' RUSTAM S. SIDHWA, J.--Muhammad Bashir was tried by the learned Sessions Judge, Gujrat, under section 302, P.P.C. For the murder of Muhammad Boota, deceased, and sentenced to death, subject to confirmation by this Court, and to pay a fine of Rs,10,000 or, in default thereof, to suffer further rigorous imprisonment for three yeaRs, He was also directed to pay compensation of Rs,10,000 to the legal heirs of Muhammad Boota, deceased, under section 544-A, Cr.P.C. Or, in default thereof, to suffer further rigorous imprisonment for six months. The Appeal (Cr.A. 87 of 1981) preferred by Muhammad Bashir, convict, against his conviction and sentence and the reference (Murder Reference 69 of 1981) submitted by the learned Sessions Judge for the confirmation of the death sentence of the convict, are both now before us for consideration and will be disposed of by this judgment.
2. Statement of Mst. Irshad Bibi Exh.P.A. Was recorded by Noor Khan A.S.I. P.W.15 at Police Post Tanda.
In that statement it was stated by Irshad Bibi P.W.1, the complainant that he was previously married with Imam Din, from whom she gave birth to Muhammad Boota, deceased, and two daughters Allah Rakhi and Mst. Bashiran. Imam Din died about four years before the occurrence. About two months before the occurrence, she contracted marriage with Muhammad Bashir, accused. She was living with her children at the house of Muhammad Bashir, accused. On the day of occurrence i.e, 29-9-1979, Muhammad Bashir, accused, took Muhammad Boota, deceased, to field to cut fodder. Muhammad Boota had not come back. A little after Degarwela, Muhammad Inayat P.W.2 came and told her that he was proceeding to the village from his field when at Degar time he reached near the field of Sardar Khan, he heard the shrieks of a child. He rushed to that place and saw that Muhammad Bashir, accused, was holding a sickle in his hand and he was slaughtering Muhammad Boota, deceased. In the meantime, Muhammad Bashir P.W.9, who was cutting fodder nearby, came to the spot and saw the occurrence. Muhammad Bashir accused, then left the spot.
When both the witnesses reached the field, they found that Muhammad Boota, deceased, had died. The motive for the occurrence was that Muhammad Bashir, accused usually told the complainant that he could not maintain the issues of some other person and that the children should be sent to her parents' house or that they should be brought up by their paternal- grandfather. The complainant also stated that she used to serve her son more food and this had annoyed Muhammad Bashir, accused, who had killed her son.
3. On the basis of the aforesaid statement Exh.P.A., formal F.I.R. Exh. P.B. Was recorded at Police Station Karianwala the same day at 8-15 p.m. By Raja Khalil Ahmad A.S.I. P.W.3. The Investigating Officer then proceeded to the spot, where he recovered blood-stained earth memo P.C. After preparing the necessary papers, he sent the dead body of Muhammad Boota, deceased, for post- mortem examination.
4. On 30-9-1979 at 2-30 p.m. Dr. Muhammad Rashid P.W.8 conducted the post-mortem examination on the dead body of Muhammad Boota, deceased, and found an incised wound 3" x 11" x bone deep cutting the trachea, the esophagus and the blood vessels of the neck and three minor abrasions on the left elbow joint and on the back of the left and right forearms. Death had occurred due to asphyxia and hemorrhage due to the incised wound, which was sufficient to cause death. Probable time between injuries and death was immediate and that between death and post-mortem examination about twenty to twenty-four houRs,
5. On 2-10-1979, Muhammad Bashir, accused, was arrested by Noor Khan A.S.I. P.W.15.
6. On 4-10-1979 Muhammad Bashir, accused, led to the recovery of a blood-stained Daranti (sickle)
P.3 from his residential house, which was taken into possession vide memo. P.E. In the presence of Muhammad Inayat P.W.2, Faiz Ahmad P.W.14, Noor Khan A.S.I. P.W.15 and Muhammad Shafi (who died before trial).
7. At the trial, the prosecution produced Irshad Bibi P.W. 1 and Muhammad Bashir P.W.9 in proof of the motive and the ocular account, Muhammad Inayat P.W.2, Faiz Ahmad P.W.14 and Noor Khan A.S.I. P.W.15 in support of the recovery and Dr. Muhammad Rashid P.W.8 in corroboration of the medical testimony.
