' KHIZAR HAYAT, J.-- Barkat son of Muhammad Din aged 60 years, his son Nazir aged 22 years and his son-in-law Nadir aged 40 years caste Bhatti, residents of Wan Adan were tried by Additional Sessions Judge Kasur for having committing murder of Mst. Fatima and murderous assault on her daughter Mst. Maqsoodan in furtherance of their common intention. The learned trial Court while acquitting Nadir has convicted and sentenced Barkat and Nazir to suffer death and a fine of Rs,1,000 each in default to undergo one year's R.I. Under section 302/34, P.P.C. And to 10 years' R.I.
And a fine of Rs,1,000 each on in default to undergo further one year's R.I. Each under section 307/34, P.P.C. Both the convicts have filed joint appeal (Crl. Appeal No,275 of 1981) against their conviction and sentence while the learned trial Court has referred the case (M.R. No, 84 of 1981) under section 374, Cr.P.C. For confirmation of death sentence. The appeal as well as the murder reference are being disposed of by this single judgment.
2. The incident took place at 5-30 p.m. On 13-3-1977 on a pathway of village Wan Adan at a distance of 4 miles from Police Station Pattoki district Kasur. The F.I.R. Exh.P.R. Was lodged at the police station by Muhammad Yaqoob (P.W.12) husband of Mst. Fatima (deceased) and father of the injured witness Mst. Maqsoodan (P.W.13) which was recorded by Muhammad Muazzam A.S.I.
(later promoted as S.I.) (P.W.11).
3. The motive for the offence was stated to be that 8/9 months before the present occurrence Nikah of Mst. Maqsoodan (P.W.13) was performed with Nazir (appellant) and in her Watta (exchange) Mst. Sharifan sister of Nazir (appellant) and daughter of Barkat (appellant) was given in marriage to Hakim Ali maternal uncle of aforesaid Mst. Maqsoodan but Rukhsati in both the cases had not taken place. Subsequently relations of the parties became strained and about 5 months before the occurrence both the aforesaid girls were divorced by their husbands. It was alleged that Nazir appellant bore a grudge on this account which led to the present occurrence.
4. The prosecution story as set up in the F.I.R. Is that on the fateful day at 5-30 p.m. Mst. Fatima (deceased) and her daughter Mst. Maqsoodan (P.W.13), the injured witness, were returning home from their land and Muhammad Yaqoob, complainant, husband of Mst. Fatima (deceased) was following them at a distance of 30/40 paces carrying a bag of "Shakkar" (sugar) on his head. As soon as the two ladies reached near the garden of Sardar Hakim Ali, Nazir appellant armed with a knife emerged from the garden and started giving knife blows in the chest and abdomen of Mst.
Fatima as a result of which she fell down. Mst. Maqsoodan stepped forward to pick up her mother but Nazir attacked her also and dealt successive blows with a knife in her abdomen and other parts of body. Hearing the alarm, Muhammad Yaqoob (P.W.12) threw the bag of sugar and ran towards the scene. Abbas (P.W.14), and 'Sohna Bhatti P.W. (not produced) also reached there and witnessed the occurrence. Nazir appellant seeing the witnesses approaching ran towards B.D.S. Link Canal. Mst. Fatima sccu mbed to her injuries at the spot. Her dead body was removed to the house and leaving it in the care of Muhammad Sharif (P.W.8) etc. Muhammad Yaqoob complainant (P.W.12) took his injured daughter Mst. Maqsoodan (P.W.13) in a jeep to Civil Hospital, Pattoki for treatment, where she was admitted at 7-45 p.m. He then lodged F.I.R. Exh.P.R at Police Station Pattoki at 9 a.m., the same day.
5. A.S.I. Muhammad Muazzam after registering the case went to the hospital at 9-30 p.m. And enquired if Mst. Maqsoodan P.W. Was fit to make statement to which the doctor replied in the negative vide report Exh.P.W.11/1. He secured blood-stained clothes Shalwar P.5, Shirt P.6 and Chaddar P.7 of Mst. Maqsoodan P.W. Produced by the doctor vide memo. Exh.P.S. And then handed over the investigation to Muhammad Aslam S.I. (P.W.15) the same night at 10-30 p.m. The S.I.
Reaching the spot prepared inquest report Exh.P.U. Of Mst. Fatima (deceased) and despatched her dead body for post-mortem examination. He collected blood-stained earth from two places i,e, where Mst. Fatima had fallen down and also from the place where Mst. Maqsoodan had fallen after she was injured. He recorded statement of Mst. Maqsoodan the injured witness on 19-3-1977 at 12- 30 p.m., after the doctor had declared that she was in a fit condition to make statement.
