1. Muhammad Munir Farukee, J.--Shami, son of Mamoon, aged 33 years, caste Sheikh, resident of Bunga Salehoon, P. S. Depalpur, District Sahiwal was convicted under section 302, P. P. C. and sentenced to death by the Additional Sessions Judge, Sahiwal on the 19th of March 1969, who has submitted the record of the case to this Court as required under section 374, Cr. P. C. for the confirmation of the sentence while the condemned-prisoner has submitted an appeal through jail and the two matters are being disposed of by this judgment.
2. Shami appellant had been charged for the murder of Mst. Amiran on the 23rd of December 1967, at her house in village Hota, Police Station Kabula, District Sahiwal.
3. The prosecution case, in brief, is that Mst. Amiran deceased had deserted her husband Jaimal of village Hamarath and was living with her mother Mst. Khaman P. W. in the lhata lent to her by Faiz Muhammad Hotiana P. W. where Shami appellant came in contact with them and sought her hand for marriage. Mst. Khanan P. W. and her son Amir P. W. accepted the proposal provided Shami appellant could pay a sum of Rs. 660 for obtaining divorce from her husband Jaimal. He was asked to pay Rs. 200 in advance which he did and the balance of Rs. 400 was to be given on receipt of the divorce. He was however, allowed to live with Mst. Amiran in their house but all the efforts of Amir P.
4. W. failed to persuade Jaimal to release Mst. Amiran from his wedlock. Shami appellant continued to live with this family for about five months till the eventful day and during this period Mst. Amiran bas visited Bunga Salehon, the native village of Shami appellant and lived there with him for about a fortnight. On their return Shami appallant had been asking her to shift with him to his native village but Mst. Amiran had been putting him off saying that she could not leave the house of her parents till she was divorced by Jaimal.
5. On the fateful day Shami appellant was alone in the house with Mst. Amiran when at about noon time they are said to have quarrelled with each other on this matter and their noise attracted Isa and Haji P. Ws. who rushed towards the house joined by Ghulam Qadir C. W. on the way and in their presence Shami appellant inflicted two blows on the face and head of Mst. Amiran with Danda P. 1.
6. As they advanced to intervene Shami appellant threatened them to the same fate so they receded and availing of this chance he slipped away but Ghulam Qadir P. W. was able to snatch Danda P. 1 from him. They gave him a chase for some distance but he succeeded in making good his escape.
7. They returned to the spot and found her bleeding from her nose and mouth resulting in her death there and then. The alarm so raised had attracted some other persons including Rahimyar Khan Lambardar and Ghulam Qadir Chau- kidar as also the aforesaid Faiz Muhammad Hotiana P. Ws.
8. The Lambardar deputed Isa to go to the police station along with the Chaukidar for lodging a report about the occurrence. They reached the Police Station Kabula at about 4 p.m. where the present case was registered on the statement of Isa P. W. (Exh. P. B) by Ch. Bashir Ahmad S. I. who then accompanied them to the spot and on reaching there secured blood-stained Danda P. 1 from Ghulam Qadir C. W.' which was made into sealed parcel vide Exh. P. C. The S. I. also took into possession blood-stained earth from underneath the dead body vide Exh. P. D. and after prepar ing the injury statement Exh. P. F. dispatched it (dead body) to the mortuary after the necessary inquest vide Exh. P. G.
9. Dr. Shcr Muhammad Akbtar P. W. 1 held autopsy on the dead body on the 24th of December 1967, at 10 a. m. vide Exhs. P. H. and P. H/i and found the following injuries on it :--
(1) A bluish contusion mark 4 " x 3" on the left side of the face with fracture of maddible bone left side.
(2) A contused wound 1/3 *x J'x 1' bone deep on the mastoid process and temporal bone of the scalp, left side, with fracture of mastoid process of the skull left side.
(3) An abrasion x on the mastoid process scalp of the left side.
(4) A contused wound |"x 1/3" skin deep on the pinna of the left ear back upper part.
(5) A contused wound 1/3" x 1/6" skin deep on the pinna of left ear lower part.
(6) A depression 3|"x 2" on the parietal occipital region of the scalp.
10. There was fracture of the mastoid process and the temporal bone of the left side and the base of skull in left middle and right frontal fossa, with congestion in membrances and brain under injuries Nos. 1 and 2 which were sufficient to cause death in the ordinary course of nature.
