SADAR MUHAMMAD, J.---appellants Muhammad Khan .(45), Rehmat Ullah (55) and Amir Ali (25) have been convicted under section 366/34, p, P. C. For having abducted Mst. Parveen alias Peeno P.
W. 13, under section 307/34, P. P. C. For having launched murderous assault on Muhammad Hussain P. W. 12 and under section 302/34, P. P. C. For having caused the death of Ashiq Hussain deceased and sentenced as under :- Muhammad Khan appellant---
(i) Sentenced to death under section 302/34, P. P. C. And a fine of Rs. 5,000 in default whereof to suffer 3 months' S. I.
(ii) Sentenced to 5 years' R. I. Under section 307/34, P. P. C.
(iii) Sentenced to 4 years' R. I. Under section 366/34, P. P. C. And a fine of Rs. 1,000 in default whereof to suffer one month's S. I.
Amir Ali & Rehmat Ullah appellants- (i)Sentenced to imprisonment for life under section 302/34, P. P. C. And a fine of Rs. 5,000 each, in default whereof to suffer three months' S. I.
(ii) Sentenced to 5 years' R. I. Each under section 307/34, P. P. C.
(iii) Sentenced to 4 years' R. I. Each under section 366/34, P. P. C. And a fine of Rs. 1,000 in default whereof to suffer one month's S. I by Mian Muhammad Nawaz Nekokara, Additional Sessions Judge, Sialkot vide orders dated the 25th June, 1979. The learned Additional Sessions Judge vide same judgment acquitted Abdul Razzaq, Ishaq and Mushtaq accused. The appeal of the appellants and the murder reference sent up by the learned trial Court for confirmation of death sentence are being disposed of by the same judgment.
2. The occurrence in this case took place at 6.00 p. m. On 6-4-1973 in the house of Ibrahim P. W. 19 in the Abadi of village Burj Araian within the area of Police Station Daska, District Sialkot. F. I. R. Exh. P.
C. 1 was formally recorded by Nazar Muhammad, A. S. I. At Police Station Daska at 10 a. m. On the same day, on receipt of statement Exh. P. C. Of Ashiq Hussain deceased made to Raja Muhammad Iqbal S. I. S./H. O. P. W. 15 in the Civil Hospital, Daska at 9-45 p. m. The same day. The S. I. Raja Muhammad Iqbal had reached the hospital on receipt of Rukka Exh. P. L. From Dr. Abdur Rahim Arain that Ashiq Hussain (deceased) is admitted to the Hospital in a serious condition. The F. I. R.
Was initially registered under section 307/366 148/49, P. P. C. After the death of Ashiq Hussain (deceased) at 5.30 p. m. On 7-4-1973 offence under section 302/34, P. P. C. Was added.
3. The Sub-Inspector after recording the statement of Ashiq Hussain deceased recorded the statement of Muhammad Hussain P. W. 12 also who by that time had reached the Hospital. After taking into possession the blood-stained clothes of the deceased and Muhammad Hussain P. W. 12 he proceeded in search of the accused. He came across the appellants and the acquitted accused with Mst. Parveen in a Tonga. He arrested all of them on 7-4-1973 in front of village Othian.
At the time of arrest of all the appellants and their co-accused the S. I. P. W. 15 prepared injury statements Exh. P. S. Of Amir Ali appellant, Exh. P. U. Of Muhammad Khan appellant, Exh. P. W. Of Rehmat Ullah appellant and Exhs. P. T., P. V. And P. x-2 of acquitted accused Mushtaq Razzaq and Ishaq respectively. On personal search of Muhammad Khan appellant. Revolver P. 4 alongwith 4 live cartridges P. 5/1-4 and two empties P. 6/1-2 were recovered from him, which were taken into possession vide memo. Exh. P. D. Gun P. 7 and-cartridges P. 8/1-4 which were recovered from Amir Ali appellant at the time of his arrest were taken into possession vide memo. Exh. P. E. The horse and the Tonga were also taken into possession vide memo. Exh. P. F. All these memos. Were attested by Nazir son of Allah Ditta (P. W. Not produced) and Khushi Muhammad A. S. 1. P. W.
