GHULAM HASAN Versus STATE

By this order I propose to dispose of Criminal Appeal No. 63 of 1985 and Criminal Revision No. 110 of 1985 which are directed against the judgment dated 3‑7‑1985 whereby the learned Sessions Judge, Bahawalpur convicted Muhammad Akram appellant under section 302, P.P.C. for the murder of his wife Mst. Taj Bibi and sentenced him to life imprisonment and a fine of Rs. 10,000 or in default thereof to undergo three years' R.I. The appellant was further directed to pay Rs. 10,000 by way of compensation to the heirs of the deceased or in default thereof to undergo six months R.I.

2. The occurrence took place on 22‑5‑1984 at 7 a.m. in the house of the appellant situated in village Rajar Hu, Tehsil Ahmadpur East District Bahawalpur. F.I.R. Exh. P.C. was registered at the instance of Ghulam Sarwar P. W. 6 the father of the deceased on the same day at 8‑30 a.m. and was recorded by Rao Muhammad Sharif S.H.O. P. W. 5 at P.S. Channi Goth.

3. The prosecution case as set out in the F.I.R. in brief, is that Mst. Taj Bibi deceased was married to Muhammad Akram appellant. He suspected that she had illicit relations with one Noor‑ul‑Hassan. She, however, assured him of her innocence by taking oath on the Holy Quran. On the fateful day at about 6‑30 a.m. she went to the house of her father Ghulam Sarwar complainant to get some Ghee. Before going back she told him that on the previous night the appellant had quarrelled with her. At about 7 a.m. the complainant alongwith his brother Ali Haider (not produced) and Jam Muhammad Yar P. W. 7 was standing in a field, at a distance of one Acre from the house of the appellant, when they heard the alarm of Mst. Taj Bibi emanating from the house of the appellant. They rushed to the said house and from the rear window saw that the appellant had caught hold of the deceased by her hair with one hand and was inflicting Chhuri blows on her with the other hand. He was also saying that she was being taught a lesson for her illicit relations with Noor‑ul‑Hassan. The deceased fell down. The witnesses went inside the house from the entrance on the courtyard side. The appellant ran away brandishing Chhuri in the air. When they reached the room where the occurrence had taken place, they found the deceased lying on the floor in injured state. Immediately thereafter, she expired. Leaving Ali Haider and Muhammad Yar at the place of occurrence to guard the dead body Ghulam Sarwar complainant proceeded to Police Station Channi Goth for making a report.

.4. After recording the F.I.R. Rao Muhammad Sharif S.H.O. P. W. 5 proceeded to the place of occurrence and on reaching there prepared the injury statement of the deceased Exh. P.D. and inquest report Exh. P.E. He then despatched the dead body to the Civil Hospital, Ahmadpur East through Ijaz Ahmad Constable P. W. 1 for post‑mortem examination. Thereafter, he inspected the spot and took into possession and sealed into a parcel blood‑stained earth from the place where the dead body was lying, vide memo. Exh. P.F. On the same day he arrested the appellant who was wearing blood‑stained shirt Exh.P.6 that was taken into possession and sealed into a parcel vide memo. Exh. P.H. While in custody the appellant led to the recovery of blood‑stained Chhuri Exh.P.7 from the cluster of date trees which was taken into possession and sealed into a parcel vide memo. Exh. P.J. On the same day, after post‑mortem examination, constable Ijaz Ahmad P. W. 1 delivered to the S.H.O. last worn blood‑stained clothes of the deceased shirt P.1, Shalwar P.2 and Dopatta P.3 alongwith her nose‑pin Exh.P.4 which were taken into possession vide memo. Exh. PA. Subsequently the S.H.O. got the site plans Exh. P.B. and P.B./1 prepared by Syed Safdar Hussain, Patwari P. W. 4 and gave his notes in red ink on them. After the completion of the investigation he challaned the appellant.

5. On 22‑5‑1984 Dr. Javed Hassan Ajmi (P. W. 9) S.M.O., Civil Hospital, Ahmadpur East, performed post‑mortem examination on the dead body of Mst. Taj Bibi deceased aged about 23/24 years. He found the following injuries on the dead body‑

(1) An incised wound on right side of neck, cutting muscles, vessels, trachea in the centre. The wound was measuring 9 x 3 c.m. x bone deep.

