' NAZIR AHMAD BHATTI, J.-- Appellants Said Khan and Aurangzeb were tried alongwith their co- accused Mst. Mahfooz Bibi wife of appellant Said Khan for the murder of Muhammad Rafique on 9- 10-1981 by the learned Additional Sessions Judge-II, Abbottabad at Haripur. Both the appellants were found guilty and convicted under section 302/34, P.P.C. And sentenced to undergo life imprisonment and to pay a fine of Rs,3,000 each or in default to. Suffer further one year simple imprisonment and the fine, if realized, was to be paid as compensation to the heirs of the deceased, and their co-accused Mst. Mahfooz Bibi was acquitted by the learned trial Judge vide his judgment dated 24-4-1983. Through the present appeal, both the convicts have challenged their conviction and sentence. Criminal Revision No, 15/83 has also been filed by complainant Abdul Majid for enhancement of the sentence of life imprisonment to death as also of fine and compensation. Criminal Appeal No, 25/83 has also been filed by the State for conviction of the acquitted accused Mst. Mahfooz Bibi. The Judgment in the present appeal will also dispose of Cr. R.
No, 15/83 and Cr. A. No, 25/83.
2. The case against the aforesaid three accused is based on first information report No, 68 lodged by complainant Abdul Majid, father of deceased Muhammad Rafique on 10-10-1981 at 1-45 hours in P.S. Kot Najibullah. This F.I.R. Discloses inter alia that on 9-10-1981 at night time the complainant was present in his house when his relative P.W. Zarin came and informed him that at 'khuftan qaza wela' he and deceased Muhammad Rafique were present in their cattleshed when accused Said Khan came and asked Muhammad Rafique to accompany him as his goat was dying. Muhammad Rafique went to the house of accused Said Khan and Zarin heard hue and cry of the former whereupon he rushed to the house of accused and saw the latter and accused Aurangzeb, brother-in-law of accused Said Khan and armed with a shotgun, present there. Accused Said Khan and Mst. Mahfooz Bibi were dragging Muhammad Rafique and accused Aurangzeb fired a shot with which Muhammad Rafique was hit and fell down. Accused Aurangzeb then fired another shot which killed Muhammad Rafique. On this information, complainant Abdul Majid went to the spot accompanied by Jamil and Ghulam Ahmad where they saw accused Aurangzeb standing armed with a shotgun and were informed by accused Said Khan that the dead body of Muhammad Rafique was lying there but he warned them not to come near, whereupon they went back. The motive for the offence was that accused Said Khan suspected the deceased of having illicit relations with his wife accused Mst. Mahfooz Bibi. Complainant Abdul Majid went to the police station and lodged the report. Accused Said Khan and Mst. Mahfooz Bibi were arrested on 10-10- 1981 from their house and accused Aurangzeb was arrested on 12-10-1981 from his village Kaloo Pind. Accused Mst. Mahfooz Bibi made a confession on 13-10-1981 and accused Said Khan made a confession on 14-10-1981. All the three accused were charged under section 302/34, P.P.C. By the learned trial Judge but they pleaded not guilty and claimed trial.
3. At the trial, eleven prosecution witnesses were produced, out of whom P.W.10 Zarin is the only eye-witness of the occurrence. P.W.11 Qazi Qalandar Khan S.H.O., P.S. Kot Najibullah, who investigated the case, recovered the dead body of Muhammad Rafique from the kitchen of the house of accused Said Khan. He also recovered blood-stained grass and chaff from the kitchen of the house of accused Said Khan. The said accused also produced blood-stained axe, his blood- stained shalwar and shirt and blood-stained shalwar and shirt of his wife accused Mst. Mahfooz Bibi which were taken into possession from the same house. All the recoveries were made on 10-10- 1981. P.W. 11 also recovered an unlicensed .12 bore S.B. Shotgun from the house of accused Aurangzeb on 12-10-1981. The said witness did not find any empty shell of the shotgun from the spot. P.W. 11 also took into possession blood-stained shirt, Exh. P.1, and banyan, Exh. P.2, of deceased Muhammad. Rafique. The dead body of Muhammad Rafique was given in custody of P.W. 1 Baz Khan, F.C., who escorted it to the mortuary. This witness also produced one phial containing two pellets, second phial containing three pellets, third phial containing two cardboards and fourth phial containing one cardboard, which were handed over to him by the doctor after post-mortem examination and he handed over these articles to P.W.11.
