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Petitioner: MUHAMMAD ISHAQ VS Respondent: ISLAMIC REPUBLIC OF PAKISTAN
Court Name: Peshawar High Court Judge(s): Ghulam Safdar Shah, Shah Zaman Babar Title: MUHAMMAD ISHAQ vs ISLAMIC REPUBLIC OF PAKISTAN Case No.: Criminal Appeal No. 81 of 1973 Date of Judgment:1974-06-13 Reported As: PLD 1974 Peshawar 90 Result: Appeal dismissed
JUDGMENT
JUDGMENT SHAH ZAMAN BABAR, J,- -Muhammad Ishaq, aged 35 years, son of Nur Hussain, resident of Mohar Kalan, Police Station Bagnotar, Tehsil Abbottabad, District Hazara, was tried under section 302, P. P. C. For the murder of Mst. Mukhtar Begum, aged 25/26 years, wife of Muhammad Waheed, which he allegedly committed on 15-5-72, at 5 p.m. In village Mohar Kalan. The trial was held by Mr. Abdul Khaliq Khan, Sessions Judge, Hazara, at Abbottabad, and he by his judgment dated 28-4-73, convicted Muhammad Ishaq under section 302, P, P. C. And sentenced him to suffer death, subject to confirmation of the death sentence by the High Court. Muhammad Ishaq condemned convict has appealed. Proceedings of murder reference under section 374, Cr. P. C. Are also before us. This judgment will dispose of the appeal as well as the murder reference. 2. The parties are residents of village Mohar Kalan, in the jurisdiction of Police Station Bagnotrar. P. W. Said Khan, his son P. W. Sabir Sultan, Mst. Mukhtar Begum (deceased) wife of Mohammad Waheed, son of Said Khan, and P. W. Mst. Hamida, daughter of Said Khan and wife of Khan Afsar lived in one house in different kothas, with a common courtyard. Muhammad Ishaq appellant is son of Nur Hussain Pesh-i-Imam of the mosque of the locality in which the parties lived, Muhammad Ishaq appears to be a married person having children. There is a water tap beside the mosque on the roadside for public use: Women folk of the locality take water from this tap. About six months prior to the present occurrence Muhammad Ishaq, allegedly, had molested Mst. Mukhtar Begum. The matter was patched up by NBA Hussain, father of the appellant, through a Jirga.
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On 15-5-72 at about 5 p.m. P. W. Hamida and Mukhtar Begum (deceased) had come to the water- tap outside the mosque to take water in their pitchers. The two ladies were returning home. Hamida was going ahead of Mukhtar Begum by about 10 paces. Both the ladies had pitchers full of water on their head. Near the mosque, it is alleged, the appellant was standing armed with a chhuri. The appellant started giving chhuri blows to Mukhtar Begum. The pitcher fell from her head and broke into pieces. Hamida put her pitcher on the ground and raised cries. P. W. Said Khan was near about the scene of occurrence while coming on his way to the mosque for offering the digar prayers. Said Khan heard the outcries and saw the appellant giving knife blows to Mst. Mukhtar Begum from a distance of about 20 yards. The appellant ran away towards his house situated in the vicinity of the mosque. Mukhtar Begum succumbed to the injuries at the spot. P. W. Sabir Sultan was ploughing his field when one Haji Ahmad called him from the field to rush to his house. Sabir Sultan came to the spot and saw Mukhtar Begum lying killed. His father Said Khan informed Sabir Sultan that Mukhtar Begum was murdered by Muhammad Ishaq and that he (Sabir Sultan) should go and lodge a report at the police station. Sabir Sultan came to P. S. Bagnotar, distance 8 miles from village Mohar Kalan, and lodged his report Exh. P. A. The same day at 8-30 p.m. He charged the appellant for the murder and stated that he had come by foot on the hilly tract to the Police Station. The report Exh. P. A. Was scribed by S. I. Mumtaz Khan, then S. H. (J. P. S. Bagnotar. The S. I. Proceeded to the spot reaching there at 10-30 p.m. He found Mukhtar Begum lying dead on the spot, which is a pathway. The S.1. Prepared the injury sheet and inquest report of the dead body and gent it to the mortuary. The S. I. Then inspected the spot. He picked up blood-stained earth Exh. P. 1, blood- stained pebbles Exh. P. 2, pieces of brokep pitcher Exh. P. 3, and a shoe Exh. P. 4, belonging to the deceased, vide memo. Exh. P. B. In the presence of