MUHAMMAD HANIF Versus THE STATE

GHULAM MUJADDID MIRZA, J.‑----- Muhammad Hanif son of Mahr Din, aged 25 years, Arain by caste, resident of Chak No. 104/uB, Tehsil and District Bahawalpur, was convicted and sentenced by order of the Sessions Judge, Bahawalpur, dated the 4th of April 1973, as follows:‑------

(i) death and a fine of Rs. 100 or in default to undergo one month's further R. I. under section 302, P. P. C.' for the murder of Ghulam Rasul;

(ii) transportation for life under section 307, P. P. C. for the attempted murder of Mst. Saleema Bibi;

(iii) two years R. I. under section 354, P. P. C. for outraging the modesty of Mst. Bibi:

The sentences under sections 307 and 354, P.P.C. were ordered to run con currently and were to take effect if the sentence of death was not confirmed by this court. The convict has filed an appeal against the aforesaid order of the learned Sessions Judge and reference under section, 374, Cr. P, C. for the confirmation of death sentence is also before us. This order will dispose of the appeal and the murder reference.

2. The prosecution case is that on the Ist of January 1972, at about 9 a.m. Mst. Saleema was baking bread in the oven in her house when the appellant came there and gave a khangara (cough). He then put off her chaddar and caught hold of her. She raised hub and cry which attracted Ghulam Muhammad, Murid Hussain and Mehr Din, Murid Hussain caught hold of the appellant and one of them went to call her husband who arrived after four or five minutes. The appellant and Mehr Din wanted the matter to be compromised and so did the others, but Ghulam Rasul and his wife did not agree, as she had been insulted before.

At about 12‑00 noon, Ghulam Rasul and his wife Mst. Saleema Bibi left for Police Station Yazman on a cycle to lodge report with the police about the aforesaid incident. When they came near the dera of Nijatullah in Chak No. 117/DB, the appellant appeared and tried to persuade Ghulam Rasul not to proceed to the police station to lodge the report, but the couple did not agree to this and told the appellant that they had already been insulted enough and they would not now return. On this, the appellant fired at Mst. Saleema Bibi with a revolver. Ghulam Rasul tried to catch the appellant who then fired with the revolver and Ghulam Rasul was hit on the right flank. He fell down and died there. Mst. Saleema Bibi ran towards the office of the Union Council. The appellant fired three shots at her and she was hit by these shots, she fell down at a place ahead of the office of the Union Council. The appellant threw the revolver inside the canal which was then flowing.

The motive for the murder of Ghulam Rasul and attempt to kill Mst. Saleema Bibi was that the appellant had taken a fancy for Mst. Saleema, although she had been married to Ghulam Rasul for the last fifteen years. The appellant wanted to have illicit relations with her but she resented to it and never encouraged the appellant. It is also in evidence that prior to this incident she had been assaulted by the appellant for which she filed a complaint. At that time she was on her family way, but on the intervention of certain persons the matter was compromised.

3. After the occurrence Ghulam Muhammad proceeded to Police Station, Yazaman and lodged first information report (Exh. P. C.) the same day at 2‑30 p.m. which was recorded by Ghayyur Ali, Station House Officer. He also investigated the case. He prepared the injury statement. (Ex. R. B/ 1) of Mst. Saleema and took into possession her Burgs P. 7/1‑2. He visited the place of occurrence and took into possession cycle P. 8 of the deceased vide memo. Exh. P. G. He prepared the inquest report Exh. P. D/1 and the injury statement Exh. P. D/2 of Ghulam Rasul. He took into possession revolver P. 9 on the pointing out of the appellant vide memo. Exh. P. H., which was signed by Abdul Ghafur, Shaukat Ali and Murid Hussain, He also took into possession chaddar P. 1, shirt P. 2, Jarsi P. 3, Safa P. 4, pair of shoes P. 5/1‑2 and one bullet P. 6 vide memo. Exh. P. E. The sealed parcels containing the revolver and the empty cartridge were then sent to the Forensic Science Laboratory, Lahore.

4. Doctor A. A. Khalid, performed the post‑mortem examination of Ghulam Rasul on the 2nd of January 1972, and found one fire‑arm wound "x ", margins inverted, burnt at the 7th inter-costal space along the anterior exillary line on the right side, which was sufficient to cause death in the ordinary course of nature.

5. Dr. Ijaz Ahmad, Medical Officer, Rural Dispensary, Bungalow Tailwala examined Mst. Saleema Bibi on the 1st of January 1972 at 1‑00 p.m. and found the following injuries on her person:‑

(1) A round lacerated wound on the left side of abdomen, edges inverted, dark (blakish) 1 in diameter (wound of entry).

(2) A round lacerated wound on the right side of the chest above mammary glands, edges inverted, black, ' diameter (wound of entry).

(3) A lacerated wound on right side of the chest, above and right to the mammary gland 1 x 1/3 ' , edges inverted, black (wound of entry).

(4) A wound on the chest, right of right mammary gland, edges inverted, fatty tissues coming out, 1/3 "x 1/3 , wound of exit.

(5) A round lacerated wound on the outer side of right arm, near shoulder joint, edges inverted, black, ' diameter (wound of entry).

