INAYAT ELAHI KHAN, J.-Sher Zaman alias Shero son of Nawab aged about 50 years caste Tanoli, resident of Sindu Gali, Police Station Sherwan stands convicted under section 302, P. P. C. And sentenced to death for heaving committed the murder of Mst. Amrezan aged 15/16 years of the same village vide judgment of Sessions Judge, Abbottabad, dated 15th June, 1981. This appeal is directed against the said conviction and sentence of the appellant while the learned trial Judge has made reference under section 374, Cr. P. C. For the confirmation of death sentence awarded to the appellant. Criminal Revision has also been filed by Mst. Resham Jan claiming award of compensation and confiscation of the property of .The accused-appellant. This judgment will, therefore, dispose of Criminal Appeal No. 27/81, Murder Reference No. 1/81 and Criminal -Revision No. 15/81.
2. The prosecution case as disclosed in the report made by Mst. Resham Jan (mother of the deceased) to Akhtar Zaman I. H. C. (P. W. 12) on 14th May, 1980 at 9.00 a. m. In the limits of village Sindu Gali is that on the same day a Chasht Gab Vela' she went to her field for harvesting. Mst.
Amrezan deceased) with 2 minor children was present in her house. In the meantime Abdur Rashid (P. W. 8) cried to the appellant and asked her to come home as the appellant had injured the deceased. The complainant at once rushed to the house and found her daughter lying injured on the ground who was alive and told the com--plainant that the appellant wanted to commit sexual intercourse with her but on ner refusal she had been stabbed with a knife. In the report the complainant charged the appellant for the murder of her daughter.
3. On the day of occurrence Akhtar Zaman I. H. C. (P. W. 12) was on 'Gasht' when he received the information about the incident. Accordingly he went there and recorded the report of Mst. Resham Jan in the form of a `Murasla' (Exh. P A/1), which was forwarded to the police station for the registration of the case. He stated that he found the dead body of the deceased lying on a cot in her house. He prepared her injury sheet (Exh. P. W. 3/2) and the inquest report (Exh. P. W. 3/3) and despatched the dead body to the mortuary for post-mortem examination. He then prepared the site plan (Exh. P.W. 12/1) The scene of occurrence is stated to be inside the house of the deceased.
He then recovered blood-stained earth (Exh. P. 2) from the spot and packed it into a sealed parcel vide memo. (Exh. P. W. 5/1). He also took into possession shirt (Exh. P. 3) and `shalwar' (Exh. P. 4) belonging) to the deceased brought from the doctor which were packed into a sealed parcel vide Memo. (Exh. P. W. 5/2). In the meanwhile the S.H.O. Arrived and took over the investigation from him.
In cross-examination he stated that he reached the spot at 9-00 a. m. But he did not know the name of the person who had informed him about the incident. He stated that he had not mentioned in the inquest report any dying-dec--laration made by the deceased and left the column of remarks blank. He denied the suggestion to have recorded the. Report after making preliminary investigation at the spot. Abdur Rehman S.I. (P. W. 14) was posted as S. H. O. Police Station, Sherwan. On the receipt of `Murasla' (Exh. P. A./1) he had registered the case vide F.I.R. (Exh.
P.A.). He then proceeded to the spot and reached there at 4-30 p. m. And took over the investigation from Akhtar Zaman I. H. C. He searched for the accused but he was not available in the village who was subsequently arrested on 20th May, 1980. `The `shalwar' (Exh. P. 5) and shirt (Exh. P. 6) of the appellant were taken into possession and sealed into a parcel vide memo. (Exh. P W 6/1). On 23rd May, 1980 the appellant, while in custody, led him to the lands of Alam Khan and brought out the dagger (Exh. P. 1) from underneath the bushed which was taken into possession and sealed into a parcel vide memo. (Exh. P. W. 2/1). He also prepared the site plan (Exh. P. W. 14/1) regarding the recovery of the dagger. The appellant was then produed by him before a Magistrate for recor--ding his confessional statement. He also applied to the Magistrate for holding an identification parade regarding the dagger (Exh.P.1.). After completion of the investigation he submitted the challan to the Court. In cross-examination he stated that be had correctly written in the report that the deceased was injured with a knife. He stated that the dagger was recovered from a place at a distance of one furlong from the village Abadi near a pathway. The dagger was not blood-stained but had the marks of friction.
