MUHAMMAD HALEEM, J.-Appellants Fateh Din, Abdur Razaq, Dilawar and Limoon were tried for the murder of Daim aid for other offences and convicted under sections 302/34, 458, 363. 324/34 and 323/34, P. P. C. On the first count they were sentenced to transportation for life, on the second and third, each to seven years rigorous imprisonments on both the counts, on the fourth, to two years rigorous imprisonment, and on the fifth, to one year's rigorous imprisonment. Fateh Din and Abdur Razaq were further convicted under section 368, P. P. C. And each of them was sentenced to two years rigorous imprisonment. Lastly, Fazal Din was convicted under section 376, P.P.C. And sentenced to seven years' rigorous imprisonment. Ibrahim, Ismail, Abdur Rehman and Amin were also tried alongwith the appellants but they were acquitted by the learned Sessions Judge, Khairpur Mirs vide Judgment dated 11th June 1969. The appellants have appealed from jail against their conviction. According to the prosecution case, the incident, occurred after midnight on 12th March 1967, in the house of Gulsher in village Pakki Khubi, taluka Khairpur, while Gulsher Daim, Mst.
Chuttan, Mst. Ghulam Zohra and Mst. Fazai Khatoon were sleeping inside the shed of the house, they woke up on the barking of dogs and noticed torch light and eight Persons entering the house.
They identified them to be the appellants and the acquitted accused as they were previously known to them. Abdur Razaq and Ismail were armed with hatchets and the rest with lathis. Daim challenged them; upon which Fateh Din and Limoon gave lashi blows to him who fell down.
Thereupon, all of them raised cries, on which lathi blows were given to Gulsher, Mst. Ghulam Zohra and Mst. Chuttan. Gulsher identified Dilawar to be his assailant. The cries attracted Sadiq, Mahar and Azizullah, all by case Kalhoro and seeing them the appellants and the acquitted accused challenged them not to approach them otherwise they would be killed. Appellants Fateh Din and Abdur Razaq forcibly dragged MR. Fazal Khatoon from her cot and took her outside the house while she continued wailing and on the way Haji Piral, her grand-father, intercepted the appellants just in front of the door of her house to free her, whereupon Abdur Razaq and Ismail caused hatchet blows to him and he fell down. Thereafter the appellants and their companions escaped in a jeep.
Gulsher took the deceased who was in a serious condition to police station Ahmadpur, which is six miles away, and thereof lodged his F. I. R. At 8-15 a.m. The same day.
2. It is alleged in the F. I. R. That appellant Fateh Din wanted to marry Mst. Fazal Khatoon but her father, Daim, and her grand-father, Piral, rejected his demand, whereupon Fateh Din threatened the two with evil consequences. Shortly after Mst. Fazal Khatoon was engaged to Jawan Kalhoro, which annoyed him and he got a false case registered against Daim. Jawan and others at Police Station Ahmadpur, but no action was taken. It was therefore that he forcibly abducted Mat. Fazal Khatoon and caused injuries to Gulsher, Mst. Chuttan, Mst. Ghulam Zohra; Daim and Haji Piral.
3. Daim died in the Ahmadpur dispensary on 12th March 1967, at 3-20 p.m.,, Dr. Muhammad-Jamil Khan performed the autopsy on the dead body and noticed the following injuries:- "(1) A contused wound 2 ----- x ----- x ----- deep obliquely on the upper part of the frontal region.
(2) A contused wound 1" x ----- x 1/6" on the back of the lobule of right ear.
(3) A contused wound 1" x 1/8" x 1/8" on the right mastoid region behind the right ear.
(4) A swelling of right check 4" x 3.
(5) A contusion 9" x 1" on the back of the chest obliquely.
(6) A contusion 6" x 1" on the left side and back of the chest vertically", and in his opinion except for injury No. 1 which was sufficient in the ordinary course of nature to cause death, all others were simple in nature and that they were caused with a blunt weapon such as lathi. He further opined that these injuries were responsible collectively for his death as well. He also examined Haji Piral, Mst. Ghulam Zohra Mst. Chuttan and Gulsher on 14th March 1967. On Haji Piral he noticed the following injuries:- "(1) A contused wound 2----- x ----- x 1/4" deep obliquely on the upper part of the frontal region.
(2) A contused wound 1" x --" x 1/8" on the back of the lobule of right ear.
(3) A contused wound 1" x 1/8" x 1/8" on the right mastold region behind the right ear.