(6) A round lacerated wound on the inner side of right arm, edges in verted, tissues coming out, 1/6" wound of exit.

(7) An abrasion on the right elbow in front, ' x ". Injuries No. 1 to 6 were dangerous and injury No. 7 was simple.

6. The appellant when examined denied the charge, but admitted that Saleema Bibi had filed a case against him. According to him, it was rat false case. Rest of his statement was a complete denial and deposed Mst. Saleema, Ghulam Muhammad, Muhammad Aslam and Shah Muhammad were inimical towards him. When asked if he had anything to ay, the appellant stated as follows:‑-

S.H.O Ghayyur Ali had arrested me from my shop at 5‑30 p.m He took me to the Voce of the Union Council near bungalow Tailwala. The Thanedar had arrested one Tajoo already. The Thanedar gave me a severe beating in the office of the Union Council. Tajoo, remained arrested alongwith me for three days. One Malkiat, Chairman a Union Council, Chak No. 42/DB, had connection with Tajoo under reference. Malkiat came to the office of the Union Council on the third day. Malkiat had given Rs. 6,000 to the Thanedar when I had gone near by for urinating myself. The Thanedar then released Tajoo. On the sixth day, the Thanedar gave the revolver to foot constable Shera and ho fired five there from which bit on the wall in my presence. On one shots morning Mst. Saleema Bibi eloped with Tajoo. Ghulam Rasul deceased alongwith his brother went after Tajoo. I do not know what happened thereafter."

No evidence was produced in defence.

7. The prosecution case rests on the ocular evidence of Mst. Saleema Bibi (P. W. 7), Ghulam Muhammad (P W. 8), Muhammad Aslam (P. W. 9) and Shah Muhammad. (P. W. 9), the recovery of revolver P. 9, the evidence of Mufti Munir. Examiner of Fire‑arms and finally on the medical evidence.

8. From the evidence of Mst. Saleema Bibi it is quite clear that the appellant was afar her for sometime, but there was no encouraging response from her side. Having described the incident which took place on the morning in which the appellant after having removed his chaddar tried to molest her, she deposed that the appellant, one Mehr Din and others tried their best that the matter be compromised, but neither she nor her husband agreed, because she bad been insulted for a number of years decided to put an end to this by reporting the matter and they had finally to the police. Both were going on cycle. She was sitting on the back. Ghulam Muhammad P. W. was following them and when they reached near the dera of Nijatullah near the Office of the Union Council they noticed under a tree. They were warned to go back but as the appellant standing fired at her. Ghulam Rasul tried to they refused to do so, the appellant catch him, who then fired at him. Ghulam Rasul was hit in the right flank. He fell down, and Mst. Saleema Bibi ran towards the office of the Union Council. The appellant fired three shots. She was hit and then fell down to the dispensary at Bungalow Tailwala and was then She was taken removed to B. V. Hospital, Bahawalpur. After the doctor had certified that she was in a fit condition to make statement, her statement (Exh. P. L.), was recorded by Syed Inayat Hussain, Magistrate First Class, Bahawalpur. Her version finds corroboration from that testimony of Ghulam Muhammad P. W. He was following the couple while they were on their way to the police Station. Muhammad Aslam and Shah Muhammad who are independent witnesses also support the, version of Mst. Saleema and Ghulam Muhammad P. Ws.

9. Mr. Muhammad Munir Khan, learned counsel for the appellant, argued that the prosecution has not been able to prove its case beyond reasonable doubt. He attacked the ocular evidence and also challenged the evidence pertaining to recovery of revolver. He contended that the first information report was not genuine. It had been written at the spot. While criticizing the ocular evidence, learned counsel divided the eye‑witnesses into two sets. So far as Mst. Saleema Bibi and Ghulam Muhammad were concerned, both were very closely related to the deceased, the former was the wife and the latter was the brother of the deceased, is was therefore, submitted that their evidence deserved a very thorough sorutiny before the same could form the basis for conviction. Regarding the remaining two witnesses, who were independent, it was submitted that they had not seen the occurrence, but their services had been hired by the prosecution to lend support to the testimony of Mst. Saleema Bibi and Ghulam Muhammad. Learned counsel then sub mitted that although Mst. Saleema Bibi was injured which is sufficient proof of her presence at the spot, nevertheless her evidence was quite opposed to the medical evidence and, therefore, no reliance could be placed on her testimony. According to the learned counsel Ghulam Muhammad lodged the. report after the preliminary investigation had been conducted and when Mst. Saleema came to know that the matter bad already been reported to the police she had no, option but to support the statement made by Ghulam Muhammad. While referring to the medicate examination of the injured, learned counsel laid great stress on the fact that it was impossible for the witness to cover a distance of about one square after having been hit by the appellant. Learned counsel also criticized the testimony of Mst. Saleema with regard to the morning incident and submitted that it was a mere concoction, because, had it been so, as deposed to by the witness, then Muhammad Hanif would not have been spared or at least, the husband of the witness must have chastised him. This, according to the learned counsel, was but natural, but as nothing serious happened at that juncture except that the appellant was caught and the persons gathered there requested that the matter be dropped, therefore, the learned counsel, contended that this was most unlikely. Regarding the remaining two witnesses, it was submitted that they never saw the occurrence, for the explanation given for their presence at the spot was very unnatural.

