' RUSTAM S.SIDHWA, J.--Muhammad Salim and Abdul Sattar were tried by the learned Sessions Judge, Leiah, under section 436/302/ 307/34 PPC for the murder of Muhammad Farooq, deceased, and attempt on the lives of Muhammad Irfan PW7 and Muhammad Aslam PW8 by committing mischief by setting on fire the kotha in which they were sleeping. The learned trial Judge, by his judgment dated 18-4-1983, convicted both the accused under sections 302/34, 436/34 and 307/34 PPC (on two counts). In respect of the offence under section 302/34 PPC, he sentenced Muhammad Salim to death, subject to confirmation by the High Court, and to pay a fine of Rupees One Thousand (Rs.1000) or in default thereof to undergo further rigorous imprisonment for six months and Abdul Sattar to imprisonment for life and to pay a fine of Rupees One Thousand (Rs.1000) or in default thereof to undergo further rigorous imprisonment for six months. He also ordered Muhammad Salim and Abdul Sattar, accused, to pay compensation of Rupees Ten Thousand (Rs.10,000) each to the heirs of Muhammad Farooq, deceased, under section 544-A Cr.P.C. Or in default thereof to undergo further rigorous, imprisonment for six months each. He sentenced Muhammad Salim and Abdul Sattar under section 436/34- PPC to seven years' rigorous imprisonment each with a fine of Rupees Five Thousand (Rs.5000) each or in default thereof to undergo further rigorous imprisonment for one year each. The amount of fine, if realized, was ordered to be paid as compensation under section 544-A Cr.P.C. To Subhan complainant PW6. He sentenced Muhammad Salim and Abdul Sattar, accused, under section 307/34 PPC (on two counts) to seven years' rigorous imprisonment each on each count with a fine of Rupees Two Thousand (Rs.2000) each on each count or in default thereof to undergo further rigorous imprisonment for one year each. The amount of fine, if realized, was ordered to be paid as compensation under section 544-A Cr.P.C. To Muhammad Irfan and Muhammad Aslam injured PWs. The sentences awarded to Abdul Sattar, accused, were ordered to run consecutively. In case the death sentence of Muhammad Saleem accused was not confirmed by the High Court, his sentences were also ordered to run consecutively. The appeal (Cr. A .No.85 of 1983) preferred by Muhammad Salim and Abdul Sattar, convicts, against their conviction and sentences and the reference (M.R.No.147 of 1983) sent up by the learned Sessions Judge for the confirmation of the death sentence awarded to Muhammad Salim, convict, are both now before us for determination and shall be disposed of by this judgment.
2. The prosecution story in brief is that Subhan complainant PW6 is resident of Chak No.103/TDA and his kotha' comprising two rooms is at a distance of three killas towards west of Abadi Deh. On the night of 13-12-1981, Subhan complainant PW6 after tethering his cattle in the northern kotha went to sleep there. His three sons Muhammad Irian PW7, Muhammad Aslam PW8 and Muhammad Farooq, deceased, went to sleep in the southern kotha. It was a moonlit night. At about midnight the complainant got up on the alarm of his son Irfan and in the moonlight, he saw Salim, accused, was sprinkling petrol with a spray-machine on the door of the southern residential kotha and Abdul Sattar, accused, was standing armed with a sota. Within the sight .Of the complainant, the accused Abdul Sattar ignited a match stick and set the place, where petrol was sprayed, on fire. In the flames of the fire, Salim and Abdul Sattar, accused, were correctly identified. While the complainant was raising alarm outside the kotha, his three sons were raising noise inside the kotha., Ali Ahmad PW9, who was watering his lands, also came to the spot and he also identified both the accused. The door of the kotha was chained from outside and since it was burning, so it could not be opened. The accused Salim and Sattar ran away. When the door of the kotha got burnt and fell down, the three sons of the complainant came out with severe 3rd degree burns on their bodies. Muhammad Farooq, deceased, and Muhammad Aslam PW8 became unconscious, while Irfan PW7 was in senses. Faiz Ahmad son of Fazal Din and Faiz Muhammad son of Mahna (given up PWs) also came to the spot and they brought the cattle out of the northern kotha. Many other people also came and they extinguished the fire. The articles lying in the sourthern kotha were completely burnt, while half portion of northern kotha was burnt. The loss resulting to the property of the complainant was Rs.5000/6000. Before fleeing from the spot, the accused had left the nozzle of the spray machine behind.