P. W. Muhammad Sultan. The accused was arrested from his kotha in the early hours of 16-5-72. It is clear from the police diaries and the statement of D. W. Sher Zaman that the accused had chained the door of the kotha from inside. The accused when arrested, had blood-stains on his shalwar Exh. P. 5 and shirt Exh. P. 6. The S. I, therefore, took the clothes of the appellant vide memo. Exh. P. C. In the presence of P. W. Muhammad Sultan. The S.I. Then prepared the site plan Exh. P. X., recording his observation notes thereon, at the instance of P. Ws. Mst. Hamida and Said Khan. P. W. Rabnawaz F. C. Brought the shalwar Exh. P. 7, the shirt Exh. P. 8 and dopatta Exh. P. 9, all blood-stained belonging to the deceased, from the mortuary. The S. I. Took them into possession vide memo. Exh. P. D., in the presence of P. W. Muhammad Sultan. On 16-5-72, the appellant, while in police custody, led the S. I. To the place from where the blood-stained earth and pebbles were recovered at his pointing out in the presence of P. W. Muhammad Sultan vide memo. Exh. P. E. The S.I. Sealed the blood-stained earth and pebbles in one parcel, the shalwar and shirt of the accused bearing bloodstains in the second parcel, and shalwar, shirt and dopatta of the deceased in the third parcel and sent them to the Chemical Examiner. The Chemical Examiner vide his report Exh. P. I. Opined that all the contents of the three parcels were stained with blood and forwarded them to the Serologist for opinion. The Serologist vide his opinion Exh. P. K. Found all the exhibits in the parcels to be stained with human blood. However, he found that the material on the earth and pebbles and shirt of the accused (in parcel Nos. 1 and 2) was in--sufficient for blood grouping. The shalwar of the accused (in parcel No. 2) and the shirt, 3halwar and dopatta (chaddar) of the deceased m the third parcel were found to be stained with blood of group `O'. On 17-5-72 the S. I. Produced the accused appellant before P. W. Muhammad Sarwar Khan, Magistrate, Abbottabad for recording his confessional statement. Muhammad Sarwar Khan, Magistrate after observing all legal formalities recorded the confessional statement Exh. P. W. 8 of Muhammad Ishaq accused appellant. The confessional statement of the appellant has been rendered into English by the learned trial Judge in his judgment in para. 15, which runs as under:-
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"Some days back he was going to his shop. Mst. Mukhtar Begum was washing her feet and when some drops of water fell over him he stopped for a while. Mst. Mukhtar Begum deceased asked him angrily as to why he bad stopped. He was silent. Mst. Mukhtar Begum went a few paces and then called her (him) names (be-ghairat). He returned and caught hold of Mst. Mukhtar Begum. The dispute changed into love. They were closeted to each other and he gave kiss (chak) on the cheek of the deceased. She cried. They were seen by some women. He ran towards the mosque while Mst. Mukhtar Begum pelted a few stones. Said Khan etc. Came and abused and insulted him. As his father, however, apologised, there--fore, the matter was settled. On the day of occurrence, after digar prayer, he was going home when Mst. Mukhtar Begum and Baida daughter of Yaqub were standing with pitchers. Mst. Mukhtar Begum threw water of the pitcher on him and caught bold of his string. In order to save himself he pushed her. Mst. Mukhtar Begum and Baida caught hold of his legs. He had a churri and gave blows after blows to the deceased." The accused was sent to the judicial lock-up on the same day, viz.17-5-72. 