(4) A swelling of right cheek 4" x 3".
(5) A contusion 9--- x 1" on the back of the chest obliquely,--- which were simple in nature, out of which injuries 3 and 5 were caused by a sharp-cutting weapon while the rest by a blunt weapon. On Mst. Ghulam Zohra he noticed the following injuries:- "(1) A contused wound 1/4" x 1/4" x 1/8" on the back of the left forearm at upper third.
(2) A contusion 2" x 2" on the back of the left shoulder," which were simple in nature and caused by a blunt weapon, such as lathi. On Mst. Chuttan he noticed the following injuries:- "(1) A contusion 3" x 1----- on the back of the left shoulder.
(2) A contusion 3" x 1----- on the upper part of right hip.
(3) A contused wound 1/4" x 1/2" x 1/4" on the dorso lateral aspect of the left forearm at lower thigh," which were simple in nature and caused by a blunt -weapon, such as lathi. On Gulsher he found the following injury:- "(1) A contusion 2" x 1" on the left parital region. There is swelling round about it," which was simple in nature and caused by a blunt weapon, such as lath.
5. Ibrahim, Ismail, Limoon, Abdur Razzaq and Amin were arrested on 23rd March 1967. Limoon volunteered to produce the crime weapon and led the mashir, Muhammad Sadiq, and Ghulam Murtaza S. H. O. To a wheat cultivation near the hedge of his house and from there he produced a lathi which was seized under mashirnama, Exh. 29, which on chemical analysis was found to be stained with blood which bad disintegrated. Dilawar was arrested on 24th March 1967, but he produced no incrimina--ting article. Mst. Fazal Khatoon was secured on 27-4-1967, from the house of Doulat Khan, situated in taluka Digri, on the information having been conveyed to the police that she was being wrongfully confined in his house. Fateh Din and Abdur Razaq, however, slipped away from the house and they could not be arrested. Before being taken to Digri, appellants Fateh Din and Abdur Razaq took Mst. Fazal Khatoon to Larkana where she swore an affidavit on 18th March, 1967, before an Oath Commissioner stating that no one had abducted her but that she had left her father's house of her own free-will and had come to Fateh Din to whom she was betrothed and had married him.
6. Mst. Fazal Khatoon was sent for medical examination to the District Hospital, Khairpur Mirs, where she was examined by Dr. Muhammad Ishaq and Mrs. Junejo. According to them she was aged 14 years and that "sexual intercourse appeared to have been committed with her but there were no signs of any recent rape."
7. The appellants denied the prosecution case and pleaded their innocence. Appellant Fateh Din denied his involvement in the abduction of Fazal Khatoon and of committing rape on her. He denied his acquittance with the Oath Commissioner, Saghir Hussain and also of compelling Mst.
Fazal Khatoon to swear an affidavit before him. He denied having taken her to Larkana and thereafter detaining her in the house of Doulat Khan in Digri. In cross-examination it was suggested to the prosecution witnesses that he was married to Mst. Ghulam Zohra which fact was denied but he filed a copy of the complaint, Exh. 63, alleging her enticement against the deceased; his father Piral and others on or about 21st November 1963. It was again suggested in cross-examination that there was, dispute between the appellant, Fateh Din, and Haji Piral over purchase of some land whereupon there was litigation, and this appellant has in support of it relied on Exh. 64, which is a notice for the hearing of the appeal which he filed in this Court. Lastly he filed a copy of the complaint (Exh. 62), wherein he accused Sadu alias Siddiq, Jurio and Ghouso for committing robbery of the ear-rings of Mst. Bilqis and causing hurt to her on or about 20th December 1962.
Appellant Dilawar was cited as a witness in this case. The idea was to allege enmity against the prosecution witnesses. Appellant Abdur Razaq only alleged enmity but gave no reasons and so is the case of appellant Dilawar. Appellant Limoon alleged that being a brother of Dilawar and the two acquitted accused, Abdur Rahman and Amin, he has been implicated in the crime as even earlier also they had filed a robbery case against him and Abdur Rahman. Appellant Limoon died during the pendency of the appeal and his appeal, therefore, stands abated. It is now only the case of the other three appellants which requires consideration.