' The motive for the occurrence was that Muhammad Irfan PW7 was suspected of illicit relations with Mst.Azra, sister of Salim, accused. About four days before the occurrence, Irfan PW7 had told the complainant that Salim and Abdul Sattar, accused, had told him that he should stop his love affair, otherwise he would be burnt alive. The complainant had contacted Abdul Aziz (not produced), a relation of the accused, in this respect and had told him that his son should not be suspected without any cause and that he was prepared to give defence of his son, but Abdul Aziz had told him that when the time would come, then it would be seen.
3. Muhammad Farooq, deceased, Muhammad Wan .PW7 and Muhammad Aslam PW8, the three injured sons of the complainant, were first taken to Fatehpur Hospital and then to Chowk Azam Hospital, but at both these hospitals the doctors were not available and hence the injured were taken to Leiah and admitted in the Civil Hospital there. On 14-12-1981 at 11.00 a.m., Dr.Khuda Bakhsh PW5 examined Muhammad Farooq, deceased, and found eight 3rd degree burns on various parts of his body. The injured was unconscious and his condition was declared dangerous. All the injuries were found collectively to be dangerous to life. The probable duration of injuries was between ten to fifteen hours. The said doctor also examined Muhammad Wan PW7 and found two contusions, one contused wound, two 2nd degree burns and ten 3rd degree burns on various parts of the body.
The general condition of the patient was serious. The probable duration of injuries was between ten to fifteen hours. The said doctor also examined Muhammad Aslam PW8 and found six 3rd degree burns on various parts of his body. The injured was unconscious and in a state of shock. The injuries were collectively declared dangerous to life. Probable duration of injuries was between ten to fifteen hours.
4. After obtaining the medico, legal reports, Subhan complainant PW6 proceeded to Police Station Leiah, where he lodged FIR Ex.PL at 12.30 noon, which was recorded by Ali Muhammad SI PW10.
5. The police officer then proceeded to Civil Hospital, Leiah, where he recorded the statement of Irfan PW7, after Dr. Khuda Bakhsh PW5 had certified vide his endorsement Ex.PH/1 that he was fit to make a statement. The statements of Muhammad Farooq and Muhammad Aslam PW8 could not be recorded, as they were not in a fit condition to make statements.
6. From the hospital Ali Muhammad SI PW10 went to the place of occurrence, from where he secured burnt pieces of wood P1/1-2, the nozzle pf a spray machine P2, the leg of a charpai P3 and semi-burnt book P4, vide memo PM.
7. On 15-12-1981, All Muhammad SI PW10 arrested Muhammad Saleem and Abdul Sattar, accused.
Abdul Sattar, accused, produced sota P5, which was secured vide Memo PN. Muhammad Salim, accused, led to the recovery of a spray machine P6 from a sugarcane field, which was taken into possession vide memo P0. Both the recoveries were witnessed by All Ahmad PW9, All Muhammad SI PW10 and Mehram All (given up PW).
8. The same day, the police officer received information that Muhammad Farooq, deceased, had died. Accordingly, he proceeded to the Civil Hospital, Leiah, where, after preparing the necessary papers, he sent the dead body of the deceased for post-mortem examination.
9. On 16-12-1981 at 9.30 a.m. Dr.Khuda Bakhsh PW5 conducted the post-mortem examination on the dead body of Muhammad Farooq and found the same injuries on him as he had found earlier.
Death was due to shock, as a result of the 3rd degree burns. Probable duration between injuries and death was fifty-six to sixty hours and that between death and post-mortem examination about sixteen hours.
10. On 18-12-1981, the investigating officer got photographs Ex.PC/1-10 taken of the burnt down kotha, through Khalil Ahmad PW4 photographer.
11. After completing the necessary investigation, the challan against the accused was sent up.
12. At the trial, the prosecution produced Muhammad Subhan complainant PW6 and Muhammad Irfan PW7 to prove the motive, the said two witnesses and Muhammad Aslam PW8 and All Ahmad PW9 in proof of the ocular account, AU Muhammad SI PW10 and Ali Ahmad PW9 in support of the recoveries and Dr. Khuda Bakhsh Malik PW5 in corroboration of the medical testimony.