3. Lady Dr. Mah Jabeen performed the post-mortem examination on the dead body of Mst. Mukhtar Begum on 16-5-72 at 6 a.m. She found the following external injuries (1) An incised wound on the right elbow measuring 2" x 1-- into muscles deep. (2) An incised injury 5" below the right shoulder joint 3" x 1-- into muscles deep. (3) An incised wound below the right elbow joint 1" x 1-- into muscles deep. (4) Superficial scratches on the right elbow joint, neck and chest. (5) An incised wound measuring 3" x 1-- into tissue deep into right 11th and 12th ribs entering into cavity. Ribs were fractured. (6) An incised wound measuring 3" x 1-- into tissue deep on the left side of back of chest on the 11th, and 12th ribs which were fractured. (7) An incised wound measuring 2" x 1" into lumbo-sacral vertebra on the back; vertebras were crushed. (8) An incised wound on the front of chest on the sternum measuring 3' x -- into tissue deep. (9) An incised wound below the right breast measuring 1--" x 1' x deep tissue (10) Incised wound 1" below injury No. 9, 1" x 1-- into tissue deep. (11) An incised wound on the front right side of chest 2" x 1" into 11th and 12th rib deep into the cavity; ribs were fractured. (12) An incised wound 1" below injury No. 11, 3" x 1-- into tissue deep. (13) An incised wound on the left side back of hand 1" x 1--. (14) A scratch on the left elbow, (15) A contused wound on the left knee joint. On internal examination the doctor found thoracic walls injured having incised wound on the sternum 2" x 1-- as well as ribs at the effected area. Pleurae were ruptured at the affected area. Pleural cavity was full of blood. Right lung had a lacerated wound on the lower side of the middle lobe while left lung had also a lacerated wound on the apex and middle lobe. Stomach was empty. Right side liver was lacerated and injured. There were multiple lacerations on the spleen. Right kidney on the middle side was lacerated. White thick discharge was in the vagina and two vaginal swa bs were taken. Milk in the breast was present. Uterus was of normal size. Death, in the opinion of the doctor, was due to shock and haemorrhage as a result of injury to both the lungs, liver, right kidney and spleen. Except injuries 14 and 15 all the injuries were caused by sharp pointed weapon. Probable time that elapsed between injury and death was about half an hour and that between death and post-mortem was 12 to 18 hours. Shirt and shalwar had cuts of sharp weapon. Injuries 6, 7, 8, 9, 11 and 12 individually were sufficient to cause death in the ordinary course of nature. The rest of the injuries were collectively sufficient to cause death. The doctor when questioned opined that from the dimensions of the injuries she could guess that more than
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one weapon of offence had been used, but on re-examination she stated that she did not rule out the use of a single weapon in view of the fact that the dimension of different injuries may depend on the quantum of force relative to each injury. Dr. Aslam Malik had examined the injuries on the person of Muhammad Ishaq accused on 17-5-72 at 9-30 a.m. And found: (1) Two bruises each about 3' long and 2' apart one above the other, behind left knee and leg, 1/2' broad. (2) An abrasion 1/4' long, radial side, of right index-finger. (3) Two superficial cuts skin thickness oblique each about 1/4' long on the palmer surface, unlar side of base of palm. (4) Two abrasions each 1/4' long between wound No. 3. (5) An abrasion 1/4" on the base of left palm, unlar-side. The nature of injuries were simple. Injury No. 3 was caused with sharp-edged while 1, 2, 4 and 5 with blunt means Duration was about 18 to 36 hours. . Dr. Aslam Malik had gone abroad for further studies. His handwriting on the injury sheet Exh. P. H. Of Muhammad Ishaq was identified by Dr. Muhammad Ayub who was acquainted with the handwriting of Dr. Aslam Malik. 4. The accused when examined by the committing Magistrate stated on 23-11-72: Q.It is in evidence that some days before the occurrence you had teased Mst. Mukhtar Begum deceased which was reported by the latter to her relations and you nursed a grudge on account of the' ensuing disgrace suffered by you? A. I do not know anything about the murder. Q. Did you on 15-5-72, at 5 p.m. At village Mohar Kalan commit the murder of Mst. Mukhtar Begum by stabbing her to death? A. It is never considered an offence if committed by exercising the right of self-defence. Q. How do you explain the presence of blood specks on your shalwar and shirt recovered by the police on 16-5-72? A. I do not know anything about the stains of blood on my shalwar and shirt. Q. Did you lead the police in custody to the spot? A. I was taken by the police to the spot. There I did not know whether the