MUHAMMAD AFZAL ZULLAH, J.-Asghar Ali, aged 30 years, has been convicted by the learned Additional Sessions Judge, Lahore by his judgment, dated 23rd December 1968, under section 302, P. P. C., and sentenced to death for having committed the murder of Mst. Sharifan, his ex-wife, on the night between 12th and 13th October 1957. The convict has appealed and the reference for confirmation of the death sentence under section 374, Cr. P. C., is also before us. Both the matters are being disposed of by this judgment.
2. Briefly the facts, as disclosed in the dying declaration which is also the first information report are that the deceased was suspected of being a bad character, by the appellant, therefore, he divorced her in the year 1965; though she claimed that the suspicion was unfounded. After that she started residing along with her children in Ihata Chiragh Din, Nia Mozang Lahore. On the night of occurrence at about 12-30 when the deceased was lying on a cot, the appellant came there and having sat on her body caused her several injuries with a knife (khanjar). He also fired some ineffective pistol shots at her. The shots were fired also for the purpose of scaring away people from the Mohalla. Muhammad Ramzan (D. W. 2), the son of the deceased, and Arif (P. W. 8), who resided in the neighbouring Ihata, saw this occurrence.
While the appellant was running away from the place of occurrence, Muhammad Tufail (P. W. 7), who is also a resident of same Ihata, had seen him (appellant). His name is not mentioned in the F.
I. R. He, while raising an alarm, chased the appellant who after the occurrence ran towards Ganda Nala. Muhammad Siddiq (P. W. 10), a Milk-seller whose shop/house is not far away From the place of occurrence, heard the alarm which was being raised by Muhammad Tufail to the effect that "Asghar Ali accused be held up since he was a murderer." He joined in the chase. When the appellant reached near a bridge on that Nala, he was apprehended by Jafar Shah, A. S. I. (P. W. 11), who at that time was on patrol party. He, in fact, had heard a fire shot followed by some hue and cry and after having noticed a person running and being chased by others with shouts of "murderer be apprehen--ded", caught hold of the appellant. He was holding knife (Exh. P. 1) and revolver (Exh. P.5) in his hands. Tufail and Siddiq, in the meanwhile, having reached that place (185 ft. From the place of occurrence) helped the A. S. I. In securing the appellant. He was brought back to the place of occurrence where the A. S. I. Found the deceased in injured condition. Parveen, aged about 7/8 years (a daughter of the deceased), a given up witness, was also found injured. The deceased at that time was in her full senses.Therefore, the A. S. I.Recorded her statement (Exh. P. K.), which was thumb-marked by her. This statement was sent to police Station Mozang which is at a distance of about one and a half miles from the place of occurrence; where the case was registered at 1-25 a. m. (13th October).
The A. S. I. Conducted the initial investigation. He prepared the injury statements of the deceased and Parveen. He took the revolver with two live and four empty cartridges in its chamber and also the knife, into prossession vide memo. (Exh. P.A.). In the meanwhile Khurshid Mahmud, S. I. (P. W. 12), who himself had received the statement (Exh. P. K.) at the police station and had registered the case vide formal F. I. R. (Exh. P. K. 1), reached the spot with a few constables (at about 2 a. m.) and took the investigation from the A. S. I. On his direction, the A. S. I. Removed the deceased and Parveen to the hospital. When the appellant was produced before him (Khurshid Mahmud), he was wearing shirt (Exh. P. 2) and dhoti (Exh. P. 3) which were taken into possession by him vide memo.
(Exh. P.B.). One Ghiragh Din (not examined) produced a pair of shoes (Exh. P. 4/1-2) alleged to have been left at the spot by the culprit which were taken into possession vide memo. (Exh. P.C.).
Dr. Sayeeda Butt, Casualty Medical Officer, Ganga Ram Hospital, examined Mst. Sharifan (35.Years) in injured condition at 2-35 a.m. On 13th October. She was in a state of shock with feeble pulse and was semi-conscious. She was brought by Muhammad Jafar, A. S. I. Eighteen injuries (some multiple) with sharp-edged weapon were found on various parts of her body above the middle.