4. Lady Doctor Mrs. Rifhat Nasim Qazi (P. W. 3) had conducted post-mortem examination on the dead body of Mst. Amrezan (deceased) aged 15/16 years on 14th May, 1980 at 1-15 p. m. And found the following:- On External Examination: (1)An incised wound about 1" x 1-1/2" x muscle deep and oblique in direction on the right side of the neck.
(2)An incised wound about 2" x 1-1/4" x bone deep and oblique in direction on the right side of the face.
(3)An incident wound 1" x1/2" x transverse in direction just right side of the supper end of sternum, chest cavity, deep.
(4)An incised wound 1/4" x skin deep on the upper of right breast.
(5)An incised wound 1/2" x 1/4" on the left back of chest.
(6)An incised wound 12" on the right back of chest and muscle deep.
(7)Inside wound 1" x 1/2" on the lower part of right back of chest and cavity deep.
(8)An incised wound 2" x 1" on the lower end of right scapula and muscle deep.
(9)An incised wound 1/2" x 1/4" on the right ring finger deep to the bone palmer surface.
(10)An incised wound on the left middle finger it is 1/2" x 1/2" and deep to the tenden, on the palmer surface.
(11)An incised wound 1/2" x 1/2" on the left middle finger proximate to the wound No. 10. It is on the palmer surface.
(12)An incised wound 2" x 1/4" on the palmer surface of ring finger of the left hand.
(13)An incised wound 1" x 1/2" on the left hip with the corresponding cut on shalwar.
(14)An incised wound 1---x1/2" on the left hip with the corresponding cut on the shalwar.
On internal examination she found the wall of the right chest, plurea and right lung injured. The death in her opinion was caused due to the injury to the vital organ which resulted in excessive haemorrhage and shock. The probable time between injuries and death was about 30 minutes and between death and post-mortem 5 hours Injuries Nos. 3 and 7 were grievous and sufficient to cause death indi--vidually and collectively. The post-mortem report (Exh. P W 3/1) and the remarks on the injury sheet (Exh. P. W. 3/2) and inquest report (Exh. P. W. 3/3) were in her handwriting and correct. In cross-examination she stated that the injuries found on the person of the deceased could be caused with a knife. An injury which is grievous can contri--bute, if there is haemorrhage, towards acceleration of death. She further stated that there is a possibility that injuries Nos. 3 and 7 could have cause instantaneous death.
5. Muhammad Shafi Naib-Tehsildar (P. W. 1) had conducted the identification parade on 29th May, 1980 in respect of the dagger (Exh. P. 1) which was mixed with 8 other daggers of the same type.
Kala (P. W. 15) when called to the Court room for identification, correctly picked up the dagger in question twice. His report in this respect is (Exh. P. W. 1/1). Ali Mardan (P. W. 2) is a witness to the recovery of the dagger in question He stated that the dagger (Exh. P. 1) is commonly found in every domestic house. There were no stains of blood on the dagger but there were marks of friction. He further stated that the 'bunna' from where the dagger was recovered is used as a pathway and the people generally use it. Alam Khan (P. W. 5) is a witness to the recovery of blood-stained earth from the spot. He stated that Mansoor Ali grandfather of the deceased was a brother of Nawab who was the father of the appellant.