dead body lying there was of male or female. I did not make any pointation of the spot. Q. Did you voluntarily make confessional statement before a Magistrate? A. I did not make any confessional statement before any Magistrate. Q. What is your statement and why are yon charged by the prosecution witnesses? A. I am innocent and falsely implicated in the murder case. Some persons did not let me, say my prayers in the mosque of the village and the witnesses deposed against me due to enmity. Certified under section 364, Cr. P. C." A charge under section 302 was framed against the accused appellant on 23-11-72 when he was committed for trial under section 302, P. P. C. Within the cognizance of the Court of Session. This charge was read over and explained to the accused, to which he pleaded not guilty and wished to produce defence in Sessions Court. At the commencement of the trial the charge framed against the accused appellant was read over to him and the purport thereof was explained in the language, which the accused understood. The accused pleaded not guilty to the charge. At the trial the accused appellant made the following statement on 23-4-73. Q. You have heard your statement recorded by the committing Magistrate. Is it correct? A. Yes..
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Q. It is in evidence that about two months prior to the occurrence you had molested the deceased and she had complained about your misbehaviour over which you were annoyed. What have you to say? A. It is incorrect. Q. Did you on 15-5-72 at 5 p.m. Commit the murder of Mst. Mukhtar Begum deceased by giving her knife blows within the limits of village Mohar Kalan? A. No. Q. Did you on 17-5-72 make confessional statement Exh. P. W. 8 before Muhammad Sarwar Khan, M. I. C., Abbottabad? A. No. Q. Did you on 16-5-72 while in police, custody lead the police to the place from where blood- stained earth was recovered by the police at your instance? A. No. Q. Why are the P. Ws. Deposing against you? A. The witnesses are partisans and closely related to the deceased. Q. What is your statement and why are you charged? A. Some six months prior to the occurrence, while I was going to a shop to purchase' snuff, the deceased alongwith some other women abused me and I made a complaint as regards it to her parents. A compromise was effected. In spite of it the father of the deceased charged me on suspicion and I was sent to Dhodial for my mental examination. I was inside my house on the day of occurrence when I was informed that Mst. Mukhtar Begum has been murdered. I have no hand in her murder. I am innocent and made a scapegoat. Q. Do you wish to produce defence? A. I want to produce Faqir Khan and, Sher Zaman in my defence. They are not present nor have I cited them as witnesses. The name of father of Faqira is Faiz Ahmad while that of Sher Zaman is A.I Zaman, both residents of Mohar Kalan. R. O. & A. C. (Sd.) Abdul Khaliq Khan. Sessions Judge, Hazara. Dated 23-4-73. Certified that the statement of the accused person was taken in my presence and hearing that it was read over to him and was admitted to be correct and that it is a full and true account of the statement made by the accused. (Sd.) Abdul Khaliq Khan, Dated 23-4-73. Sessions Judge, Hazara." 5. Out of the two D.Ws. Namely, Faqira Khan and Sher Zaman named by the accused appellant at the trial only D. W. Sherzaman was produced and the accused vide his statement dated 25-4-73 did not wish to produce any more evidence in defence. 6. The prosecution case is supported by the retracted concession Exh. P. W. 8 of the appellant and the ocular testimony of P. Ws. Said Khan, father-in-law of the deceased Mukhtar Begum and Mst. Hamida sister-in-law of the deceased. The retracted confession was made on the second day of the arrest of the accused appellant. On perusal of the evidence of F. W. Muhammad Sarwar Khan, Magistrate and the other circumstances of the case, it appears that the confessional statement is true and voluntary. It is corroborated by the pointing out of scene of occurrence by the accused appellant (within the purview of section 27 of the Evidence Act), the recovery of blood-stained earth, with blood-stained pebbles, broken pieces of pitcher, and a shoe of the deceased from the spot pointed out by the accused appellant, the presence of blood of `O' group (which is the group