8. The prosecution examined Gulsher. Mst. Fazal Khatoon, Mst. Chuttan, Mst. Ghulam Zohra and Haji Piral, in support of this case, while Mehar, their neighbour, was examined to corroborate their testimony. The first four eye-witnesses were inmates of the house while Haji Piral lived in a separate house close-by. Mst. Fazal Khatoon is the abductee and the younger sister of Gulsher. Mst. Chuttan is the widow of the deceased; Mst. Ghulam Zohra is the elder sister of Gulsher; Haji Piral is the father of the deceased. Mehar lived about an acre away with Muhammad Saleh and had come to the wardat on hearing the cries. He is also related to Gulsher. His wife's brother, Siddiq, is married to Gulsher's sister. He observed a lantern burning in the house and the appellants and the acquitted accused inside it, while appellants Fateh Din and Abdur Razaq were forcibly dragging Mst. Fazal Khatoon outside the house. He stated that while Abdur Razaq and Ismail were armed with hatchets, the rest had lathis and that the deceased lay injured at the entrance of his landhi. He also saw the other injured inmates, namely Gulsher, Mst. Chuttan and Mst. Ghulam Zohra and the taking away of Mst. Fazal Khatoon and the causing of blows to Haji Piral while he intercepted to rescue her.
9. We have closely scrutinised the ocular and the corroborative testimony. The presence of the injured witnesses cannot be doubted. The appellants were known to the inmates of the house from before and in the circumstances there could not be any difficulty in the identification in the light of the lantern which was hanging on the nail. All the witnesses are agreed that it were appellants Fateh Din and deceased Limoon who had caused lath! Blows to Daim, which ultimately caused his death. As for the injuries on other inmates, Gulsher states that he was injured by appellant Dilawar while the others had caused blows to Ma. Fazal Khatoon and Mst. Ghulam Zohra. Mst. Fazal Khatoon without mentioning the names of the appellants states that Gulsher, her sister Ghulam Zohra and her grandmother Mst. Chuttan received injuries at the hands of the appellants. Mst. Chuttan ascribes blows on her to the acquitted accused. Ismail and Ibrahim, without mentioning as to who caused the injuries to the other inmates. Mst. Ghulam Zohra ascribes blows to her by acquitted accused, Amin and Abdur Rehman, and to others she is unable to give the name of the assailants.
The injuries are consistent with the weapons used. There can be no room for doubt that they were given to subdue the inmates, for they had raised cries and attempted to offer resistance to the forcible abduction of Mst. Fazal Khatoon. Haji Piral not only suffered incised but also injuries with a blunt weapon. His part in intercepting the appellants from taking away Mst. Fazal Khatoon cannot also be doubted. Haji Piral has testified to having identified all the appellants but he was confronted with his police statement, wherein he stated that he was unable to (identify anyone due to darkness, which was duly proved and, therefore it is not possible to accept this part of his evidence Nevertheless, the injuries on his person corroborate the fact that he had attempted to rescue the abductee. P. W. Mehar also states so. Cumulatively, all this evidence leads to the inescapable conclusion that the appellants trespassed into the house of the deceased to forcibly abduct Mst. Fazal Khatoon. Gulsher was cross-examined at length but nothing tangible came out to discredit him: It was suggested that his paternal uncle, A.I Muhammad, had taken away Mst.
Fazal Khatoon, a few days before and that she was secured from A.I Muhammad's custody by police and kept in the house of Jawan at village Pakki Khuhi for 15 days which he denied. In this contest, the evidence of Doulat Khan needs consideration. According to him, he owned 43 Jareebs of land at village Pakki Khuhi, from where he shifted to Digri, some 25 years before, where he acquired 64 Jareebs of land. While visiting village Pakki Khuhi he heard about the abduction of Mst. Fatal Khatoon and on his return from there a month later to Digri, he saw appellant Fatah Din and his brother residing in his house alongwith Mat. Fatal Khatoon. He reprimanded them for having killed the deceased and for abducting Mst. Fatal Khatoon. He returned to Khairpur and conveyed to Rahim A.I, a relative of Gulsher, the information as to the wrongful detention of Mst. Fatal Khatoon in his house and thereafter contacted the S. H. O. Of Police Station Ahmadpur and disclosed to him her whereabouts. It was then that the S. H. O. Recovered her from his house in the presence of mashir, Karimbux. Doulat Khan is aged 70 years and had it not been for the information conveyed by him, the whereabouts of the abductee may not have been known. It was suggested to him that A.I Muhammad had brought her and left her in his house, which he denied. However, on this aspect, mashir Karimbux has admitted in cross-examination that it was Doulat Khan who had brought Mot. Fatal Khatoon to his house. What interest he had in the abductee, is not apparent and for ought it be said, that this is a dishonest admission. One other aspect needs consideration, and that is that Doulat Khan instead of naming Abdul Razaq has described him as the brother of Fateh Din, which he is not, but is otherwise related. This may be due to the fact that he may have had this impression but the identity of Abdur Razzaq cannot be in doubt having regard to the testimony of Fazal Khatoon who had named him alongwith Fateh Din to be one of the two who were wrongfully detaining her. The suggestion that it was A.I Muhammad who bad brought her to Doulat Khan's house is also absurd as there is no reason why he would do so to falsely implicate the appellant. There is no material either to substantiate it.
