MUHAMMAD SIDDIQUE Versus THE STATE
SARDAR MUHAMMAD DOGAR, J .--- Muhammad Siddiq (22) was tried by Additional Sessions Judge, Pakpattan Sharif, for having murdered Muhammad Hanif son of Muhammad Sharif and Mst. Khalida wife of Muhammad Hanif son of Sher Khan at 3-30 p.m. on 3-2-1989 in village Kot Hukam Singh at a .distance of 6:44 kilometres from Police Station Malka Hans, District Sahiwal. Learned trial Judge vide judgment, dated 24-10-1989 convicted him on both the counts and sentenced him to death plus to pay a fine of Rs.20,000 in default whereof to undergo R.I. for live years on each count. One-half/one- half, on recovery of the fine, was directed to be paid, as compensation, to the heirs of the deceased.
2. The convict has filed appeal. Learned trial Judge has made a reference for confirmation of the death sentence. Both the matters are being decided together.
3. F.I.R. Exh. P.F. was recorded at the police station by Muhammad Afzal Inspector/S.H.O. (P.W.7)' at 4-30 p.m. on 3-2-1989 on the statement of Bashir Ahmad (P.W.3). According to the F.I.R., the complainant was sitting in his house alongwith his brothers, Muhammad Munir (P.W.4) and Hanif deceased. Hanif was washing the utensil's near the hearth for preparing tea while the complainant and Munir were standing in the room. Muhammad Siddiq (appellant) who was living in a house in' front of them came there, armed with a gun, and fired 3 shot which hit Muhammad Hanif on the neck. He fell down. On the Lalkaras raised by the P.Ws., Muhammad Siddiq pointed gun towards them. P.Ws. toots shelter behind the door. Muhammad Siddiq ran away towards south alongwith the gun. P.Ws. came out. Hanif had died. In the meantime, they heard two fire shots. They came out in the street. Siddiq was running out of the house of his uncle, Hanif son of Sher Khan, with the gun in hand. Hanif son of Sher Khan and Mst. Nawah Begum wife of Amin were raising alarm that Siddiq had murdered Mst. Khalida (wife of Muhammad Hanif son of Sher Khan) and that he should be caught. Both the P.Ws. went to the house of Hanif son of Sher Khan and saw Mst. Khalida lying dead. The occurrence of murder of Mst. Khalida was witnessed by her husband and Mst. Nawab Begum.
Motive for the occurrence mentioned in the F.I.R. is that Siddiq suspected illicit relations between Khalida Begum and Muhammad Hanif deceased.
4. Muhammad Afzal S.H.O., after recording the F.I.R. reached the spot. He despatched the dead body of Muhammad Hanif for post-mortem after preparing necessary papers and collected blood-stained earth from there vide memo. Exh. P.G. Empty cartridge P.1.1ying there was picked up vide memo. Exh. P.H. Thereafter, he visited the place where the dead body of Mst. Khalida was lying. He despatched her dead body for post-mortem after preparing necessary papers i.e. inquest report and the injury statement, and collected blood stained earth from there vide memo. Exh. P.N. Empty cartridges P.13 and P.14 lying there were picked up by him vide memo. Exh. P.O.
5. On Muhammad Siddiq being produced before him by Liaqat Ali Bodla on 6-2-1989, he arrested him on the same day. Gun P.5 got recovered at the instance of the accused was taken into possession vide memo. Exh. P.J. Challan was submitted to Court after necessary investigation.
6. Statements of seven P.Ws. were recorded at the trial.
Dr. Muhammad Anwar, who had performed autopsy on the dead body of Muhammad Hanif on 3-2-1989 at 10-00 a.m. appeared as P.W2. He had noted the following injuries on the body of the deceased:--
(1) A lacerated gunshot wound 5 c.m. x 3 c.m. on the left side of the neck going side to side. The wound was going deeply inwards and its edges were inverted. The skin of margin of wound was charred and blackened. The short worn by the deceased contained perforation corresponding to the gunshot wound. A plastic wad was recovered from the upper surface of wound.
(2) Six lacerated gunshot wounds about 3/4 c.m. in diameter irregular and oval in shape on the right side of the neck in an area 5 c.m. x 4 c.m. situated about 1.5 c.m. apart from each other.
(3) Four charred lacerated superficial wounds in a line about 3/4 c.m. in diameter on the front and upper part of right shoulder. One pellet was present on the upper part of right shoulder.
All the injuries were opined to have been caused by fire-arm. Death was opined to have occurred due to acute traumatic shock and injury to the vital organs (Larynx, big blood vessels of both sides of neck). Time between injuries and death was opined to be instantaneous while the time between death and post -mortem was opined to be about 16 to 18 hours.
On the same day, at 8-30 a.m., he had performed autopsy on the dead body of Mst. Khalida Begum and noted the following injuries on her body:--
(1) A badly lacerated wound of gunshot 8 c.m. x 6 c.m. with inverted and charred margins on the outer side of left elbow joint (the wound of entry).