(2) An incised wound on right and back side of neck. This wound was continued with injury No.1 cutting muscles vessels and also 3rd and 4th cervicle vertebrae were injured measuring 8 x 3 c.m. x vertebrae deep.

(3) A small cut on tip of right shoulder joint 2 x 1/2 x 1/2 c.m.

6. All the injuries had been caused with e sharp‑edged weapon. Injury No. 3 was simple while the other two injuries were grievous. On internal examination he found that trachea was cut at the site of injury No. l. The stomach was half filled with semi‑digested food. The urinary bladder was empty. She was found pregnant of about 20/22 weeks of male baby. The remaining organs in the body were normal.

7. In the opinion of the doctor the cause of death was shock due to excessive bleeding from the neck vessels, paused by injuries Nos. 1 and 2. Injury No. l was sufficient to cause death in the ordinary course of nature and was ante- mortem. The time between injuries and death was about half an hour and between death and post‑mortem examination was about 8 hours. Exh. P.K. is the carbon copy of his post‑mortem examination report while Exh.P.K./1 and Exh.P.K./2 are the diagrams showing the location of injuries.

8. The appellant was formally charged under section 302, P.P.C. but he pleaded not guilty.

9. The prosecution examined as many as 9 witnesses in support of their case including the two eye‑witnesses namely Ghulam Sarwar P. W. 6 and Muhammad Yar P. W. 7.

10. In his statement under section 342, Cr. P. C. Muhammad Akram appellant asserted that Mst. Taj Bibi had illicit relations with Noor‑ul‑Hassan and set up the following plea:‑

"I had come to my house in the early hours of the morning from my field. I found that Noor‑ul‑Hassan was lying in objectionable position with my wife in my house. I acted under Ghairat and attacked upon them. Noor ul‑Hassan succeeded in running away and I inflicted Chhuri blows under grave and sudden provocation to my wife Mst. Taj Mai. I suffered injury on the palm of my left hand. The eye‑witnesses were not present there."

11. He denied having led to the recovery of blood‑stained Chhuri Exh.P.7. He also denied that at the time of his arrest he was wearing blood‑stained shirt Exh. P.6.

12. He chose to make a statement on oath before the trial Court that was accordingly recorded. In examination‑in‑chief he stated as follows: ‑

"One year back in the last Pehr of the night I came from my field to my house. I found my wife Mst. Taj Bibi and Noor‑ul‑Hassan in indecent position in my house. I tried to catch hold of Noor‑ul‑Hassan. He had knife in his pocket. The knife was caught by my wife and I suffered the injury on my left hand. I could not tolerate what I had seen because of my Ghairat. I inflicted injuries to my wife. Noorr-ul‑Hassan ran away, Ghulam Sarwar, Muhammad Yar and Ali Haider were not there."

13. The learned trial Court disbelieved the defence version and relying on the ocular evidence and the recoveries convicted the appellant and sentenced him as stated above. Feeling aggrieved the appellant has come up in appeal while Ghulam Sarwar complainant has lodged a revision petition for the enhancement of sentence.

14. I have heard the parties' counsel and have also gone through the record very minutely with their assistance.

15. According to the prosecution case on the day of occurrence at about 7 a.m. Ghulam Sarwar complainant and his brother Ali Haider, the given up P.W., were standing in the land belonging to their brother Abdul Ghaffar at a distance of about one Acre from the house of the appellant where the occurrence took place. They were discussing the proposed construction of a house in the said land when Muhammad Yar P.W. joined them. At this place they heard the alarm raised by the deceased on which they rushed to the house of the appellant and saw the occurrence through the rear window of the said house. Learned counsel for the appellant has contended that the eye‑witnesses in the present case were false witnesses and their presence near the place of occurrence, at the relevant time, was neither probable nor natural. He maintained that if the two brothers had to discuss the proposed construction of a house they should have discussed it in their house and there was no need to go out. The contention is devoid of force. It is evident from the statements of Ghulam Sarwar and Muhammad Yar P. Ws. that the two brothers were having a discussion while standing in the land where they intended to construct a house. Such a discussion at their residence would not have been as useful as the one on the spot. The presence of Ghulam Sarwar and Ali Haider P. Ws. near the place of occurrence, therefore, was quite natural and probable. As regards the presence of Muhammad Yar P.W., the prosecution version is that he had come there to borrow a tractor from Ali Haider. Statements of Ghulam Sarwar and Muhammad Yar P. Ws. on this point are consistent. There is nothing on record to belie the said statements. I have thoroughly scanned the statement of Ghulam Sarwar complainant and have not been able to find any suggestion on behalf of the appellant during cross -examination that they were not present at the said place when the occurrence took place. Similarly, it was never suggested to Muhammad Yar during his cross -examination that the reason given by the said witness of his presence at the place in question was untrue. It is, therefore, proved to my satisfaction that the eye‑witnesses were present near the place of occurrence at the relevant time and their presence was quite natural and probable.

