The four appellants who are related inter se have been convicted under section 302/34, P. P. C. For the double murder of Punnu Khan and his first-cousin Habib Khan and have been sentenced to transportation for life each on two counts by Sh. Saeed Ahmad, Sessions Judge, Jhelum, by order dated 29th of October 1970. Criminal Revision No. 252/71 has been filed by the complainant for enhancement of their sentences to that of death. This judgment shall dispose of both the matters.
2. The occurrence took place on 22nd of February 1969, at nimashamwela i. e. about sunset time in the house of the two deceased persons in village Ladhar, Police Station Dina in the District of Jhelum. The prosecution story is that Abdul Khaliq (P. W. 14) brother of Punnu Khan deceased and Habib deceased had gone to the house of Feroze (P. W. 9) in order to ask after the health of his daughter-in-law, Mst. Rehmat Elahi who had been injured as a result of brickbats thrown in his house by Hakim A.I and his sons who have their house in the same street opposite to theirs. Before their arrival, Feroze P. W. Had left for lodging an F. I. R. About this incident a copy of which has been placed on this record as Exh. P. S./1. Habib deceased came back after a short while Abdul Khaliq stayed on. Hakim A.I took exception to this and talking Abdul Khaliq to be a compatriot of Feroze, threatened him with dire consequences. Khaliq apprehending danger left immediately and was at a short distance from his house when he saw all the four appellants armed with sticks pro-- ceeding towards him. He rushed to his house and the appellants followed him aside by scaling over the wall around his house. The two deceased persons and Mst. Khanma Bi (P. W. 12) widow of Punnu Khan were in the house. Mst. Sardar Begum wife of Habib and his mother Mst. Halima were in another room. As Mst. Halima was suffering from fever Mst. Sardar Begum was attending to her.
Both the deceased persons appealed to the assailants in the name of God to stay their hands but they went ahead. Mushtaq and Tikka Khan launched an attack on Habib while Muhammad Hussain and Ashiq Husain gave injuries to Punnu Khan. Both of them fell down and were given further injuries by the assailants.
3. The two injured persons were carried on cots to the hospital when at the railway crossing of Mangla which is at a distance of one-half or three-fourth of a mile from the spot, A. S. I. Salim Asghar (P. W. 15) happened to meet the complainant party. Abdul Khaliq (P. W. 14) thereupon made statement Exh. P. A. The formal F. I. R. Exh. P. A./ 1 was recorded in the police station on the basis of this statement.
4. A. S. I. Salim Asghar had just finished the statement Exh. P. A. And bad made a note thereon that he was proceeding to the spot to enquire about the earlier incident of stone throwing in the house of Feroze, when Mst. Rehmat Elahi along with her husband Muhammad Siddiq (P. W. 9) reached the railway crossing. A truck just happened to pass by and the three injured persons were sent in it for treatment to the hospital at Jhelum. On reaching the hospital it transpired that Habib Khan had already breathed his last. Punnu Khan, however, died on 24th of February 1969, at 8-30 a.m. In the Civil Hospital at Jhelum.
5. The record shows that there was bitterness between Feroze (P. W. 9) and aforesaid Hakim A.I.
There was dispute about the return of a loan of Rs. 100 which Feroze had advanced to Hakim A.I. As a result of this dispute Hakim A.I on one side and Feroze and his two sons and a nephew on the other, were bound down. There was a trivial incident at 8 a.m. On the day of occurrence between Abdur Rashid son of Feroze and Mazhar Hussain son of Hakim A.I as the latter had coughed at him in a challenging manner. It is, however, clear that the accused have no connection whatsoever with Feroze P. W.
The motive suggested by the prosecution was that the appellants had gone to the house of the two deceased persons and had killed them there as they thought that the two deceased and their family members sided with Hakim A.I. It may also be observed that Abdul Khaliq who was actually chased by the appellants was present in the house but was not touched by them. The learned trial Court, therefore, rightly concluded that the prosecution had not been able to prove the motive for the commission of the offence.
6. The post-mortem examination of Habib and Punnu shows that they had eight and nine blunt weapon injuries respectively on their persons. Both had died because of the head injuries caused to them.
7. Tikka Khan, Muhammad Hussain and Ashiq Hussain appellants were arrested on 24th of September 1969, while Mushtaq was arrested on 26th of September, 1969. Some lathis were recovered from them but as held by the trial Judge they cannot be connected with the commission of the offence.
8. At the trial, Mst. Khanma Bi (P. W. 12) widow of Punnu deceased and Abdul Khaliq (P. W. 14) appeared as eye-witnesses. Muhammad A.I who was cited as an eye-witness died before the inquiry started in the Court of the Magisirate. Mst. Khanma Bi during her cross-examination at the trial had hysterical fits. She was sent to the medical officer for observation and treatment. He kept her under observation from 1-9-1970 to 8-9-1970 and reported that he was not able to detect any disease but found that the woman was extremely anaemic and hysterical due to the grief of the death of her husband and a son. On 6th of October 1970, she was subjected to quite lengthy cross- examination but before the cross---examination had finished, the learned trial Judge closed her evidence on the ground that she was hysterical and her recovery must take quite some time. It is to be pointed out that there is no note of the fact that she had a fit of hysteria during her cross- examination on this date. Perhaps, the learned Judge omitted to mention this fact. It is also not indicated as to how much further time the cross-examiner wanted to take for cross-examining this woman. The learned trial Judge, however, in view of the fact that her cross-examination was not complete, excluded her evidence from consideration.