13. Both the accused denied all the accusations that were levelled against them, including the recoveries alleged to have been effected at their instance. Abdul Sattar, appellant, imputed his false involvement to party-faction. Muhammad Salim, accused, stated that he had been falsely involved by Mehram, as he owed Rs.6470 to them, being balance price of 25 maunds of bajra, 22 maunds of cotton and one bag of mungi purchased by him from his father, which he had not paid and in respect of which his father had instituted a civil suit against him. He further stated that Mehram was a nephew of AU Muhammad, Lambardar, and since the latter was the head of the complainant party, he had been falsely implicated at the instigation of the said Lambardar.
14. The learned trial Judge, relying upon the motive, the ocular account, the recoveries and the medical testimony, convicted and sentenced both the accused, as stated in pare 1 above.
15. We have heard the arguments of the learned counsel for the appellants and the State and have perused the record. The evidence as regards motive is furnished by Muhammad Subhan complainant PW6 and Muhammad Arfan PW7. According to their testimony,, Muhammad Salim, appellant, suspected Muhammad Arfan PW7 of having illicit relations with his sister Mat. Azra Bibi and four days before the occurrence both Muhammad Salim and Abdul Satter, appellants, had told Muhammad Arfan PW1 to stop his love affair or he would be burnt alive. Muhammad Arfan PW7 had then informed about this incident to his father Muhammad Subhan complainant PW6, who had then contacted one Abdul Aziz, a relation of Muhammad Salim, appellant, and had told him that his son was innocent and that the suspicion was without justification and that he was prepared to offer defence, but the said Abdul Aziz had replied by stating that they would see when the time came.. On behalf of the appellants it is submitted that Mst.Azra Bibi was married three/four months before the occurrence to one Muhammad Younis, a resident of Goth Chandar Singh, District Nawab Shah, and that she was residing with her husband in. District Nawab Shah since her marriage. In this connection the statement of Muhammad Arfan PW7, who affirmed the said marriage of Mst.Azra Bibi three/four months before the occurrence, has been pointed out to show that the motive, as set forth, is untrue, as Mst.Azra Bibi was no longer in the Chak. In fact the statement of Muhammad Arfan PW7 also shows that Mst.Azra Bibi, after going to Nawab Shah District after her marriage, had also come back and that in the days of occurrence she was in the Chak. In these circumstances, the motive A stands established against Muhammad Salim, appellant. Since the evidence does not clearly disclose any relationship between Abdul Sattar, appellant, and Muhammad Salim, appellant, it cannot be said that the motive stands also established against Abdul Sattar, appellant.
16. The ocular account in this case is furnished by Muhammad Subhan complainant PW6, Muhammad Arfan PW7, Muhammad Aslam PW8 and Ali Ahmad PW9. Muhammad Subhan PW6 was sleeping in the northern kotha alongwith the cattle. He got up on hearing alarm and saw Muhammad Salim and Abdul Sattar, appellants, standing in front of the residential kotha.
Muhammad Salim, appellant, had a spray machine with him, with which he was spraying the petrol on the door of the residential kotha. He called both the appellants by their names and inquired from them as to what they were doing. In the meantime All Ahmad PW9 reached at the spot. Abdul Sattar, appellant, ignited a match stick and set on fire the southern kotha on fire. In the light of the flames he identified both the appellants. Muhammad Arfan PW7 and Muhammad Aslam PW8 alongwith Muhammad Farooq, deceased, _ were sleeping in the southern kotha. Muhammad Farooq, deceased, was sleeping, whereas Muhammad Arfan PW7 and Muhammad Aslam PW8 were studying. After some time they heard whispering outside the kotha. They opened the door and saw Muhammad Salim and Abdul Sattar, appellants, standing outside. Muhammad Salim, appellant, had a spray machine with him, whereas Abdul Sattar, appellant, had a sota.
