MUHAMMAD RAFIQ TARAR, J.-Barkat Ali (32). Son of Khushi Muhammad, caste Machhi, resident of Purana Kahna, was tried under section 302, P. P. C. By the learned Additional Sessions Judge, Lahore, on the allegations that on 22nd June, 1976 at 9 a. m. He committed the murder of his brother's wife Mst. Allah Rakhi. By judgment, dated 28th September, 1978, he was convicted on the said charge and sentenced to death subject to confirmation by this Court and a fine of Rs. 4,000 or in default in the payment thereof to undergo rigorous imprisonment for two years. Out of the fine, if recovered, half the amount was ordered to be paid to the heirs of the deceased as compensation.
The convict has appealed and the case is also before us on reference for confirmation of the death sentence awarded to him. Both these matters ball be disposed of by this judgment.
2. The F. I. R. Version of the occurrence is that three years prior to the occurrence Mst Allah Rakhi deceased was married to Muhammad Butta, brother of Barkat Ali appellant. The appellant wanted to develop illicit relations with her but she resisted, upon which he gave her beating five or six months prior to the occurrence. On coming to know about this incident, Abdul Hamid complainant, brother of the deceased came to village Purana Kahna and took her to his house in village Asal Guru Kay. Two or three months prior to the occurrence, Muhammad Buta, husband of the deceased again brought her to his house. Two days prior to the occurrence, Abdul Hamid complainant received a message from Mst. Allah Rakhi deceased that Barkat Ali appellant was persisting in his indecent behaviour and had threatened to kill her. On the night preceding the day of occurrence, Abdul Hamid complainant came to Purana Kahna. He and the relatives of the appellant reprimanded him for his misbehaviour, on which he felt annoyed. On the fateful day, i.e., the 22nd of June, 1976, at about 9 a. m. Abdul Hamid complainant and Faqir Muhammad P. W. Were present in front of the house of one Khewan when Mis. Allah Rakhi came out of her house. The appellant who was following her, started giving her Chhuri blows. She started running raising alarm and fell down in the house of one Hassan Din Arain. The appellant gave her more blows in that position. The complainant and Faqir Muhammad ran towards him but he fled away taking the Chhuri with him. The occurrence was also witnessed by Mst. Shahnaz, grand-daughter of a foresaid Hassan Din. Mst. Allah Rakhi succumbed to her injuries when she was being removed to Civil Dispensary in a tonga. Thereafter, Abdul Hamid complain apt went to Police Station Kahna and reported the occurrence to Muhammad Yaqub Khan; S. H. O, at 10-30 a, m, vide F. I. R. Exh. P. A.
3. After recording the F. I. R. The S. H. O. Reached Civil Dispensary Kahna, and prepared the inquest- report (Exh. P. G.) of the dead body of Mst. Allah Rakhi and despatched it to the mortuary for post- mortem examination. Thereafter, he went to the spot and secured some blood--stained earth which he made into a sealed parcel vide memo. Exh. P. B. He arrested the appellant on 10th July, 1976. On 15th July, 1976 the appellant led the police party to Rajbah Jedu and from there dug out blood--stained Chhuri (Exh. P. 1.) which was made into a sealed parcel vide memo. Exh. P. C. After the investigation, the appellant was challaned.
4. [Medical Evidence].
5, In support of its case, the prosecution examined three eyewit--nesses, namely, Abdul Hamid complainant (P. W. 1), Mst. Shahnaz (P. W. 2) and Faqir Muhammad (P. W. 3). It also relied on the evidence relating to recovery of blood-stained Chhuri at the instance of the appellant.
6. The appellant pleaded not guilty to the charge and denied the prosecution allegations against him. When asked why this case against him, be made the following statement :- "Some Mughals of village Purana Kahna were inimical towards me, and they were after my blood because I had refused to oblige with free personal service of providing water. I am a waterman by profession. They had turned me out of the village. They have managed to implicate me in this case which is false and fabricated."
No evidence was led in defence.
7. After examining the evidence on the record, the learned trial Judge came to the conclusion that "recovery of Chhuri Exh. P. I from the exclu--sive possession of the accused has not been proved" and the presence of Abdul Hamid and Faqir Muhammad P. Ws. At the place of occurrence was "quite uncertain". He, however, accepted the evidence of Mst. Shahnaz and found its corroboration in the motive and the medical evidence and, on the basis of the above finding, convicted and sentenced the appellant as mentioned above.