4. P.W. 5 Dr. Noor Wahab Shah, Medical Officer, Incharge Civil Hospital, Haripur performed the post- mortem examination on the dead body of Muhammad Rafique on 10-10-1981 at 9-30 a.m. And on external examination found the following injuries:--
(1) Firearm entrance wound 2" x 2" on the front of neck in the middle with presence of charring marks.
(2) Firearm entrance wound 1 1/4" x 11" on the right side of appigastrium, charring marks were present.
(3) Two incised wounds each 11/4" x 1" x bone deep on left side and anterior part of the head.
(4) Incised wound 2" x 1/2" bone deep on the right side and posterior part of head under line bone fractured.
(5) Incised wound 3" x 1.1/3" by complete cutting of left ear extended behind to the neck.
(6) Incised wound 2" x 1/3" x 1/2" on the left 'side of the neck just below the left ear.
(7) Incised wound 21/2" x bone deep across the base and back of left ring and little finger. Ring finger fractured.
' On internal examination, the doctor found the scalp injured, occipital bone fractured, membrance and brain fractured, trachea, both lungs, pericardium and heart, cardia artery, walls of abdomen, peritonium, oesophagus, stomach, small and large intestines and liver injured. The stomach was empty. The bladder was also empty. 4th and 5th cervicals vertebra, occipital bone and left ring finger were found fractured.
' In the opinion of the doctor, the death was caused due to injuries to the cervical spine, caroted artery, trachea, oesophagus, stomach, liver, lungs, intestines and brain, caused by firearm and sharp-edged weapon. The doctor has further stated that according to his calculation, death occurred between 10 and 15 minutes after sustaining the injuries. The doctor further stated that the injuries to the vital organs like brain, heart, lungs, spine, liver, stomach and intestines were individually and collectively sufficient to cause death of the deceased in the ordinary course of nature.
5. P.W. 9 Abdul Majid had not seen the occurrence himself. He has stated whatever he had narrated earlier in the first information report. He has admitted that the deceased was unmarried. In cross- examination he has explained the delay in making the F.I.R. And has stated that it took him 3 to 4 hours for going to the house of accused, then to Panian, to arrange transport and after that to police station. He has further stated that after coming to his village from the house of accused Said Khan, he spent about 1 or 2 hours in his house. He has denied that the deceased had gone to the house of the accused for committing intercourse with accused Mst. Mahfooz Bibi. P.W. 10 Zarin, the sole eye-witness of the occurrence, has stated that he went to his cattleshed alongwith the deceased at 'khuftan qaza wela'. Accused Said Khan came and requested the deceased to accompany him for slaughtering his goat which was dying. The deceased accompanied him. After some time he heard some noise and ran towards the house of the accused where he saw accused Said Khan and Mst. Mahfooz Bibi dragging the deceased while accused Aurangzeb fired a shot at him with which the deceased was hit and fell down to the ground. This witness was forced to go outside the house and when he came outside he heard the report of second shot and then went and informed the complainant. He has denied that the deceased had illicit relations with accused Mst. Mahfooz Bibi.
6. P.W. 11 Qazi Qalandar Khan, S.H.O., as already stated, went to the spot and recovered the dead body of the deceased from the house of accused Said Khan. He investigated the case, prepared the recovery memos. And recorded statements of the witnesses. The other prosecution witnesses are formal.
