1. GHULAM MUJADDID MIRZA, J.-----Muhammad Hanif, Muhammad Sharif, Nazir Ahmad, Ramzan and Younus Masih were tried by the Addi--tional Sessions Judge, Sahiwal, for the murder of Umme Kalsoom as well as for committing dacoity in her house. The trial Judge by judgment dated 5th November, 1979 convicted all of them under sections 302/149, 396, 460 and 148, P. P. C.
2. Muhammad Hanif was sentenced to death on both counts and a fine of Rs. 2,000 and Rs. 1,000; or, in default two years' R. I. And one year's R. I. Respectively. He was also awarded life imprisonment under section 460, P. P. C. And three years' R. I. Under section 148. P. P. C.
3. The remaining four accused were sentenced to life imprisonment under sections 302/149 and 396, P. P. C. With a fine of Rs. 2,000 and Rs. 1,000 each, or, in default two year's R.I. And one year's R.I. Each on each count, respectively. They were also awarded life imprisonment under section 460, P. P. C.
4. And 3 years' R. I. Under section 148, P. P. C. The sentences were to run concurrently.
5. The convicts have filed separate appeals. The complainant has filed revision for the enhancement of sentence of all the convicts except Hanif. Reference for confirmation of death sentence of Hanif is also before us. All these matters shall be decided by this judgment.
2. The occurrence took place at mid-night of 6th March, 1976. Venue was the house of Faqir Muhammad Patwari. It is situated in Chak No. 207-E.. B., nine miles away from Police Station Ahmad Yar.
6. According to Fazal-ur-Rehman who was the then Station House Officer at Police Station Ahmad Yar, report about the occurrence was lodged by Amjad Ali brother of the deceased.
7. It is in the report that Amjad alongwith his mother Mst. Rasheedan, sisters Umme Kalsoom and Nasreen Akhtar were sleeping in a room in their house. At about mid-night, someone from the outside called his mother and said that her buffaloes had gotten loose and were running about.
8. Mabi the grandmother was worried. Amjad heard the same voice number of times. All of them awoke up. They noticed some light in the door. A few persons were standing outside with a lantern.
9. Urrme Kalsoom got up. She lit the lantern. Mother, opened the door and saw Fazal Muhammad armed with a pistol. There were two others. One of them was of strong built, young broad face, brownish complexion and middle height. The other was thin, fair complexion, young tall. Amjad's mother tried to close the door. Fazal Muhammad pushed her, forced entry and said "she would not be allowed to bide herself". They threw lantern in the courtyard. The oil spread all over the place. It caught fire. Fazal Muhammad with the -help of other com--panions tried to throw Amjad's mother on the floor. She started fighting with them and also shouted. The children began to cry. The third man who, was of fair complexion kicked the lantern, which Umme Kalsoom was holding, Amjad and his sister grappled with him. He said to Fazal Muhammad 'Have you brought me here to be killed.
10. They will kill me. Fire". Fazal Muhammad then fired with his pistol. Umme Kalsoom was hit in the chest. Nasreen tried to catch hold of Fazal Muhammad from his legs. He pushed the mother, got himself free and ran away alongwith his companions. On hearing the alarm, Nazir son of Mehnga and Faqir Muhammad son of Abdullah, neighbours came running. Umme Kalsoom fell down. Her mother helped and tried to lift her but she could not get up. Faqir Muhammad helped her. The girl was put on the cot. In the meantime she died.
11. Motive for this incident was that Fazal Muhammad had illicit relations with cousin of Amjad's father named Mst. Khurshid. Three months prior to this Amjad's father gave beating to Fazal Muhammad and Mst. Khurshid and got them married. In this incident half of the left ear of Fazal Muhammad was cut. Fazal Muhammad was already married. He had turned his first wife out after beating her due to this love affair. His first wife was living with her parents. Out of vengeance, Fazal Muhammad in consultation with others murdered Umme Kalsoom.
4. Fazal-ur-Rehman, S. I. After recording this report, left for the spot. On reaching there, he prepared the injury statement Exh. P. O. And the inquest report Exh. P. P. Body was sent for post-mortem. The officer inspected the spot and collected blood-stained earth vide memo. P. 1.
12. The officer took into possession the lantern P. 15 from inside the room vide memo. P. J. He also took into possession another lantern P. 16 from near the dead body in the courtyard vide memo. P. K.
