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Petitioner: MAQSOOD ALIAS SUDA VS Respondent: THE STATE
P L D 1969 Lahore 725
P L D 1969 Lahore 725
Before Mushtaq Hussain and Muhammad Siddiq, JJ
MAQSOOD alias SUDA‑Convict‑Appellant
Versus
THE STATE‑Respondent
Criminal Appeal No. 852 of 1967 and Murder Reference No. 41 of 1968, decided on 29th November 1968.
(a) Penal Code (XLV of 1860), S. 302‑Murder‑Prosecution case supported by reliable eye‑witnesses, medical evidence and recovery of blood‑stained knife and clothes from person of accused ----Conviction and sentence of death upheld.
(b) Witness ‑ Credibility ‑ Mere fact that witness only ten years old‑Does not necessarily make it unsafe to rely on his testimony with regard to identity of accused.
(c) Witness ‑ Credibility ‑ Mere fact that father of witness appeared in an earlier case against father and uncle of accused ---Cannot mean that such witness is appearing against accused out of enmity.
M. G. Cheema for Appellant. Rashid Aziz for A.‑G. for the State. Date of hearing : 29th November 1968.
JUDGMENT
MUHAMMAD SIDDIQ, J.‑---Maqsood alias Sooda (26 years) has been convicted by the learned Sessions Judge, Lahore, under section 302, P. P. C. for the murder of Mst. Khurshid (16/17 years) alleged to have been committed at about 8 a. m. on the 19th of October 1966, in the abadi of village Barka Khurd, Police Station Burki, District Lahore. He has been sentenced to death subject to confirmation by this Court. He has come in appeal against his conviction and sentence. The case is also before us under section 374, Cr. P. C. for the confirmation of the sentence of death. This order will dispose of the appeal as well as the murder reference.
2. Mst. Khurshid deceased was a young sweeper girl. On the 19th of October 1966, at about 8 a. m., she had gone to the haveli of Barkat for the usual sweepings and removal of cow‑dung etc. and was accompanied by her sister's son Yaqub alias Bhola (P. W. 9), aged about ten years. Yaqub P. W. went outside the haveli carrying a basket full of cow‑dung and while going out saw the appellant entering the haveli. Shortly afterwards, he heard an alarm raised by Mst. Khurshid deceased and on rushing back saw the appellant giving knife blows to Mst. Khurshid. He raised a hue and cry, which attracted to the spot Buta (P. W. 8), Surayana (P. W. 10) and Mangal (not produced), who also saw the appellant giving knife blows to the deceased. On seeing them, the appellant ran away waving his knife. Mst. Khurshid died at the spot. Shahab Din Lambardar (P. W. 7) and Bhola Chowkidar also arrived.
They stayed at the spot, whild Buta P. W. left for Police Station Burki and lodged there the F. 1. R. Exh. P. A. on the same morning at 9 a. m. after covering a distance of one and a half miles.
3. The F. I. R. was recorded by Sub‑Inspector Nawab Khan (P. W. 11), who left for the spot immediately and reached there at about 10 a. m. He found the dead body of Mst. Khurshid lying at the spot and prepared the inquest report Exh. PG/1 and the injury statement Exh. PH in respect of the dead body which was sent to the mortuary. He took into possession from the spot blood‑stained earth and sealed the same into a parcel vide memo. Exh. PB. He found near the dead body the dopattah Exh. P. 1, old shirt (used as inno) Exh. P. 2 and the basket Exh. P. 3, which were taken into possession under memo. Exh. PC. The appellant was produced before him at about 3 p. m. and was arrested. He produced from the pocket of his shirt the blood‑stained knife Exh. P. 4, which was taken into possession and sealed it into a parcel under memo. Exh. P. D. The shirt Exh. P. 5 and the chadar Exh. P. 6 worn by the appellant were stained with blood and removed from his person and sealed into a parcel under memo. Exh. PI?. The appellant was found injured and his injury state ment Exh. PJ was also prepared by the Sub‑Inspector.
4. According to the reports of the Chemical Examiner and the Government Serologist, the blood‑stained earth recovered from the spot, the knife Exh. P. 4 produced by the appellant and the shirt Exh. P. 5 and the chadar Exh. P. 6, recovered from the person of the appellant, were found stained with human blood.