7. The confessional statements of accused Mst. Mahfooz Bibi and accused Said Khan are virtually the same. The important ingredients of these confessional statements are that it was the day of Eid-ul-Azha and accused Aurangzeb, who is brother of accused Mst. Mahfooz Bibi, had come to the house of his brother-in-law accused Said Khan to take his sister to his village Kalo Pind, but it became late due to taking of evening meals and they decided to go to their village in the morning on the next day. At night she slept inside the room while both the male accused slept in the compound. At 'khuftan qaza wela' deceased Muhammad Rafique entered their house and tried to untie the trouser string of Mst. Mahfooz Bibi, whereupon she raised alarm and on this both the male accused woke up. The deceased tried to run away but was caught by them. Then accused Aurangzeb fired a shot at Muhammad Rafique who was injured and fell down. He was dragged towards the kitchen where accused Said Khan gave an axe blow on his head. P.W. Zarin entered their house but was warned by both the male accused not to come inside and then accused Aurangzeb fired another shot at Muhammad Rafique which hit him on his neck. In his statement under section 342, Cr.P.C., accused Said Khan admitted the production of axe, his blood-stained clothes and those of his wife to the Investigating Officer. He also admitted that the dead body of Muhammad Rafique was recovered from the kitchen of his house on 10-10-1981 at his own pointing out. In respect of the confession, he stated that he did make a statement before the Magistrate explaining the circumstances under which the occurrence took place. He denied the committing of murder of Muhammad Rafique. He further stated as follows:- "I am innocent and falsely charged. On the day of occurence in the evening time, Aurangzeb co- accused who is my brother-in-law had come to me from village Kaloo Pind to take his sister Mst.
Mahfooz Bibi to his house as it was the day of Eid-ul-Azha. I asked him that he may take her after having evening meal in my house. We all had our evening meal and it had become dark. So I asked Aurangzeb that he should take Mst. Mahfooz Bibi alongwith him on the following morning as it was late night. He agreed to it and I and Aurangzeb slept in the courtyard of my house while Mst.
Mahfooz Bibi, my wife, slept inside the room of the house alongwith her small baby. At the dead of night I heard cries of my wife who was saying that some one is trying to open her trouser's string and wants to dishonour her. On this alarm, I and Aurangzeb woke up and saw a person running from the room of my house in the courtyard. I and Aurangzeb on seeing the person running lost our mental balance, self-control and in the heat of situation, Aurangzeb fired with a gun at that person and I gave him axe blows. When he fell down, injured. We identified him to be Muhammad Rafique deceased. The dead body was kept in safe custody and handed over to the police on their arrival and I also offered the statement to the police immediately on their arrival. I had also handed over to the police the axe and my blood-stained clothes. I claim protection under the grave and sudden provocation of the situation in which I was placed."
' Accused Aurangzeb in his statement admitted that he had produced the shotgun to the I.O. On 12- 10-1981 and had also narrated the facts to him. To the question as to why he had been involved in the murder of Muhammad Rafique by his sister and brother-in-law, he has stated that they might have narrated the true facts of the occurrence. He denied the committing of murder of Muhammad Rafique. In his further statement, he has deposed the same circumstances as narrated by accused Said Khan. Accused Mst. Mahfooz Bibi, in her statement, admitted the recovery of her blood-stained clothes by the I.O. She also admitted that the dead body of Muhammad Rafique had been recovered from the kitchen of their house at her pointing out.
Regarding her confessional statement, she stated that she did make a statement before the Magistrate explaining the circumstances under which the occurrence took place. She denied the committing of murder of Muhammad Rafique. She further stated as follows;- "On the night of occurrence, I was present in my house. My brother Aurangzeb came from village Kaloo Pind to take me on the eve of Eid-ul-Azha. After taking meal, it became late and my husband asked him to go at morning time. I slept in the room with my small baby in my house while my husband and brother slept in the courtyard of the house. At dead of night, while I was in asleep, I felt the hand of a person on my trouser's string and mouth. I raised alarm saying that a person has come to dishonour and rape me. My husband and brother on hearing this, woke up, seeing a person from the room, they fired at him and gave axe blows to that person in grave and sudden provocation to save my honour. I am innocent."
