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Petitioner: MUHAMMAD SIDDIK VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Muhammad Haleem, Zakaullah Lodhi Title: MUHAMMAD SIDDIK vs THE STATE Case No.: Criminal Appeal No. 104 and Confirmation Case No. 27 of 1974 Date of Judgment:1975-11-29 Reported As: 1975 P Cr. L J 1321 Result: Appeal accepted
JUDGMENT
JUDGMENT MUHAMMAD HALEEM J.------Appellant Muhammad Siddik was tried for the murder of his wife, Wahida Parvin convicted under section 302, P. P. C. And sentenced to death by the learned Additional Sessions Judge, Karachi, ride judgment dated 26th March 1974. He has appealed to impugn his conviction and sentence while the learned Additional Sessions Judge has referred his case for the confirmation of death sentence. This judgment will dispose of the appeal and the reference. 2. According to the prosecution case, the incident occurred at 2-30 hours on 26th May 1972 in a room of house No. 4/17-C Area, Liaquatabad, Karachi. This house is owned by Alimullah and his brothers, namely Rahmatullah and Kalimullah. According to Alimullah, who resided on the upper floor, the appellant lived in the same room with the deceased on the ground floor. Her mother also lived in the same house on the upper floor. The two were married three months before, but frequently quarrelled right from the day of their marriage. Even on the evening of the day of incident they had argued. The appellant was insisting that he had taken another house and that they should pack the articles and shift there in the morning, but the deceased did not want to leave the room against the wishes of her mother. At the stated time, while he was sleeping on the upper floor, he heard a commotion on the ground floor and he went downstairs to find out as to what it was. As he came down, he saw the appellant at the southern exit door of the house about to run out from there while his brother, Rahmatullah, trying to catch hold of him. Within his view, the appellant gave a knife blow in the stomach of his brother and at the same time bit his sand to loosen his grip and thereupon he ran away. Alimullah chased the appellant for some distance, but he managed to escape. He thereafter discontinued his pursuit and returned to the house, where he
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learnt that the appellant had inflicted knife injuries on the chest of the deceased who had expired due to the injuries. He then went to Police Station Liaquatabad, where he lodged the report at 4.00 hours which was recorded by Nisar Ahmad A.S.I who has not been examined in the case. However, Zulfiquar Hussain S. H. O. On receiving the information about the murder, collected the copy of the F. I. R. And went alongwith Alimullah to the wardat. Which he inspect--ed in the presence of Mashir, Malik Nisar. The body lay in the room of Rahmatullah, which was adjacent to the room of the deceased with a communicating door in between. There was another room at the back of the deceased's room. Both the rooms of the deceased and Rahmatullah faced the verandah with a door each opening in the verandah. He sent the dead body to the Civil Hospital for post-mortem examination and recorded the statements of Alimullah, Khurshid Begum, Malik Nisar, Shafiullah Nazir, Rehmatullah, Amina Begum, Kalimullah and Abdul Aziz. He secured from the room of Ramatullah, two blood-stained pillow covers, a 'gadda' cover and a pair of sponge chappals said to belong to the appellant. In the evening, he arrested the appellant from a place near Block No. 19, Alnoor Society, Federal 'B' Area, and noticed a fresh injury on his right little finger in the presence of Mashir Bashir Ahmad. The S. H. O. Sent the articles to the chemical analyser for his report but none has been produced. 3. The appellant was not sent for medical examination but Rahmatullah was examined by Dr. M. M. Ramzan C. M. O. Civil Hospital, Karachi, but he too was not examined-and the medico-legal report was produced by the S. H. O. 4. Dr. Muhammad Umar performed autopsy on the body of the deceased and found the following injuries : "(1) Two incised wounds in left side chest at 2nd intercostal space 2--- and 3" away from mid eternal line each ----- x ----- x cavity deep. (2) Incised wound right side chest ----- below mid clavicle ----- x ----- x suspected cavity deep. (3) Three incised wounds on left side breast in an area of 2" is ----- each wound being ----- x ---- - x skin deep. (4) Incised wound left lateral side chest 3" below axilla ----- x ----- x cavity deep. (5) Four incised wounds at left axilla in an area of 1----- x 1--- two of the wounds were ----- x ---- - x cavity deep and the other two were small each being ----- x 1/6--- x skin deep. (6) Four incised wounds in left upper arm 2--- above axilla posteriorly in an area of 1----- x ----- each wound being --" x --" two were inlet wounds and two exit wounds. (7) Three incised wounds left upper arm on front and medial side in an area of 2--- x 2--- each wound being 1/3" x --" muscle deep (1/2--- deep). (8) Incised wound left shoulder -- --- x -- --- x 1--- deep in muscle. (9) There incised wounds on lateral side of left upper arm in an area of 2--- x 1--- being ----- x --- -- x muscle deep (1' deep). (10) Two incised wounds on left side back of lower chest one at 9th intercostal space ----- x ----- x skin deep. (11) Incised wound on left opigastric region --" x -- " x 1" muscle deep. (12) Incised wound left inguinal region --" x --" x 1" deep under sub-cutaneous tissues. (13) Incised wound right forearm 1--" x r below elbow joint posterioral 1" x 1" skin deep." 5. When examined by the Inquiry Magistrate, the appellant denied knowledge of her death or her whereabouts and pleaded that he had been driving his text and did not return to his house till 5 a. m. In reply to the question as to whether he lived with the deceased at the afore-stated place, the answer recorded is: "It is correct". But on checking from the Urdu version, it is found that the answer given to it is: "Yeh ghalat hai". Both the statements are signed by the Inquiry Magistrate. It appears that the learned Inquiry Magistrate, while recording the answer, omitted to mention in before the word 'correct' which, in our view, is an omission. About his arrest, the appellant stated that he was
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at his brother's house when he was apprehended. He has not alleged any enmity with the P. Ws. And stated that he did not know why they had deposed against him. At the trial he denied having killed the deceased or that he had escaped or absconded, and pleaded that after 1-- months of his marriage, the deceased was taken away by her mother and since that time she was living with her. In reply to the question as to why the witnesses were deposing against him, he stated "The witnesses are related inter se and to the deceased. P. W. Rehmatullah wanted to escape from the liability and therefore he has deposed against me." 6. The finding of the trial Court Is that the appellant resided with the deceased in the room of the house. In holding so, the trial Court accepted the evidence of Alimullah, Khurshid Begum, Rahmatullah and Khalilullah who also furnished circumstantial evidence to the effect that they had seen the appellant struggling to escape from the hold of Rahmatullah and succeeded only after biting him on his hand and knifing him in the abdomen. Upon the perusal of the evidence of Alimullah and Khurshid Begum, the trial Court held that in so far as the main incident is concerned both the witnesses corroborate each other. Again, he dealt with the evidence of Rahmatullah and held that it furnished corroboration to the testimony of Alimullah and Khurshid Begum, on material particulars involving the murder of the deceased. As for Khalimullah, it gave the same opinion. 7. The conviction of the appellant mainly rests on the testimony of the above witnesses. It will be of interest to reproduce inter alia, some of the points formulated by the defence counsel which appear at pages 49 arid 60 of the paper book. "(1) Whether the girl after she received the injuries could move from the place where the injuries were inflicted on her to the place where she is alleged to have fallen and from where it is alleged that her mother took her inside the room of P. W. Rahmatullah ? (2) Whether on 25th May, 1972, the accused was living with the deceased on the ground floor of house. No. C/17, Liaquatabad ? (3) Whether while being removed and kept in the lap of mother she made a dying declaration implicating the accused ? (4) At what time did the death actually take place ? Whether she died at 3-30 a. m. As alleged by P. Ws. Or before 12-00 midnight as stated by the prosecution ?" I he purport of these points if decided in his favour, was to create a doubt in the prosecution case and the case was pressed for acquittal from this angle. 8. Reverting now to the evidence, we find that in the F. I. R. Alimullah has not spoken about Khurshid Begum having come downstairs and seeing the appellant who was about to escape, nor has he stated as to how the deceased came to the eastern side of Rahmatullah's room. He has also omitted to mention the name of Kalimullah as one of the persons who had seen tire appellant escaping from there. Again, it is significant to note that Kalimullah in cross-examination stated that the S. H. O. First accompanied him to the wardat, where he recorded the statements of the witnesses one then returned to the police station anti recorded the F.I.R. The S. H.O. Has not corroborated this version of Alimullah which, on the face of it, is false for he stated that be received information at his house, which was with--in the premises of the police station, about the incident, and after collecting the copy of the F. I. R. Lie went alongwith Alimullah to the wardat. The reason is obvious, for in the F.I. R. There are important omissions, such as the deceased having come from her room and fallen near the door of Rahmatullah and her mother Khurshid Begum picking her up and carrying her into the room of Rahmatulla on the eastern side the deceased, while lying on her lap, giving out the dying declaration that it was the: appellant who haft ,stabbed her, the absence of the name of Kalimullah and the non-mention of the place, where the dead body lay, which Zmullah did not wish to disclose and merely stated that it was lying at the spot. It was, therefore, that he wanted to do away with the F. I. R. Presumably under some advice by giving, out that it was recorded after the commencement of the investigation to exclude its admissibility. The absence of