Muhammad Salim, appellant, was spraying patrol with the spray machine on the door and roof of his kotha. He inquired from both the appellants as to what they were doing, whereupon Abdul Sattar, appellant, gave him a sota blow and Muhammad Salim, appellant, pushed him inside the kotha and closed the door from outside. Muhammad Salim, appellant, introduced the nozzle of the spray machine into the kotha, through a hole in the door, and started spraying patrol inside. He also heard the voice of his father from outside the kotha. The kotha was on fire. A dia was burning inside the kotha and the petrol vapours inside also caught fire. All the three inmates then stood alongside the walls of the kotha. Muhammad Arlan PW7 held the nozzle of the splay machine. Since the door was locked from outside, they could not escape. They raised alarm from inside. When the door got burnt and fell down, they also came out. Ali Ahmad PW9 was taking a' round of the watercourse, which was supplying the water to his lands, as at that time his lands were being irrigated. He heard alarm from the dera of the complainant and ran towards it and saw Muhammad Salim and Abdul Sattar, appellants, standing in front of the door of the southern kotha and the complainant standing next to the door of the northern kotha. He saw Muhammad Salim, appellant, spraying petrol with his spray machine on the door of the southern kotha and Abdul Sattar, appellant, standing armed with a sota nearby. Within his sight Abdul Sattar, appellant, ignited a match stick and set on fire the door on which the petrol had been sprinkled and he fully identified both the appellants in the flames of the fire that gushed up. On behalf of the appellants the following submissions have been made with regard to the ocular account. First, that Muhammad Subhan PW6 did not see the occurrence. In this connection it is submitted that he lived in the Abadi of Chak No.103/TDA with his family, which was 21 killas away. Since his sons were sleeping in the kotha, he had no particular reason to be present there himself. It is further submitted that though Muhammad Subhan PW6 had stated that he had to water his land at 6.00 a.m., according to the warabandi, yet he had no kassi or bailcha with him. It is also submitted that if he was present, he would have unchained the door from outside and would otherwise have intervened by trying to apprehend both, the appellants, which he did not do. It is also stated that no cattle were tethered in the northern kotha, for if they were so, they would have been shown in the site plan Ex.PB. Second, it is submitted that Muhammad Arfan PW7 and Muhammad Aslam PW8 were not able to see the occurrence, as they were never able to come out of the southern kotha, because the same was chained from outside. In this connection it is submitted that had they heard whispers outside and come out and saw the two appellants, they would have informed this fact to their father Muhammad Subhan complainant PW6, who would not have failed to mention these facts in his FIR Ex.PL. The very fact that these particulars were not mentioned by Muhammad Subhan, complainant, PW6, in his FIR shows that this part of the story that they heard the whispers from outside and came out and saw the appellants etc., is a made up story. In this connection it is also submitted that they did not give this story to the police in their statements which were recorded under section 161 Cr.P.C. Third, that Ali Ahmad PW9 did not witness the occurrence, as he was watering his field, which was eighteen killas away. In this connection his statement has been read to show that the land which he was watering was fifteen killas away towards the east of the abadi of the Chak, the place of occurrence was three killas towards the west of the said Abadi and that he was watering his land for about 2-3/4 hours when he heard alarm from the place of occurrence. In this respect it is submitted that if he was eighteen killas away from the place of occurrence, he would neither have been able to hear alarm, nor have been able to see the flames or be in a position to run up to the spot or been able to see the whole occurrence. It is also submitted that All Ahmad PW9 stated that his turn of water started from 9-12 p.m. And ended at 12- 15 a.m. And that he had an additional period of fifty-five minutes with him, which had been allowed by another person to him in lieu of that much time which he had allowed from his turn of water to the other persons, and that the additional ttme was being pressed by him merely to show his presence at the spot. With regard to the first submission, Ali Muhammad SI PW10 clearly stated in cross-examination that when he visited the place of occurrence he found the cattle tied outside the kotha. It is, therefore, obvious that the cattle had been tethered in the northern kotha on the night of the occurrence. The fact that the cattle were not shown in the site plan Ex.PB does not, therefore, negative the presence of the cattle at the time of the occurrence. If the cattle were so present, it is obvious Subhan PW6 would have been very much present in the northern kotha to guard the same. Since the occurrence took place in mid-December on a cold wintery night, it is not possible to believe that the cattle would be left unattended in the northern kotha. The presence of Muhammad Subhan complainant PW6 at the spot cannot be B doubted. It is true that the complainant did not take immediate steps to unchain the door of the southern kotha, after the same was put on fire, or to apprehend the two appellants at the spot, but this perhaps is due to the fact that it took him perhaps some short time to come out of his own kotha, on hearing the alarm of his sons from the adjacent kotha and the sound of the crackling noise of the sarkanda reeds that were burning on the roof, and he did not act quickly, as would be expected. It is possible that Subhan. PW6 had no opportunity to talk with any of the appellants or to see who had lit the match stick to set on fire the southern kotha, but one thing is clear that he saw the two appellants in the light of the blazing fire and that he also saw Muhammad Salim, appellant with the spray machine.
