1. ' SARDAR MUHAMMAD SHARIF KHAN, J.-Appellant Liaqat Ali has been convicted under section 302, P.
2. C. And sentenced to life imprisonment by the learned Sessions Judge, Mirpur vide his judgment dated 31-3-1974.
3. ' The facts of the case briefly are that the father of Abdul Rehman deceased was a Mangla Dam affected person who was able to acquire some land in the village of Kotli Shah Jehanian in the district of Gujrat in the close vicinity of a `Gujar', Sardar by name. Thus Abdul Rehman deceased happened to go to Kotli Shah Jehanian on the land of his father whereby illicit intimacy was developed between Abdul Rehman and Mst. Arshad Begum daughter of Sardar Gujar. It is to be noted here that Abdul Rehman deceased was a Jat by caste. Mst. Arshad Begum eloped with Abdul Rehman deceased and both of them came to Panyam, a village of the paramour in Azad Kashmir. This elopement of the girl with a non-Gujar was felt by the family of the girl. According to them, it amounted to violence in seeking their honour, so to say, they were put to disgrace. The Jats were also not happy on this elopment as their boy was already married. On the approach of the Gujars in the village, to vindicate their honour, the girl was returned to the Gujars by the Jats of Panyam against her will. Because the boy and the girl were very near to one another in Kotli Shah Jehanian, the girl was sent to Karachi to live with her maternal uncle so as to evade the re-union of the two. But the girl was so much fascinated by Abdul Rehman deceased that she ran away from Karachi from the house of her maternal uncle and came to village Panyam to live with her paramour, namely, Abdul Rehman where she was then married to him. They were living together quite happily in the village of Panyam. Ultimately, a conciliation reached between the family of the girl and that of the boy, as a result of which the mother and brother of the girl had been occasionally paying visits to the house of Abdul Rehman. This shows that the relations of the parties had become cordial and the position of mutual relationship on account of the marriage ensued between Abdul Rehman deceased and Mst. Arshad Begum was apparently maintained.
4. ' It was on 4-1-1974 that Liaqat Ali accused-appellant came to the house of Abdul Rehman at Panyam one day earlier to Eid-ul-Azha, After taking meals on the night falling between 5th and 6th January, 1974, Abdul Rehman deceased, his wife and Liaqat Ali, his brother-in-law slept in the same room as usual and Bostan Khan P. W., brother of the deceased slept in the adjoining room. Abdul Rehman had also a second wife who was away to the house of her parents on that night and the wife of Bostan had also gone to the house of her brother on the occasion of Eid and the former so also in connection with the marriage of her brother. The mother of Abdul Rehman was also in the house who slept in a separate room distantly situated. Bostan who was sleeping in the adjoining room heard some rattling noise in the room of his brother and by that he was drawn thereto. He pushed open the door of the room and got in and found the lantern lighted also and saw the accused hurling a blow of the axe at the face of his brother, whereas the wife of the deceased was found silently standing. Boatan then abused the assailant as to why he was killing his brother but he in turn raised the very axe at him on which he got out of the room to protect himself while making noise against the accused-appellant that he had killed his brother. The accused then also came out of the room and ran away alongwith the weapon of offence. On his noise, his mother also came out of the room who also saw the accused running away. Gulab and Akbar from the neighbourhood were also attracted towards the scene of occurrence by the noise of Bostan.
5. Bostan and Gulab both made an attempt to chase the accused appellant but they were threatened to be killed by him with the very an if to be pursued by them. So they were not successful in apprehension of the accused-appellant. Bostan Khan then went to Mirpur Police Station which is shown at a distance of about 32 miles from the scene of offence and lodged his F. I.
6. R. Exh. "P. A.' at 3-30 a.m. In the report it was also stated that it was with the aid of Mst. Arshad Begum P. W. Wife of Abdul Rehman deceased that her brother Liaqat Ali appellant committed the offence of murder.