6. It appears that Ch. Rafiq Dad, Magistrate 1st Class Chunian, (P.W.5) was requested by Riaz Bajwa, Inspector of Police on telephone to record the dying statement of Mst. Maqsoodan (P.W.13) who was lying in the hospital. He, therefore, went to the hospital on 19-3-1977 at 9 a.m. And having obtained certificate Exh. P.E/1 about her fitness recorded her statement Exh.P.E. In that statement she stated that she was returning from her lands, accompanied by her two sisters Mst. Maqboolan aged 6 years and Mst. Samina aged 8 years besides her mother Mst. Fatima (deceased) when they were attacked by Barkat alias Bakku, Nazir alias Jiroo (appellant) and Inayato alias Nadir Bhatti (since acquitted) with knives. According to her all the aforsaid assailants had attacked Mst.
Fatima (deceased) first and then Nazir appellant gave stab injury to her (Mst. Maqsoodan) in the abdomen while Bakku (Barkat appellant) and Nadir (since acquitted) gave knife blows on her back as a result of which she fell down. Abbas Wattoo reached the spot, whereupon all the accused ran away towards link canal. Her mother fell unconscious. Sardar Arif immediately brought a taxi in which she was removed to Pattoki hospital. She pertinently stated that her father had reached the spot afterwards. She asserted that since she was facing death, therefore, she had not told a lie.
6-A. S.I. Muhammad Asiam (P.W.15) arrested Nazir appellant. On 19-3-1977 Nazir Ahmad produced a blood-stained knife P.4 which was made into sealed parcel and secured under memo. Exh.P.M. No recovery from other accused had been affected. The Serologist's report Exh.P.X. Shows that the earth collected from the spot and knife P.4 were found as stained with blood of human origin.
7. On 18-3-1977 at 7-45 p.m. Dr. Muhammad Latif Qureshi (P.W.9) medically examined Mst.
Maqsoodan, the injured P.W. And found following injuries on her person:-
(1) A stab wound of the size of 3 c.m. x 1.5 c.m. Depth of the wound is unlimited at right side of abdomen near mid line, 2 c.m. Below level of umblicus. Part of intestine was coming out of the wound, this part of intestine show multipolocut marks, she was in state of shock and was having vomiting.
(2) A stab wound of 2 c.m. x 1 c.m. Depth was not asscertained at left side of abdomen 5 c.m. On left of mid line at level of umblius.
(3) An incised wound of 2 c.m. x 1 c.m. Above left shoulder 5 c.m. On left of neck.
(4) An incised wound of 2 c.m. x 1 c.m. Above left shoulder 8 c.m. On left of neck.
(5) An incised wound 2.5 c.m. x 1 c.m. At front of left upper arm, 7 c.m., below left shoulder.
(6) An incised wound of 2 c.m. x 1 c.m. x 1 c.m. Above top of left shoulder.
(7) An incised wound of 1 c.m. x 5 c.m. x 5 c.m. At left daltoid region.
(8) An incised wound of 1.5 x 1 c.m. Depth unlimited at left side of chest 13 c.m. Below left axilla.
(9) An incised wound of 1.5 x 1 c.m. x 5 c.m. At back of left shoulder.
(10) An incised wound of 2 x 1 x 5 c.m. At back of left scapula.
(11) An incised wound of 2 x 1 x 5 c.m. At left side of back of chest 6 c.m. On left mid line.
(12) An incised wound of 1 x 1 c.m. x 5 c.m. At left side of back of chest 3 c.m. On left mid line.
(13) An incised wound of 1.5 c.m. x 1 c.m. x 5 c.m. At left side of back of chest below scapula.
(14) An incised wound of 1 x 1 x 1 c.m. Above injury No,13.
(15) An incised wound of 1.5 x 1 x 5 c.m. At back of chest at mid line.
(16) An incised wound of 2 c.m. x 5 c.m. x 5 c.m. At front of left middle finger.
' All the injuries were caused by sharp-edged pointed weapon. Injuries Nos. 1, 2, 6, 8, 13 and 16 were kept under observations. Remaining were simple in nature. All injuries were caused within duration of 12 hours. On 17-5-1977 injury No,1 was declared dangerous to life.
8. On 19-3-1977 at 3-00 p.m. Dr. Muhammad Ashraf (P.W.4) conducted autopsy on the dead body of Mst. Fatima (deceased) and found the following injuries:-
(1) Stab wound 3/4" x I" in front of chest left side on the upper part of breast. Wound had entered the chest cavity between 3rd and 4th rib, and had perforated through the plaura and left lung and had entered the right atrium of heart.