5. Doctor Muhammad Khalid Chaudhary (P. W. 2) performed on the 20th of October 1966, at 2 p. m., the post mortem examination on the dead body of Mst. Khurshid and found the following injuries on the dead body:‑
(1) An incised penetrating wound (stab) internal jugular vein deep, over the left side of neck. It had cut through the skin fasciae, muscle of the neck and had cut the internal jugular vein completely leading to the profused haemorrhage.
(2) An incised wound (stab) " x " x wind pipe deep. It did not injure the wind pipe. (3) An incised wound " x 3/8", x skin deep, over the front of larynx. (4) An incised wound, 1 " x 3/8" x skin deep behind injury No. 1. (5) A vertical incised stab wound, " x 3/8" x lung deep, over the left side of chest about 3" from the left nipple and at 5 o' Clock position from it. It has cut through the skin fasciae muscle of the chest wall and of the space between 5th and 6th ribs had sharply cut vertically the upper half of 6th rib about 2,J" from its junction with its cartilage and after piercing the parietal pleuarae it had made a through and through cut measuring " x " x "in the outer margin of the lobe of the left lung, about two inches from he lower end.
(6) A horizontal incised stab wound, 1 " x " x bone deep (rib) about 1" below injury No. 5. It had cut through the skin (fasciae) and muscle of chest wall only. (7) A horizontal incised stab wound, 1 " x " x pleural cavity deep, about 2' below injury No. 5. It had cut through the skin fasciae and muscles of the chest and after perforating the muscle between the 8th and 9th ribs it had finally perforated the parietal pleura and had opened into the pleural cavity without injuring the lung. (8) A horizontal incised stab wound, 1 " x " x liver deep about 3" to the right of middle line and a little above the right costal margin. It has passed through the skin fasciae muscle of the chest wall and had cut across sharply the 8th costal cartilage close to its union with the 9th costal cartilage, had perforated the diaphragm and finally made a cut in the right lobe of the liver " x " x 1 ". (9) A horizontal incised wound (stab) 2" x " x right kidney deep right half of back just above the right iliac crest. It had passed through the skin, fasciae muscle of the abdomen wall, the parietal peritoneum and had finally made two cuts 2' apart in the right kidney measuring l " x 2/8" x " deep and 1" x 1/8" x 1/2" over its back surface and outer margin. Direction of the injury inflicted was upward, forwards and inwards. (10) An incised wound, 1 " x " x skin deep inner surface of left leg, lower half. (11) An incised wound, 1" x " X muscle deep, on the crease between the left thumb and left index finger. (12) An incised wound, " x " x tendon deep, front of right little finger first phalanx. (13) An abrasion, 1 x ", on the outer part of back of left elbow joint. (14) An incised stab wound, 1" x " x peritoneal cavity deep, about 3 " to the left of navel and a little below its level, coils of small intestines were protruding out. There was one cut in the bowel and two cuts in the mesentery. (15) An incised wound, " x " x muscle deep just below injury No. 14. (16) An incised (stab) penetrating wound, 1 " x mouth cavity deep, about 1' above the left half of upper lip.
On internal examination, the stomach was found to contain semi‑digested meal. Uterus was healthy and was in menstrual stage. The hymen was already perforated and it admitted two fingers. All the injuries, except No. 13, were caused in the doctor's opinion with a sharp‑edged weapon and death had occurred due to shock and haemorrhage caused by injuries Nos. 1, 5, 7, 8, 9 and 14, each of which was individually sufficient to cause death in the ordinary course of nature.
6. Dr. S. M. Najm‑ud‑Din Aziz (P. W. 1) medically examined the appellant oft the 19th of October 1966, at 5‑30 p.m. and found on his person:‑
"A clean‑cut incised wound, on the palmer side of right hand thumb, with clean‑cut margins with clotted blood on the wound and the surrounding area with fresh blood oozing from the wound. The wound 1‑7/10" x 1/10" x 1/10" and was tapering on both the ends.
The duration of the injury was within 12 hours and the injury, in the doctor's opinion, was possible if the person while holding an open knife caused successive injuries to another person and if the victim was resisting the injuries by raising the hands etc. In his opinion, the injury could not be caused with a sickle but could also be caused while sharpening the sharp‑edge of the blade of a fodder‑cutting machine.