8. The accused denied all the accusations that were leveled against him, including the recovery affected at his instance. He stated that Muhammad Inayat P.W.2 had illicit relations with Mst. Irshad Bibi P.W.1, as a result of which she gave birth to an illegitimate child, for which Muhammad Inayat P.W. 2 was chastised, his face blackened and he was made to roam in the village. He also stated that he had given shoe beating to Muhammad Inayat P.W.2 in that respect. He further submitted that as Muhammad Inayat P.W.2 was a Labrador of the village and had association with the police, he had been falsely implicated in the case at his instance. He lastly submitted that he had no land near the place of occurrence nor was he giving any fodder to any camel.
9. The learned trial Judge, relying upon the motive, the ocular account, the evidence of last seen, and the medical testimony, convicted and sentenced Muhammad Bashir, accused, as stated in para 1 above.
10. We have heard the arguments of the learned counsel for the appellant and the State and have also perused the record. The evidence as regards motive is furnished by Mst. Irshad Bibi P.W.1 and Muhammad Bashir P.W.9. According to her statement Exh.P.A. Mst. Irshad Bibi P.W.1 stated that Muhammad Bashir, appellant, objected to maintaining the children of her first husband, Imam Din deceased, and told her that she should either send them to her parents' house or to that of the grandfather of the children and that he also felt hurt when she served more food to her deceased son, Muhammad Boota. At the trial, however, she did not support the said version, but stated that as her son had inherited land from her deceased father and that the appellant had committed the murder to secure the said land. Muhammad Bashir P.W.9, however, supported the version as given by Mst. Irshad Bibi in her statement Exh.P.A. It is true that Mst. Irshad Bibi P.W.1 gave another version of the motive than what she did previously in her statement Exh.P.A. But this does not mean that she gave up her original motive, which also stands proved by the evidence of Muhammad Bashir P.W.9. As an illiterate woman, she would have conceived of a number of reasons motivating the appellant to commit the murder of her son Muhammad Boota, deceased, and if she gave one motive in her statement and another during her trial, it was because of her simplicity and non- intimacy as regards detail to be kept in mind whilst giving evidence. In these circumstances, it cannot be said that the motive does not stand proved. Rather, the motive stands to the hilt.
11. The ocular account in this case is furnished by Inayat Lambardar P.W.2 and Muhammad Bashir P.W.9. Muhammad Inayat P.W.2 is not related to the deceased. Muhammad Bashir P.W.9, however, in cross-examination admitted that his grandfather Fateh Muhammad and the grandfather of the appellant Handey Khan, were real brothers and sons of one Muhammad Khan. This would show that he is related to the appellant. However, it cannot be said that he is closely related to the deceased. In fact, he is remotely related to the deceased through Muhammad Bashir, appellant. At the relevant time, Muhammad Inayat P.W.2 was going from his village to the field, when he heard the shrieks of Muhammad Boota, deceased, and ran to the field of Sardar Khan and saw Muhammad Bashir, appellant, slaughtering Muhammad Boota, deceased, with his sickle.
Muhammad Bashir P.W.9 at the relevant time was cutting fodder towards the eastern side of the village, when he heard the shrieks of the deceased and ran upto that place and saw the occurrence. Muhammad Inayat P.W.2 also reported the incident to Mst. Irshad Bibi P.W.1 immediately after the occurrence, where after the latter promptly reported the matter at Police Post at Tanda at 6-45 p.m. The following objections have been raised on behalf of the appellant to the evidence of these witnesses. First, that the Nikah of Mst. Irshad Bibi P.W.1 with Muhammad Bashir, appellant, does not stand proved. Second, that Muhammad Boots, deceased, being five years of age at the time of incident, could not have been expected to help the appellant in cutting the fodder or to have been sent with the appellant for that purpose. Third, that the medical evidence belies the time of occurence as given by the prosecution. In this connection it is submitted that Muhammad Boots deceased, had some semi-digested food in his stomach, which would mean that he had taken his last meals at about 1-00 p.m., whereas according to the ocular account, he had left his house earlier in the morning at Chahwela, whereafter the prosecution had not proved that he had taken any further meals. Fourth, that Muhammad Inayat P.W.2 had illicit relations with Mat. Irshad Bibi PW.1, as a result of which his face had been blackened by the residents of the village and the appellant had also given him a shoe beating in that connection and, therefore, the appellant was falsely involved at his behest. Fifth and last, that the story of the prosecution is unbelieveable and improper and throws a complete blanket of doubt on the whole prosecution case. We have given our due consideration to these submissions. With regard to the first submission, it is true that Mst. Irshad Bibi P.W.1, like a true and simple woman, admitted in cross-examination that she had married the appellant four years after the death of her previous husband and that her third daughter was born about four/five months before her Nikah with the appellant and that neither was her Nikah registered nor she remembered the name of the Nikah Khawan, but this shows only how true her pittiable condition was in having given birth to the appellant's child out of wedlock and living with him thereafter as his wife through a Nikah not properly registered. Muhammad Bashir P.W.9 corroborates the factum of Nikah between Mat.