13. Two pairs of shoes P. 8/1-2 and P. 13/1-2 of Nazir and Hanif accused were taken into possession vide memos. P. L. And P. M. Respectively. He also took into possession loyee P. 14 from the courtyard. Last worn clothes like shirt P.
1. Brassieres P: 2, shalwar P. 3, doppatta P. 4 and golden koka P. 5 of Mst.
14. Kalsoom were taken into possession vide memo. P. C.
15. Younas Masih and Nazir were arrested on 24th March, 1976. The former led to the recovery of one golden ear-ring P. 611 and hatchet P. 12 from his residential Kotha. The latter got recovered golden ring P. 7 from a box his residential Kotha. These recoveries were effected on 27th, 1976.
16. Muhammad Sharif Muhammad Hanif and Ramzan were arrested on 28th March, 1916 as a result of raid at Adda Bhattian from a deserted `Bhatti'. The Police Officer recovered golden ear-ring P. 6/2 from the pocket of Ramzan; Jersey P. 11 from the person of Sharif and a revolver from Muhammad Hanif. It had four live cartridges. A separate case under section 13 of the Arms Ordinance was registered against him.
5. Mst. Nasreen and her mother Mst. Rasheeda were produced as eye-witnesses. Azmat Ali reached the spot after hearing the noise. He deposed what happened thereafter.
17. Muhammad Mukhtar did not see the occurrence but his testimony was used to lend support to the ocular version.
6. On 6th March, 1976 at 12-30 p. m. Dr. Mushtaq Ahmad conduc--ted post-mortem examination of the girl. He noticed a circular lacerated wound of entry 1/4" x 1/4" on the medial side of left breast.
18. The margins of the wound were of black colour. The internal examination showed that the fifth left rib was fractured and the left side of chest was full of blood. The cause of death was shock and injury to the heart.
7. The accused denied the allegations, pleaded not guilty and declined to produce any evidence in defence. Hanif, Ramzan and Younas Masih said that they had been falsely implicated due to suspicion. Sharif said that he had been involved at the instance of a servant of Faqir Muhammad Patwari (father of the deceased) due to enmity. Nazir Ahmad accused gave, the following version:- ---I have been implicated in this case as my brother Faqir Muhammad who was cited as an eye- witness in the F. I. R. Recorded at the instance of Muhammad Amjad Ali complainant had refused to depose in favour of the prosecution. Moreover, Sooba, the servant of Faqir Muhammad P. W. Had got me challaned falsely in a case under section 314, P. P. C. For causing abortion of his daughter Allah Rakbi.---
8. Umme Kalsoom was the elder sister of Mst. Nasreen Akhtar. Their father is a Revenue Patwari.
19. When Umme Kalsoom was shot dead the father was posted at Burewala. He temporarily lived there. Mst. Nasreen Akhtar deposed before the trial Court that she, her mother Rasheedan, sister Umme Kalsoom and brother Muhammad Amjad Ali were sleeping in their house. At about mid- night Naiir Ahmad accused while standing at the door called her mother. He told her to take care of the buffalo which had got untied. She, her mother and Umme Kalsoom got up. The mother opened the door: At that time Mst. Umme Kalsoom had lantern with her. Sharif, Nazir; Hanif and Ramzan accused entered the room. Nazir had a lantern. Hanif kicked the lantern held by Mst. Umme Kalsoom. It fell on the floor and the oil caught fire. Naiir threw the lantern which he had, outside the room in the compound. The oil caught fire. Her mother Rasheedan grappled with. Sharif, Ramzan and Nazir. Nasreen Akhtar and her sister Umme Kalsoom caught hold of Hanif Hanif then fired pistol shot which hit Umme Kalsoom in the chest. The accused ran out of the room. Umme Kalsoom followed them. She fell in the courtyard The -accused removed her ear-rings and the ring and took a jersey from inside the room and ran away. The girl then identified the ear-rings and ring of Umme Kalsoom when shown to her in the Court. She also identi--fied the jersey. She further said that while running away, Nazir Ahmad left his pair of shoes. So did Hanif. Sharif left a `Loyee'. Umme Kalsoom died at the spot.