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of the blood of the deceased) on the shalwar of the accused appellant and the ocular testimony of the P. Ws. In State v. Minhun alias Gul Hassan (PLD 1964 SC 815) it was held; "`Retracted confessions' whether judicial or extra judicial, could legally be taken into consideration against the maker of those confessions himself, and if the confessions were found to be true and voluntary, then there was no need at all to look for further corroboration. As against the maker himself his confession, judicial or extra judicial, whether retracted or not retracted, can in law validly form the sole basis of his conviction if the Court is satisfied and believes that it was true and voluntary and was not obtained by torture or coercion or inducement. The question, however, as to whether in the facts and circumstances of a given case the Court should act upon such a confession alone is an entirely different question, which relates to the weight and evidentiary value of the confession and not to its admissibility in law. Unless a retracted confession is corroborated in material particulars it is not prudent to base a conviction in a criminal case on its strength alone. It is the duty of the Court that is called upon to act upon a retracted confession to enquire into all the material points and surrounding circumstances and satisfy itself fully that the confession cannot but be true." P. W. Said Khan is the father-in-law of the deceased Mukhtar Begum. The house of Said Khan is shown to the north east of the spot. Said. Khan deposed that he was coming to the mosque for offering digar prayers when he was attracted by the outcries of the deceased and Mst. Hamida -- and he saw from a distance of about 20 paces that the appellant was --inflicting knife blows on Mukhtar Begum. Mst. Hamida deposed that she: was accompanying the deceased to the water tap of the mosque for taking, water and on their return she was going ahead of the deceased when the accused appellant inflicted several chhuri blows on Mukhtar Begum. Her presence is admitted in the confessional statement. The motive for the offence shown by the prosecution is virtually admitted by the accused appellant in his retracted confession Exh. P. W. 8. D. W. 1. Sher Zaman has deposed that the accused had murdered the deceased and he was attracted to the spot. He was fleeing from the spot and the witness apprehended, him and locked him in the room. The witness added that the mental condition of the accused is normal. Thus, in our view, the retracted confession of the accused, which is duly corroborated by the circumstantial and the ocular evidence, the ocular testimony of the two witnesses and the evidence of D. W. Sher Zaman is sufficient to establish the charge of' murder against the accused appellant. 7. This appeal was heard on merits on 5th of May, 1974. Mufti Muhammad Idris, Advocate, learned counsel for the appellant, did not-- seriously contest the killing of Mst. Mukhtar Begum at the hands of the appellant. He, however, argued that the accused was of unsound minds and entitled to the benefit of section 84 of the P. P. C. The learned counsel has taken this aspect of the case in the grounds of appeal and has-- also applied under section 375, Cr. P. C. For permission to adduce additional evidence in support of the plea of unsoundness of mind of the appellant. --The specific grounds relating to the benefit of section 84, P. P. C. Viz. Grounds Nos. 2 to 7 and 10 are reproduced below: "2. The father of the appellant long before the occurrence had made reports in Police Station, Bagnotar about the insanity of the appellant, particularly the report of 3rd April 1972, prior to this date another report was also made by the father of tie appellant about the insanity as a consequence of which the then A. S. I. Khushal Khan of Police Station, Bagnotar apprehended the appellant and took him to Mental Hospital, Dhodial, where the appellant was lodged for treatment and remained there for 23 days till one --day the appellant escaped from the Mental Hospital and became at large. The receipt of expenses issued by the Superintendent, Mental": Hospital, Dhodial, is attached with this appeal as Appendix `A'. (3) Even in the year 1968 the father of the appellant lodged report about the insanity of the appellant at Police Station, Abbottabad as a consequence of which the appellant was hauled up