11. Abdul Jabbar, F. C. who had accompanied the dead body was delivered the last wearing apparels of Mst. Amiran, shirt P. 2, shalwar P. 3, and banyan P. 4 and three finger-rings P. 5/1--3 by the doctor which were taken into possession by the S. I. vide Exh. P. E. The site plans Exhs. P. A and P. A/l were prepared by Farooq Ahmad Bhatti Draftsman which bear the signatures of the S. I. in token of their correctness. Exh. P. J. and Exh. P. K. are the reports of the Chemical Examiner and the Serologist respec tively revealing that the earth taken from the spot and the danda p. 1 were stained with blood of human origin. The appellant was arrested on the 30th of December 1967, and challaned resulting in his conviction as above.
12. At the trial the appellant denying all the allegations made against him pleaded not guilty to the charge and made he follow ing statement :-- "A daughter of Dona Khoja was abducted by my brother's son and brought to me. Faiz Muhammad and other P. Ws. went to me for restoration of that girl. I denied knowledge about this abduction, because in fact my nephew had not brought the girl home. While returning Faiz Muhammad P. W. threatened me that they would have the girl restored and would also avenge the insult. On this ground the P. Ws. are deposing against me as all of them belong to the village of Faiz Muhammad P. W."
13. He, however, led no evidence in defence.
14. The prosecution has relied for its case on the testimony of Isa P. W. 2 Haji P. W. 6 for the eye-witness account of the occurrence and that of Dr. Sher Muhammad Akhtar recorded by the committing Magistrate on the 29th of August 1968, and transferred to the record under section 509, Cr. P. C. as to the cause of her death, which has not been disputed before us. The two eye-witnesses Isa and Haji had supported the above narration of the occurrence at the trial. Isa P. W. lived in a separate house in the same Ihata to the house of Mst. Amiran where he was also running his pottery. Haji P. W. had just come to him to purchase earthenware (chati) from him when they heard a noise emanation from the house of Mst. Khanan P. W. They identified the voices of Mst. Amiran deceased and Shami appellant so they hurriedly went in that direction and saw Shami appellant administering two blows to her with danda P. 1 which felled her to the ground and leaving her there he ran away. They also stated that Ghulam Qadir C. W. has joined them on the way and witnessed the occurrence like them. This witness was given up by the prosecution but was examined as a Court witness at the trial and supported the prosecution case. He also stated that he had snatched the blood-stained danda P. 1 from Shami appellant while he was running away from the spot and produced the same before the S. I. who sealed it into a parcel vide Exh. P. C.
15. Mr. Farrukh Amin, Advocate, appearing on behalf of the appellant on State expense has questioned the correctness of the conviction of the appellant on the ground that the evidence of these witnesses was in conflict with the medical evidence. It was urged that the doctor has found no less than six injuries on the dead body while the witnesses had deposed about only two injuries, one on the face and the other on the head and their failure to explain the other four injuries discredited their testimony. A careful exami nation of these minor injuries indicated that injuries Nos. 3, 4 and 5 could have resulted from her fall on the ground or were received by her by the same blow which caused the second injury. These injuries and injury No. 6 could even have been inflicted by the appellant before the arrival of the two witnesses at the spot as observed by the learned trial Judge.
16. Isa P. W. was working on his wheel in the Ihata at some distance from the place of occur rence when he heard the alarm raised by Mst. Amiran and then ran in that direction along with Haji P. W. so this possibility cannot be excluded that the appellant had given some blows to her before their appearance on the scene. Isa P. W. had no doubt stated that Shami appellant had picked up the danda P. 4 within their sight. Learned counsel for the appellant urged that this assertion of the witnesses negated the above explanation that the other injuries could have been inflicted before their arrival at the spot. This contention was also raised before the learned trial Judge but he had rightly explained it by observing that in the course of the struggle that had ensued between Shami appellant and Mst. Amiran deceased the Danda could have fallen from the hand of the appellant before the arrival of the witnesses and he might have lifted it again and caused two injuries witnessed by them.
17. Learned counsel also urged that some other evidence was available in this case as the houses of Ibrahim Mochi and Allah Ditta Mochi and Rahmat Kumhar were in the same vicinity but none of them had appeared to support the prosecution case. Isa P. W. made this admission in his cross-examination but he never stated that anyone of them had arrived at the spot at the time of this occurrence. Assuming that anyone of them had also appeared on the scene the prosecution was not bound to produce all the persons who has witnessed the occurrence. Anyhow there was no hurdle in the way of the appellant to produce any of them in his defence if they had any other talk to tell.