(2) Cut wound 21" x 1" skin deep left side of abdomen on and below 12th rib. Chest cavity was full of blood.
' Small and large gut were distended with gasses and digested food and faecal matter. Liver spleen and kidney were pale bladder was empty. In the opinion of the doctor death had occurred due to shock and haemorrhage. Injuries were ante-mortem and sufficient in ordinary course of nature to cause death. These injuries were caused by sharp weapon. In the opinion of the doctor, she died in few minutes after receiving the injuries and his post-mortem was conducted about one day after her death.
9. At the trial the prosecution in support of its case examined 15 witnesses in all. Muhammad Yaqoob (P.W.12) husband of the deceased, Mst. Maqsoodan (P.W.13) daughter of the deceased, and Abbas (P.W.14) provided eye-witness account. Recovery of knife P.4 has been sought to be proved through the testimony of Muhammad Sharif (P.W.8) besides the Investigating Officer while the medical evidence has been furnished by Muhammad Latif Qureshi (P.W.9) and Dr. Muhammad Ashraf (P.W.4).
10. The appellants when examined under section 342, Cr.P.C. Admitted their relationship inter se and also admitted that Nikah of Mst. Maqsoodan (P.W.13) was performed with Nazir appellant and in exchange thereto Nazir appellant's sister Mst. Sharifan was married to Hakim Ali maternal uncle of Mst. Maqsood Bibi and that both the ladies were divorced by their husbands before the occurrence, but denied the rest of the allegations. Barkat appellant, however, explained that he was involved in the case falsely because his son had divorced Mst. Maqsood Bibi P.W. And she was also suspected of having illicit connections with Nawab and Hakim Ali. Nazir appellant adopted the statement of his father while Nadir (acquitted accused) stated that he had been falsely involved as he is son-in-law of Barkat, appellant. None of them offered any defence evidence. The trial Court acquitted Nadir and convicted the appellants.
11. We have heard the learned counsel for the appellants as well as for the State assisted by the learned counsel for complainant and also perused the record.
12. The learned counsel for the appellants submitted that the prosecution story given by Muhammad Yaqoob P.W. In the F.I.R. Exh.P.R., dated 18-3-1977 is materially different from the one given by Mst. Maqsoodan, the injured P.W. In her statement Exh.P.E. Recorded on 19-3-1977 by Ch. Rafiq Dad, Magistrate 1st Class (P.W.5) and none of them is free from doubt; that the eye-- witnesses are the close relations of the deceased, therefore, their testimony cannot be accepted without corroboration from any independent source which is lacking in this case; and that the recovery of blood-stained knife P.4 from Nazir, appellant, is also doubtful and cannot be taken as corroborative evidence. He further argued that name of Barkat Ali, appellant, does not find place in F.I.R. And as such it appears that he was involved in the case as a result of subsequent deliberations, hence, he is entitled to acquittal. Lastly, he argued that extreme penalty of death sentence is not called for in the circumstances of the case. As against this, learned counsel appearing on behalf of the Sta e has defended the impugned judgment of conviction.
13. The most important piece of evidence in this case is the ocular testimony furnished by Muhammad Yaqoob, the first informant (P.W.12), Mst. Maqsoodan, the injured witness (P.W.13) and Abbas (P.W.14). Admittedly, Mst. Fatima, deceased, was wife of Muhammad Yaqoob (P.W.12), while Mst. Maqsoodan (P.W.13) is his daughter. Abbas (P.W.14) is also related to Muhammad Yaqoob as per his own admission that his (Abbas's) paternal aunt is wife of Noor Muhammad uncle of Muhammad Yaqoob P.W.
14. According to the First Information Report Exh.P.R. Lodged by Muhammad Yaqoob P.W. Within about 2 hours of the occurrence, it was Nazir, appellant, alone who had attacked both the ladies, that is the deceased Mst. Fatima and the injured witness Mst. Maqsoodan (P.W.13). At the trial Muhammad Yaqoob (P.W.12), stated that besides Nazir Ahmad, appellant, Barkat Ali, appellant, and Nadir (acquitted accused) had also attacked Mst. Fatima and Mst. Maqsoodan with knives. When confronted with his F.I.R. He stated thdt S,I. Muhammad Aslam (P.W.15) had recorded his statement at the spot by which he meant that this Police Officer had not recorded his statement correctly. But the record shows that the F.I.R. Was actually recorded at the Police Station by Muhammad Muazzam (P.W.11) and not by S.I. Muhammad Aslam.