With regard to the testimony of Muhammad Arfan PW7 and Muhammad Aslam PW8, we would agree with. The submission of the learned counsel for the appellants that they did not see the appellants, as they were chained inside when their southern kotha was set on fire. However, the fact that they and their deceased brother suffered severe third degree burns on various parts of their body, clearly shows that some petrol had been sprayed into their room, as a result of which no sooner the kotha was set on fire, the whole room inside also got lit up, burning the three inmates profusely. With regard to the third submission, it is clear from the evidence of All Ahmad PW9 that when he heard the alarm from the dera of the complainant, he was having a round of his watercourse, as he was irrigating his land. It is not his case that he was near his lands at that time, which was eighteen killas away. The site plan Ex.PB shows that he was at the khal, 247 feet away from the place of occurrence, when he heard alarm and that when he ran up towards that place, he began to see the appellants when he was at point No.4 which was about 20 feet from the place of occurrence. The fact that he had been watering his lands for about 2-3/4 hours when he heard the alarm from the place of occurrence, or that his lands which were being watered were eighteen killas away from the place of occurrence, or that his turn of water started at 9-12 p.m. And ended at 12-15 mid-night, with a further period of 55 minutes which he had of another person's turn, does not defeat his testimony. We have, therefore, no hesitation in holding that he was very much near the place of occurrence when the southern kotha was lit up and that in the flames of the fire he definitely saw both Muhammad Salim and Abdul Sattar, appellants, with Muhammad Salim, appellant, with the spray machine. The upshot of the above discussion is that Muhammad Subhan complainant PW6 and All Ahmad PW9 were present at the spot at the time of occurrence and were in a position to identify Muhammad Saleem and Abdul Sattar, appellants, almost immediately after the southern kotha caught fire and that they also saw Muhammad Salim, appellant, with a spray machine with him. It is correct that in the panicky situation that arose then, both the witnesses perhaps did not have the gumption to immediately unchain the door of the southern kotha from outside, or to try to apprehend the two appellants, but this does not defeat the factum of their presence. None of the said witnesses have any enmity against or animosity with any of the appellants. Their evidence, therefore, is that of natural and disinterested witnesses and cannot be brushed aside under any circumstances whatsoever.
17. The corroboration in this case is offered by the recovery of the spray machine P6 at the instance of Muhammad Salim appellant on 15-12-1981, which matches with the nozzle of the said machine recovered D from the spot on 14-12-1981. The evidence of All Muhammad PW9 and Ali Muhammad SI PW10 with regard to the recovery of the spray machine P6 at the instance of Muhammad Salim, appellant, and the production of Sota P5 by Abdul Sattar, appellant, when he was arrested, cannot be challenged on any basis whatsoever. Ali Ahmad PW9 is related to the complainant party. Even if his testimony is kept aside, the evidence of Ali Muhammad SI PW10 is sufficient to sustain the recovery. According to the statement of All Muhammad SI PW10, the nozzle P2 recovered at the spot, fitted the spray machine P6 later recovered at the instance of Muhammad Salim appellant.
' The medical testimony furnished by Dr.Khuda Bakhsh Malik PW5 shows that Muhammad Farooq, deceased, and Muhammad Arfan PW7 and Muhammad Aslam PW8 had a large number of third degree E burns on their person. The medical testimony, therefore, corroborates the ocular account.
18. The upshot of the above discussion is that the motive, the ocular account, the recovery of the spray machine P6 at the instance F of Muhammad Salim, appellant, and the medical testimony, prove the case conclusively against Muhammad Salim, appellant. He desenies to be convicted under sections 302, 307 (on two counts) and 436 Pk. As regards Abdul Sattar, appellant, who was present at the spot, it cannot clearly be stated that he was instrumental with his co-appellant in setting the southern kotha on fire. He is, therefore, entitled to the benefit of doubt.
19. The only question that now remains is that relating to sentence. Muhammad Salim, appellant, appears to have committed the offences to maintain family honour. In this view of the matter, we would alter his sentence under section 302 PPC from death to life imprisonment, maintaining the fine and compensation payable by him, as awarded by the learned trial Judge. His sentences under section 307 (on two counts) and 436 PPC, as awarded by the trial Judge, shall stand. The sentences shall run concurrently.
20. For the foregoing reasons, the appeal of Abdul Sattar, appellant, is accepted. His conviction and sentences are set aside. He shall be released forthwith, if not required in any other case. Fines and compensation, if any recovered from him, shall be refunded to him.
21. The appeal of Muhammad Salim, appellant, is partly accepted, in terms of alteration in the sentences under section 302 PPC, as stated above. The benefit of section 382-B Cr.P.C. Shall be allowed to Muhammad Salim, appellant. The death sentence is not confirmed.