(2) A badly lacerated gunshot wound 10 c.m. x 5 c.m. on the inner side of left elbow joint (wound of exit).
(3) A lacerated gunshot wound with inverted and charred margins 9 c.m. x 4 c.m. at upper part at left side of chest starting from middle of sternum and going upto the left pectoral region in oblique way (wound of enterance). The shirt worn by the deceased contained big perforation corresponding injury No.3. The shirt was stucked with damaged tissue.
(4) A lacerated gunshot wound 4 c.m. x 3 c.m. on the back of left thigh at upper 1/3 part. The margins were slightly charred. The corresponding hole was present on the `Shalwar'.
All the injuries were opined to have been caused by fire-arm. Death was opined to have occurred due to acute traumatic shock and profused haemorrhage due to injuries to vital organs (heart - both lungs). Time between the injuries and death was opined to be instantaneous while the time between death and post- mortem was opined to be within 15 to 18 hours. He had also removed two vaginal swabs from the vagina of Mst. Khalida Begum and sent the same to the Chemical Examiner in sealed form.
7. Ocular account was deposed to by Bashir Ahmad P.W.3 and Muhammad Munir P.W.4.
Bashir Ahmad repeated the facts given by him in the F.I.R. He also claimed to have witnessed the collection of blood-stained earth and empty P.1 from the place where Hanif was murdered. He also claimed that the appellant had got recovered the gun in his presence. During cross-examination, he stated that they were four brothers including the deceased, all were unmarried and their parents had died while their sister had been married at Harappa. He admitted that none of them had any land. He denied that the Barat of Muhammad Hussain Bhatti, their co-villager, had gone to Mailsi on the day of occurrence. He gave out that the accused had disclosed suspicion of illicit relations between the two deceased two days before the occurrence, before his brother Munir P.W. Although in answer to another question he stated `It was in fact correct' but - later declared that the fact was not tru-.. He conceded that neither they had chased the accused nor had raised alarm nor any one from the village had come to the spot. He conceded that the dead body of Mst. Khalida was lying in the kitchen. He denied the suggestion that the appellant had seen the deceased in a compromising position in the kitchen of Mst. Khalida and had fired at both of them there. He also denied the suggestion that the accused had surrendered voluntarily before the police. The suggestion that neither he nor Munir had witnessed the occurrence of murder of his brother was also denied by him.
8. Muhammad Munir P.W.4 corroborated the statement made by Muhammad Hanif. During cross-examination, he stated that none from the neighbours had reached their house soon after the occurrence. He admitted that they had hid themselves after seeing the accused. He stated that neither they had tried to catch him nor had tried to hit him with a stone or Lathi. In answer to another question, he gave out that there was no enmity or litigation between their families prior to this occurrence. He stated that 40-50-100 persons belonging to different tribes and castes had collected after the arrival of the police and they included Lambardar, Chairman and Councillor. He denied the suggestion that he had gone with the Barat of Muhammad Hussain Bhatti on the day of occurrence and had returned home at Ishawela, and that the occurrence had taken place in his absence.
9. Muhammad Afzal S.H.O., who had registered the' case, submitted the challan to the Court after completion of necessary investigation, appeared at P.W.7 and deposed those facts. He also' stated that the accused after arrest on 6-2-1989 had got recovered the gun P.5. During cross-examination, he admitted that 21 persons including Chiragh Lambardar and other respectables who had appeared before him on the first day of the occurrence, had stated that Khalida and Hanif deceased had illicit relations which resulted in the occurrence. According to him, that was the talk of the village. He conceded that the appellant had stated before him that he had seen both the victims tying their Azarbands after committing Zina with one an another and so had murdered them under grave and sudden provocation. He also stated that there was a marriage ceremony in village on the day of occurrence but expressed inability to say whether it was the marriage of Muhammad Hussain Bhatti. He denied the suggestion that no blood-stained earth or empty was picked up from the house of Hanif and, in fact, both the deceased hail been murdered together at the house of Khalida. He stated that he had got despatched swabs of the victims to ascertain whether they had committed sexual intercourse or not and that the positive result in that regard was received vide Exh. P.E. "
10. Muhammad Hanif son of Sher Khan and Mst. Na 6`'bcgum who allegedly had witnessed the murder of Mst. Khalida Begum were not examined at the trial. Positive reports about the stains of blood on the earth from the offices of the Chemical Examiner and Serologist were tendered in evidence. Report Exh. P.X. from the office of the Forensic Science Laboratory about the three empties having been found tired from the gun recovered at the instance of the appellant was also tendered in evidence. Report Exh. P.E. about the two vaginal swabs taken from the vagina of Mst. Khalida was also tendered in evidence. According to that report the swabs were stained with semen. The statements of the remaining witnesses are more or less of formal nature.