7. ' The investigation was started by the Police and the visit of the scene of occurrence was also accordingly made. The accused-appellant who was apprehended by the people behind Bostan and brought to the house of Akbar, was also arrested by the Police. After his arrest, the weapon of offence i,e, blood-stained axe allegedly used by the appellant in the commission of the offence was recovered at his instance of which seizure memo. 'P. B.' was prepared. The blood-stained clothes, namely, 'rehband' and shirt worn by the accused-appellant were also seized by the Police and memo 'P. D.' was prepared thereof. The blood-stained earth from the spot was also seized.
8. ' Mst. Arshad Begum was also arrested alongwith the accused-appellant who were remanded to Police custody by the Magistrate on 7-1-1974 for a week but Mst. Arshad Begum was released by the Police on 8-1-1977 as there was no participation or abetment on her part in the commission of the crime and she was treated as a prosecution witness whose statement under section 161, Cr. P.
9. C. Was also recorded by the Police. The articles seized were sent to the Chemical Examiner under seal who reported that all the articles were stained with the blood and forwarded his report alongwith the pieces and scrapings of blood collected from the bloodstained articles to the Serologist for determination of the origin of blood and its grouping but no report from the Serologist is forthcoming on the record. No reason for not obtaining the report from Serologist was given by the Police. After the completion of the investigation, the accused-appellant was challaned by the Police before the Court of Sessions Judge, Mirpur who held the trial of the case accordingly. The appellant when questioned by the learned Sessions Judge under sections 242 and 343, Cr. P. C.
10. Denied the allegations made against him and alleged that a false case had been made against him on account of enmity and suspicion as his sister was enticed away by the deceased and there had been a litigation between his father and the deceased under section 107, Cr. P. C. During which the latter was also bound down. But he has not examined any witness in defence.
11. ' The Prosecution, for the purpose of proving their case, have examined the witnesses, namely, Bostan Khan, Mst. Arshad Begum, Mst. Nek Bibi Gulab Din, Muhammad Sadiq, Muhammad La), Bostan Khan Patwari, Dr. Muhammad Bashir, Abdullah Constable, Sakhi Walayat Constable, Abdul Qayyum, A. S. I. And Raja Abdul Razzaq, S. H.
12. 0.
13. ' The learned counsel for the parties were heard and the record was also perused.
14. ' Two of the witnesses, namely, Bostan complainant and Mst. Irskr Begum gave eye-witness account of the occurrence. They have unanimously deposed the details of the occurrence in context of the motive for commission of the offence and we find no substantial discrepancies in their statements before the Court. But their evidence is condemned by the learned counsel for the appellant on the grounds that in case of the Bostan P. W. The alleged rattling sound or shrieks produced or uttered within the room by which he had stated his attraction to the scene of occurrence is not possible. There were four blows delivered to the deceased with a sharp weapon the nature of which, according to him, was such that no shrieks or noise could be made by the deceased and so it cannot be held that he was able to witness the last blow delivered to the deceased on his face. But we are unable to agree with him. The possibility of the shrieks uttered by the victim cannot be ruled out. The only injury fatally delivered to the victim was Injury No, 2 and so shrieking on the part of the deceased on his very receiving the first injury at least, may not be held to be nil. The loud crepitation of breath passing through wind-pipe caused by the agony of unnatural death could have also attracted a man just lying in an adjoining MOM.
15. ' Moreover, the wife of the deceased was also within the room for whom it was but natural to raise hue and cry attracting Bostan. And for the statement of Mst. Arshad Begum to be taken out of consideration, the learned counsel for the appellant has vehemently contended that it was not admissible in evidence because she was an accused to the case whose statement could not legally be recorded on oath by the Court unless she was a person discharged by the trial Court under section 173(3), Cr. P. C. And before that the police was bound by law to show her name in column 2 of the challan report so as to enable the Court to make a proper order as indicated above. In support of his contention he has cited 1970 P Cr. L J 722. In this case the modes were indicated by which an accomplice becomes a competent witness. He is either to be granted pardon under section 337, Cr. P. C. Or case against him should first be withdrawn by the prosecution under section 494, Cr. P. C. For placing him in the witness-box against a co-accused.
