad Hanif and others with the body, Allah Rakhi P. W., along with Boota Chowkidar, went to the Police Station Kahna and lodged the report Exh. P. F. at 11 o'clock in the night. In the report she expressed, a doubt against Munshi and Taj Din son of Nawab appellants and stated that she suspected that they had murdered her son after they had taken him out with them. She also gave a detailed description of the clothes and ornaments worn by the deceased when he had gone out in the company of the two appellants which is incorporated in the F. I. R. It is as follows :- (1)a pair of black shoes (gurgabi), (2)a yellow coloured Lady Hamilton Chadar (dhoti), (3)a semi-yellow coloured Poplin shirt, (4)a white vest (bunian), (5)a green coloured woollen chadar. (6)a printed handkerchief (used as a scarf), (7)5 gold amulets (tavez) four of them square in shape and one heart shaped, (8)3 gold rings 2 with red stones and one without any stone, and (9)one wrist watch, with black strap. With regard to the motive for the crime she stated that on making enquiries she had come to know that the two appellants had illicit relations with Mst. Siddiqan, since before her marriage with her son (the deceased), and that they had done away with him in order to wreak vengeance against him for marrying Mst. Siddiqan. The F. I. R. was recorded by Lal Din A. S. T. P. W. 7. whereafter he accompanied Mst. Allah Rakhi to the place of occurrence, along with some foot-constables. He reached there at 1 o'clock in the night. After preparing the usual documents he sent the dead body for autopsy to the mortuary at Lahore. He also inspected the spot with the help of a lantern and took into possession some blood-stained earth from the spot vide memo. Exh. P. A. Next morning at 7-00 a.m. on the 12th of February 1968, Muhammad Masood S. I. P. W. 13 reached the place of occurrence and took over the investigation from Lal Din A. S. I., who was still present there. .At 9-30 a.m. Muhammad Hanif Lambardar produced Munshi and Taj Din appellants before the S. I. at the spot, who arrested them. He found that shirt P. 11 of Munshi accused had some blood stains on it. He, therefore, removed it from his person and took it into possession vide memo. Exh. P. D. Similarly, finding some blood stains on the Chadar P. 12 of Taj Din appellant, he got this too removed and took it into possession vide memo Exh. P. B. Munshi appellant disclosed to the S. I. that he had buried the knife (the weapon of offence) and the ornaments etc. of the deceased in the field of Suba Kumhar. Accordingly he led the police to the said field and dug out the following articles which were taken into possession vide memo. Exh. P. C. : (1) Blood-stained knife, P. 5. (2) Black gurgabi, P. 6. (3) Blood-stained shirt, P. 7. (4) Green, woollen chadar, P. 8
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(5) Five amulets, P. 9/1-5 (11 mashas and 3 ratis). (6) Wrist watch, Exh. P. 10. Similarly, Taj Din appellant disclosed to the S. I. that he had Hussain, buried the remaining articles belonging to the deceased in the field of Sardara Kumhar. He led the police party to that field and dug out from there the following articles which were taken into possession vide memo Exh. P. B:- (1)Chadar P. 1 (Silken dhoti). (2)Blood-stained bunian P. 2. (3)Handkerchief P. 3. (4)Rings (three in number) P. 4/1-3 (11 mashas and 3 rat is). These recoveries were witnessed by Khalil Ahmad P. W. 11 and Mohindar (not produced) besides the Investigating Officer. 3. During the post-mortem, Dr. Nusrat Ullah P. W. 1, found the following injuries on the person of the deceased :- (1)An incised wound 1 x y on the left side of neck 1" below the angle of left Jaw. (2)Four incised wounds on the right side of neck each measuring 1,-" x 1/16" on the right side of neck 1" below the angle of Jaw. All the wounds were very close to each other. On dissection, the doctor found that a sharp edged weapon was used to inflict the injuries, which had cut the jugular vein, the carotid artery on the left side and the trachea as well as other vital origin in the neck. The doctor opined that injury No, 1 was the wound of entry while injury No, 1 was the wound of exit, and that sharp-edged which was used to commit the offence, was thrust in the neck four times, while keeping its point at the same position. Death was found to have been caused by injury Nos, 1 and 2. The doctor also found ligature mark and signs of asphyxia, from which he concluded that strangulation was also attempted which too was sufficient to cause death. He opined that the victim died immediately after the infliction of the injuries. 4. The shirt and chadar recovered from the persons of Munshi and Taj Din appellants respectively, were sent to the Chemical Examiner, who found that they were stained with blood. The scrapings or pieces from the blood-stained knife and of blood-stained clothes were sent by the Chemical Examiner to the Serologist at Islamabad, but the report of the Serologist was not produced before the trial Court. The origin of the blood on these articles could not, therefore, be determined. 5. After the completion of the investigation, the challan was put up before the Inquiry Magistrate, who committed both the appellants for trial by the Court of Session. The result of the trial has already been mentioned above. It may be noticed that in this case there is no eye-witness of the occurrence and the prosecution case is based only on circumstantial evidence. The prosecution has relied on the following evidence :- (1)The evidence of motive. (2)The evidence of "last seen together" supplied at the trial by Mst. Allah Rakhi P. W. 8 Mst. Fatima P. W. 9 and Mst. Hanifan P. W. 10. (3)The evidence of recovery of blood-stained shirt P. 11 from the person of Munshi appellant and blood-stained chadar P. 12 from the person of Taj Din son of Nawab appellant. (4)The recovery of clothes of the deceased and some articles belonging to him at the instance of the two appellants. 6. The appellants when questioned, denied that they had taken the deceased with them on the evening of the 10th of February 1968, as alleged by the prosecution. They also denied the recovery of blood-stained shirt P. 11, and bloodstained chadar P. 12, from their persons as well as the recovery of the clothes and articles belonging to the deceased, at their instances. They pleaded innocence and stated that they had been involved on account of enmity with Muhammad Hanif Lambardar. No evidence was produced in defence.