6. Mst. Resham Jan (P. W. 7) in her evidence reiterated the content of the report lodged by her and stated that on the day of occurrence she had gone to her field for harvesting. At about 'Chasht Gah time her son Abdur Rashid cried out and asked her to come home as the deceased was lying injured in the house. Accordingly she rushed to the house and found the deceased lying on the ground in an injured condition. On her enquiry Mst. Amrezan (deceased) told her that Sher Zaman (appellant) wanted to commit rape on her and on her refusal she was stabbed by him. In the meanwhile Abdur Rehman P.W, and Sher Afzal her nephew also reached and in their presence the deceased narrated the facts mentioned above. After some time the Investigating Officer arrived at the house and recorded her report (Exh. P. A/I). In cross examination she stated that the appellant is the son of Nawab who was a brother of Mansar Ali and Mansar Ali was the grandfather of the deceased. She stated that she was the daughter of Bahadur who was the son of Samundar. Mst.
Baabji a daughter of the said Samundar was the mother of the appellant. She deposed to have mentioned the name of Abdur Rehman and Sher Afzal in the report and had also mentioned that the deceased on her enquiry mane dying declaration in their presence. She also stated to have mentioned the name of Abdur Rashid her son that he was also present at the time of the dying declaration. She stated that on the day of occurrence Abdur Rashid her son had not gone to the school but accompanied her to the field. She denied the suggestion that the deceased was dead before her arrival at the spot. She also denied that the hand of her daughter Mst Zubaida was sought by the appellant for his son Ghulam Haider and in this respect he had advanced Rs. 35,000 by instalments. She did not admit that instead of Zubaida, who was married to some body else, she promised the hand of the deceased to the son of the appellant. She also denied that on her refusal the appellant had asked for the return of money and she refused to pay the same. She said it was incorrect that on the day of occurrence the appellant had come to their house and asked for the mosey but he was abused by her and the deceased and consequently the present occurrence took place. Abdur Rashid (P. W. 8), aged 8 years, stated that on day of occurrence he did not go to the school and was helping his mother in the field. He had brought some harvested wheat to the house and on reaching the verandah of the house he saw the appellant coming out of the kotha with a dagger in his hand (The trial Judge observed that the witness pointed out towards the appellant who was present in the Court) He then went inside the `kotha' and found his sister Mst.
Amrezan lying in injured condition. He came out and cried to his mother who immediately came to the house and in the meantime Sher Afzal and others also arrived. In cross-examination he stated that the appellant was wearing clothes of light grey colour. He stated that it was correctly recorded in his police statement that the deceased told the people present there that she was injured by the appellant. Qalandar Khan (P. W. 9) is a relative of the appellant. He stated that he had promised the hand of his daughter Mst. Bibi Jan to Haider Zaman son of the appellant. The engagement had taken place about 2 years back. The other son of the appellant i.e. Ghulam Haider was engaged to the daughter of Mirza son of Muhammad Zaman more than a year ago. In cross-examination he stated that his wife was the cusion of the appellant and Ali Gohar father of deceased was his brother-in-law. Abdur Rehman. (P. W. 10.) stated that he had no connections with either of the parties. On the day of the occurrence he was attracted to the house of the deceased on hearing the outcry of Mst. Resham Jan. He went there and found Mst. Amrezan lying in an injured condition.
On his enquiry she charged the appellant for having caused in juried to her. In cross--- examination he stated that when he reached the spot, Mst. Amrezan was lying on a cot and she was in her senses. He stated that she died after about half an hour of the incident.
7. Gul Rehman Khan Special Forest Magistrate (P. W. 11) was posted as a Magistrate 1st Class Abbottabad. On 24th May, 1980 the appellant was produced before him for recording his confessional state--ment. After observing all the legal formalities and having satisfied himself that the appellant was making a voluntary confession he recorded his confessional statement (Exh. P.
W. 11/1).
8. Kala s/o Alaf Din (P. W. 15) deposed that the dagger (Exh. P.1) was made by him for the appellant about 7/8 months before the occurrence. Later on during the identification parade the said dagger was correctly identified by him.