The brain and heart were not injured and, according to the doctor, the injured was able to talk. On examin--ing Parveen, the doctor found four small-incised wounds, includ--ing one multiple on her arms and right thumb. The injuries were freshly caused possibly within one to two hours.
Mst. Shrifan died on 13th October at 8-10 p.m. Dr. Nasir Iqbal performed the autopsy on 15th October and found 24 injuries on the dead body, which had been caused by shat-1)-edged weapon. The length of the wounds ranged from 1" to 4" and the width .1/4" to 1". Four out of five penetrating wounds; were in the abdomen and one was in the chest. The rest were 1/4" to 2" deep. The fourth rib and the lung on the side, the right lobe of the liver, the stomach and the caecum were found cut. , The cause of death was haemorrhage and shod, due to multiple stab wounds. Injuries to the lung, stomach and the caecum were individually fatal in the ordinary coarse of nature. The death occurred about 18 hours after the injuries and the post-mortem was conducted about 36 hours after death. No bullet injury was found on the body.
3. At the trial, the prosecution relied on the motive dying declaration (Exh. P.K); the eye-witness account; the recoveries and the chase and arrest of the appellant soon after the occurrence.
Muhammad Tufail did not support the prosecution. Therefore, he was allowed to be cross- examined by the Public Prosecutor. His statement before the committing Magis--trate was also transferred under section 288, Gr. P. C. Arif, Muhammad Siddiq and Jaffar (A. S. O.) P. Ws. Fully supported the prosecution case.
The prosecution also relied on an application (Exh. P. R.) under section 107, Cr. P. C., by the deceased against the appellant addressed to the S. S. P., Lahore. It is dated 6tb October 1967. From an endorsement on it (Exh. PR/ 1) it appears that it reached the Police Station on 12th October 1967 and was yet to be en--quired into when the occurrence took place. The contents of this application show that the deceased was originally married to Hakim Ali, the brother of the appellant. After his death she married the appellant about seven years ago. She bore four children to the said Hakim Ali. On account of estrangement between the parties due to the bad character of the appellant and his alleged beatings to her, the deceased obtained divorce in 1965 and during the September War, left village Mauza Ghondi (which had come under War operations) and started living at Lahore. It is averred in the application that the documentary evidence about the divorce was available with the Union Council Ghondi. Thereafter, the appellant used to pester the deceased for entering into remarriage with him and on her refusal used to threaten her. Apprehending death at his hands, she sought protection of the police.
The appellant when examined admitted that the deceased was married to him; but denied the divorce and claimed that he used to reside with her in the Ihata of occurrence. He denied the occurrence, his arrest as alleged by the prosecution, and the recoveries of the knife, revolver and his garme0ts. About the application (Exh. P. R.) he expressed his ignorance. While explaining the allegations against him, he stated that before her marriage with his brother, the deceased was married to one Siraj. The latter wanted to remarry her; therefore, he (Siraj) was inimical to the appellant. Siddiq, Tufail and Arif P. Ws. Are party men of Siraj. This party used to quarrel with the appellant. He used to ply the tonga of Mukhtar D. W, and would sometimes sleep with him (D. W.) at Faiz Bagh. On the night of occurrence also he slept with Mukhtar at about 9 p.m. After his day's work and was still asleep when Jafar Shah, A.S. I., accompanied by Ramzan D. W, and some others reached there and arrested him. Three witnesses were produced in defence.
Sardar Khalid Mahmud Magistrate Section 30, deposed that on 13th October 1967, he remanded the appellant to police custody vide order (Exh. D-A/1) pasted on application (Exh. D-A) for "effecting the recoveries of weapons of offence and revolver". In cross-examination he admitted that the application (Exh. D-A) contained tile request for remand only "for the purpose of interro--gating the accused about" the weapons and that there was no mention therein of the fact that the recovery was still to be effected. He, however, volunteered an explanation that he had made an enquiry from the PS. I., about the reason of the remand to which the latter had,, replied that the recoveries were to be effected. Ramzan (D. W. 2) is the son of Hakim Ali, the deceased brother of the appellant. He had appeared before the commit--ting Magistrate and was declared hostile.
