' MUHAMMAD ASLAM MIAN, J.-- This judgment will dispose of Criminal Appeal No, 34 of 1984 filed by the appellant against his conviction and sentence and Murder Reference No, 74 of 1984 made by Ch. Muhammad Amjad Khan, Sessions Judge, Attock for the confirmation of the death sentence.
2. The appellant Muhammad Amir son of Miran Bakhsh aged 33/34 years caste Bhatti, resident of Dhok Nagri, Police Station, Talagang stood his trial under section 302, P.P.C. For having committed the murder of Mst. Shamim Akhtar daughter of Miran Bakhsh, in the Court of Ch. Muhammad Amjad Khan, Sessions Judge, Attock. He was convicted under section 302, P.P.C. And was awarded death sentence with a fine of Rs,5,000 or in default to suffer one year's R.I. Half of the amount, if realised was expressed to be paid to the heirs of the deceased vide judgment dated 9-4-1984.
3. According to a case registered by the police of Station Talagang against the appellant under section 302, P.P.C. At the instance of Miran Bakhsh (P.W.10) vide F.I.R. No, 31, dated 6-6-1983 at 12-10 a.m. Miran Bakhsh (P.W.10) and Hafiz Muhammad Aslam son of Muhammad Bashir on 5-6-1983 at about Deegarwela were cutting Jawar in their field. Mst. Sardar Bano, his wife and Mst. Shamim Akhtar, his daughter were on their way with pitchers to have water when they came about the land of Mian Muhammad all of a sudden the appellant armed with a hatchet turned up and gave a hatchet blow on the head of Mst. Shamim Akhtar, on receiving which she fell down. Mst. Sardar Bano raised an alarm asking him as to why was she being dealt within that way. The appellant pulled out his hatchet by keeping his foot on the shoulder of Mst. Shamim Akhtar, after which he gave another hatchet blow striking on the back side of the neck of Mst. Shamim Akhtar. Then he effected a third blow with the wrong side of the hatchet hitting on the left forearm of Mst. Shamim Akhtar. Miran Bakhsli, the complainant and Hafiz Muhammad Aslam hurriedly came to the spot, at which the appellant ran away brandishing his hatchet. Mst. Shamim Akhtar succumbed to the injuries and expired at the spot. The motive as alleged was that the appellant was asking for the hand of Mst. Shamim Akhtar for his brother Muhammad Ismail. Miran Bakhsh and his wife opposed the same which annoyed the appellant who threatened that if Mst. Shamim Akhtar was not engaged to his brother Muhammad Ismail then she would not find herself to live as a wife with anybody else, towards the accomplishment of which motive Mst. Shamim Akhtar was done to death by the appellant.
4. Muhammad Ashraf A.S.I. (P.W.12) conducted the investigation.
' He covered all the formalities in securing the necessary links conducive to the trial and recorded the statements of the witnesses. He arrested the appellant on 6-6-1983 who led on 7-6-1983 to the recovery of a blood-stained hatchet from a room of his residential house.
5. Noor Zaman Patwari (P.W.6) prepared the site plan. According to the reports of the Chemical Examiner and of the Serologist the earth collected from the spot and the hatchet recovered at the instance of the appellant were found as stained with human blood.
6. According to the post-mortem examination conducted on 6-6-1983 by Dr. Awais Ahmad Bhuttar (P.W.1) on the dead body of the deceased described as 20 years old, the following three injuries were found on her person:-
(1) Incised wound 8 inches x 11 inches x brain deep on the top of head. Anterio-posterior direction.
(2) Incised. Wound 21/2 inches x 1/2 inch x going deep on the back of chest just below the base of neck. Over lying clothes alongwith Chooti were also cut.
(3) Abrasion 1 inch x 1/4 inch on the left forearm, 2 inches above the wrist joint.
' On her internal examination the skull and brain were found as cut as a result of injury No,l. The spinal cord and first dorsal vertebra were also cut as a result of injury No,
2. Chest wall was injured also as a result of injury No,2. The stomach contained about three ounces of digested and undigested food. The large intestines contained small amount of faecal matter. Bladder was having three ounces of urine. The hymen was not intact, tags were present. The left ulna was fractured as a result of injury No,3.