9. In his confessional statement the appellant stated that he had advanced Rs. 35,000 to Mst.
Resham Jan for seeking in marriage the hand of her daughter Mst. Zubaida for his son Ghulam Haider. Later on Mst. Zubaida was married to some one else and, therefore, Mst. Resham Jan promised to give in marriage her second daughter Mst. Amrezan to Ghulam Haider. But again she refused and, therefore, the appellant went to their house for getting back the money but the deceased instead of returning the money started abusing him which caused him provocation and under the provocation he had committed the murder of the deceased with a dagger. However, when examined in the trial Court the appellant stated that:- "The deceased was my niece both on the paternal and maternal side. I wanted the hand of the deceased for my son Ghulam Haider, I advanced a sum of Rs. 35,000 at different intervals to the parents of the deceased under consideration of marriage of the deceased with my son. The parents of the deceased went back on their promise and in order to swallow the money, the present story of rape has been concocted and fabricated. I had no intention to commit rape but I had gone to collect the money."
About the recovery of the dagger (Exh. P. 1) at his instance the appellant stated that:- "The prosecution's own case in the F. I. R. Is, that knife was used and subsequently chhuri was substituted. There were no blood stains on the chhuri and it was found lying in a place acces--sible to the general public. This churri has been planted by the complainant party in collusion with the Investigating Agency to bolster up the prosecution case."
About the confessional statement he stated that he was arrested on 20th May, 1980 and remained in custody of the police until the day he was produced before the Magistrate and during this period he was put to physical and mental torture. The confession was put in his mouth as a result of coercion and undue influence. It was neither voluntary nor true.
10. The learned trial Court placing reliance on the oral dying declaration made by the deceased, evidence of Mst. Resham Jan, Abdur Rehman and Abdur Rashid P. Ws., the medical evidence and the recovery of the crime weapon at the instance of the appellant convicted him as stated above.
11. From the report of the Chemical Examiner (Exh. P. Q.) it appears that the blood-stained earth and the blood-stained shirt and trousers of the deceased were found stained with human blood of the same group. However, the blood stains on the shirt and trousers of the appellant were found to have been disintegrated.
12. The learned counsel for the appellant contended that the oral dying declaration attributed to the deceased does not in spire confidence in view of the doctor's- opinion that injuries Nos. 3 and 7 could have caused instantaneous death and thus in all probability the deceased could not be said to have made any statement to her mother or the ether prosecution witnesses. Therefore, the evidence regarding the oral dying declaration of the deceased should have been discarded.
However, the fact cannot be lost sight of that the doctor had also opined that the deceased remained alive for about 30 minutes after the incident and all the 14 injuries sustained by the deceased excepting A injuries Nos. 3 and 7 were of simple nature. The nature of the injuries would also show that she could speak at least for a few minutes after the incident. In view of the consistent evidence that the deceased was alive and continued to be in her senses at least for some time after the occurrence, we are not inclined to give any weight to the opinion of the doctor that injuries Nos. 3 and 7 could have caused instanta--neous death. Thus, in the circumstances we see no reason to discard the evidence of Mst. Resham Jan, Abdur Rashid and Abdur Rehman that the deceased did make oral dying declaration charging the appellant for causing injuries to her.
The learned counsel then contended that Abdur Rehman (P. W. 10) was a false witness as his name was not mentioned in the report lodged by Mst. Resham Jan and that he alongwith Abdur Rashid P.
W. Was examined by the police on the following day of the occurrence. It is in evidence that the In- -vestigating Officer after recording the report of the complainant and preparing the injury sheet and the inquest report of the deceased and observing, other formalities got busy with the preparation of the site plan. It is also evident that the primary concern of the investigating officer eras to apprehend the appellant who was not available in the e village and thus in these circumstances the fact that the statements of Abdur rashid and Abdur Rehman were not recorded on the same day would not lead to the inference that they were not truthful witnesses. In Mehr Ali and others v. The State (1968 SCMR161) it was held that:- "The mere fact that these witnesses were examined on the next day, will not throw any doubt as to their presence at the time of occurrence."