6. During the inspection of spot on the same day the Sub---Inspector took into possession barrel plate P. 11 of 12 bore gun and 4 live cartridges P. 12/1-4 vide memo. Exh. P. H. He also took into possession 2 empty cartridges P. 13/1. 2 vide memo. Exh. P. J., which were lying in a vacant site belonging to Muhammad Hussain son of Fateh Muhammad. The memos. Were attested by Muhammad Nazir P. W. 10 and Muhammad Tufail P. W. (not produced). On receipt of information that Ashiq Hussain (deceased) has expired, the S. I. Raja Muhammad Iqbal P. W. 15 reached the Civil Hospital, Daska, after preparing the inquest report Exh. P. Q. He sent the dead body of Ashiq deceased for post-mortem examination. After the post-mortem examination Abid Ali, F. C. P. W. 2 produced last worn clothes of the deceased and a phial containing lead bullet P. I., Revolver P. 4 and empty cartridges P. 6/1-2 and lead bullet P. I. Were sent to the office of the Director, Forensic Science Laboratory .12 bore gun Exh. P. 7 alongwith empty cartridges P. 13/1-2 were also sent to the office of the Forensic Science Laboratory. Positive report was received from the Director, Forensic Science Laboratory. The same has been tendered in evidence as Exh. P. B. B. After the completion of necessary investigations the challan was submitted to Court.
4. The prosecution case briefly is that Muhammad Khan appellant had earlier abducted Mst.
Parveen alias Peeno P. W. 13 a year before the occurrence and bad performed Nikah with her. She after escape, returned to her father's house. On the day of occurrence, appellants Muhammad Khan armed with a revolver, Amir Ali armed with a gun accompanied by Rehmat Ullah appellant and the acquitted accused Mushtaq, Ishaq and Razzaq entered the house of Ibrahim P. W. 19 and forcibly abducted Mst. Parveen, his daughter and during this occurrence caused injuries to Rehmat Bibi P. W. 14, the mother of the abductee and Ibrahim P. W. 19, the father of the abductee Mst.
Parveen. On hearing the notice, Ashiq Hussain deceased, his father Nawab Din P. W. 11, Muhammad Hussain P. W. 12 and Nazir and Muhammad Shafi P. Ws. (not produced) who were sitting in the house of Nawab Din near the house of Ibrahim P. W. Came out: They saw the appellants and their co-accused taking away Mst. Parveen by force. They pursued. Ashiq Hussain deceased tried to rescue Mst. Parveen. When he went ahead to catch appellant Muhammad Khan, he fired a shot from his revolver which hit the deceased in his stomach. He fell down. Muhammad Hussain P. W. 12 stepped forward, he was also fired at by Muhammad Khan appellant hitting him on his left arm.
The appellants and their co-accused escaped thereafter. All of them were arrested by Raja Muhammad Iqbal, S. 1
5. At the trial, the prosecution examined in all eighteen witnesses. Dr. Abdur Rahim Arain, P. W. 5 had medically examined Ibrahim P. W. 19 at 1.30 p. m. On 7-4-1973. He noted four injuries on his person which were said to have been caused with blunt weapon. He also medically examined Muhammad Hussain P. W. 12 and observed. One fire-arm injury on the front outer of left forearm. The injury was found to have been suffered by a fire-arm and within the duration of a few hours.
6. Dr. Ziauddin P. W. 8 had performed the post-mortem examination on the dead body of Ashiq Hussain (deceased). He observed one oval wound 1/3' x 1/3' with lacerated margins, blackening around the wound was present. The injury was found to have been suffered by a firearm. According to him Ashiq Hussain (deceased) had died because of shock and haemorrhage due to this injury.
7. For eye-witness account, Nawab Din P. W. 11, Muhammad Hussain (injured) P. W. 12, Mst. Parveen P. W. 13 and Mst. Rehmat Bibi P. W. 14, the mother of Mst. Parveen, have been examined. Nawab Din P. W. 11 and Muhammad Hussain P. W. 12 did not support the prosecution. They were declared hostile but nothing incriminating has been brought out. Statement Exh. P. C. Of Ashiq Hussain deceased and the statement of Ibrahim P. W. Recorded during the commitment proceedings were tendered in evidence, as Ibrahim had expired before the trial. Evidence of recovery of revolver P. 4, empties P. 6/1-2 and live cartridges P. 5/1-4 and of gun P. 7 has been given by Khushi Muhammad A. S. I. P. W. 6 and Raja Muhammad Iqbal, S. 1. P. W.
15. Evidence of recovery of empties P. 13/1-2 has been furnished by Muhammad Nazir P. W.
10. As already mentioned above, report Exh. P. B. B. From the Director, Forensic Science Laboratory was also tendered in evidence.
8. The appellants in their statement under section 342 of the Code of Criminal Procedure denied the charges. Muhammad Khan appellant in his statement under section 342, Cr. P. C. In answer to question, `why this case against you', stated "Mst. Parveen Akhtar P. W. Had abandoned the house of her parents of her own accord as they intended to marry her against her wishes. She made a statement before a Magistrate at Lahore.