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7. We have heard the learned counsel for the appellants as well as the learned State counsel. We have also gone through the entire record. 8. The learned defence counsel contended that the prosecution case was the result of fabrication. According to him, the body of the deceased was found lying at a distance of about 21 furlongs from the village, at about 9 o'clock in the morning of the 1 1 th of February 1968, whereupon a large number of villagers, including Muhammad Hanif Lambardar and Muhammad Hussain etc., gathered at the spot; that the relatives of the deceased i,e, Mst. Allah Rakhi P. W. etc. were also informed and they too came to the spot; that Boota Chowkidar accompanied by the Lambardar went to inform the police; that till that time suspicion had not fallen on any one; that on receiving the information the police came to the spot; that as the two appellants used to take out the deceased with them during his stay at the house of Faqira, Mst. Allah Rakhi suspected that it was they who, after taking him out, had caused his death; and the at the police, after considering all the circumstances, fabricated a story, which was then incorporated in the F. I. R. (which was purported to have been recorded on the statement of Allah Rakhi P. W. 8, at the police station at 11 o'clock in the night). The learned defence counsel contended further that the motive, which appeared most probable to Mst. Allah Rakhi and others who had gathered at the spot, was incorporated in the F. I. R. It was that the two appellants had cultivated illicit connections with Mst. Siddiqan prior to her marriage with the deceased; and that having resented the marriage they (the appellants), had wreaked vengeance against the deceased by killing him. The learned counsel contended further that the Investigating Officer, who was obviously a seasoned police-man, realised that the evidence of "last seen together" will not by itself be sufficient for securing a conviction unless there was some corroborative evidence, connecting the appellants with the murder; that he, therefore, introduced the story that the body was found absolutely naked and the clothes and ornaments of the deceased were missing; that a full description of the same was incorporated in the F. I. R., so that the same could subsequently be shown as having been got recovered at the instance of the appellants and they could thus be connected with the murder; that as a measure to further strengthen the case, he also took one garment each from the person of each of the two appellants, alleging that the same were stained with blood; and that subsequently in accordance with the pre-planned scheme, the articles and clothes belonging to the deceased were "recovered at the instance of the appellants". The learned State counsel submitted on the other hand that Mst. Allah Rakhi, Mst. Fatima and Mst. Hanifan have fully supported the case; that the fact that the deceased was last seen alive in the company of the appellants has been fully established and that although the recovery witnesses had been won over by the appellants, yet the recoveries should be believed, placing reliance on the statement of Khalil Ahmad P. W. I , made before the committing Magistrate, which has been transferred to the sessions file under section 288 of the Criminal Procedure Code. 9. We have carefully considered the contentions raised by the learned counsel for the parties and have gone through the evidence of the witnesses, keeping in mind the above-noted contentions put forward by them. It may be pointed out that Mst. Allah Rakhi, Mst. Fatima and Mst. Hanifan are very closely related to the deceased. Mst. Allah Rakhi P. W. 8 is the mother of the deceased, Mst. Fatima P. W. 9 is the brother's wife of Mst. Allah Rakhi and Mst. Hanifan P. W. 10 (the mother of Mst. Siddiqan), is the aunt of the deceased, as she is the sister of Nathu, the father of the deceased. It is true, as pointed out by the learned State counsel, that they have supported the prosecution story, as stated in the F. 1. R., except the portions with regard to motive. A careful scrutiny of their evidence, however, reveals certain facts which go to support the theory put forward by the learned defence counsel, mentioned above. For instance :-
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(1) Mst. Hanifan P. W. 10 had stated before the committing Magistrate - (a)that the body of the deceased was discovered at 9-00 a.m. "on the following day" i,e, the 11th of February 1968 (page 23 lines 42/43 of the paper-book), and (b)that Boota Chowkidar along with Lambardar were sent to inform the police and further that this Boota Cnowkidar is the brother of Munshi appellant (page 23, line 46/48 of the paper-book). (2) Mst. Allah Rakhi P. W. 8, admitted during her cross-examination that after coming to the spot :-- "The Thanedar made inquiry from the persons (gathered at the spot) about the ocurrence. Whole village was present there. I cannot name any person. The Thanedar again asked me to narrate the full story. The Thanedar recorded my statement on the spot and got my