Similarly the evidence of Abdur Rehman P. W. Who was a natural witness and had rushed to the scene of occurrence on hearing the outcry raised by Mst. Resham Jan, cannot be discarded for the reason that his name dogs not figure in the F. I. R. In Shehbaz v. The Crown (PLD 1953 Lah) it was observe that:- "It happens some times that false witnesses are named in the reports and some times true witnesses are either not noticed or forgotten by makers of report. The presence of witness's name in the F. I. R. Is a only test for determining whether they were present at the time of the occurrence or not. It is no more proof of their veracity than the absence of their names in the report is proof of their mendacity."
The learned counsel then urged that there was no mention of the dying declaration of the deceased in the inquest report prepared by the Investi--gating Officer. Similarly it is urged that brief facts of the case and the names of Abdur Rehman and Abdur Rashid P. Ws. Were not mentioned therein and the number of the F. I. R. Was also added to the inquest report subsequently. Thus, leading to the inference that the report of Mst. Resham Jan was recorded by the Investigating Officer after preli--minary investigation. In this regard the learned counsel relied on Muhammad Sharif v. The State (1980 SCMR 231) However, it may be mentioned that in the cited case the evidence revealed that some addition, alteration and interpolations were made in the inquest report apparently for changing the time of the occurrence and thus such interpolations aroused suspicion about the genuineness of the inquest report. Particularly when the Investigating Officer was unable to furnish any explanation as to why the unauthorised interpolations had been made in the inquest report. In the instant case we have not been able to find any evidence that the inquest report was tempered with or prepared by the Investigating Officer before recording the F. I.
R. There is nothing in law requiring a dying declaration of the deceased or the names of the eyewitness to be inserted in the inquest-report for it is a record of the observations of the.
Investigating Officer at the time of his spot inspection. 1n our view all the necessary details are mentioned in the inquest report and there is nothing to show that the number of the F. I. R. Was inserted subsequently. Even if the number of the F. I. R. Was written in the inquest report Later on it would not reflect on the veracity of the inquest report and thus we are unable to agree with the learned counsel that the F. I. R. In the case was recorded by the Investigating Officer after holding preliminary investigation. The learned counsel then argued that the evide--nce of Mst. Resham Jan and that of Abdur Rehman and Abdur Rashid was inconsistent since according to Mst. Resham Jan the deceased had stated that the appellant wanted to commit rape on her whereas Abdur Rehman and Abdur Rashid did not mention this fact and only stated that the deceased charged the appellant for causing injuries to her. In our view it is not material contradiction for Mst. Resham Jan was the first to reach the house and in all probability she must have enquired from her daughter as to what had happened and it was but natural that the deceased would have given true account of the incident to her mother. Further, the evidence of Abdul Rehman and Abdur Rashid that the deceased had charged the appellant for having caused injuries to her would not exclude the possibility that the deceased did state to her mother that the appellant attempted to commit rape upon her. The nature of the injuries sustained by the deceased would go a long way to show that in fact she had been putting up strong resistance to the attack launched by the appellant.
