MUHAMMAD SIDDIQUE Versus STATE Abul Asim Jafri , Sh. Nasir-ud-Din

IJAZ NISAR, J. ‑‑ Mohammad Siddique son of Faqiria (20) was tried for the murder of Mst. Hakiman Bibi deceased (65). The learned Additional Sessions Judge, Sialkot vide his judgment, dated 16‑1‑1985 convicted him under section 302, P.P.C. and sentenced him to death plus a fine of Rs.2,000 or in default to undergo R.I. for two years. Half of the fine, if realised, was ordered to be paid to the legal heirs of the deceased as compensation.

2. The learned trial Court has made a reference for confirmation of the death sentence while the appellant has preferred appeal through jail against his conviction and sentence. Both the matters are being disposed of by this judgment.

3. The prosecution case is that about 11/12 years back Jan Mohammad, husband of Mst. Hakiman Bibi deceased, was murdered by Faqiria, father of Mohammad Siddique appellant for which he and Mst. Hakiman Bibi deceased were challaned and were convicted by the learned Additional Sessions Judge, Sialkot on 10‑ 8‑ 1974 and sentenced to death. On appeal the conviction and sentence of Faqiria was maintained but Mst. Hakiman Bibi deceased was acquitted. It is stated that later on the sentence of death of Faqiria was commuted to imprisonment for life. He is stated to be still undergoing the sentence. Mst. Hakiman Bibi deceased was initially an injured eye‑witness in the case against Faqiria but later on she was also challaned alongwith Faqiria for having abetted/facilitated the murder of her husband Jan Muhammad.

4. On the night between 6/7‑12‑1982 Mst. Hakiman Bibi deceased was asleep in her house alongwith her son Maqbool Ahmad P.W.8 and her daughter Mst. Hafeezan P.W.9. At about mid‑night she woke up to tether her buffalo and when she was about to enter her room Mohammad Siddique appellant jumped into the courtyard by scaling over the wall and inflicted Chhuri blows on her as a result of which she fell injured. On her cries Maqbool Ahmad and Mst. Hafeezan Bibi came out and saw the occurrence. The P.Ws. tried to catch hold of him but they could not succeed. However, Lacha and shoes of the accused were left there. Mst. Hakiman Bibi deceased was removed to Civil Hospital Narowal. On learning about the occurrence Wali Mohammad A.S.I. P.W.13 reached there and enquired from the doctor through application Exh.P.B. about her fitness to make a statement. On getting reply in the affirmative she recorded her statement Exh.P.E. (the dying declaration) on 7‑12‑1982 and sent the same to the police station for formal registration of the case. Formal F.I.R. Exh.P.F. was recorded on its basis by Mohammad Yousaf, Head‑constable P.W.3.

5. Wali Mohammad A.S.I. reached the spot. Maqbool Ahmad P.W.8 produced before him Lacha and shoes of the appellant which he took into possession through memo. Exh.P.J. He searched for the accused who was not traceable. On 8‑1‑1983 he received information about the arrest of the appellant in some other case and his confinement in District Jail, Sialkot. Accordingly he submitted application Exh.P.M. to the Ilaqa/Duty Magistrate seeking permission for investigation/interrogation and his remand. He formally arrested the appellant on 8‑1‑1983. On 12‑ 1‑ 1983 he led to the recovery of blood‑stained Chhuri P.2 from near an electric pole by digging the earth through memo. Exh.P.H. The Chhuri was sent for chemical examination and according to the report Exh.P.O. of the serologist it was stained with human blood.

6. Dr. Nazir Ahmad, P.W.1 medically examined Mst. Hakiman Bibi (75) on 7‑12‑1982 at 7‑30 a.m. and found the following injuries on her person:‑

(1) A stabbed wound 3 x 1‑1/4 c.m. x abdominal cavity deep in front of abdomen left side between umbilicus and lower costal margin.

(2) A stabbed wound in front of abdomen left side below lower costal margin at and above the level of umbilicus i.e. 3‑1/2 c.m. x 1/2 c.m. abdominal cavity deep. Omentum and intestines were protruding out.

The injuries were caused with sharp‑pointed weapon within six hours. The injuries were grievous and dangerous to life.

Mst. Hakiman Bibi died in the hospital on 12‑12‑1982 at 2‑25 p.m. On the same day at 4‑30 p.m. the same doctor conducted post‑mortem examination on her dead body and found the injuries already described above. According to him the death occurred due to shock, haemorrhage and toxaemia resulting from abdominal injuries which were sufficient to cause death. Time between injuries and death was about five days and that between death and post‑mortem about 2 hours.