Therefore, he was given up as a won-over witness at the trial. He as D. W. Tried to negative the prosecution case on almost every item and supported the defence version. Mukhtar (D. W, 3), the so-called owner of the tonga, tried to prove alibi for the appellant and supported the defence plea in respect of time and place of his arrest.
4. The learned trial Judge believed the dying declaration, relied on the statement made by Tufail P.
W. Before the commit--ting Magistrate and the statement of Arif Siddiq and Jaffar Shah (A. S. I.) P.
Ws. At the trial, about the occurrence, arrest and the recoveries from the appellant. The motive part of the prosecution case including the application (Exh. P.R.) has also been believed. No reliance, however, has been placed on the recovery of the shoes allegedly belonging to the appellant, from the place of occurrence Ramzan and Mukhtar D. Ws. Have not been relied upon. With regard to the evidence about the reason for remand of the appellant, it has been held that the same was only for the purpose of interrogating him in connection with the weapons, which had already been recovered from him.
5. The learned counsel for the appellant contended; that the deceased was unable to make any statement; therefore, the dying declaration is fake; that the appellant was not seen by anybody at the spot nor was he arrested in the manner stated by the witnesses; that the recoveries of weapons and garments are fake and the recovery, of shoes (Exh. P-4/1-2) is of no consequence because no evidence has been led to prove that they belong to the appellant; that the deceased had never been divorced by the appellant; and that he had been implicated falsely by her previous husband Siraj and his so-called party men, i.e., Tufail; Arif and Siddiq P. Ws.; We agree with the learned counsel, that the pair of shoes (Exh. P. 4/1-2) have not been linked with the appellant and no reliance has been placed by the learned trial Judge on this piece of evidence.
Therefore, we keep it out of consideration. We also agree with the learned counsel that Tufail P. W. Is not the type of a person who can be safely relied upon, whether in respect of his statement at the trial or that male before the committing Magistrate. Tufail at the trial, initially supported the prosecution in that on hearing the cries from the quarter of the deceased he saw the appellant running out and that he and Siddiq ran after hint towards the bridge of the Ganda Nala; where Jafar Shah, A. S. I., overpowered him and recovered the weapons and the garments, which were blood-stained, from him. But after having said all that, he stated "As it was dark, therefore I did not myself see the actual occurrence and cannot say who inflicted the injuries to Mst. Sharifan". Before the committing Magistrate, however, he had posed himself to be as eye-witness of the actual occurrence, i.e., the appellant causing the injuries to the deceased. On cross---examination by the Public Prosecutor, he reverted to the position taken by him before the committing Magistrate and stated that he along with the other inhabitants of the Ihata saw the appellant causing injuries to the deceased and explained that "since a considerable time has elapsed I forgot to mention that I saw the actual occurrence." At this stage, his statement before the committing Magistrate was transferred to the Sessions file under section 288, Cr. P. C. The learned Public Prosecutor, it appears, felt satisfied with the explanation given by the witness. On cross-examination by the defence counsel, once again the witness made a volte face and denied knowledge about the facts earlier stated by him at the trial and before the committing Magistrate and further stated that just after the -incident he had seen three or four persons with muffled faces running out from the place of occurrence and that he chased those persons. About the recoveries he conceded to the defence that he saw the weapons only in the hands of the A. S. I. He further tried to damage the prosecution case by saying that when the A. S. I. Came, the deceased was already unconscious and that her statement was not recorded by the A. S. I. In reply to a leading question, he stated that it was correct that his entire statement before the committing Magistrate was made at the instance of the police and that he had not seen the occurrence himself. It was also elicited from him by the defence that Siraj and Arif were inimical towards the appellant and used to quarrel with him. We have noticed that this witness has changed his statement several times. It appears that he has no respect for the oath. This, we are further of the view, appears to be a defect of character. We, therefore, cannot be sure that when he appeared before the committing Magistrate, he made a true statement. Consequently considering it unsafe to rely on any part of any of his statements, we exclude them from consideration.