7. The appellant, in his statement in the Court of the Committing Magistrate, denied the prosecution allegations about the occurrence as also the alleged recoveries from him. He explained his own injury by saying that he had got the same from the fodder cutting machine. He pleaded false implication due to enmity with the prosecution witnesses and due to his friendship with Jali Christian of Manawala who used to come to the village to meet the deceased and used to stay with him. According to the appellant, the said Jali had killed the deceased and the brothers and parents of the deceased had implicated him on account of his friendship with Jali.
8. 1n his statement at the trial, the appellant similarly denied the prosecution allegations and the alleged recoveries. With regard to his own injury he stated that he had received the same while cutting fodder. He pleaded enmity with Sardar Muhammad and Shahab Din P. Ws. He also stated that Jali had illicit relations with the deceased that the parents of the deceased had promised her hand to him but had later on backed out. Jali, according to his statement, used to tell the appellant that he had illicit relations with the deceased and that he would one day abduct her. The deceased, according to the appellant, had been murdered by some one else and he had been falsely implicated as he had failed to produce Jali before the police.
9. The appellant produced two witnesses in defence Mr. Waqar Ahmad, Magistrate 1st Class (D. W. 1) stated that Jan Muhammad uncle of the appellant, had complained again t the Members of the Committee, which included Shahab Din and Sardar Muhammad P. Ws., for rehabilitation of the War displaced residents of the village. Natha (D. W. 1) stated that Buta P. W. and his father had, during the 1965 War, shifted with their family to Manawala and had stayed there with Jali Christian.
10. The eye‑witnesses testimony in this case is furnished by Yaqub alias Bhola (P. W. 9), Buta (P: W. 8) and Surayana (P. W. 10). It is claimed that Yaqub P. W. had accompanied the deceased when she had gone to the haveli of Barkat for the removal of cow‑dung etc. We are satisfied that this claim can be accepted. When cow‑dung is to be removed in a basket etc. it is always useful to have two persons in place of one, so that the basket can be helped by one to the head of the other. The deceased was a young girl of about 17 years and where young girls have to go about in connection with some duty etc. a small boy or an oldish person some time accompanies her to provide a sort of company or escort. Small children also assist their seniors by carrying away the cow‑dung etc. on their heads in a basket when the seniors fill the cow‑dung into the basket. The presence of Yaqub P. W. therefore at the time of the occurrence is natural and he was mentioned in the F. I. R. which had been lodged at the police station without the least delay. His age is given as ten years, but the learned trial Judge had satisfied himself before examining him on the facts of the case that he was mature enough in intellect to understand the questions and to give rational answers to the same. We have also examined his testimony from this
aspect and have no reason to suspect that it suffers from any immaturity of mind Dr intellect. The occurrence in this case is a very simple one. It had taken place at about 1 a.m. in the village abadi and one person has died as a result of injuries received at the hands of another person. The occurrence is, therefore, one of the simplest. In fact, the appellant also, in his statements in the Court of the Committing Magistrate and at the trial, has not disputed the time of the occurrence, the place of the occurrence or the manner in which the deceased is claimed to have met her death on receiving about 15 knife injuries. In the Court of the Committing Magistrate he stated that Jali Christian had committed the murder and at the trial he stated that somebody had committed the murder and (that he had been implicated as he had been hosting the said Jali and was not able to produce him as required by the police.
11. The sole question for determination in this case, therefore, is whether the knife blows given to the deceased had been given by the present appellant or by Jali Christian or' somebody else. The assistance that is required by the prosecution in this case from Yaqub P. W. is as to whether he could have seen the assailant of Mst. Khurshid and whether he can be relied on to fix his identity in our opinion, the mere fact that the witness is only ten years old does not necessarily make it unsafe to ref on his testimony with regard to the identity of the assailant m the circumstances of the present case. As already mentioned, the learned trial Judge had satisfied himself that the witness was sufficiently intelligent to give correct answers, and we are also satisfied from his testimony that he was not, in any way, below in intellect an ordinary witness whose testimony can be relied upon. He knew the appellant, who belonged to his village, and is definite that he had given the knife blows to the deceased. Apart from the tender age of the witness, two points have been mentioned against him. Firstly, according to the F. I. R. story, the appellant had tried to outrage the modesty of the deceased. The witness had also stated to this effect when Buta and Surayana P. Ws. and Mangal had reached the spot. The story about the motive, as disclosed in the F. I. R. was, however, not pressed at the trial. In our opinion this does not necessarily go against the prosecution. They have not, in any way, tried to improve the prosecution case against the appellant. Since Yaqub P. W. had also gone out of the haveli with the basket full of cow‑dung and the occurrence had started in his absence the actual motive and the cause of the occurrence could well be treated as undisclosed. The witness cannot, therefore, be discredited on this appellant was in respect of the following sentence appearing under cross‑examination. "I do not know anything except as stated above." In spite of this refusal, the testimony of the witness shows that he has been giving all the information that the cross‑examiner had been requiring from him. There is not the slightest suggestion that the witness or his parents or the investigating police or anybody else had any interest to implicate the appellant falsely in place of Jali Christian or anybody else. The sole point for determination is as to who had given the knife injuries to the deceased and we are satisfied that Yaqub P. W. can be safely relied upon with regard to the identity of the assailant of Mst. Khurshid deceased.