11. The appellant during his statement under section 342 Cr.P.C. denied the prosecution case as a whole and pleaded innocence. He stated as follows in answer to the question, `Do you want to say anything else?': --
"I had come from the fields in the house of my uncle where I found Hanif deceased and Mst. Khalida deceased without clothes in their kitchen and I lost self-control and picked up the gun lying in the house of Hanif P.W. in the adjacent room and caused their death and had appeared at Police Station Malka Hans myself the same day."
Although initially he opted to produce defence but later declined to do same.
12. We have gone through the evidence with the assistance of the learned counsel for the appellant and considered the contentions raised by the learned counsel for the parties. None of the P.Ws. who appeared at the trial, claimed to have witnessed the murder of Khalida. Muhammad Hanif, her husband, and Mst. Nawab Begum, wife of her husband's brother, who were named in the F.I.R. to have witnessed her murder, were not produced at the trial. Nonetheless, since the appellant himself did not deny of having fired at both the deceased, which resulted in their death, the ocular account to the extent of infliction of injuries to the deceased which resulted in their death is of not much consequence.
The only question, which needs consideration, is, whether the occurrence had taken place in the manner put forth by the appellant or the murders were committed in the manner the complainant would like us to believe.
13. It is the complainant's own case that the appellant suspected illicit intimacy of Khalida and Hanif deceased. In fact, the complainant during cross- examination while' stating that the appellant had expressed the grievance about the illicit intimacy of Hanif with her aunt Mst. Khalida to Munir P.W., two days before the occurrence, categorically stated that the same, in fact, was correct. Although in the later part he resiled from that, but the fact remains that he knew that the appellant suspected illicit intimacy of his deceased brother with Mst. Khalida and his brother Munir P.W. also had been told of that by the appellant two days before the occurrence.
14. The S.H.O. who had investigated the case categorically stated during cross-examination that 21 persons who had appeared before him on the first day of the investigation, had stated that the deceased had illicit connection amongst them and that the occurrence had taken place due to that. As such, we feel no hesitation in coming to the conclusion about the factum of illicit intimacy of the deceased with each other and of the same fact being widely known to all the villagers. However, the question which still remains, to be answered, is, whether both the deceased were murdered at one and the same place on being found doing illicit acts or they were murdered separately in their own houses it, reported by the complainant.
15. Injury No.1 noted on the body of Hanif and injury No.3 noted on the body of Mst. Khalida were wounds with inverted edges and margins charred. It is difficult to assume that a person firing at both of them at separate places on separate occasions will fire the shots from the same distance. This could only have happened if both were before him at equal distance at the time he fired shots at them. Had Hanif been attacked and fired in the manner Bashir P.W.3 stated, the deceased in all probability would not have received injuries in the manner he was found to have suffered because the deceased would have certainly moved away to save himself from the onsalught of the appellant. It is the case of both the eye-witnesses that on seeing the appellant they had moved in the room and hid themselves. The same could have been done rather would have been done by the deceased as well because he would rather have been in a better position to assess that he will be the victim of the appellant. Still another fact, is, that had the deceased been murdered while washing the utensils, soiree of them would also have been stained with blood on the deceased falling there. Had that happened the S.I. would have definitely taken those utensils into possession. There is no evidence that the Inspector had taken into possession the utensils nor is there evidence of the presence even of the utensils near the dead body of Hanif.
16. In the case of Mst. Khalida, had she been murdered not while being in the company of Hanif deceased, her relatives would not have abstained to come to the Court to prosecute her murder. Her husband and his sister-in-law not only did not turn up to make statement against the appellant, none of them appeared before the doctor even at the time of post-mortem examination to identify her dead body. Such scorn on the part of the family members of Mst. Khalida particularly her husband is clearly indicative of the fact that she earned her death while doing something utterly immoral.
17. As a result of the above discussion, we have no doubt in holding that both the deceased were done to death by the appellant while being together and doing illicit acts.
18. The stance of the appellant that he had murdered both the deceased under grave and sudden provocation on seeing them in compromising position q finds support from another independent evidence also. In that, the swabs taken from the vagina of Mst. Khalida by the doctor who had performed the autopsy were found stained by the Chemical Examiner with semen. No doubt, Mst. Khalida was married and her husband was living and, as such, the possibility of the semen in her swabs could be from the cohabitation between the wife and husband but had that been so, the husband would not have stayed back and let the murderer of his wife escape.
19. Khalida was the wife of the real paternal-uncle of the appellant. Her illicit connections with Hanif were widely known in the village. The appellant had made a grievance also of that to Munir P.W. brother of Hanif deceased two days before the occurrence. With that background, he would have definitely lost self- control in seeing the two deceased doing illicit acts. As such, he cannot be held liable for having committed homicide amounting to murder. His conviction and sentences under section 302, P.P.C. are, therefore, set aside. He is instead held guilty for having committing an offence under section 304(1), P.P.C. and sentenced to undergo R.I. for five years plus to pay a tine of Rs.20,000, in default whereof to suffer R.I. for six months. He shall be given the benefit of provisions of section 382-B, Cr.P.C. as well.
N.H.Q./M-2805/L Order accordingly.