6. The dying declaration is short and contains only the material aspects of the case: The names of Tufail and Siddiq P. Ws. Are not mentioned therein. It is not denied that the statement was thumb- marked by the deceased. The contention, however, is that the contents thereof were not stated by her. As will be presently seen, none of the witnesses know the back ground and details about the marriage and divorce if the parties. They could only be disclosed by the deceased herself. It also contains, at least, an oblique admission by the deceased in respect of the cause for the annoyance of the appellant, i.e. Her bad character. Her protest in respect of this suspicion in the state--ment is but natural. We are of the view that the statement appears to be genuine and has a ring of truth.
The learned counsel, however, relying on fee statement of the doctor that the shock and haemorrhage would cause semi, consciousness, contended that the deceased was not fit to make any statement. Our reading of the statement of the doctor does not create any such impression. In any case, the A. S. I. Spent sometime at the spot doing some preliminary investigation and waiting for the sub-inspector to arrive. The appellant was arrested not very far away from the place of occurrence and was immediately brought to the spot where and when the statement (Exh. P.K.) was recorded. The time of occurrence stated in Exh. P.K. Is 12-30 night while the doctor examined the injured about two hours later, i.e., at 2-35 a.m., after the statement (Exh P.K.) was recorded. This interval was sufficient to make the injured semi-conscious. Further the fact that she was still semi- conscious after such a long time and died about 18 hours later would show that she would be able to make the statement immediately after the occurrence. The heart was not injured a part of only one lung was injured. The other vital parts affected are the liver, caecum and the stomach. The injuries, in our view, are not such which would have immediately made the deceased unconscious.
We further take notice of the fact that the case was registered at the Police Station on the basis of Exh. P. K. At 1-25 a.m. Therefore, there is no justification to assume that the statement was n made by the deceased herself.
Next it was contended that none of the witnesses have signed Exh. P. K. Therefore, it was not genuine. The learned counsel has failed to notice that the case initially, was registered only under section 307, P. P. C., and the statement was being used as the first information report. Therefore, it may not have been considered necessary to get it attested by the witnesses.
It was also contended that there is no mention of the injuries to Parveen in Exh. P. K. And that the deceased must have known about it; therefore, the omission thereof in Exh. P. K. Would show that it was not genuine. This omission, on the contrary, in our view, strengthens the prosecution case that Exh. P. K. Is a genuine document. Had it been forged by the police it must have contained the fact about injuries to Parveen so as to support the prosecution case. It appears that Parveen had suffered very minor injuries and the mother in her anxiety to state the essential facts did not care to mention the injuries to the child, or in her agony forgot to do so. It is nobody's case that the injuries to the child were caused by `direct blows. They happen to have been caused accidentally because she was lying with her mother on the wine cot. She must have cried on the commotion (in the occurrence) and the mother may not have noticed that the child was crying due to small injuries on her person.
The learned counsel also pointed out that though mention is made in Exh. P.K. Of two shots having been fired at the deceased, yet no bullet injury was found on her nor any lead was recovered. This circumstance also shows the genuineness of Exh. P. K: Had it been an afterthought and would have been recorded after receiv--ing the medical report, the statement may not have been as it is. As the culprit fired the shots, there is nothing wrong in the decea--sed having an impression that some of the shots were fired at her and as she suffered so many injuries, it was not possible for her to say whether she received any bullet injury or not. There--fore, no mention is made of her having been hit by any bullet. The occurrence being of night, the statement made by the deceased appears to be natural.