15. Mst. Maqsoodan (P.W.13) who was victim of the worst aggression as she received numerous incised injuries all over her body including the vital parts had implicated Barkat (appellant) and Nadir (acquitted accused) besides Nazir Ahmad (appellant) in her statement Exh.P.E. Which had been recorded as dying declaration by Ch. Rafiq Dad, Magistrate 1st Class (P.W.5) on the next day of occurrence at 9 p.m. This statement was admitted interpreted to the Magistrate by Firdaus Rani, a Peoples Party worker because the voice of the injured lady was feeble and ununderstandable. It may be observed here that statement Exh.P.E. Cannot be treated as dying declaration under section 32 of the Evidence Act because the maker (Mst. Maqsoodan) had survived. Met.
Maqsoodan P.W., however absolved Nadir (acquitted accused) at the trial saying that at the time of occurrence, he was empty-handed, he did not cause any injury to anybody and that he only took the witness in his grips. Abbas (P.W.14) in his cross-examination stated that when he reached the spot he saw Mat. Fatima and Mst. Maqsoodan lying injured and when Mst. Maqsoodan tried to get up she was given injuries by Nazir Ahmad, appellant with a knife. He clearly asserted that he did not see Nadir (acquitted accused) at the spot. He appeared to be somewhat shaky in the cross- examination on the point whether or not Muhammad Yaqoob and Sohna P.Ws. Witnessed the occurrence? But ultimately he took the stand that on hearing the alarm raised by Muhammad Yaqoob P.W. He went to the spot and witnessed the occurrence. The overall impression given by his statement is that he had seen Nazir Ahmad, appellant, alone causing injuries to the victims and that although he saw Barkat Ali, appellant, at the spot yet he did not see him causing injuries to the victims.
17. Besides these facts and circumstances it is noteworthy that Barka, appellant, was 60 years old at the time of occurrence, no incriminating recovery has been effected from him; his name does not appear in the F.I.R. And he was named for the first time as an assailant after more than 24 hours of the occurrence particularly when the F.I.R. Had been lodged by an eye-witness (Muhammad Yaqoob) who in our estimate was present at the spot and that is why he was able to remove his injured daughter, who was seriously injured, to Pattoki hospital at a distance of 4 miles from the spot and reached there at 7-45 p.m. Vide medico-legal report Exh. P.N. Considering all these circumstances, we are of the view that material on record does not provide judicial certainty as to the complicity of Barkat Ali, appellant, in the crime.
18. The objection of the appellant's learned counsel that the witnesses are interested and, therefore, they should not be believed without corroboration against other appellant is unfounded.
"Interested witnesses" has been defined by the Supreme Court of Pakistan in case Nazir and others v. The State PLD 1962 SC 269 in the following words:- "Interested witness is one who has a motive for falsely implicating an accused person."
' After Mst. Maqsoodan P.W. Had been divorced by Nazir, appellant, she hardly had any grievarce against him or his family. She stated to have since married Muhammad Rafiq. Likewise, Abbas P.W.
Was not even suggested that he had any or animosity against the appellants, therefore, the evidence of these eye-witnesses cannot be ignored for want of corroboration although the same is available in the shape of recovery of blood-stained knife P.4 at last from Nazir appellant. For all these reasons we are not prepared to believe that some other persons had attacked the deceased and Mst. Maqsoodan P.W. And that the appellants had been substituted in their place. Substitution is always a rare phenomenon. There is nothing on record to suggest as to why the actual killers were let off by the complainant party and in their place the appellants had been falsely implicated.
Nazir, appellant is being named consistently from the very beginning as assailant of the deceased and Mst. Maqsoodan P.W. There exists overwhelming evidence against him to hold that it was he and none else who caused the death of Mst. Fatima and made desperate attempt on the life of Mst. Maqsoodan P.W. Consequently we maintain his conviction and sentence under section 307, P.P.C. Similarly, we maintain his conviction under section 302, P.P.C. For the murder of Mst. Fatima deceased. Since there is no extenuating ci"cumstance for awarding lesser penalty, therefore, we find that death sentence awarded to the Nazir appellant in the circumstances of this case is proper and is, therefore, confirmed.
19. The result is that this appeal is accepted to the extent of Barkat, appellant. His convictions and sentences under sections 307/34 D and 302/34, P.P.C. Are set aside and he is acquitted. He be set at liberty forthwith, if not required in any other case. This appeal to the extent of Nazir, appellant, is dismissed. His death sentence is confirmed.