She voluntarily contracted marriage with me and got it duly registered. She was living with me as my wife. Her parents were all out to have her repatriated out of disgrace to the family. On the alleged day of occurrence dacoity was stated to have been committed by the unidentified persons in village Buraj Araian. Mst. Parveen's parents took this opportunity by fore-locks and got myself and other co-accused falsely implicated in this case. I was arrested from my house at village Vainawala and Mst. Parveen was also recovered from my house. She was also tor--tured by the police in complicity with her parents and she was made a false witness against us. The recoveries are fake."
He also produced Shafiq Ahmad Ahmlad to Civil Judge, Daska (D. W. 1) who stated that no suit for dissolution of marriage was ever filed by Mst. Par--veen in the Court of the Civil Judge/Judge Family Court, Daska. Muhammad Parvez, Ahlmad (P. W. 2) also stated that no suit for dissolution of marriage was ever filed by Mst. Parveen in the Court of Civil Judge, Daska. Ahlmad Ali D. W. 3, Moharrir Head Constable stated that no case about the abduction of Mst. Parveen was registered at the Police Station during the year 1972 or 1973. He also tendered in evidence Exh. D. A. At his Nikahnama with Mst. Parveen, Exh. D. B. The affidavit said to have been sworn by Mst. Parveen before her Nikah with the appellant Muhammad Khan.
9. We have heard the learned counsel for the appellants and the learned counsel appearing on behalf of the State, and have also considered the plea taken by Muhammad Khan appellant. We do not find any force in the plea taken by the appellant nor the arguments advanced by the learned counsel for the appellants in this regard that in fact no occurrence of abduction bad taken place and that in fact some dacoity had taken place in the village Burj Araian and Ibrahim father of Mst. Parveen taking the advantage of that occurrence bad got him and his co-accused falsely roped in. The statements of Mst. Parveen P. W. 13 and Mst. Rehmat Bibi P. W. 14 which are corro-- borated by the statement of Ibrahim P. W. Which was made by him during the commitment proceedings and was brought on file, have not bean shaken insofar as the occurrence of abduction of Mst. Parveen is concerned which took place within the house of Ibrahim, the father of Mst. Parveen. They are inmates of the house and are natural witnesses. Their evidence finds support from the injuries suffered by Ibrahim P. W., father of Mst. Parveen, and Mst. Rahmat Bibi P. W.
14 and from the fact that Parveen was found in the custody of the appellants and their co-accused at the time of their arrest by Muhammad Iqbal S. I. P. W.
15. We do not find any weight in the argument of the learned counsel for the appellants that Muhammad Khan appellant being the husband of Mst. Parveen, had the right to take away his wife even by force. We cannot imagine that the appellant who had come armed, accompanied by other persons who naturally must have come on his instigation or request, had not come only to exercise his right, he certainly had come alongwith his co-accused to forcibly abduct Mst. Parveen by using criminal force in which he in fact succeeded. In the circumstances, we do not find anything wrong in the conviction of the appellants under sec--tion 366/34, P. P. C. The sentence is also not inappropriate.
10. With regard to the conviction of the appellants under section 302/34, P. P. C. For causing the death of Ashiq Hussain deceased and conviction under section 307/34, P. P. C. For having launched murderous assault on Muhammad Hussain P. W. 12, we find force in the argument of the learned counsel for the appellants that the statements of Mst. Parveen P. W. 13, Mst. Rehmat Bibi P. W. 1.4 and the transferred statement of Ibrahim P. W. Stand contradicted by statement Exh. P. C. Of Ashiq Hussain deceased. In his statement he has named specifically two persons only i.e. The appellants Muhammad Khan and Rehmat Ullah. He has not mentioned the name of Amir Ali appellant. We, however, do not find any weight in the argument of the learned counsel for the appellants that statement Exh. P. C. Of Ashiq Hussain deceased should not be relied upon for the reason that the same has been recorded by a Police officer who is an interested witness and not by a Magistrate.
Apart from the fact that there is no reason to doubt the integrity of S. I. Raja Muhammad Iqbal P. IV.
15 in view of the fact that there is no such allegation. The other confidence inspiring fact is that the statement is signed by Dr. Abdur Rahim Arain who is certainly an independent witness. Moreover, the fact that the deceased did not name anybody else and had only stated that 3/4 other persons were also accompanying the two named persons, is also evidence of the fact that nobody bad tutored him to make the statement. Had that been the case, the names of other accused persons would have also appeared in his statement.
11. Mst. Parveen P. W. 13 and Mst. Rehmat Bibi P. W. 14 though have named appellant Amir Ali to have been present with a rifle at the juncture, when appellant Muhammad Khan had fired his pistol at the deceased and P. W. Muhammad Hussain, have not made any allegation that he used his weapon in any manner, or attempted to cause any injury to any person. There is no allegation of his having fired even in the air. In the case of appellant Rehmat Ullah also there is no allegation that he had caused any injury or even attempted to cause any injury during the time when Ashiq deceased and Muhammad Hussain P. W. 17 were fired at by Muhammad Khan appellant. We also find force in the argument of the learned counsel for the appellants that appellants Amir Ali and Rehmat Ullah could not b burdened with the common intention with their co-accused Muhammad Khan who according to the prosecution had fired at the deceased and Muhammad Hussain P. W.