8. The learned counsel for the appellant contended that it was an unwitnessed occurrence; Abdul Hamid complainant was imported from village Asal Guru Kay at a belated stage and the F. I. R. Was recorded in the evening, and not at 10-30 a. m. As alleged by the prosecution. He further submitted that Faqir Muhammad P. W. Is a party-man of the complainant. Lastly, he argued that the statements of the eye-witnesses are full of material discrepancies, therefore, no reliance could be placed on their testimony. The learned State counsel, however, submitted that the F. I. R. Was lodged very promptly and the prosecution version is suppor--ted by three eye-witnesses who had absolutely no motive to falsely impli--cate the appellant, therefore, he has been rightly convicted.
9. Admittediy, the occurrence took place in village Purana Kahna and Abdul Hamid complainant is a resident of village Asal Guru Kay situate twenty-seven miles away from the place of occurrence.
However, in view of the evidence available on the record, we do not feel inclined to agree with the learned counsel for the appellant that it was an uuwitnessed occurrence or that Abdul Hamid was imported from his village at a bela--ted stage. Faqir Muhammad and Mst. Shahnaz, P. Ws., who bad absolutely no motive to falsely implicate the appellant, stated that Abdul Hamid complainant was already present in the village prior to the occur--rence. Abdul Hamid complainant admitted that he lodged the F. I. R. With the police in the evening when it was sufficiently dark. However, in the peculiar circumstances of the present case the prosecution version cannot be thrown away merely on the ground of delay in lodging the F. I. R. The benefit of delay in lodging the F. I. R. Is available in those cases where the identity of the accused is in doubt and time is gained to fix the identity or to build up a story to rope in innocent persons along--with the guilty. In the instant case, the occurrence took place in the broad day-light when there was no possibility of mistaken identification and it being the case of single accused it is not possible to believe that the real culprit was let off and the appellant was falsely implicated.
10. We have noted that the learned Additional Sessions Judge doubted the presence of Abdul Hamid and Faqir Muhammad P .Ws. At the place of occurrence merely for the reason that there were some discrepancies in their statements. They appeared in the witness-box about two years after the occurrence and discrepancies were likely to occur.
11. All the three eye-witnesses had absolutely no motive to falsely implicate the appellant in a heinous crime like the present one involving capital punishment. Referring to the statement of Mst.
Shahnaz that her father was a cultivator at Sharqpur Khurd, an argument was attempted to be built that she was a resident of a different village and had not seen the occurrence. After considering her entire statement, we do not find any substance in this contention. She is the grand-daughter of Hassan Din and her statement that Mst. Allah Rakhi deceased was her neighbour, goes unchallenged on the record. It is interesting to note that it was suggested to her that on the day of occurrence she accompanied the deceased to the fields in the morning and it was in her presence that she was killed by her paramour but towards the end of cross- examination another suggestion was- hurled on her that on the day of occurrence she was at Sharqpur Khurd. Mst. Shahnaz is a very natural witness of the occurrence as it took place partly in the courtyard of her house where the appellant gave the deceased more blows after she had already fallen due to blows received outside the house.
The defence version suggested to the complainant was that Mst. Allah Rakhi had developed illicit relations with two or three persons of the village; her husband and the appellant used to admonish her, on that score; on the day of occurrence she had gone to the fields to meet one of her paramours when the other also emerged and there she was killed as a result-of rivalry between the two. On the face of it, this version is absurd. Had it been so, the husband of the deceased who happened to be the real brother of the appellant, would have raised much hue and cry that his brother had been falsely implicated. The appellant had not the courage even to examine his real brother in his defence. By this we should not be understood to mean that the appellant was required to prove his innocence. As already stated above, the prosecution version is supported by three independent eye-witnesses. We are, therefore, satisfied that the prosecu--tion has successfully brought home the charge against the appellant and he was rightly convicted.
Accordingly, we maintain his conviction under section 302, P. P. C. He took the life of an innocent and defenceless woman in a gruesome manner as she resented and repelled his indecent advances towards her. He, therefore, does not deserve any clemency in the matter of sentence.
We, therefore, dismiss his appeal and confirm his death sentence.