16. Furthermore, it was stated therein that if there is some evidence appearing against a person accused of an offence, though not prosecuted, he cannot also be treated as a person competent to give evidence. Thi authority, in no way is applicable to the present case. Mst. Irshad Begu was arrested on basis of a mere suspicion having no foundation, whatso ever. The suspicion which was cast on her while lodging the F. I. R, that it was with her help that her husband was killed by her brother, A was completely vanished. There was no evidence against Mst. Irsha Begum and she was not in any manner involved in the murder of her husband. Thus the word 'accused' used against Mst. Irshad Begum I the course of investigation does not attract the provisions of section 16 read with section 173, Cr. P. C. Under section 169, Cr. P. C., when an Officer In charge of a Police Station or Police Officer making investigation finds that there is no sufficient evidence or the reasonable suspicion to send the accused up to the Court, he releases such a person if he is in custody on his executing a bond with or without surety to appear before a Magistrate competent to take cognizance of the offence. Obviously, this is so in case of deficiency of evidence but when there is absolutely no evidence against a certain person, who was simply named as an accused in the F. I.
17. R. On a mere suspicion, the Investigating Officer is bound to release such a person if in custody of the Police without any bond because no question for insufficiency of the evidence arises thereof.
18. Under section 173(3), Cr. P. C., the Magistrate is to discharge the bond if obtained by police under section 169, Cr. P. C. Again, the reference made to the Law of Evidence by Monir published in 1974 at page 1364 by the learned counsel for the appellant does not also lend support to his contention with regard to the inadmissibility of the evidence of an accomplice as the reference urged relates to a person accused of an offence against whom a process was issued by the Court or he was on trial. And this is not the situation here in the instant case. No doubt, Bostan is the real brother of the victim but he has absolutely no motive to falsely implicate Liaqat Ali who is the real brother of Mst.
19. Irshad Begum P. W. And Mst. Irshad Begum being a real sister of the accused appellant cannot be conceived to have gone against her brother if he was not responsible for the murder of her husband.
20. ' It was then urged that it was under the influence and pressure of the police that Mst. Irshad Begum was forced to state against her brother. Her statement before the trial Court was recorded after the lapse of a period of more than two months and so it cannot be said that it was under the pressure or influence of the police that she had to make a statement. The relationship of the brother and the sister is such a proverbial matter containing affection, love and compassion that no pressure or influence, whatsoever, could be exerted or exercised by the police or anybody else so as to force the sister to make a false statement against her brother to obtain his punishment for an offence of murder even though their relations may be strained and here in this cast there was no estrangement of relations even between the sister and the brother and so her testimony is to be relied upon.
21. ' Furthermore, the presence of the accused appellant in the house of the deceased on the fateful night is established beyond a reasonable doubt by the evidence of Bostan, Mst. Nek Bibi, the inmates of the house. He was then arrested by the police on 6-1-1974 from is very place near the scene of occurrence. He was brought appreheneded by the people of the locality after he had run away from the house of the deceased after the commission of the offence. No doubt, the police was careless not to collect the confirmative evidence which was available in abundance respecting the arrest of the appellant from near the scene of occurrence but the statement of Raja Abdul Qayyum Khan, A. S. I. Who arrested the accused appellant from the house of Akbar situated in the very locality concerned, cannot be ignored unless it could be disproved by elucidation from the cross-examination of the prosecution witnesses present thereat or by production of evidence but nothing of the sort is forthcoming to hold otherwise that Liaqat Ali accused appellant was not arrested in the vicinity of the place of occurrence.
22. ' The contention of the learned counsel for the appellant is that Gulab P. W. Was wrong to state that the appellant was recognized in the moonlight by him while running away after the commission of the offence. He may be correct in this respect because it was not so stated in the very F. I. R. In the F.
23. I. R. The simple arrival of Gulab an the scene of occurrence was reported to by Bostan P. W. The statement of Gulab is just to the effect that he also saw the accused running away. It may be inferred from his statement that he might be stating about seeing the outline of the figure of the person running away after the commission of the offence who was acknowledged as Liaqat appellant by the inmates of the house. Nevertheless, his statement, so far the reliance to be placed on the evidence of the ocular testimony is concerned, is worthwhile who heard Bostan accusing the appellant as the killer of his brother just after the occurrence.