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the above circumstances from the F. I. R. Has far-reaching consequences and, therefore, the non- mention of such facts adversely reflects on the veracity of Alimullah. Since many other facts, which have come in the evidence, have not been stated in the F. I. R. It will he of relevance to mention them at this stage. Khurshid Begum has deposed. That after the marriage the appellant lived with the deceased for a month in a house in C-Area, Liaquatabad, from where they shifted to a house in Gulberg. The reason behind it was that some of the relatives of the appellant had brought a girl from Lahore and due to some apprehension, the appellant shifted, but at Gulberg they also stayed only for a month. The deceasedhowever, came one day and complained to her about the conduct of the appellant, which being drat his relatives trafficked in girls and that they were not of good character. Thereupon she got an affidavit (Exh. 8) sworn by the deceased before an A. C. M. Eat Karachi. The allegation of smuggling of 'charas', opium tend strangers visiting ills house, were made sworn but it and also a about the appellant indulging in. Prostitution. About herself it was stated that she was being compelled to sit and drink with strangers and to act ascarrier of smuggled goods in para 9, she stated that to avoid leading an immoral life, she had left her husband and took shelter with her mother, whore she was their residing. Not only the affidavit was sworn but also a suit was filed for the dissolution of marriage. The appellant somehow to know about the affidavit and he came to the house and insisted upon the deceased to accompany him, but the mother did not allow her to go with him. He thereupon threatened to disfigure them by throwing acid on them being thus apprehensive of the design of the appellant, the Mohallah people intervened in, the mater and settled, the dispute and tae appellant agreed to live with the deceased in the room of the house on the ground floor, which was rented out by Rehmatullah though at the insistence of his own mother. Khurshid Begum has also stated that she had sent an application to police Station Liaquatabad showing apprehension of danger to the deceased and herself. 9. It is the prosecution case that because of this intervention, the appellant had come to live with the deceased 13 days before the occurrence. The learn--ed counsel for the appellant has vehemently urged that this was not so, for if it is established that the appellant had resided with the deceased then the onus lay heavily on the appellant to explain as to how the deceased was killed. We would now advert to the finding of the trial Court on this point, which is summed up as under: "So far as the presence of the accused in the house is concerned, the evidence of all the prosecution witnesses is unanimous. They have all deposed that the accused at the relevant time resided in the house alongwith the deceased. The accused has produced no evidence and has brought of recorded circumstance to show that lie was not living in the house at the relevant time. The presence of the accused in the house was duly established by the prosecution through P.Ws. 1 to 4 who have corroborated each other on all material particulars hi this regard. I am therefore, not prepared to hold that the accused way not residing in this house at the time of commission of the offence." It is obvious from the above that tire reliance for holding the point in the affirmative is on P. Ws. Alimullah, Khurshid Begum, Rahmatullah and Kalimullah. 10. In the context of the settlement at the behest of the mohallah people, no one was examined to prove that the dispute was settled. As to how tire appellant gained knowledge of-the affidavit is also not on record In that view of the matter, his corning land giving threats to disfigure them after the swearing of the affidavit, appears to its to be rather dubious. Again a suit for dissolution of marriage was also filed, but if there had been a settlement, it would have been withdrawn. There is nothing to show as to its custom thus leaving room for holding against the settlement of dispute. Khurshid Begum has also stated that she had moved do application apprehending danger to her life and to brat of the deceased at Police Station Liaquatabad, but there is no evidence to establish that it was at all filed and, in fact if it hail been sir filed, what happened to it. There is, the therefore,