8. It shall thus be seen that the occurrence has been admitted by the appellants. From the very beginning they have admitted the committing of murder of Muhammad Rafique. However, there are two versions of the occurrence, one as put forth by the prosecution and the other as disclosed by the appellants. It is noteworthy that there is only one eye-witness of the occurrence and he is Zarin, who is a close relation of the deceased. It has been contended by the learned counsel for the appellants that the version of the occurrence as disclosed by P.W. Zarin is false. In support of this contention he has alleged that the house of Zarin is 800/1000 yards away from the spot, there was no occasion for him to be present in the cattle shed, he is a married man and it does not appeal to reason that having a family he should sleep in the cattle shed, that the I.O. Did not mention the presence of cattle in the cattle shed and that even otherwise if he had a cattle shed, deceased Muhammad Rafique was there to look after the cattle. Not only that, the learned counsel further urged that the presence of this witness in or outside the house of appellant Said Khan cannot be visualized for the reason that when the appellants were injuring Muhammad Rafique, they could not afford to allow a relation of the deceased to remain on the spot to witness the occurrence, so that he could become an eye-witness. We have given serious thought to these contentions raised by Mr. Abdullah Jan Mirza, learned counsel for the appellants, but we do not find ourselves in agreement with him for the reason that the presence of this witness has been admitted by appellant Said Khan in his confessional statement recorded on 14-10-1981. It is noteworthy that in his statement under section 342, Cr.P.C., appellant Said Khan has not denied the making of confession nor he has alleged any coercion, misrepresentation, torture or persuasion on the part of the Investigating Officer in inducing him to make the confession. Appellant Said Khan stated that he had made a statement before the Magistrate explaining the circumstances of the case. He has in the said confessional statement admitted the presence of P.W. Zarin at the spot at the time of occurrence. There are sound reasons to believe that appellant Said Khan made the confession voluntarily. Had he not done so, he would have retracted from it in his statement given during the trial. In this connection it was further urged by Mr. Abdullah Jan Mirza that the confessional statement is virtually the same as are the contents of F.I.R. And it appears to have been obtained by inducement. This argument is beyond the point for the simple reason that the appellant Said Khan has not retracted from the confession. It shall thus be seen that the presence of P.W. 10 Zarin at the spot at the time of occurrence has been proved beyond any doubt.
9 It was further urged by the learned counsel for the appellants that even if the presence of P.W. 10'
Zarin at the spot is established, still his testimony cannot be accepted because he has not deposed about the injuries sustained by the deceased by a sharp-edged weapon. We have considered this aspect of the matter as well but we are of the confirmed opinion that this P.W. Was turned out of the house of the appellant and it appears that the injuries by axe were inflicted on the deceased after P.W. Zarin had gone out of the house. In their statements recorded under section 342, Cr.P.C. The appellants have not mentioned8 the presence of P.W. Zarin at the spot, but this omission appears to be deliberate whereas the confessional statement shows his presence at the relevant time.
10 ' The other point urged by the learned counsel for the appellants is that the occurrence took place at 'Khuftan qaza wela' which time in the month of October may be about nine O'clock in the night but the report was lodged about five hours late and that this time was spent in fabricating a false prosecution story. This argument stands rebutted in its entirety by the fact that the prosecution case as disclosed in the F.I.R. Is the same as is disclosed in the confessional statements of appellant Said Khan and acquitted accused Mst. Mahfooz Bibi. As such, delay has not affected the intrinsic value of the prosecution case. - Even otherwise there does not seem to be much delay because the occurrence took place at late in night, then P.W. Zarin went and informed the complainant, who collected some persons and then went to the house of appellant Said Khan to demand the delivery of dead body, failing which he went back, made arrangement for transport and then went to the police station. We have taken into consideration all these circumstances and have come to the irresistible conclusion that delay was neither intentional, nor utilized to make out a false accusation especially when the dead body was recovered from the house of accused.