20. Mst. Rasheedan said that at about mid-night while site was sleeping with her children, Nazir Ahmad accused, her neighbour called her and said that the buffalo .Had got loose and she should take care of it. All of them awoke up. Umme Kalsoom raised the light of lantern. She held it in her hand. Mst. Rasheedan unchained the door. 0anif, Nazir, Younas Masih; Ramzan and Sharif accused were standing near she door. Nazir accused had a lantern in his hand. Sharif, Nazir, Hanif and Ramzan entered the room. She grappled with Ramzan, Nazir and Sharif accused. Umme Kalsoom caught, bold of Hanif from his collar while Nasreen from behind. Hanif kicked the lantern in the hand of Mst. Umme Kalsoom. It fell down. The oil spread on the ground and caught fire. Nazir accused threw the lantern to the courtyard where also due to the spreading of oil, fire started.
21. Thereafter, Hanif fired a pistol shot at Umme Kalsoom. She was hit in the chest. According to Rasheedan the accused then removed ring and ear-rings of Umme Kalsoom and took jersey from the room. They were chased by the witness and Umme Kalsoom. The lattu hardly ran few paces when she collapsed and died. This witness also identified the ear-rings and ring of the deceased.
22. She repeat--ed the rest of the story about the shoes of Nazir and Hanif and Loyee of Sharif accused:
9. The story in the F. I. R. Is different. Hence, it would be necessary to compare it with the ocular version and then to draw the necessary inference as to which one is to be relied upon. At this, stage we would like to observe that the F. I. R. (Exh. P. N.) was not owned by Amjad. Therefore, a question would also arise whether this statement comes within the ambit of section 154, Cr. P. C. If so, what would be its evidentiary value?If not, how far this can be used for the benefit of defence?
23. Amjad was called as a Court witness. He straightway told the trial Court "I did not get the F. I. R. In this case recorded. It was got recorded by Faqir Muhammad brother of Nazir Ahmad accused". The signatures of course were not denied by Amjad. He gave an explanation as to how, why and under what circumstances he put his signatures .On the aforesaid statement.
24. When cross-examined by the Public Prosecutor, Amjad said that he was sleeping in a different room than the one in which mother and sisters were sleeping. It was mid-night. He woke up on hearing firing. He saw some oil burning in the courtyard. Three/four persons were grappl--ing with his mother inside the room. Faqir Muhammad brother of Nazir accused met him in the street outside the house. He was told that the dacoits had attacked- his house and that they should immediately proceed to the police station. This is how Amjad was taken to the Police Station. Nazir Hussain Chowkidar also joined them. The three of them reached the Police Station at 5 a. m.
25. Amjad was then very upset. He was crying. The Police Officer sent him and the Chowkidar out of room. Faqir Muhammad remained there. He was again called in the room and was made to sign Exh. P. N. This is how his signatures were obtained.
26. According to Amjad, Faqir Muhammad actually got F. I. R, recorded. This was to save his brother Nazir Ahmad. When Amjad returned to the spot, he found the dead body of his sister lying in a varanda. There he learnt that Nazir, Ramzan, Younas, Sharif and Hanif had committed dacoity and killed his sister.
27. Amjad was subjected to lengthy cross-examination by one of the learned counsel for the appellants. He said the police did not record his statement afterwards. His signatures were obtained on a false statement. He further deposed that he did not move any application to the higher authorities nor to any Court.
28. Amjad was studying in 9th class when he was examined. His statement was recorded on 25th October, 1979. The occurrence took place on 6th March, 1979. Age recorded by the trial Court was about 15/1.6. It is, therefore, obvious that at the time of occurrence he was just in his teens. The defence failed to get it confirmed through him that he was the author of statement Exh. P. N.
29. When the occurrence took place, he was the only male member in the family. It would be too much to expect from a by of his age that he would, of his own, rush to the Police Station; lodge a report and give the necessary details. On the other hand, it is more likely that the by would prefer to be escorted by some elderly person. We are, therefore, of the view, that Amjad told the truth before the trial Court. He cannot be taken to be the first informant. The result is that statement Exh. P. N.
30. Cannot be treated as F. I. R. As envisaged by section 154 of the Criminal Procedure Code. It has no evidentiary value. No importance can be attached to this statement nor could it be taken to be another version of the incident.
31. Sub-Inspector Fazal-ur-Rehman with all the emphasis at his disposal deposed that Amjad was the author of Exh. P. N. After comparing his evidence with that of Amjad; we are of the view that the by told the truth. We, therefore, accept the evidence of Amjad given by him before the trial Court.
10. Learned counsel appearing on behalf of the appellants raised many contentions. We shall deal with those which are worth consideration.
32. The first point urged was that statement Exh. P. N. Was the first information report for all intents and purposes. Exploiting this statement, learned counsel laid great stress on the point that there were two versions of the incident; one was given in the so-called F. I. R., the other given by the two eye- witnesses.