10. While dealing with the recovery of revolver P. 9, it was submitted that the delay per se is suggestive of the: fact that it was not genuine, but had been planted by the police to lend support to the ocular version of the eye‑witnesses. Referring to, the evidence of Shaukat Ali P. W. who had recovered the pistol from the canal, learned counsel submitted that he first visited the canal on the 3rd of January 1972 but was unsuccessful. He was then summoned three days after this when the revolver was found out. According to the learned counsel in between this period there was enough opportunity for the police to get the revolver placed there. Our attention was also invited to the statement (Ex. P. L.) of Mst. Saleema Bibi which was recorded by Syed Inayat Hussain Magistrate, while she was in the hospital. Learned counsel submitted that in this statement there is no mention of Ghulam Muhammad. This was another factor which cast doubt on the veracity of the evidence of this witness.

11. We have very carefully perused the ocular evidence. The evidence of Mst. Saleema Bibi and Ghulam Muhammad could not be discarded only on account of their relationship with the deceased. Mst. Saleema being injured her presence at the spot could not be doubted under any circumstances. The mere fact that she deposed that after she had been hit, she covered a distance of about one square, would be no ground to discard her evidence. One does not expect the witness to be precise while deposing about the distance of time. Therefore a reasonable concession bad to be given in these matters it is clear from her evidence that after she had been hit she had covered some distance, otherwise too, it appears to quite natural that after having been hit she must have run for her life. In cross‑examination she had described the entire incident with complete accuracy. She even deposed that she had been hit by five shots and it was then after she had been injured that she became unconscious. The medical evidence leaves no room for doubt that she received four fire‑arm injuries, but as the appellant was firing indiscriminately, therefore, she could be genuinely under the impression that she had been bit by five shots. The mere fact that she omitted to mention the name of Ghulam Muhammad in Exh. P. L. is again not a such serious defect that her entire evidence was to be dis carded, because she was in a precarious condition, and, therefore, it would be too much to expect a precise and detailed statement from her immediately on gaining consciousness.

Ghulam Muhammad P. W. had duly explained as to when and under what circumstances the first information report was lodged. The police station was at a distance of about nine miles, therefore, some time must have been spent in reaching there and lodging the report. We are, therefore unable to accept the contention of the learned counsel that the first information was not genuine. It would be too much to expect that whatever time the witness stated must be taken to be correct according to the striking of the clock. The defence had not brought anything on the record to establish that Muhammad Aslam and Shah Muhammad were inimical towards the appellant. The mere fact that the father of the appellant contested the election against Shah Muhammad P. W. would not be such a serious enmity that he would came forward to implicate the appellant in a murder charge.

12. The evidence pertaining to the recovery is also free from doubt. We have not found anything against the recovery witnesses to discard their testimony. We agree with the learned counsel for the State that in case the prosecution was but to plant this recovery, then they would not have taken so long. On the other and. they would have done it at the earliest opportunity. There is reasonable explanation for the delayed recovery of revolver from the canal, because according to the evidence of Ghyyur Ali Sub‑Inspector, his first attempt to stop the flow of water did not succeed as for that he had to obtain the order of the Chief Engineer and the Executive Engineer had no say in the matter.

13. The ocular evidence does not suffer from any bias, infirmity or prejudice which could justify its rejection. We, therefore, believe the oral evidence of the four eye‑witnesses and further held that it finds due corroboration from the recovery of revolver which the prosecution had successfully established. It was a broad‑day murder and there was no reason to falsely implicate the appellant. Mst. Saleema could not make any mistake about the killer of her own husband and her own assailant, because the appellant had been after her for quite some time.

14. There is yet another important piece of evidence which further fortifies the prosecution story and that is, that according to the prosecution three bullets were extracted, two from the body of Mst. Saleema and one from the dead body of Ghulam Rasul, P. 6 was recovered from the deal body of Ghulam Rasul and was taken into possession vide memo. Exh. P. E. alongwith other articles. The doctor who operated upon Mst. Saleema and extracted two bullets was never examined. His report is on the record and even his name finds mention in the calendar of witnesses. It is a matter of great regret that such an important piece of evidence had gone unnoticed. In a murder case such type of evidence sometimes is more important than the ocular evidence and its omission could cause serious miscarriage of justice.

The recovery of bullet P. 6 had been duly proved as it was taken into possession vide memo. Exh. P. E. and according to Mufti Munir, Firearms Examiner, this was the same bullet which had been fired from revolver P. 9 hence there is no room for doubt that Ghulam Rasul was shot dead by the appellant.

14. The appellant had not taken any definite stand and a half‑hearted attempt was made to show that the appellant had been substituted for the real killer, but there is no evidence to substantiate this plea. In our opinion, the prosecution has successfully proved its case beyond any reasonable doubt. We, therefore, maintain the convictions and sentences of the appellant and dismiss the appeal. The sentence of death is confirmed.

Appeal dismissed.