9. The defence taken was that at the time when there was exchange of missiles between the family members of Hakim A.I and Feroze, the two deceased persons were in the house of Feroze and had been injured by stones. The contention of the defence was that Feroze being inimical to Hakim A.I and the accused being latter's compairlots, Feroze had falsely involved them in this case. The learned trial Judge found that the injuries; had been caused by lathis and not by stones and that since blood had been recovered from the house of the two deceased persons, the defence contention was not sustainable. No connection has been proved between Hakim All and the accused. The defence was, therefore, rightly, dis--believed.
10. It is to be pointed out that the learned trial Judge was not right in completely discarding the testimony of Mst. Khanma Bi. The unfinished statement- of a prosecution witness does not deserve complete obliteration from record and it is a question of fact as to what weight is to be attached to it. In this case Mst. Khanma Bi had been cross-examined on four occasions. The cross-examination on first two occasions is rather scanty but a reading of her cross-examination made on 31-8-1970 and 6-10-1970 shows that she had been cross-examined on almost all aspects of the case. She was an inmate of the house and it cannot be said by any stretch of imagination that she was laying a false claim to be an eye-witnesses. In Diwan Singh and another v. The Emperor (AIR 1933 Lah. 561) where the cross-examination of one of the witnesses had not finished but the statement was utilised by the Magistrate, the High Court repelled the contention that the unfinished statement of a witness could not be used and observed that if it is substantially complete and the witness is prevented by sickness or other cause from finishing his testimony, it ought not to be rejected entirely. Reference may also be made to the case of Fuller v. Rice (4 G M 343) where Shaw, C. J. Made the following observations :----- "No general rule can be laid down in respect to unfinished testimony. If substantially complete, and the witness is prevented by sickness or death from finishing his testimony, whether viva voce or by deposition, it ought not to be rejected, but submitted to the jury, with such observations as the particular circumstances may require. But if not so far advanced as to be substantially complete, it must be rejected."
The same view has been taken by this Court in Muhammad Farooq v. The State (PLD 1970 Lah.
845).
11. Mst. Khanma Bi was subjected to detailed cross-examination oil all aspects of the case. She was also confronted with the fact that fill the Court of the committing Magistrate she had not been able to point out Hussain appellant correctly. I wish the learned- Sessions Judge before closing the evidence should have asked the, cross-examiner as to on what other aspects of the case he wanted to continue the cross-examination. My view, the cross-examination of the witness is substantially complete and her statement should have been read in evidence. I proceed to do so now.
12. Abdul Khaliq is an inmate of the 'house and natural witness. The learned trial Judge observed that his solitary statement required corroboration. There is no rule of law which says that the testimony of a solitary witness who appears to be independent is necessary. The learned trial Court has, however, correctly, sought corroboration of the statement of Abdul Khaliq from the circumstances mentioned in above.
13. I may, however, say that Muhammad Siddiq cannot be said to be an independent witness. He is son of Feroze P; W. Who has direct enmity against the accused. Feroze admitted during his cross- examination that the family of Tikka Khan appellant had taken possession of their land thirty years ago and had built a house thereon. He further admitted that he had filed two suits for pre-emption against Sherbaz, Muhammad Hussain and Muhammad Ashiq appellants which he lost in the High Court. Ashraf brother of Tikka had brought a theft case against Allah Ditta brother of Feroze butthe case was-found false and a case under section 182,'P. P. C. Was registered against Ashraf.
Muhammad Siddiq, therefore, could not have remained uninfluenced by the hostility which his father entertained against the appellants and their family members. Muhammad Siddiq is in any case a chance witness and rejection of his testimony does not effect the eye-witness account given by Mst. Khanma Bi and Abdul Khaliq.
14. Both Mst. Khanma Bi and Abdul Khaliq are witnesses of truth. They have no animus whatsoever to involve the appellants falsely. The motive may have remained unearthed but there is no doubt that the two deceased persons were injured in their own house and met their death due to the injuries caused to them by the appellants.
15. The learned defence counsel argued that Mst. Khanma Bi failed to identify Hussain appellant in the Court of the committing Magistrate, and the benefit of this omission should go to Hussain.
Ordinarily this would appear to be a strong argument but keeping in view the state of health of Mst.
Khanma Bi and the fact that she was under the weight of the grief of her husband I am inclined to agree with the learned State counsel that it may be due to her frail health and the condition of her mind that she failed to point out Hussain correctly. She had named all the four appellants before the police, and even before the committing Magistrate she maintained that assailants were four in number and gave their names. The family of the two eye-witnesses settled in the new Abadi of the village only six years before the occurrence after their dislocation from their original home the area of which was covered by Mangla Dam. They have no affiliation or enmity in the village. The visit of Abdul Khaliq and Habib deceased to the house of Feroze after they heard about the exchange of stones was prompted by motive of good neighbourliness.
16. So far as the revision for enhancement of sentence is concerned, I may observe that no notice was issued in it by the Bench before which it came up for preliminary hearing. The learned trial Judge found that the motive having remained undiscovered, the lesser sentence of transportation for life was appropriate in this case. Raja Muhammad Muzaffar appearing for the complainant submitted that the two murders were commit ed in a merciless manner and that capital punishment should have been awarded to the appellants. The reason given by the learned Sessions Judge in imposing lesser sentence is not without force. 1, therefore, do not think that any interference in the matter of sentence is called for.
17. The result is that both the appeal and the revision petition are dismissed.