12 outside the house of Ibrahim P. W. Considering the fact that Nawab Din P. W. 11 and Muhammad Hussain P. W. 12 have not supported the prosecution case and the name of Amir Ali appellant sloe not appear in Exh. P. C., the statement of Ashiq Hussain deceased, where no specific allegation has been levelled by him against Rehmat Ullah appellant g for having caused injuries to him or Muhammad Hussain P. W. 1?, we feel that the prosecution has failed to prove the case under section 302/34, P. P, C. And 307/34, P. P. C. Against appellants Amir Ali and Rehmat Ullah. No importance can be attached to the injury statements of the appellants prepared by the S. I. Raja Muhammad Iqbal P. W. 15, as they were not medically examined and in the absence of medical evidence the statements of the appellants that they were tortured by the Police after arrest, seems to be plausible. For the foregoing reasons, the conviction and sentence -of the appellants Amir Ali and Rehmat Ullah under sections 302/34 & 307/34, P. P. C. Is set aside and theft are acquitted.
12. Since Muhammad Hussain P. W. 12, the injured, himself, has not supported the allegation against Muhammad Khan appellant that he was injured by a shot fired by Muhammad Khan appellant, we feel that the conviction of Muhammad Khan appellant under section 307; P. P. C. For having launched murderous assault on Muhammad Hussain P. W. Cannot 'be maintained as unequivocal contradiction of the other P. Ws. By Muhammad Hussain in this regard makes toe case of the prosecution doubtful on this point. His conviction and sentence under section 307, P. P: C. Is set aside.
13. So far as appellant Muhammad Khan is concerned there is ample evidence against him that he had fired a shot with the revolver at the deceased. There is statement Exh. P. C. Which has been tendered in evidence as dying declaration of the deceased himself, against whom there is no suggestion that be was inimical to the appellant, his statement finds corroboration fro the statements of Mst. Parveen Akhtar P. W. 13 and Mst. Rehmat Bibi P. W. 14, and above all the report from the Director, Forensic Science Laboratory according to which not only the empties were found to have C been fired from the revolver (P. 4.) which had been taken into possession from the appellant Muhammad Khan at the time of his arrest but the piece of lead which was recovered from the dead body of the deceased was also found to have been fired from the same revolver.
14. For the reasons enumerated above, we are convinced that the prosecution has been able to prove the case under section 302, P, P. C. Against Muhammad Khan appellant for having caused the death of Ashiq Hussain deceased beyond any reasonable shadow of doubt.
15. We have considered the last argument of the learned counsel for the appellants that even if the prosecution case is believed that appellant Muhammad Khan had fired at Ashiq Hussain deceased as a result of which he died, it would not be a case of extreme penalty. There is weight in the argument of the learned counsel for the appellants that appellant Muhammad Khan had no motive to kill the deceased nor any evidence in this regard has been produced. He has argued that it is on record that appellant Muhammad Khan had performed Nikah with Mst. Parveen, while no evidence has been produced that this Nikah has been dissolved. The appellant might have acted under a misconceived conception that he being the husband of Mst. Parveen had a right to take away his wife even forcibly and that Ashiq Hussain deceased or anybody else had no right to stop him, he also might) have felt apprehensive that even though he was within legal bounds insofar as he was taking his wife forcibly but if he is caught by hostile person who were pursuing him, may beat him and so he resorted to firing as a result of which Ashiq Hussain died. In view of these peculiar circumstances. We are inclined to hold that it is not a case of extreme penalty. We, therefore, while maintaining the conviction of Muhammad Khan appellant under section 302,1 P. P.
C., alter the sentence of death to that of life imprisonment. The sentence of fine is however, maintained.
16. The net result is that the conviction and sentence of all the appellants under section 366/ 34, P.
P. C. Is maintained. The conviction and sentence of appellants Amir Ali and Rehmat Ullah under sections 302/34 & 307/34, P. P. C. Is set aside. The sentence of appellant Muhammad Khan under section 307, P. P. C. Is also set aside. The conviction of appellant Muhammad Khan under section 302, P. P. C. Is maintained. The sentence of death is not confirmed. He is sentenced to imprisonment for life under section 302, P. P. C. The sentence of fine is also maintained.
The appellants shall, however, be given the benefit of the provisions of section 382-B of the Code of Criminal Procedure. The period of their detention during the trial shall be counted towards the sentence already undergone.
Death sentence not confirmed.