Considering all the circumstances of the case and having taken note of the arguments of the learned counsel, we are satis--fied that Exh. P.K. Is the genuine statement made by the deceased immediately after the occurrence; and after sometime she became semi-conscious and then unconscious and thereafter she died. It can be and has been rightly used as dying declaration. It is true and fully implicates the appellant.
7. The statement of Arif P. W. Has been criticised mainly on the ground that there being no light near the place of occur--rence, he could not have identified the culprit from a distance of 32 ft.
Particularly when he admitted that he kept sitting, on his cot at that distance and saw the occurrence from that place. The witness has clearly stated that on having been awakened by the hue and cry of the deceased, he rushed to the spot (near the deceased) but the appellant fired a shot with a revolver and "as such I stepped back". Thereafter, he did not go near the cot of the deceased. Arif is a natural witness. He resides in the same Ihata and there can be no doubt about the fact that he would have slept at the place (point No. 3) shown g in the site plan which, admittedly, is at a distance of 32 ft. From the cot of the deceased. His conduct appears to be natural. On hearing the alarm he must have rushed to the spot and must have seen the appellant. .
That is why he was threatened by the latter with a fire shot. His conduct after that also appears to be natural. He had no direct interest in the affair. Therefore, he would not have risked his life. Then it was contended that this witness did not chase the appellant, nor did he go near the deceased. We do not find anything unusual in this conduct. It appears, the witness was stunned and did not behave in a manly manner. About the light for identification, it would suffice to mention that if the witness went near the cot of the deceased and on that he was scared away by the culprit, the opportunity was sufficient for identification even in a dark night; and this fact has not been denied that Arif was fully acquainted with the appellant. In these circumstances, he must have identified him. We, therefore, hold that Arif P. W. Is a natural witness, he saw the occurrence and identified tie appellant.
8. The statement of Siddiq, P. W. Has been criticised on the basis that he is under the influence of the A. S. I., because during the days of occurrence the latter was investigating a case in which the witness was a complainant. This, by itself, is not sufficient to dub Siddiq as a false witness and is hardly a motive for falsely implicating a person against whom he has no enmity. His shop is not shown in the site plan. But be has stated in the very first sentence of his examination-in-chief that it is situated near the Ganda Nala. It was elicited from him in cross-examina--tion that his shop is close to his house. There is nothing on the record to contradict the witness on these points. The A. S. I. Apprehended the appellant because he was being chased by persons who were raising the alarm. They, according to the prosecution, were Tufail and Siddiq P. Ws. Even after the exclusion of statement of Tufail, the fact remains that the A. S. I. Acted, as he did on the alarm having been raised by the pursuers, one of whom was Siddiq P. W. Some discrepancy was pointed out about the place where the weapons were taken into possession by the A. S. I. From the appellant; whether at the Ganda Nala or at the spot. The variation in this behalf appears to be natural and cannot be held to be a contradiction. It was also contended that the appellant did not fire at the A. S. I., and that it is unnatural. We do not agree with the learned counsel. When he was being pursued from behind by the witnesses and was confronted by the A. S. I., who may also have been armed with some weapon as he was on patrol duty, the surrender of the appellant was not, in any way, unnatural.