' The injuries were stated as ante-mortem. Injuries Nos. 1 and '2 were described as having been caused by a sharp-edged weapon and injury No,3 by a blunt weapon. Injuries Nos. 1 and 2 were regarded as dangerous to the life and injury No, 3 as grievous. The probable time that elapsed between the injuries and death was instantaneous and between the death and post-mortem was about 12 to 18 hours. The death was expressed as due to shock and haemorrhage resulting from injuries Nos. 1 and 2 which were sufficient to cause the death in the ordinary course of nature. The doctor in his cross-examination stated that on account of the hymen of the deceased being not intact, the possibility was that she was not virgin.
7. The prosecution at the trial relied upon the evidence of motive furnished by Shah Muhammad (P.W.9), Miran Bakhsh (P.W.10) and Mst. Sardar Bano (P.W.11), the ocular testimony given by Miran Bakhsh (P.W.10) and Mst. Sardar Bano (P.W.11), the parents of the deceased, the evidence as to the recoveries given by Muhammad Ashraf A.S.I. (P.W.12), Fateh Khan (P.W.8), Muhammad Khan (P.W.7) and Mian Muhammad, and the medical evidence deposed to by Dr. Awais Ahmad Bhuttar (P.W.1).
8. The appellant who was Miran Bakhsh complainant's sister's son when examined under section 342, Cr.P.C. Denied the motive and the occurrence and also the recovery of hatchet at his instance and made a little detailed statement which is reproduced as under:- "Mst. Shamim Akhtar deceased was of immoral character and was murdered in mysterious circumstances. There was old enmity between our family and the family of the deceased. My father Miran Bakhsh and others had obtained Fatwa Exh.D.C. Against P.Ws. Miran Bakhsh and Mst. Sardar Bano for living as husband and wife after pronouncement of Talaq by Miran Bakhsh. This Fatwa was widely circulated in the village and this was the reason that complainant party felt offended and nursed grudge against our family since long. There was no motive for me to kill Mst. Shamim Akhtar nor her hand was demanded for my brother Muhammad Ismail because the latter was already engaged to Mst. Irshad Begum daughter of Ghulam Hussain. I was employed in the army as Havaldar and was on leave in the days of occurrence. I had to report at my place of posting on 7-6-1983 after the expiry of leave and if I was a culprit I would have slipped away from the village to avoid my arrest but I remained in my village and was arrested on the very next day of occurrence i,e, 6-6-1983."
' The appellant produced no witness in his defence except the tendering of a copy of Fatwa Exh.D.C.
9. The learned Sessions Judge, Attock believed the ocular account of evidence as given by Miran Bakhsh (P.W.10) and Mst. Sardar Bano (P.W.11) and also the evidence of the said witnesses as to the motive discarding the evidence of Shah Muhammad (P.W.9), and treated the medical evidence as fully supporting the prosecution case. He however, disbelieved the evidence as to the recovery of the hatchet at the instance of the appellant.
10. The learned counsel for the appellant has contended that there is a considerable delay in the lodging of the F.I.R. The occurrence was alleged to have taken place at Deegerwela while the information was cast after the following mid-night by the complainant, which is fatal to the case of the prosecution as it gives rise to many considerations as derrogatory to the prosecution case such as that Miran Bakhsh, the complainant was not in the village on the day of occurrence. He came to know of the occurrence very late and that resulted in the delayed lodging of the F.I.R.
It is an admitted fact that the distance between village of the complainant and the police station was that of 24 miles. Miran Bakhsh P.W. Gave an explanation as to the delay that after the occurrence he had to travel on foot to cover a distance of fifteen miles to come to the metalled road whereat he boarded a truck going towards Talagang and that all took him to report as to the occurrence at 12-10 a.m. The learned Sessions Judge felt satisfied with the explanation and we find no reason to differ therefrom. There is another reason which can be invoked by appealing to the common experience in aid of the explanation as to the delay that is when a father finds his daughter murdered in his sight he is completely upset by the shock, the loss and bewailings around him retard his thinking faculty for a considerable time so as to slow down his actionary power with an impact upon his movements. It takes time for him to regain his active-self, therefore, the delay in the F.I.R. In such a situation, if any, will not visit the case with a suspicion when the facts as to the actual occurrence are otherwise established.
' The next contention of the learned counsel for the appellant is that the possibility of the occurrence having taken place at night cannot be ruled out. For this the learned counsel has referred to the condition of the stomach which contained as said above about three ounces of digested and undigested food so as to show that the occurrence took place after Mst. Shamim Akhtar had taken her evening meal.
' The reference so made does not help the appellant because the condition of the stomach also does match with the fact that she took her meal somewhere at noon, may be by 1 or 2'0 clock, or round about and upto the Deegerwela she was with three ounces of digested and undigested food.