16. Ghulam Sarwar complainants are the father of the deceased and the father-in‑law of the appellant. He is also a cousin of Muhammad Yar P.W. They, therefore, are related inter se and are also related with the deceased. It is an established principle that mere relationship inter se or with the deceased is not sufficient to discredit a witness. This relationship also does not make them interested witnesses. Evidence of such witnesses would be acceptable if it is free of inherent discrepancies and inspires confidence. There is nothing on record to suggest that there was previous enmity between the appellant on the one hand and the P. Ws. on the other hand. The P. Ws., therefore, cannot be considered as inimical witnesses. They had no motive to falsely implicate the appellant.

17. The two eye‑witnesses, namely Ghulam Sarwar and Muhammad Yar have fully supported the prosecution case as narrated in the F.I.R. According to them on hearing the alarm of the deceased they had rushed to the house of the appellant and had seen from the rear window of the said house the appellant causing injuries to the deceased with a Chhuri and saying that he was teaching a lesson to her for having illicit relations with Noorul Hassan. Their statements are consistent on all material points and do not suffer from any serious contradictions or discrepancies. They have not suppressed any material fact and have also not made any dishonest improvement. They have stood the test of cross‑examination successfully and confidently. I, therefore, have no hesitation to hold that they are reliable and trustworthy witnesses. I am convinced that they had given a truthful account of what they had seen and heard at the relevant time.

18. Learned counsel for the appellant has submitted that it is not known as to what had led to the aggression on the part of the appellant and what had prompted him to kill the deceased. He maintained that as the witnesses were silent on this point the statement of the appellant which he had made before the trial Court and which contained his defence version would be taken as true. The contention has no force. According to the prosecution case the appellant suspected that his wife was carrying on with one Noor‑ul‑Hassan about which he frequently used to accuse her and finally on the fateful day he killed her on account of the said suspicion. It is true that the P. Ws. have not stated as to how the occurrence had started and what had transpired between the appellant and the deceased immediately before the infliction of injuries but on the other hand, the appellant has also not disclosed in his statement before the trial Court as to what had transpired between him and the deceased immediately before the actual occurrence. It is not his case that they had an exchange of any harsh words or there had been any angry or provocative dialogue between the two immediately before he infected injuries on her. His only contention is that he had seen the deceased with Noorul Hassan, her paramour, in a compromising position upon which he lost control over himself and killed her. So in the present case it would be absurd to straightway believe and accept the defence version merely on the ground that the eye‑witnesses had not seen as to how the incident had started. We will have to see and examine if the plea set up by the appellant appears to be probable and rings true. The perusal of the evidence on record shows that the appellant had floated various and contradictory versions throughout the trial. On 11‑11‑1984 Ghulam Sarwar complainant, appeared. as P. W. 6 before the trial Court and it was suggested to him during cross‑examination that the appellant had divorced the deceased before the occurrence. Later on another suggestion was given to him that the deceased had been murdered by Abdul Wadood the nephew of the complainant with whom she was engaged prior to her marriage with the appellant. On that day, although the cross‑examination of the complainant was concluded, yet no suggestion was given to him that the appellant had killed the deceased on account of grave and sudden provocation. However, when on the request of the appellant the complainant was recalled and cross examined on 20‑5‑1985, after about six months, the appellant unfolded his latest version by suggesting to him that on entering his house on the fateful day the appellant had found Noorul Hassan in an indecent position with the deceased whereupon he acted under grave and sudden provocation and killed her. Subsequently, he generally stuck to this version in his statement under section 342, Cr. P. C. and also in his statement on oath. He, however, has made contradictory statements about the time of the occurrence. It was suggested to Muhammad Yar P.W. that the occurrence had taken place during the night. In his statement under section 342, Cr. P. C. he stated that the occurrence had taken place in the early hours of the morning and in his statement on oath he stated that the occurrence took place when he returned to his house in the last Pehr of the night from his field. I am of the considered opinion that the occurrence did not take place either during the night or in the early hours of the morning because the material on record does not support the appellant's version on this point. It is very clear from the post‑mortem examination report of the deceased Exh. P.K, and the statement of Dr. Javed Hassan Ajmi P. W. 9 who had performed the said post‑mortem examination at 3 p.m. that the time between death and post‑mortem examination was about 8 hours. It means that the deceased had died at about 7 a.m. as asserted by the prosecution. The doctor further opined that from the internal examination of the deceased she had taken the last meal about l to 3 hours before her death. This also shows that she was not killed during the last Pehr of night or early in the morning. There is yet another very material piece of evidence which establishes beyond reasonable doubt that the occurrence had taken place at about 7 a.m. It is stated in the F.I.R. that on the fateful day at about 6‑30 a.m. the deceased had visited the house of her father (the complainant) to have some Ghee and before returning to her house she had told him that on the previous night the appellant had again quarrelled with her. Ghulam Sarwar complainant m his statement before the trial Court has repeated this incident. It was not suggested to him during cross‑examination either on 11‑11‑1984 or 20‑5‑1985 that the said incident had not happened or that the same was false. The statement of the complainant on this point, therefore, goes unrebutted. I have, therefore, every reason to believe that the occurrence had not taken place before 6‑30 a.m. but had taken place after that i.e. at 7 a.m. as stated by the P. Ws.