12. Buta P. W. is the brother of the deceased. According to him he and Mangal (not produced) were passing by the haveli of Barkat when he heard the hue and cry raised by the deceased and Yaqub P. W. and had seen the appellant giving one blow with a knife to the deceased. The witness did not, at the trial, support the claim made in the F. I. R. that the appellant had tried to outrage the modesty of the deceased. We are satisfied that this fact should not necessarily discredit him with regard to the identity of the assailant. He had, at the trial, not improved the case against the appellant but had reduced his testimony with regard to the occurrence by stating that he had seen only one knife blow being given by the appellant to the deceased. He could have very well stuck to his F. I. R. claim and the mere fact that he reduces his claim to its natural size, should not go against him. If he was passing at some distance and had been attracted to the spot by the hue and cry raised, he could not have witnessed the start of the occurrence. The fact, therefore, that he had made a slightly bigger claim in the first information report, which lie also supported in the Court of the Committing Magistrate, does not make his testimony regarding the identity of the culprit doubtful. He had lodged the first information report without the least delay and in the circumstances of the case, he might have, considering the age of the deceased and of the appellant and under the excitement, mentioned that the occurrence had started when the appellant had tried to outrage the modesty of the deceased. He repelled the suggestion under cross‑examina tion that he had named the appellant as the culprit on the suggestion of Shahab Din P. W. This suggestion however, was not put to Shahab Din P. W. under cross‑examination. We are, satisfied that Buta P. W. who had not the slightest enmity against the appellant, bad no motive to implicate him falsely in the case, and can be accepted as a witness of the occurrence.
13. Surayana (P. W. 10) belongs to the nearby village Pathanawala and was a chance‑witness. In the circumstances, we do not consider it safe to rely on his testimony.
14. The next piece of evidence is furnished by the recovery of the knife Exh. P. 4 from the possession of the appellant at the time of his arrest, and by the shirt Exh. P. 5 and chadar Exh. P. 6, which were removed from his person at that time. All three of them were found stained with human blood. These recoveries are supported, in addition to the investigating Officer, by Sardar Muhammad Lambardar (P. W. 6) and Shahab Din Lambardar (P. W. 7). The learned counsel for the appellant had tried to urge that these two witnesses were inimical to the appellant. In our opinion, there is no force in this contention. Sardar Muhammad P. W. admitted under cross‑examination that the father and uncle of the appellant had been prosecuted about nine or ten years back for the murder of one Munshi, who was his collateral in the fourth or fifth degree. He also stated that he was saying his prayers in the mosque when he had attested the recovery memos. By this statement he had even tried to help the appellant and had to be re‑examined by the Public Prosecutor to clarify that the recoveries had been made in his presence. It is not indicated as to whether the father of this witness who must alse have been a Lambardar, was an eye‑witness against the father and uncle of the appellant or was only a formal witness in the case. Nor is there anything to show as to whether his evidence hail been believed in the case or not. In any case it would not show that Sardar Muhammad P. W. was inimical to the appellant. On the contrary, if the appellant had appeared against Sardar Muhammad P. W. it could have been urged that he was appearing on account of enmity. The mere fact that the father of the witness had appeared in an earlier case against the father and uncle of the appellant does not mean that the witness is now appearing against the appellant out of enmity.