7. The appellant pleaded not guilty to the charge and denied the prosecution allegations. According to him it was the deceased who had murdered her husband and that his father had been falsely involved in the said case. According to him the deceased had enmity with his father because she wanted to marry him but his father was not willing to do so. He further stated that since he used to support his father in the case pertaining to the murder of Jan Mohammad, the first husband of Mst. Hakiman Bibi deceased, his offsprings had falsely implicated him.

It would not be out of place to mention here that the statement of the appellant was recorded in the premises of District Jail, Sialkot as he was a condemned prisoner in another murder case.

He examined Umar Mohammad D.W. 1 and Farid Iqbal D.W.2 in his defence and also tendered F.I.R. No. 16, dated 21‑1‑1971 Exh.D.A. under section 302, P.P.C. lodged by Mst. Saddiqan daughter of Mst. Hakiman Bibi deceased regarding the murder of Jan Mohammad, ex‑husband of the deceased. Umar Mohammad D.W. I stated that Mst. Hakiman deceased was a woman of easy virtue and had illicit relations with several persons and that she had sustained injuries at a distance of half mile from the village and soon thereafter he alongwith other residents of the village reached the spot and asked her about her assailant. She replied the assailants belonged to another village and did not name the appellant. Farid Iqbal D.W. 2 also made a similar statement.

8. Maqbool Ahmad P.W.8 and Mst. Hafeezan P.W.9 were examined as eye‑witnesses. Mohammad Shafi son of Sikandar P.W.6, Mohammad Shafi son of Fateh Mohammad P.W. 14 and A.S.1. Wali Mohammad P.W.13 were examined to prove the recovery of blood‑stained Chhuri P.2 at the instance of the appellant. Maqbool Ahmad P.W. 8 also deposed about the production before the police of Lacha and pair of shoes belonging to the appellant which he had allegedly left at the spot while fleeing from there.

9. Relying on the dying declaration Exh.P.E. made by the deceased, the ocular testimony furnished by Maqbool Ahmad P.W.8 and Mst. Hafeezan Bibi P.W.9, the recovery of blood‑stained Chhuri at the instance of the appellant and the motive the trial Court convicted and sentenced the appellant as stated above.

10. It is contended that it was a blind occurrence not witnessed by anybody and the eye‑witnesses who were closely related to the deceased had falsely implicated the appellant on account of enmity and further that the Chhuri P.2 was planted on him in order to strengthen the case. The genuineness of the dying declaration is also assailed.

11. Both the eye‑witnesses namely Maqbool Ahmad P.W. 8 and Mst. Hafeezan P.W.9 are natural witnesses. They are inmates of the house in which the occurrence had taken place. Their evidence cannot be discarded merely on account of their relationship with the deceased. They stood the test of cross‑examination and no infirmities could be brought out in their testimony. They stand corroborated by the medical evidence. They had no motive to falsely implicate the appellant. Being a case of single accused there was no question of substitution. The recovery of blood‑stained Chhuri P.2 at the instance of appellant lends corroboration to the testimony of the prosecution version. Since it was dug out by the appellant from the earth he could be safely presumed to have himself concealed the same. Mohammad Shafi son of Sikandar P.W.6 and Mohammad Shafi son of Fateh Mohammad P.W.14 have made consistent statements with regard to the mode and manner of recovery. The dying declaration made by Mst. Hakiman deceased in the hospital on the following morning is a very strong piece of evidence against the appellant. It contains all the necessary details including particulars of the appellant and the witnesses. There is nothing to indicate that it was a tutored statement. It meets the normal test for judging its veracity. The police official who recorded it was careful to enquire from the doctor about the fitness of the deceased to make the statement. The deceased would not have faced any difficulty in identifying the appellant because of previous acquaintance with him. No infirmity whatsoever is pointed out which may incline us to hold the same. to be untrue or untrustworthy.

12. The motive set up by the prosecution was that the appellant's father had been sentenced to imprisonment for life for the murder of Jan Mohammad husband of Mst. Hakiman deceased. It has come in evidence that Mst. Hakiman deceased was also tried as a co‑accused of the appellant's father but was ultimately acquitted while the appellant's father was convicted under section 302, P.P.C. In all probability it appears that the appellant was not happy over the acquittal of Mst. Hakiman deceased and considered her responsible for the involvement of his father in the said case.

12. Having considered all the pros and cons of the case we are of the view that the prosecution case stands fully established against the appellant beyond all shadow of doubt. He was, therefore, rightly convicted.

As regards sentence we do not find any extenuating circumstance because of the appellant's conduct of having brutally murdered an old woman after trespassing into her house. Accordingly, we maintain his conviction and sentence and dismiss the appeal.

13. The sentence of death is confirmed.

14. The appellant may be informed through jail authorities.

M.Y.H./M‑329/L Appeal dismissed.