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absence of evidence which could have reflected on the design of the appellant. There is also if evidence of any item, belonging to the appellant lying in the room of the deceased, which if found would have led to the inferential conclusion of his living in the room. However, a pair of sponge chappals--- which are said to belong to the appellant, though not so established, were secured from Rahmatullah's room. These are ordinary chappals without any identification mark and are commonly sold in the market. As such, this stern cannot be said to belong to the appellant and thus has no incriminating value. No documentary evidence was produced to establish that the appellant was the tenant of that room. In the context of the above, there is an admission in the affidavit of the deceased that she was residing with her mother. Khurshid Begum has stated at after the settlement of dispute, the, appellant: resided with the deceased, but in cross- examinationshe was confirmed with her statement recorded by the inquiry Magistrate that she was living on the upper floor since the day of the occurrence, which she denied. We also examined the Urdu version of her statement, which is differently recorded. It is to the effect that she was residing on the upper floor since before the incident. Both the statements are signed by the inquiry Magistrate. In the context of the discrepancy, the benefit has to be resolved in favour of the appellant. If the mother resided with the deceased, then it would be unnatural for the appellant to live with the deceased, in the same room with her other children. Alimullah, while attempting to establish the presence of the appellant, has stated in the F. I. R. That on the evening of the incident he had heard them arguing, but In his testimony at the trial he did not say so, for this assertion would not have been consistent with the fact that both Khurshid Begum rind the deceased had gone in the evening to attend a "function feast" in the Mohallah and bad returned shortly after 9 p. m. Further, in spite of the allegations in the affidavit, we have observed that it was for the first time In the trial Court that a case was made out by Khurshid Begum that she had detained the deceased and refused to send her and that it was only on the intervention of the Mohallah people that the matter was compromised and the appellant agreed to live with the deceased in the same house. This was not stated by her before the Inquiry Magistrate. Again, she has admitted that she had not stated in the committal Court that his relatives had brought a girl from Punjab and that they tracked in girls. We see no reason why and with what motive she would omit to state such important facts which form the background of the prosecution case. Nonetheless, they do adversely reflect on the feature as to the appellant residing with the deceased in the house. As for threats given by the appellant, she is also not consis--tent though, in her cross-examination, she stated that it was In the month of May after the affidavit was sworn, that he came and gave threats, but later . Admitted having stated in the committal Court that it was in the month of April. The time, at which the threats were given, is not even certain as on her own showing in her lower Court deposition it could not have been after the affidavit was sworn. In the context of the above dubious features, there is the evidence of Alimullah, Rahmatullah and Kalimullah that the room was rented out to the appellant, which cannot outweigh the improbabilities so as to lead to us to the conclusion that the appellant lived in the same house. No one had seen the appellant before the occurrence and whatever case was set out in the F. I. R, about his arguing with the deceased was given up at the trial. We are, therefore, constrained to hold that the prosecution has failed to establish that the appellant resided with the deceased at that time. The learned Assistant Advocate General also conceded that it was not free from doubt. 11. Having held so, we now advert to the main incident. It is the prosecu--petition case that the F. I. R. Was lodged without any delay, which again is doubt--full. In the F. I. R. The time given is 0330 hours while the time for lodging it is 04-00 hours. In the body of the F. I. R. There is a variation and the time stated is about 2-30 a.m. Alimullah in his testimony has not even stuck to it and gave the time as 4 a.m. Khurshid Begum has timed the occurrence at 03-00 or 03-30 hours while Rahmatullah stated the time to be 3-30 or 4 a.m. Kalimullah also mentions the time as 3-30 a.m. The probable time of