11. Mr. Abdullah Jan Mirza then urged that the offence was committed in exercise of right of private defence to person and property. His contention was that the appellants woke up on alarm raised by their co-accused Mst. Mahfooz Bibi and thinking that anybody had come either to steal something from the house or to inflict some bodily harm to any of them. But we neither find any specific plea raised in defence by the appellants nor any material evidence to this effect nor even a suggestion made in this respect during the trial. We would not, therefore, accept this contention of the defence.
12. The learned counsel for the appellants then urged that deceased Muhammad Rafique appeared to be a desperate person. He had entered the house of the appellant to dishonour Mst.
Mahfooz Bibi and he was done to death to save family honour. He contended that in villages and especially in agricultural tribes, family honour is of over-powering importance and murders are frequently committed to vindicate family honour and that the offence was committed under grave and sudden provocation. We have given our anxious thought to this contention as well end we are of the opinion that there may be some truth in this allegation. It is possible that the deceased may either be carrying on illicit relations with Mst. Mahfooz Bibi or he may be making advances to her without any encouragement from her side. His presence in the house of the appellant Said Khan at that late hour of the night would show that he had some nefarious designs against Mst. Mahfooz Bibi. The fact that the deceased was caught in his house by the appellant would go a long way to show that he had entered their house with the intention to outrage the modesty of Mst. Mahfooz Bibi or was invited by her. But there is yet another aspect of this circumstance as well. The offence was not committed at the spur of the moment. There are circumstances in the case which show that both the appellants knew the designs of the deceased against Mst. Mahfooz Bibi and it was a pre-meditated murder. There are more than sufficient reasons on the record in support of this contention. The deceased was taken to his house by appellant Said Khan on the pretext of slaughtering his ailing goat. The arrival of appellant Aurangzeb armed with an unlicensed shotgun, and no reason has been assigned as why Aurangzeb should come armed to the house of his sister when he had to take her back during day time. The other most important circumstance in this case is that no person would dare to enter the house of a married woman in the presence of her husband and brother unless he was having an affair with her from before or he was specifically invited by the woman. We have taken all these circumstances into consideration and we are firm In our minds that the appellants had knowledge that the deceased had been malting indecent advances or was having an affair with Mst. Mahfooz Bibi and so they decided to murder him and this is the motive for the commission of this offence.
13. We have before us at least two versions of the defence case.
' Firstly the confessions and secondly the statements of the appellants made under section 342, Cr.P.C. And reproduced earlier in this judgment. However, the confession made by appellant Said Khan has not been retracted by him and the prosecution story as disclosed in the F.I.R. And fully corroborated in the testimony of P.W. Zarin is further corroborated by the confession. The explanation furnished by the appellants in their statements during the trial to explain the circumstances of the case cannot be believed because a statement made by an accused after prosecution evidence has been recorded is generally a result of much thought and given after due consideration. In that statement, the accused can suppress or deny any circumstance appearing against him in the evidence.. Even otherwise if conviction is to be based on the mere statement of the accused, then this contention may be right and the said statement will have to be accepted in its entirety, but where ocular evidence of an unimpeachable character has come on the record, then the said statement of the accused can be rejected in regard to those circumstances which are not supported or corroborated by the prosecution evidence. It has been held in the case of Faiz and another v. State 1983 SCMR 76 that "the accused is questioned only on matters found incriminating against him in the evidence. His reply or narration is not tested or completed either by cross-examining him or by putting him further questions. The state of his mind is not proved. His bare statement about it exists on record, for whatever its worth. In the absence of any other evidence it has to be accepted as a fact, though apparently not fully established". It shall thus be seen that if conviction is to be recorded solely on the statement of the accused, then it is to be accepted or rejected in toto but if there is sufficient ocular evidence in the case then this principle is not applicable and the intrinsic value of the said statement has to be found out. As has been mentioned at more than one place in this judgment that the testimony furnished by the sole eye- witness did not suffer from any infirmity, his said statement is to be relied upon to the exclusion of the statement made by the appellants under section 342, Cr.P.C. And according to ocular testimony the guilt of the appellants was brought home without any reasonable doubt. We would not, therefore, accept these statements also. Putting the confession and the statement of the appellants in juxtaposition we have come to the unexceptionable conclusion that the appellants were determined to do away with the deceased and, it was a pre-meditated and cold-blooded murder.