15. Shahab Din P. W. is also a Lambardar and is similarly supporting the recovery of the "Knife Exh. P. 4, the shirt Exh. P. 5 and the chador Exh. la. 6 from the appellant. He admitted under cross‑examination that he had opposed the name of Jan Muhammad, uncle of the appellant, being brought on the ration card as the Said Jan Muhammad was not residing in the village nor had he any house there. This would only show that the witness is a man of character. It does not make out any case for the testimony of the witness being discredited in the present case. Even if he had, in the earlier proceedings, opposed the demand of Jan Muhammad for a false ration card, there was no reason why he should implicate the present appellant and not Jan Muhammad in a false case of murder. What is noticeable is that a Jat Zamindar of the village is being tried for the murder of a young sweeper girl. Due to the disparity in the social and economic status of the victim and the appellant and the fact that the village is owned by the members of the appellant's tribe, the possibility is very remote that anybody should be coming up on the side of the complainant's family to falsely implicate a member of the proprietors of the village. We have examined the statements of the Lambardars P. W. 6 and P. W. 7 and are satisfied that they have given their barest minimum to the prosecution and have not tried to go out of the way to injure the case of the appellant.
16. The medical evidence in the case is fully in line with the eye‑witness testimony and the evidence furnished by the recoveries of the knife and the blood‑stained garments from the appellant.
17. Further corroboration is furnished by she incised wound hound on the palmer side of the right hand thumb of the appellant which, according to the doctor P. W. 1, agreed in time with the present occurrence and could have been caused if the victim of the knife injuries had shown resistance. In our opinion, the appellant has not explained this injury satisfactorily. The suggestion was made to the doctor under cross‑examination as to whether this injury could have been received by the appellant with a sickle. The suggestion was repelled. The second suggestion put to the doctor was if the injury could be caused while the appellant wary sharpening the sharp‑edge of the blade of a fodder‑cutting machine. The doctor obliged the appellant by accepting this suggestion. In spite of the favourable answer given by the doctor, we are of the opinion that we have yet to come across a fodder‑cutter blade sharpener who instead of sharpening the blade, started cutting the palmer side of his owl' right hand thumb to secure an incised Wound "with clean‑cut margins" and which measures 1‑7/10" x 1/10, x 1/10". We are unable to give ally weight to the opinion 01' the doctor that this injury could have been received by the appellant in the course of his normal agricultural functions when sharpening a fodder cutter blade. 3eing not stare of his ground, the appellant state before the Committing Magistrate that he had got this injury from a fodder‑cutting machine. It is again difficult to imagine how he could have managed to get this injury from chat machine. At the trial, the appellant took up the fourth position by saying that he had got 0is injury, while cutting fodder lie makes no mention here of the fodder‑cutting machine. In our opinion, the appellant has not been able to explain the injury found on his person which agreed with the present occurrence with regard to its time and which could have been received by him when his victim was offering resistance.
18. It was also submitted by the learned counsel for the appellant that the place of occurrence was close to the house of Barkat, the house and haveli of Siddiq and the house and haveli of Ashiq. The contention raised was that the residents from these houses etc. have not come forward to support the prosecu tion. This is correct. Courts are entitled under section 114 of the Evidence Act to presume certain facts regard being had to the human conduct. As already mentioned, the victim in this case was a poor sweeper girl, while the appellant belongs to she Zamindar community of the village and Barkat, Siddiq and Ashiq belong to that community. They, therefore, may not have persuaded themselves to depose against a member of their own community for the sake of a poor sweeper girl. It is even possible that the deceased might not have been enjoying a good moral reputation and this fact may also have cooled the zeal of the neighbors to depose against the assailant for vindicating the honour of the victim. We are, however, satisfied that the conscience of the residents of the three anuses must have been aroused if a member of their Zamindar community had been falsely implicated as is claimed by the appellant for the murder of a helpless sweeper girl of doubtful moral character. In these circumstances, we are unable to raise any presumption against the prosecution from the non‑appearance of the residents of the adjoining houses as P. Ws.
19. The stand of the appellant had not been very consistent. It was suggested to Buta P. W. under cross‑examina tion that he had named the appellant to oblige Shahab Din Lambardar (P. W. 7) who had told him that if Jali was named as the culprit it would bring disgrace to the deceased. Shahab Din P. W. was never cross‑examined on this point and we are satisfied that he was not, in any way, inimical to the appellant. Moreover, it is not clear how the name of…
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