33. Learned counsel submitted that the law laid down by the Superior Courts is that when there are two versions of the incident, the one which goes in favour of the accused must be accepted and its benefit be given to the accused. We have already held that Exh. P. N. Cannot be taken as the F. I. R.
34. Therefore, the contention has no force and is repelled.
35. Mr. Birjees Nagi next c6ntended that the testimony of the mother and her daughter is highly improbable. How could the mother put up any resistance to an attack by five adults when one of them was armed with a pistol and the other with hatchet.
36. Learned counsel submitted that if mother's statement is to be accepted then according to her Umme Kalsoom ran few paces after she had been hit. Learned counsel submitted that this was impossible. The injury was serious. It proved fatal. She could hardly move.
37. It was next submitted that the witnesses did not tell the truth. They were closely related to the deceased. They were interested. If their evidence is to be believed then it must find corroboration from some other independent evidence.
38. Last of all, learned counsel submitted that the evidence pertaining to extra-judicial confession, recoveries and that of abscondence was not worth relying. Therefore, this evidence cannot be used as corroborative evidence. This contention of the learned counsel is not without substance. We have gone through this bit of evidence. The one pertaining to extra-judicial confession made before Noor Muhammad and Rehmat Ali P. Ws. Does not appeal to reason.
39. Even the evidence pertaining to the recoveries appears to be creation of the prosecution. The way the items were recovered and then assigned to each one of the appellants is more of a concoction than a genuine recovery.
40. The evidence of abscondence is of weak type. Such type of evidence cannot be used for corroboration purpose.
41. No doubt, the two eye-witnesses are closely related to the deceased. Their evidence is not to be rejected on this ground if otherwise it inspires confidence, In order to test this; all the relevant circumstances have been taken into consideration which, in this case, are the place of occur-- rence, the time, inmates of the house and the other persons present at the spot.
42. Occurrence took place in the middle of the night. Head of the family was away. Amjad was sleeping in a different room. The only persons present were the mother and her daughters. There is no reason to doubt their presence.
43. Azmat Ali came to the spot after the girl had been shot dead. In case the prosecution wanted more eye-witnesses, he could have also been included in the list of witnesses.
44. Both Mst. Rasheedan and Nasreen Akhtar were sure that it was Muhammad Hanif who fired the fatal shot. There is no reason to disbe--lieve them. The contention of the learned counsel that after Umme Kalsoom was hit, she could not move at all, has no force. If the defence was serious about this, the doctor should have been put a question to that effect. It cannot be taken to be a rule that when a person is hit, he would not be able to move at all. We are, therefore, of the view that the submis--sion of the learned counsel that immediately after Umme. Kalsoom had been hit, she could not walk a few paces, is not tenable.
45. The ocular version finds corroboration from that of Azmat Ali who saw Muhammad Hand standing and coming out of the room at the time of occurrence.
46. It is proved from the medical evidence that Umme Kalsoom received one injury. It was the result of fire-arm. This evidence, therefore, also supports the evidence of the two eye-witnesses.
47. We have no doubt in our mind that it was Muhammad Hanif who killed Umme kalsoom. His conviction under section 302, P. P. C. Is maintained. It was a horrible murder. There is no mitigating circumstance. His death sentence, on this count, is confirmed.
48. As we have disbelieved the rest of the evidence, his conviction for dacoity is not maintainable. It is hereby set aside.
49. Since we have disbelieved the evidence pertaining to: extra-Judicial confession, recoveries as well as abscondence, the participation of the remaining appellants, especially when they were not instrumental for the G murder of Umme Kalsoom, is doubtful. They are given the benefit of doubt and acquitted. They shall be released forthwith if not required in any other case.
50. With the acquittal of remaining appellants section 148, P. P. C. Goes away. Hence, conviction and sentence of Hanif under this section' is set aside. However, his conviction under section 460, P. P. C.
51. Is converted to section 449, P. P. C. And the sentence of life imprisonment shall remain. Although it is necessary to impose fine under the section but as he has already been tined under section 302, P. P. C. We don't think it is necessary to impose sentence or fine for this conviction.
52. The amount of fine imposed under section 302, P. P. C. Shall be paid, in full, to the legal heirs of the deceased as compensation.
53. Criminal revision filed by the complainant has no merit. It is hereby dismissed.
54. The appeal, murder reference and the revision are disposed of accordingly.