The contention of the learned counsel is speculative in view of the evidence as to the time of occurrence having been believed by the learned Sessions Judge, so no face can be given to it.
' The third contention of the learned counsel is that the appellant was involved due to old enmity between the families, the cause of which was given as is narrated in the statement of the appellant that his father Miran Bakhsh and others had obtained a Fatwa i,e, Exh.D.C. Against P.Ws. Miran Bakhsh and Mst. Sardar Bano for living as husband and wife after the pronouncement of Talaq by Miran Bakhsh, the complainant, which Fatwa was given wide publicity in the village and that was the reason that the complainant party nursed grudge against the family of the appellant.
' The learned Sessions Judge found that the Fatwa Exh.D.C. Was produced by the appellant himself which showed that the father of the appellant who was also named as Miran Bakhsh was not at all concerned therewith and that was one Gheba Khan, father of the first wife of Miran Bakhsh complainant who had obtained and circulated the same. Miran Bakhsh complainant had tated that he had divorced his first wife namely the daughter of said Gheba Khan who might have obtained Fatwa against him. The divorce matter related to the year, 1955 and that was highly improbable that for the alleged grievance of the year, 1955 the complainant involved the appellant falsely in the present case. The observation made by the learned Sessions Judge negatives the old enmity as set up. We are in respectful agreement with the finding of the learned Sessions Judge in this behalf. Had there been an enmity between the families on the abovesaid count then the complainant would have involved others or other members of the family of the appellant directly and not exclusively the appellant who could not be regarded as having any say in that matter and that too alongwith the actual culprit. It is inconceivable that to redress an ordinary enmity if that exists a father will let go the actual enemy, who kills his very daughter and involve a person within the ordinary range of enmity. The appellant as is in the evidence, is sister's son of Miran Bakhsh the complainant and a maternal-uncle will not go to the extent of involving his own nephew without any foundation.
The learned counsel has fourthly contended that having disbelieved the evidence of the recovery of hatchet at the instance of the appellant, the learned Sessions Judge ought to have rejected the ocular account of evidence being without corroboration.
' This contention has no force since a corroboratory fact is looked for when something is wanting as to the probative force of the ocular account or to be more sure when some other confirmatory fact is needed. The learned Sessions Judge had believed both the eye-witnesses as rendering true account as to the occurrence, we are not minded to disturb his conclusion in that behalf as he was in advantageous position as compared to this Court by directly seeing the witnesses watching their demeanour and recording their evidence and as to his appreciation of the evidence we do not find any error committed by him so as to give an occasion to this Court to disturb his finding. It was open to him according to the impact of the evidence to believe the witnesses within the circumstances of the case.
' The last submission of the learned counsel in the alternative is as to the quantum of sentence for which the learned counsel has maintained that the motive as attributed was a pure fabrication.
The motive remained shrouded in mystery. Viewed in the light of the fact that Mst. Shamim Akhtar was not virgin as is borne out by the medical evidence which gives rise to many considerations as to the motive with the appellant or the cause of killing, may be due to her immoral behaviour, the appellant felt being a close relation that the family honour was being affected.
For us the motive as set up appears to be some what shaky because with the refusal of the hand of Mst. Shamim Akhtar by her parents a person who could feel annoyed or become vindictive was Muhammad Ismail and could not be the appellant as his younger brother. Even if it were so yet the occasion had not arisen because Mst. Shamim Akhtar was not engaged to anybody and still there was a room for the family of the appellant to prevail upon the complainant and his wife.
As to the fact that the deceased's hymen was not found as intact will not necessarily mean that she was not virgin. In some cases at the time when it is over due the hymen automatically gives way under some other physical exertion yet as this has come out as a fact and the benefit of it is to be resolved in favour of the appellant according to the ordinary connotation of the criminal jurisprudence, therefore, it may be that Mst. Shamim Akhtar was crushed to death under some other motive such as involving the honour of the family.
11. The learned A.A.-G. Has supported the judgment of the learned Sessions Judge as it is and as to the sentence has submitted that it is in keeping with the conviction of the appellant and requires no modification.
12. In view of the above discussion the conviction and sentence of fine of the appellant are maintained but the capital sentence awarded to him is set aside and a sentence of life imprisonment is substituted therefor. The appellant is to be given the benefit of the detention prior to and during the trial under section 382-B, Cr.P.C.
' The appeal stands accepted only to the extent of the modification of the sentence and the reference for the confirmation of the death sentence is turned down.