24. ' There is nothing wrong in the statement of Mst. Nek Bibi P. W. She got out of the room on the cries raised by Bostan and saw the appellant running away from the premises of her house. The accused appellant was an insider who could have been easily caught sight of the woman in the moon-light. The mere relationship of the witnesses with the deceased, in the circumstances of the case, though lacking corroboration, cannot become a ground for discarding their evidence as they are not found to have been motivated to falsely implicate the accused appellant who is the real brother of Mst. Irshad Begum P. W. However, the motive of the crime has been fully established by the prosecution.
25. ' The offence was committed by Liaqat Ali appellant just to avenge the elopement of his sister with Abdul Rehman deceased. The said elopement is admitted by the appellant which was also made a plea to defend himself that it was on account of this elopement that the suspicion was made against him thereby involving him in the commission of the crime. The recoveries of the alleged incriminating articles and their seizures thereof by the police were totally ignored by us because the report of the Serologist who could have furnished us corroborative evidence in this connection was not obtained by the police.
26. ' There is thus a clear betrayal of gross lack of diligence on the pact of Police in conduct of the investigation. The lantern was mentioned in the F. I. R. To be burning at the time of commission of the offence but it was. Not cared to seize the same and so the contention of the learned counsel for the appellant is that there was no lantern burning in the room as its non-recovery raises a presumption as such. The Police paid no heed to the recovery of the lantern although it was clearly mentioned in the F. I. R. That the lantern was found burning in the room when the offence was committed by the offender. If it were to be introduced by the Police, as contended by the learned counsel for the appellant, it would have certainly been seized by the Police. It seems to us that it was mainly because of the insufficient knowledge of the working of the Police in conduct of the investigation that the lantern could not be seized by it. The burning of the lantern appears to us to be natural and it was so done as to hit the victim at the vulnerable part of the body of the victim in order to do away with his life.
27. ' Again, the learned counsel for the appellant has criticized the credence of the F. I. R. To be written before the visit of the spot by the Police and in order to raise the doubt in this behalf he has referred to the statement of Bostan P. W. Wherein it was stated by him that he also signed a document on the spot during the investigation. The manner in which the cross-examination of this witness was made by the counsel for the accused appellant shows that the pressing curiosity of the counsel while posing an exhortative question to the witness attracted an answer to be made as such by him credulously feeling that there might be some document even signed by the witness at the spot. The non-mention of the time in the relevant column of the inquest report was also made a ground by the learned counsel for the appellant for the report to be posteriorly written thereof. This is not a material omission made by the Police as to affect the veracity of the witnesses when they deposed about the report to be written in the very police station at the time given therein. The difference between the time given in the report 'PA' by Bostan and the challan sheet prepared by the S. H.
0. Appears to have occurred due to mistake and as such it also does not otherwise affect the time of the report when it was actually made at 3-30 a.m. By Bostan P. W.
28. From the discussion above, we have no hesitation in holding that the murder of Abdul Rehman, husband of Mst. Irshad Begum P. W. Was!B committed by Liaqal Ali appellant and so he was rightly held liable for thel offence of murder by the learned Sessions Judge.
29. ' There, is also a revision petition filed by the complainant for the enhancement of the punishment awarded to the appellant but it was not pressed. The Government has also not come in revision for enhancement of the sentence. During the course of arguments, it was disclosed that Mst. Irshad Begun entered into remarriage with a man in the very family of her deceased husband and so also it was perhaps a consideration for the complainant not to press his petition. The remarriage of Mst.
30. Irshad Begum in the family of her deceased husband and her affection towards the family of her parents, may sometimes bring back the families of Jats and Gujars together and this may be a matter for mitigation to be taken into account. Moreover, at the time the offence was committed by the appellant, he appears to us to have anguish of mind on account of elopement of her sister by Abdul Rehman deceased. This may also be a mitigating circumstance. Thus, in these circumstances, we are not inclined to enhance C the sentence awarded to the appellant by the learned Sessions Judge, Mirpur.
31. ' In the result, the appeal of the appellant and the revision petition of the complainant both are dismissed accordingly.