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occurrence in the F.I.R. Is not consistent with the other evidence and when considered in the context of the medical evidence, which points to the presence of partly digested rice and the opinion expressed that "rice approximately is digested in 3 to 4 hours", the death was estimated to have .4 occurred at mid-night. This estimation, in the context of the deceased having taken rice at 9 a. m. Obviously puts the occurrence earlier than what is given by the prosecution witnesses. We are, however, conscious that this opinion is merely an estimation, but nonetheless it is founded on facts which cannot be lightly brushed aside in the face of discrepant version as to the time in the F. I. R. And the evidence. Considering that her bladder was empty, she must be awake and that feature fits in with the probable time of the occurrence at mid-night. If at all the incident had taken place at 3 or 4 a. m. Her bladder would not have been empty but full of urine. The likely inference, therefore, is that the witnesses have not given the correct time of the incident, which was earlier than stated. The trial Court has repelled the plea on the basis that "allowance must be made to a tentative opinion of the doctor". This is hardly a reason for not giving weight to it, for there is foundation for it and that gains support from other features. There was thus delay in lodging the F. I. R. Which must have been lodged after much deliberation. 12. Thirteen injuries were noticed on the deceased. Injuries 6, 7 and 9 show that they were on the left upper arm giving an indication that probably she was trying to ward off the attack. Injuries 8 and 13 show that they were inflicted from behind suggesting thereby that she was trying to escape. The internal injury corresponding to external injury No. 1 shows that the left auricle of the heart was punctured and so also the left upper lobe of the lung, which had gone inside the heart. Again, the internal injury in the lung corresponding to external injuries 1 and 5 shows that the left upper lobe of the lung was punctured at three places and these two injuries were individually sufficient to cause death, though other external injuries had also contributed to her death. The opinion of the doctor is that in such an instance, death would be instantane--ous. What we find from the evidence is that there was a pool of blood in the room of the deceased near the door opening into Rahmatullah's room and trail of it leading from there into the verandah and up to door of Rahmatullah's room, which opened in the verandah. Blood was also sees in Rahmatullah's room on the floor, pillow covers and the 'gadaa'. In the context of the above, the prosecution case is that the deceased had come from her room and fallen near the door of Rahmatullah's room opening in the verandah, from where she was picked up by her mother and carried to the room of Rahmatullah. In the first instance, we are unable to understand why she would be taken to the room of Rahmatullah and not to her own room and, in the second, the evidence is not consistent as to how she was taken. Khurshid Begum herself stated that she carried the deceased to the room of Rahmatullah and whether she could do so alone, does not appeal to us having regard to the built of the deceased. However, she admitted in cross-examination that she had not stated so in the committal Court. If at all she was able to carry her, her clothes would get blood-stained, but they were not secured though she stated that she had given her blood-stained shalwar to the S. H. O. If that was so, we see no reason why the S. H. O, would not take it into possession as that would have provided corroboration to her version. Alimullah has refrained from giving out in the F. I. R. As to how the deceased came into the room of Rahmatullah. At the trial, however, he stated that when he returned to the house after the pursuit was over, he saw the deceased lying in the lap of her mother in Rahmatullah's room. Rahmatullah, of course, has corroborated Khurshid Begum but in cross---examination he admitted having stated before the Inquiry Magistrate that the deceased came by herself to the door of his room and then entered it. He further admitted having stated in the committal Court that the deceased was inside the room and that when her mother came she took her on her lap. He emphatically denied having stated in the committal Court that Khurshid Begum had carried the deceased into his room, His version, therefore, in the examination-in-chief is belied by his subsequent admission
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in cross-examina--petition. Kalimullah also stated that the deceased came from her room and fell near the door of the room of Rahmatullah. In cross-examination, he was confronted with his statement recorded under S. 161, Cr. P. C. But those contradictions have not been proved through the evidence of the S. H. O. Be that as it may, the evidence is again not consistent on this aspect of the case and whatever Kalimullah stated is not sufficient to corroborate Khurshid Begum, whose evidence on this point is dubious itself. Again, from the injuries sustained by the deceased it appears that she as attacked first in her own room and then when she ran out from there she was given injuries on her arm and back and finally having…
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