13. The argument of the learned counsel that the confessional state--ment of the appellant being the result of torture and undue influence should have been ruled out of consideration is also not convincing for excepting the bald statement of the appellant there is nothing to show that the confession was the result of torture and undue influence. The mere E fact that the confession was retracted and the appellant remained in Police custody for a few days would not necessarily show that the confession was not voluntary. There is no evidence to prove that the confession was the result of inducement, threat or promise. It is not denied that the Magistrate put specific question to the appellant whether he was making the confession of his own free will and the answer was in the affirmative. From the evidence of the Magistrate is evident that the appellant was given reasonable time for reflection and thereafter, his confessional statement was recorded. The evidence of the Magistrate has satisfactorily proved that the confession made by the accused was voluntary and not the result of coercion and undue influence as alleged by the appellant. Even though the confession has been retracted but I stands corroborated by the oral dying declaration of the deceased, evi--dence of Mst. Resham Jan. Abdur Rashid and Abdur Rehman, medical evidence and the recovery of the dagger at the instance of the appellant. Furthermore, in this Court statement the appellant has not denied his visit to the house of the deceased though he had stated that he had no intention to commit rape but had gone to the house of the deceased to collect the money. The argument of the learned counsel that the dagger (Exh. P. 1) was foisted on the appellant and in fact it was not recovered at his instance is also without any force. We see no reason to disbelieve the statement of Kala (P. W. 15) who had stated that the dagger (Exh. P. 1) was prepared by him for the appellant about 7/8 months before the incident and he had also correctly identified the dagger in an identification parade held by Muhammad Shafi Naib-Tehsildar (P. W. 11).
Ali Mardan (P. W. 2) stated that the appellant while in custody led the police to the place wherefrom the appellant produced the dagger from underneath the bushes. Although the dagger was not blood-stained, but bore the marks of friction which showed that it had been cleaned after the occurrence. The fact that the deceased in her dying declaration had mentioned knife instead of dagger would be of no consequence since all of a sudden she was subjected to the assault by the appellant who started inflicting blows upon her and thus in the circumstances it could not have been possible for the deceased to have differentiated between a knife and the dagger when she was under extreme mental and physical strain and being in a precarious condition would not have been able to give correct, description of the weapon used by the appellant.
14. In so far as the evidence of Mst. Resham Jan, Abdur Rehman and Abdur Rashid is concerned, we find that they are natural witnesses and there evidence inspires confidence. The prosecution story in the circumstances of the case is convincing for it is possible that the appellant finding the deceased alone in the house, wanted to subject her to sexual intercourse. The number and nature of injuries also indicate that the deceased did not co-operate and put up a strong resistance which obviously infuriated the appellant to cause her death. Although no question was put to the appellant regarding his absence from the village from 14th May, H 1980 to 20th May,1980 the fact remains that immediately after the occurrence the accused-appellant disappeared and was arrested by the police on 20th May, 1980. Apart from the overwhelm--ing evidence against the appellant we see no reason why the appellant could be falsely involved in the case who is a near relation of the complainant and comes in the category of an uncle to the deceased bat from paternal and maternal side. There is nothing on the record to prove that there was any enmity between the parties before the incident. Thus, it is entirely inconceivable that the complainant would substitute the accused for the real assailant.
15. Having given our thoughtful consideration we have come to the conclusion that the guilt of the accused-appellant under section 302 P. P. C. Is proved beyond any reasonable doubt and he had been rightly convicted for committing the murder of Mst. Amrezan.Jan. The conviction of the appellant is fully justified by the weight of the evidence produced in the case. We consequently uphold his conviction. Regarding the question of sentence we are of the view that the capital punishment awarded to Sher Zaman accused-appellant under section 302, P. P. C. Is, under the circumstances, a normal penalty required by law to be im--posed on him. We, therefore, dismiss his appeal and confirm the death sentence imposed upon him by the trial Court. The murder reference stands accepted. In regard to revision petition it may be mentioned that under section 544-A, Cr. P. C. The accused-appellant on conviction should have been burdened with payment of compensation to the heirs of the deceased. The learned trial Judge has failed to comply with this mandatory provision of law and the reason advanced that the appellant had no means and no property is based on no evidence. From the copies of the revenue record placed on this file it is evident that the appellant is not a man with no means. Thus, the revision is accepted to the extent that Rs. 5,000 shall be, paid to the heirs of the deceased by way of compensation to be recovered from the accused appellant which is to be deemed as additional sentence of fine imposed upon him.