18. The learned counsel then urged that Haji P. W. was only a chance witness as he was living at a distance of 5/7 killas from the place of occurrence and had claimed to have come to this Ihata to purchase, a chati from Isa P. W. at the crucial moment which was apparently a false pretext as he admittedly never purchased any chati on that day or even thereafter from Isa P. W. or anyone else till the day of his evidence at the trial but this contention cannot hold ground as the presence of Haji P. W. has been duly supported by Isa P. W. and Ghulam Qadir C. W. as well as Faiz Muhammad Hotiana P. W. who had arrived at the spot soon after tne occurrence. None of these witnesses are shown to have any motive of their own to falsely implicate the appellant in this case. Isa being a resident of the same Ihata was the most natural witness of the occurrence. He was running a potter's shop at that place and the presence of Haji P. W. there as a customer of his earthenware was not improbable at all. Faiz Muhammad Hotiana P. W. had further corroborated them as he has stated that on hearing about it he rushed to the spot immediately and found Isa. Haji and Ghulam Qadir P. Ws. present there who on his inquiry told him that Shami appellant had run away after causing injuries to Mst. Amiran with Drnda P. 1 which he had snatched from him. They had resorted to no exaggerations or false claims in deposing about the occurrence, we have therefore, no reason to disbelieve them.
19. There is another very strong factor which went against Shami appellant as he had disappeared from village Hota after the occurrence and had absconded for a week. The plea of false implication raised by him remained unsubstantiated and had been rightly ignored by the learned trial Judge.
20. Taking this view of the matter we hold that the prosecution had succeeded in establishing that the death of Mst. Amiran was the result of the blows given by Shami appellant with Datida P. 1.
21. As regards the nature of offence we are of the view that the appellant had no intention to commit the murder of Mst. Amiran.
22. She had been given over to Shami appellant as his wife for all intents and purposes except for the Nikah which could not be performed due to the refusal of her first husband Jaimal to divorce her.
23. All the witnesses had admitted that they were living there as husband and wife till this occurrence.
24. It has been made ' to appear from the admissions made in cross-examination by these witnesses that Mst. Amiran was a woman of easy virtue as she had also lived with Sharif Barber and one Mani for sometime during this period and even the parentage of her last child which was born about two years before the murder was in dispute.
25. 154 Pakistan Criminal Law Journal [Vol, V Shami V.
26. State Muhammad Munir Farukee, 1 Mst. Khanan the mother of Mst. Amiran had stated before the committing Magistrate that Dona one of her relations lived in the same village who used to visit their house and had been asking for the hand of Mst. Amiran and in this background Shami appellant seems to have apprehended that she might not fall into the hands of some other suitor and discard him. To safeguard against such an unpleasant situation Shami appellant bad been postering her to leave these environments and settle with him in his native village. It appears that finding her alone in the house on the day of this occurrence the appellant had again tried to persuade her in the matter but she was adamant resulting in a quarrel between them. Isa P. W. had conceded in his cross-examination that the raola which he heard immediately before the present attack on the deceased was that the accused (appellant) was saying to the deceased that he had paid Rs. 200 for her and if he was not able to arrange for the remaining amount of Rs. 400 would she not be able to go with him and the deceased was saying that unless she was divorced by her first husband she would not accompany him. The persistent refusal of Mst. Amiran seems to have provoked Shami appellant and in the heat of passion a sudden quarrel ensued between them and without any premeditation on his part picking up the danda P. 1 lying nearby gave a few blows to her resulting in her death. Danda P. 1 is admittedly a house hold article for grinding spices etc. for the daily meals and was thus not a usual weapon of offence. This would certainly negative any element of preparation on his part of intention to cause her death as he seems to have picked up this danda in the heat and excitement of the moment In these circumstances the appellant could not be held guilty of . murder in this case. We are, therefore not inclined to maintain A his conviction under section 302, P. P. C, and the death sentence awarded to him is accordingly not confirmed.
27. The appellant could not, however, escape the responsibility for the death of Mst. Amiran as in inflicting blows with Danda P. 1 on the vital part of her body he could safely be saddled with the knowledge that his act was likely to cause death. We therefore alter his conviction to that under section 304 (Part 11) P. P. C. and sentence him to R. I. for 10 years. Reduction warrants to issue forthwith. With this modification the appeal shall stand dismissed. .
28. Dil Murad V.