10. Again, in the cross-examination of Gulsher it was suggested that the S. H. O., who is also Kalhoro by case, was connected with him, which he denied. He denied that the F. I. R. Was lodged after three days. These suggestions are unsubstantiated and therefore are of no value Another suggestion that Mst. Ghulam Zohra was married to appellant Fatah Din was also denied. In this connection it was further put to him that Fatah Din had moved the civil Court for her restoration and that a bailable warrant was issued which was also dented. Again, it was suggested that Fateh Din bad filed a complaint against the deceased for having enticed away Mst. Ghulam Zohra, which he denied. Appellant Fateh Din, in support of this allegation, had filed Exh. 63 which is dated 21November 1963. There is nothing on record to conclude as to what action was taken on this complaint, apart from the order "Record statement under section 200, Cr. P. C. For complainant."
Whether process was issued to impugn knowledge of it, is doubtful and in this context no exception can be taken if the witness bad denied knowledge of this fact. Moreover, this complaint was filed about 4 years before the present incident and that too over the enticement of her elder sister. If there was any substance in this allegation, it should be Mst. Ghulam Zohra who should have been abducted and not Mst. Fatal Khatoon. The time that has elapsed also outweighs any motive for false implication of the appellants. Mst. Ghulam Zohra has denied her marriage to appellant Patch Din. She admits having been married to Siddiq some six years back. In this context, it is not conceivable that she would have been married to appellant Fateh Din. The same suggestion was put to Mst. Fatal Khatoon and Mst. Chuttan, which they denied. The filing of the complaint was intended to coerce the deceased to marry Mat. Ghulam Zohra to Fatah Din and why this queer defence was taken is not understandable, and on the face of it appears .To be absurd. In any case, it could not be a reason for his false implication in the face of the unequivocal evidence against him.
11. Mst. Ghulam Zohra and Mst. Chuttan have supported the prosecu--petition case in its entirety.
Mst. Ghulam Zohra's credibility was attacked on the ground that she was abducted by Siddiq, which she denied. Being an injured and inmate of the house, her presence cannot be denied. There is nothing in her evidence to make it incredible and we have no reason to disbelieve her. Similarly, the testimony of Mst. Chuttan is also on the same footing except the fact that she was not able to correctly pick out deceased Limoon, instead she mistook appellant Dilawar for him. Be that as it may, the identity of Limoon is otherwise established. More--over, since he is dead, his case is not being considered by us. His credibility was attacked on the same ground as that of Gulsher, but we see no reason why she would implicate the appellants for the forcible abduction of her daughter, Mst. Fatal Khatoon. In her cross-examination, it was suggested that Siddiq was implicated for committing robbery of the ear-rings of Mst. Bilqis, which was denied. She also denied knowledge of civil litigation over land between Haji Piral and appellant Fateh Din. Both these suggestions, in our view, could not have prompted her even if there was some foundation for them to falsely implicate appellant Fatah Din.