Irshad Bibi P.W.1 and Muhammad Bashir, appellant as he was present at the Nikah ceremony, though he could not remember the name of the Wakil. Taking all circumstances into consideration, the fact stands proved that a Nikah did take place between Mst. Irshad Bibi P.W.1 and Muhammad Bashir, appellant, or that she lived with the appellant as his wife, reasonably believing that a proper Nikah had taken place between them. With regard to the second submission, Mst. Irshad Bibi P.W.1, in her statement Exh.P.A., mentioned that on the date of occurrence the appellant took her minor son Muhammad Boots, deceased, with him to the fields for bringing fodder, whereas at the trial she stated that the appellant took him in feeding the camel with fodder. The two statements are not reconcilable, but the fact remains that the appellant did take Muhammad Boots, deceased, out with him and, if he did so, he was accountable, if the dead body of the boy was recovered within a few hours of his having taken him out from the house. Nothing, therefore, turns in favour of the appellant on this objection. With regard to the third submission, at best it can be stated that Muhammad Boota, deceased, took something to eat at about 1-00 p.m., which accounts for some semi-digested food found in his stomach, when he was alleged to have been murdered, but no questions were put to any of the witnesses to fix the time when the deceased boy had taken his last meal. In these circumstances, nothing turns on this objection. The little boy had left with Muhammad Bashir, appellant, at Chahwela in the morning. There is nothing in the evidence to show that no further meal was administered to him by anybody thereafter. May be the appellant gave him something to eat after taking him out. In these circumstances, the mere fact that semi- digested food was found in his stomach, after he was done to death, does not destroy the ocular account. The medical evidence, therefore, does not belie the ocular account, as alleged by the learned counsel for the appellant. With regard to the fourth submission, specific questions were put to Muhammad Inayat P.W.2 to show that he was responsible for the illegitimate child born to Mst.
Irshad Bibi P.W.1 and that his face was blackened and he was given a shoe beating by the appellant on that account, but he denied the said suggestion. Strangely, no such questions were put to Mst. Irshad Bibi P.W.1 or to Muhammad Bashir P.W.9 in their cross-examination. However, Muhammad Sharif P.W.1 was put a question to prove that Muhammad Inayat P.W.2 had illicit relations with Mst. Irshad Bibi P.W.1, to which the witness expressed ignorance. In these circumstances, the alleged illicit relations of Muhammad Inayat P.W.2 with M t. Irshad Bibi P.W.1 do not stand borne out from the record. This submission, therefore, is rejected. As regards the last submission, the same carries no weight. Muhammad Inayat P.W.2 at the relevant time was passing near the field of Sardar Khan, when he heard the noise and ran up to the spot. He is, therefore, a natural witness. Muhammad Bashir P.W. 9 was cutting fodder nearby, when he heard the shrieks of the deceased and ran to the place of occurrence. He is also, therefore, a natural witness. Both the witnesses have no enmity with Muhammad Bashir, appellant. Their evidence is natural and straightforward and has the ring of truth. The ocular account, therefore, completely establishes the case of the prosecution to the hilt against the appellant. The case being established by disinterested witnesses, no further need for corroboration arises.
12. The medical testimony furnished by Dr. Muhammad Rashid P.W.8 clearly shows that Muhammad Boota, deceased, died as a result of the incised wound 3f x 1f" bone deep found on the front of his neck, which had cut the trachea, the esophagus and the blood vessels of the neck. The ocular account shows that Muhammad Bashir, appellant, used a sickle in carrying out his nefarious designs. The medical testimony, therefore, corroborates the ocular account that the deceased was done to death by a sickle.
The upshot of the above discussion is that the motive ocular account and the medical testimony, clearly prove the case of the to prosecution to the hilt against the appellant. The appellant appears to have been properly convicted and sentenced.
14. There being no merit in this appeal, the same is dismissed. The sentence of death is hereby confirmed.