19. Sun is quite high and bright at 7 a.m. in the month of May. Everybody, especially in villages, is up and engaged in his daily routine. I am, therefore, of the opinion that it was the most inappropriate time for the deceased and her paramour to indulge in sex According to the appellant, he had found his wife in an objectionable/indecent position with Noorul Hassan and, therefore, he had killed her out of Ghairat. In other words he had seen the deceased having sexual intercourse with Noorul‑Hassan. Had this been true she would not be wearing any clothes at the time of her death and rather would have been found naked. On the contrary the inquest report Exh. P.E. and the post‑mortem examination report Exh. P.K show that she was fully dressed and was wearing Qameez, Shalwar and a Dopatta. Similarly, if Noorul Hassan had made good his escape from the place of occurrence after having been surprised by the appellant he would have left his clothes or at least his Shalwar and shoes at the spot but no such things were recovered from the place of occurrence during the investigation. Again the appellant has stated in his statements before the trial Court that during the occurrence he had suffered an injury on his left hand from a knife, which Noorul Hassan was carrying in his pocket and was taken out by the deceased. No such injury was found on his person during investigation. He was also not medically examined. No suggestion to this effect was given either to the eye‑witnesses or to the Investigating Officer. All these circumstances go a long way to prove that the defence version as set up by the appellant is neither true nor probable nor does it inspire confidence. It is patently false. I, therefore, agreeing with the trial Court do not believe it.

20. In view of the admission of the appellant that he had caused the death of Mst. Taj Bibi deceased the prosecution evidence about the recovery of blood stained shirt P.6 (which the appellant was wearing at the time of his arrest) and the blood‑stained Chhuri P.7 (which was recovered at his instance) becomes redundant and superfluous. Nevertheless, the recovery of the said articles is fully proved by the consistent statements of Faiz Bakhsh P. W. 8 and Rao Muhammad Sharif P. W. 5 the Investigating Officer.

21. As a result of the above discussion I have no hesitation to hold that the ocular account furnished by the eye‑witnesses in this case is sufficient to form basis of the conviction of the appellant. The recovery of blood‑stained shirt and Chhuri provides confirmatory circumstance against him. I am also convinced that the defence version is wholly untrue and false. He is, therefore, responsible for the murder of his wife Mst. Taj Bibi deceased. He has been rightly convicted under section 302, P.P.C. The order of his conviction is upheld.

22. As regards the sentence, keeping in view all the circumstances available on record especially the fact that there is no evidence on record to show what talk i had taken place between the appellant and the deceased immediately before actual infliction of injuries, I am of the opinion that lesser sentence than that of death was more appropriate and adequate. There is no sufficient ground for the enhancement of this sentence. Consequently the order of sentence is also upheld.

23. The upshot of the above discussion is that there is no merit either in the appeal or the revision petition. Both are liable to be dismissed and are dismissed accordingly.

24. The appellant is in jail. He may be informed accordingly.

N.H.Q./M‑1403/L

Appeal/Revision dismissed.