14. An attempt was made to show that the confessional statements are in conflict with the prosecution case inasmuch as there is no mention of taking deceased Muhammad Rafique to the place of occurrence by appellant Said Khan on the pretext of slaughtering his ailing goat and as such, the confessional statement belies the prosecution case and the confession has to be accepted in toto and if it is done so then the offence appeared to have been committed under grave and sudden provocation. We do not agree with this contention for the reason that a confession has to be accepted or rejected in its entirety only when there is no ocular evidence in a case but if there are eye-witnesses in a case then the Courts are at liberty to reject that part of the confession which is in conflict with the ocular testimony. In this connection we find support from the cases of Khan Muhammad v. State PLD 1960 Lah. 359, Mian Jan v. State PLD 1980 Pesh. 92, Shahzada Khan v. State 1983 P Cr. L J 1402 and Ghulam Nazir v. State 1981 P Cr. L 118.
15. The learned counsel for the appellants lastly contended that as the offence has been committed under grave and sudden provocation, the sentence of life imprisonment was very harsh and the conviction should be altered to have been covered by the exception to culpable homicide as mentioned in section 300, P.P.C. We have given our serious thought to this aspect but we cannot agree with this contention because we have already held that the offence was not committed under grave and sudden provocation but it was a pre-meditated murder, although it was done to vindicate family honour.
16. The learned counsel for the complainant-petitioner of Cr. Revision No, 15/83 has urged that it was a pre-meditated murder and the extreme sentence of death should have been passed on the appellants. We would repel this contention on the ground that although it was a pre-meditated murder but it was committed to vindicate family honour and in such circumstances the extreme penalty of death is not warranted. In this connection we would find support from the cases of Khudadad and 2 others v. State 1974 SCMR 485 and Muhammad Lathe v. State 1983 P Cr. L J 1761.
17. Khawaja Nazir Ahmad, Assistant Advocate-General, contended in support of Cr. Aappeal No, 25/83 that acquitted accused Mst. Mahfooz Bibi had taken active part along with her co-accused in committing the murder of Muhammad Rafique. He drew our attention to the prosecution story which shows that she had dragged the deceased when he was being fired at by appellant Aurangzeb and that here clothes were also blood-stained which proved that she took active part in the commission of the offence and she was erroneously acquitted by the learned Additional Sessions Judge. We have given serious consideration to the case of Mst. Mahfooz Bibi but we think that she did not take any part in the commission of the offence. It is not conceivable that a person would be fired at when he is being dragged by some other person. The simple reason for this is that there is very likelihood of the former also sustaining firearm injuries. The presence of blood on the clothes of Mst. Mahfooz Bibi can be explained on the ground that she may be present near the deceased alongwith her co-accused and the drops of blood found on her clothes might have flown towards her as well. She also enjoys the additional benefit of having been acquitted by the learned trial Judge who had the opportunity to appreciate the evidence and the demeanor of witnesses.
18. The net result of the above discussion is that we would maintain the conviction and sentence of both the appellants herein and would dismiss their appeal. We would also dismiss Cr. Appeal No, 25 of 1983 and Cr. Revision No, 15/83.