thumb-impression. The Thanedar recorded the statements of other witnesses also on the spot . The above facts would go to support the contentions of the learned defence counsel that the body of the deceased, which was lying very near the village, was discovered at 9 o'clock on the next morning whereafter a lot of people gathered at the spot, the police made inquiries about the incident from the persons present there and that the statement of Mst. Allah Rakhi was recorded at the spot, which was also thumb-marked by her. This means that Mst. Allah Rakhi had not gone to the police station to lodge the report as alleged by the prosecution and that the same was recorded at the spot, after the police had made inquiries at the spot. It is also noteworthy that Mst. Hanifan P. W. 10 has admitted that Boota Chowkidar, was sent to the police station to inform the police. Lal Din A. S.P. W. 7 has also stated that Boota had come to the police station with Mst. Allah Rakhi P. W. to lodge the F. 1. R. This person (i,e, Boota Chowkidar) is admittedly the brother of Munshi appellant. Had there been the slightest suspicion against Munshi appellant with regard to the murder of the deceased. Boota Chowkidar would be the last person to have been sent for informing the police, nor would Mst. Allah Rakhi have taken him, of all the persons, with her to the police station. Therefore, the story that Mst. Allah Rakhi P. W. accompanied by Boota Chowkidar, had gone to lodge the report against Munshi and Taj Din appellants at Police Station, Kahna, is obviously incorrect. We notice that no suggestion was made to Lal Din, A. S. I. (who is said to have recorded the F. I. R. at the Police Station) by the defence counsel during the cross-examination at the trial stage that it was incorrect that Mst. Allah Rakhi had gone to the police station to lodge the report, but this appears merely to be an omission on the part of the learned defence counsel. A significant feature of the above-noted admission is that they have been elicited from witnesses who are closely related to the deceased and who have fully supported the prosecution version. It is, therefore, not conceivable that they had made these concessions purposely in order to weaken the prosecution case or to help to the appellants. It may also be mentioned that according to Mst. Allah Rakhi P. W. she had left for the police station to lodge the report 'when the sun had not yet set'. The police station is admittedly at a distance of 8 miles from village Saraich. She is said to have reached there late at night and lodged the F. I. R. at 11 o'clock. Her sister-in-law Mst. Fatima P. W. 9 has, however, stated during her cross-examination that "the sun' had not set when the police reached the spot". This gives a direct lie to Mst. Allah Rakhi P. W. and also belies the prosecution version with regard to the lodging of the. F. I. R. at Police Station, Kahna, because in that case the police could not have reached the spot before sun set (The sun set time was at 5-48 p.m on that day), when the F. I. R. itself was said to have been lodged at 11-00 p.m. at a distance of 8 miles from the spot. Another noteworthy feature of the statement of Mst. Allah Rakhi is that she has completely resiled from the motive alleged by her in the F. I. R, wherein she had stated that she suspected Munshi and Taj Din appellants with regard to the murder of her son, because they had cultivated illicit connections with Mst. Siddiqan before her marriage with her son, Taj Din deceased and that they had committed the murder with a view to satisfy their feeling of revenge against the deceased. At the trial, however, she flatly denied having made this statement to the police and said that after
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recording the F. 1. R. the Thanedar had not read over the statement to her, meaning thereby that had he done so, she would have corrected him there and then. At the trial she gave the motive as follows :- "So far as I can understand, the accused murdered the deceasei to rob him of the clothes, ornaments and otherarticles on his person. The reason for this change in the alleged motive appears to be that Mst. Siddiqan is very closely related to the husband of Mst. Allah Rakhi P. W. and to persist with the motive would not only have damaged the reputation of the family but would also have alienated the family of Mst. Siddigan, who may have refused to support the prosecution case. Whatever be the reasons for the change, one thing is fully established, i e. that Mst. Allah Rakhi is a witness who is quite capable of changing her statement as and when it suits her. Her evidence has therefore, to be taken with a pinch of salt. 10. We now proceed to consider the evidence of recoveries. As already observed, the dead body was found completely naked and everything worn by the deceased had been removed from it. Mst. Allah Rakhi P. W. however, gave an exhaustive and detailed list and description of the clothes and articles which the deceased was wearing when he left the house with the two appellants on the previous evening. The very exhaustiveness and exactitude, with which the details