9. None of the witnesses, i.e., Arif, Siddiq and the A. S. I. Has any interest against the appellant. Some suggestions were made to the effect that Arif and Siddiq were connected with Siraj and that the latter had enmity with the appel--lant; but they have been denied. After having carefully gone through the evidence, we have come to the conclusion that Arif, Siddiq and Jafar Shah P. Ws. Have made true statements; the effect whereof is an irresistible conclusion that the appellant caused the injuries to the deceased, ran from the place of occurrence and was pursued by some persons from the Ihata (including Siddiq) with the alarm that there was a murderer. Soon after that he was apprehended by the A. S. I. At about 60 yards from the spot almost red-handed. The recovery of the knife and his garments, which have been shown to have been stained with human blood, immediately after the occurrence, also connects him with the offence. The recovery of the revolver and the cartridges, empty and live, from its chamber may, by itself, be of not any consequence because the empties were not picked up from the spot. But in the circumstances of this case when, according to Arif P. W. He was scared away by fire shots and there is a mention of this fact in the statement (Exh. P. K.), this recovery, in so far as it goes, also supports the prosecution. It is needless to emphasise that the recoveries of blood-stained garments of the appellant soon after the occurrence is a very important circum--stance against him. It is in the statement of Arif P. W. That the appellant used to visit the deceased off and on and used to quarrel with her. This is in line the motive stated in the dying declaration. The contents of Exh. P.R. The application under section 107 Cr. P. C. Have been attacked by the learned counsel, as inadmis--sible. Even if that is so, the fact remains that an application in respect of the relationship between the parties was made to the S. S. P., which reached the local police on the day before the night of occurrence, in ordinary official routine. This circumstance can be taken note of and even in the absence thereof, the evidence contained in the dying declaration (Exh. P.K.) and the A statement of Arif P. W. Is sufficient to show that the appellant had a motive to kill the deceased.
10. The statement of the Magistrate (D. W. 1) does not prove that the incriminating recoveries had not been effected on the night of occurrence. We have seen the application for remand (Exh. D-A).
It does not mention that the recoveries had yet to be effected. We have noticed that the police had challaned the appellant for murder as well as for an offence under the Arms Ordinance. Even after the recovery of the weapon, some enquiry interrogation was necessary in order to complete the challan under the second offence. Therefore, the remand was for interrogating the appellant in respect of the weapons. The remand order is not written in the hand of the Magistrate arid appears to have been written by his Reader. His statement that it was on the information by the P.S.I., that he wrote the remand order, not only goes against the contents of the application (Exh. D. A.) but also does not inspire confidence. We are, therefore, in no doubt that the statement of the Magistrate does not help the defence.
About the statement of Ramzan P. W. It is admitted that he is real nephew of the appellant and would need his protection after the death of his mother. If the appellant had not been the culprit and the witness had known that he was at the place of Mukhtar, he (the witness) would have rushed to the appellant to inform him about the occurrence. According to him, the occurrence took place inside the quarter while according to the proved circumstances the cot of the deceased was outside in the courtyard. The statement made by this witness is contradicted by independent witnesses and circumstances on all important points.
Similarly, the statement by Mukhtar D. W. Does not inspire confidence. He at his own showing is interested in the appellant. He did not appear before the police nor before the committing Magistrate, in spite of the fact that according to him the appellant was arrested from his place while both of them were sleeping on a cot. He did not bother to enquire as to why the arrest had taken place.
Agreeing with the assessm ent of the defence evidence by the learned trial Judge, we hold that it does not help the appellant.
11. In view of the overwhelming evidence against the appellant, we hold that he has been rightly held to be guilty of the murder of Mst. Sharifan:
12. About sentence, it is to be remarked that even in Exh. P-K it is mentioned that the motive for the attack was the suspected bad character of the deceased who, admittedly, was the widow of the appellant's brother. Not only this, three nieces and a nephew of the appellant were living under her care. Above all, according- to the admission of Arif P. W. In cross-examination, the deceased had given birth to a child, only two months prior to the occurrence. The witness was asked a specific question as to who was the father of the child, to which he showed his ignorance because, according to him, the appellant did not reside in the Ihata. This shows, according to the prosecution, that the deceased, who was not in any wedlock since 1965, gave birth to a child in 1967. If she had been divorced by the appellant in 1965, he might have thought that the child was illegitimate; and if that was so, it was sufficient proof with him that the deceased was living in sin. In these circumstances, we feel the appellant committed the murder on account of honour and, probably, also in order to save his brother's: children from an immoral influence. Therefore, the extreme penalty of death should not be exacted from him. The sentence of death awarded to him is not confirmed. He is instead sentenced to transportation for life.His appeal is dismissed except only to the extent indicated above in the matter of sentence.