12. Lastly, in this category is the evidence of the abductee Mst. Fatal Khatoon herself. She has implicated the appellants for her forcible abduction. According to her, after being forcibly put into the jeep, it drove for a mile; thereafter all others except appellants Fateh Din and Abdur Razaq got down from it. She had an opportunity of viewing appellant Dilawar and in the circumstances there cannot be a doubt as to their identity. Appellant; hatch Din and Abdur Razaq remained with her in the house of Doulat Khan until her discovery. Thus, their Involve--ment in her abduction and wrongful detention cannot be doubted. She has stated about the places where she was detained and as to how she was compelled to swear the affidavit. She has also spoken about appellant Fatah Din committing rape on her frequently until he left her before the arrival of the police. In the circumstances, the contents of the affidavit cannot be given any weight when she was forced to swear it under their influence. In this light, the testimony of Saghir Hussain, before whom she swore the affidavit, requires examination. He is an advocate and an Oath Commissioner at Larkana; according to him, on 18th March 1967, the abductee came alongwith Mr. Kalabali, Advocate and Ghulam Hussain, petition writer, to swear an affidavit on which her photograph was pasted. Shest had sworn to it and admitted its contents which were read out to her. In cross-examination he gave an impression that from her behaviour it looked as if she had voluntarily sworn to it. He was, however, doubtful whether appellant Fateh Din accompanied her. Whether he did so or not at that time, is of no consequence, for it was he who was instrumental In procuring it by way of defence and it could not be otherwise than by compelling her to swear to it as she was under his influence.
Free consent in the circumstances is completely out of question having regard to what she has testified and the background of the prosecution case. In this context, it would be of advantage to reproduce what she stated:- "They took me in a jeep to Larkana. I am illiterate. They got my photograph and obtained my thumb-mark on a paper. Accused Fateh. Din and Abdur Razaq were both there. I was taken to some one. I do not know whether he was an Advocate, before going to the same person who gave his evidence this morning (referring to Saghir Hussain Advocate). My photo was affixed to one paper, Exh. 8."
The above clearly indicates that she was acting under the influence of her abductors and knew nothing about the contents of the affidavit. Mst. Fazal Khatoon has stated that appellant Fateh Din committed rape on her frequently even though, according to the doctor, "there were no signs of any recent rape." She had been in the company of appellant Fateh Din for a sufficiently long time which would have certainly provided an opportunity to him to commit rape on her. Signs of recent rape would also not be obvious, for she had been subjected to it so many times and under the circumstances t1at she could not have offered any resistance. Accordingly, her evidence on this aspect of the case leaves no room for doubt that she was subjected to sexual intercourse against her will, and in this context the absence of signs of any recent rape cannot be of any consequence to believe her.
13. Lastly is the corroborative evidence of Mehar who has equally supported the implication of the appellants and the forcible abduction of Mst. Fazal Khatoon. His evidence is beyond reproach, for nothing has emerged to doubt it.
14. The appellants and the complainant party are closely related to each other. Appellant Fateh Din has falsely imputed his marriage with Mst. Ghulam Zohra and had also filed a complains. He has alleged civil dispute with Haji Piral and implicated Siddiq in a robbery case. No doubt, they were not on good terms; nevertheless, we are not convinced that in the face of the unequivocal evidence, these could be the reasons for his false implication. Moreover do not see any reason why the prosecution witnesses would go in the length of leaving the real culprits to implicate him and the others in the crime. In conclusion we have no doubt as to his involvement and that of appellants Abdur Razaq and Dilawar in the case.
15. There now remains the question as to whether the appellants were rightly convicted under section 302/34, P. P. C. The trial Court while acquitting Ibrahim, Ismail, Abdur Rahman and Amin has given to them the benefit of doubt without giving a finding as to whether there was or was not the common object to kill the deceased. The State has pot preferred an appeal against their acquittal.
In the ultimate analysis the conviction of the appellants proceeds by pressing into service common intention. The evidence is consistent that it were Fateh Din and Limoon who had caused blows to the deceased which resulted in his death. It is, however, not known as to who caused the fatal blow.
Except for it, which was sufficient in the ordinary course of nature to cause death all others were simple in nature, though collectively all of them were responsible for his death. The injuries suffered by the other inmates were simple in nature and were caused by blunt weapons. It was only when the deceased had challenged that Fateh Din and Limoon had caused blows to him. This was the eminent reason to subdue resistance to, facilitate the abduction of Mat. Fazal Khatoon. Simple injuries were also caused by blunt weapons to the other inmates who had acted in the same fashion. The question, therefore, arises whether they and the other appellants had the common intention to kill the deceased. Keeping in view the above circumstances, the intention of appellants Fateh Din anal, Limoon could not be rated higher than to cause grievous injury and to this extent the other two appellants could be imputed to have shared the common intention, even though one of such blow proved fatal. Accordingly we would alter the conviction of the appellants from' section 302/34 to section 325/34, P. P. C. And substitute a sentence of seven years rigorous imprisonment.
The convictions and the sentences on other counts are maintained. Subject to this modification the appeal of Fateh Din Abdur Raziq and Dilawar stands dismissed.