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and sent to jail. (4) Even after the occurrence when the power of attorney was drawn up on behalf of the appellant in favour of his father, the Sub---Registrar went to jail in connection with the registration of the power of attorney, gave a note on the original document that, the appellant is mentally deranged. The original is appended herewith as Appendix B'. (5) The appellant was represented before the trial Judge by a State Counsel being a pauper case. (6) All the details and the documentary evidence could not be brought to the notice of the trial Judge, as the appellant could not possibly instruct his counsel due to his mental dis-equilibrium. (7) The appellant is submitting a separate application alongwith the appeal under section 375, Cr. P. C. For additional evidence on this point. (10) The number and the nature of the injuries on the person of the deceased and the scene of occurrence clearly indicate the state of mental torture and mental disorder at the time of occurrence, even if the prosecution is to be believed at all." We accordingly had adjourned the case to 13th of June 1974, for the limited purpose of taking additional evidence of the doctor under whose treatment the appellant was a patient in Government Mental Hospital, Dhudial and A. S. I. Police Khushal Khan of P. S. Bagnotar. The A. A.-G. Was also allowed to produce evidence, in rebuttal, of police officers and Superintendent Jail, Abbottabad in whose custody the appellant remained in the police station and judicial lock-up. 8. Dr. Muhammad Urfan and A. S. I. Muhammad Khushal Khan were examined with reference to the application for additional evidence on behalf of appellant. Fida Muhammad Khan, H. C. Police Station Batagram and Dilawar Shah then Superintendent Jail, Abbottabad were examined in rebuttal of the evidence of the former two witnesses. Dr. Muhammad Urfan, Mental Specialist deposed that Muhammad Ishaq had remained under his care as mental patient from 18-10-71 to 9-11-71 when he was brought to the hospital by his father. The doctor recorded the history (copy of Exh.D.W.1/1) of the mental ailment of Muhammad Ishaq as given, by his father. The doctor was of the opinion that, Muhammad Ishaq was Patient of Maniac depressing illness and needed treatment. Muhammad Ishaq was, therefore, admitted as indoor patient in the hospital. During the period the patient remained in hospital, the doctor kept him under observation, gave him electric treatment on 4 different dates along with other medicines administered to the patient orally. The doctor opined that the type of mental imbalance with which Muhammad Ishaq was suffering may create in ham the tendency of homicide. The doctor further added that Muhammad Ishaq while under treatment in the hospital, had run away from the hospital. He was called back to the hospital but the doctor received a written communication (copy Exh. D. W.' 1/2) from the father of the patient that Muhammad Ishaq was doing well and there was no need to re-admit him. The doctor also opined that from the type of disease from which Muhammad Ishaq was suffering, it would be entirely unpredictable as to when he would be gripped by the fits as a consequence of which he would lose his sense of proportion. In cross-examination by the A. A.-G. The doctor deposed that Muhammad Ishaq was admitted as a voluntary patient, although be was not in possession, of two certificates from doctor recommending him for admission, because he was unaware of the law as provided by sections 4 and 4-A of the Lunacy Act, 1912. The doctor stated that he interviewed Muhammad Ishaq, gave him psychiatric examination, observed his facial expression and formed the opinion that he was not a normal man and was not feigning insanity.…
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