of the clothes and articles worn by the deceased had been given in the F. I. R. appear to be unnatural and cast a suspicion on the correctness of the story. The accused were arrested on the very next day and both of them are said to have taken the police to the fields where they had, allegedly, buried the articles. Each one of them dug out the articles buried by him which were then identified by Mst. Allah Rakhi and Mst. Hanifan P. Ws. as those belonging to the deceased. The only persons apart from the Investigating Officer, who are said to have witnessed the recovery of the said articles from the fields and shirt P. 11 and chadar P. 12 from the persons of Munshi and Taj Din appellants respectively were Mohindar and Khalil Ahmad P. W. 11. Mohindar was not produced at all and was given up as having been won over. Khalil Ahmad was produced at the trial but did not support the prosecution version and had to be cross-examined by the Public Prosecutor. At the latter's request, his statement before the committing Magistrate was transferred to the sessions file, under section 2d88, Cr. P. C. He did support the prosecution case with regard to the recoveries, before the committing Magistrate but there is a serious flaw in his statement, which renders the prosecution version with regard to the recoveries, extremely doubtful. He stated during his examination-in-chief that-"Mohindar P. W. met us on the way when I along with police were coming back from the fields after getting the articles as given in Exh. P. B. and Exh. P. C. recovered. We then went to the school along with the police party." The above-noted statement completely demolished the prosecution version that Mohindar and Khalil Ahmad had both accompanied the Investigating Officer to the fields of Suba and Sardara Kumhars and witnessed the production of the various articles by the two appellants, as mentioned above. The statement of Khalil Ahmad P. W. before the committing Magistrate is, therefore, not worthy of reliance. During his statement before trial Court Khalil Ahmad admitted, at least twice, that he had told a lie before the committing Magistrate. His two state-men s i e. one before the committing Magistrate and the other before the trial Court, together show that he is an extremely unreliable witness, who has himself admitted that he is a liar. It would, therefore, be extremely unsafe to rely on his stae-ment with regard to the recoveries. The same can be said about Muhammad Masood S. I. P. W. 12, who has stated that he got these articles recovered at the instance of the two appellants and took them into possession vide memo. Exits. P. B. and P. C., respectively. It is interesting to note that both these memos are signed by Lal Din A. S. I. P. W. 7. This completely belies Muhammad Masood S. I., who claims to have got the recoveries effected. Apart from this, as already observed, we are of the view that there are sufficient indications on the record that the F. I. R. was not lodged at the police station by Mst. Allah Rakhi P. W. but was prepared on the
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spot, after the police had made preliminary inquiries and had invented the version to be put forward as the prosecution case. This casts a serious reflection on the conduct of the Investigating Officer which, to say the least, has not been above board. The statements of the P. Ws. with regard to the alleged recoveries are not worthy of reliance, and cannot be believed. There are certain other features relating to the said recoveries which render them doubtful. Mst. Allah Rakhi P. W. has given the list of articles and clothes worn by the deceased, in such remarkable detail as if she had herself dressed him. Again, the manner in which they are said to have buried (i,e, at a distance of one killa from each other) and the equitable manner in which they appear to have distributed the articles between themselves also smacks of fabrication. We called for and inspected the clothes of the deceased, which are said to have buried in the fields by the appellants. The green woollen chadar and the silken dhoti were so clean as if they had, just then, been taken out of a trunk. The other clothes also did not appear to have been buried in the earth at any stage, as they too were not soiled at all, except that the shirt P. 7 was badly smeared with blood. Again one can understand the culprits robbing the deceased of the golden rings and amulets, the wrist watch, the silken dhoti or the gurgabi, but it is hardly believable that they were also keen to rob him of the shirt which had been so badly smeared with blood or the vest {{URDU TEXT}}((:.)ttil) worn by the deceased, which was hardly of any value. Further it is not conceivable that after committing the murder so near the village, in the early hours of the night, the culprits would have liked to stay-on at the scene of occurrence, for removing the shirt and the vest of the deceased and thus incurring the risk of being seen and recognised by any of their co-villagers. It might be mentioned here that removing of shirt of the vest from…
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