MUHAMMAD SIDDIQ, J.-----The brief facts of the case according to the prosecution version are that Mst. Ghulam Fatima P. W. Daughter of Feroze Khan (acquitted co-accused) and sister of the present appellant, was married to Allah Ditta P. W., son of Rozi Khan deceased. As she did not give birth to any child, she was divorced by her husband about two years before the occurrence and said Allah Ditta married another woman. Feroze Khan (acquitted co-accused) demanded the hand of Mst. Ghulam Zarina P. W., daughter of the deceased, for marriage with his son Muhammad Khan appellant. The deceased, however, turned down this proposal. This led to unpleasantness between the two families and also annoyed the appellant and his father. On 24-6-1970, at 2/3 a.m.
(night) Rozi Khan deceased, his wife Msr. Mulkhan P. W., and his daughter Mst. Ghulam Zarina P. W.
Were sleeping in front of their dhok. Baz Khan P.W. Who is brother of Mst. Mulkhan P. W., was also sleeping there. The present appellant armed with a hatchet and his father Feroze Khan and Jehan Khan armed with soils reached there and caught hold of Mst. Ghulam Zarina P. W. And started dragging her. She raised hue and cry which awoke her parents and Baz Khan P. W. Both Rozi Khan deceased and Mst. Mulkhan tried to rescue their daughter Mst. Ghulam Zarina, but the assailants inflicted injuries to both of them as a result of which Rozi Khan died on the spot. The assailants then succeeded in making good their escape with Mst. Ghulam Zarina P. W. Mst. Mulkha was taken to Police Station Talagang where she lodged the F.I.R. Exh P. H. At 10-00 a.m. On 24-6-1970. Abdul Khaliq A. S. I. After recording the statement of Mst. Mulkhan prepared her injury sheet lExh. P. F ) and sent her to the hospital for medical examination. Akbar A.I A. S. I. After reaching the spot prepared the injury statement (Exh. P. E) and the inquest report (Exh. P. E /1) of Rozi Khan deceased and sent the dead body to the mortuary at Talagang for post-mortem examination. He collected chadar Exh. P 2) and broken handle of hatchet (Exh. P. 1) from the spot vide Memo. Exh. P. A. And lantern (Exh. P. 3) vide Memo. Exh. P. B. He also recovered blood-stained earth from the spot and sealed it into a parcel vide Memo. Exh. P. C. On 3-7-1971), he recovered Mst. Ghulam Zarina P. W. At the Bus Stand Khanewal from Muhammad Khan appellant and prepared Memo. Exh. P. L. He also arrested the appellant at the Bus Stand Khanewal. Feroze Khan (acquitted co-accused) was produced before him on 5-1-1970. He got Mst. Ghulam Zarina medically examined vide application (Exh. P.M.).
He recorded the statement of Mst. Ghulam Zarina P. W. On 3-7-1970 under section 161, Cr. P. C. On 6- 7-1970, he submitted an application (Exh. P. O.) for recording her statement under section 164, Cr. P.
C. Accordingly she was produced before a Magistrate and her statement under section 164, Cr. P. C.
Was recorded on 6-7-1970. He also made an application for holding identification parade of Muhammad Khan, Feroze Khan and Jehan Khan. Accordingly the identification parade was held.
He also got prepared a site plan (Exh. P. J.) by the patwari. After the usual Investigation, the Investigating Officer challaned the appellant and two acquitted co-accused under section 302/ 366/325 read with section 34, P. P. C. The trial v as held by the Sessions Judge, Campbellpur, who vide the impugned judgment dated 14-1-1972, held that the prosecution case against Feroze Khan and Johan Khan was doubtful. Accordingly, giving benefit of the doubt to them, he acquitted them.
He, however, held the present appellant guilty under sections 302, 366 and 325, P. P. C. He sentenced him to death under section 302, P. P. C. For the murder of Rozi Khan deceased, to seven years' rigorous imprison--ment under section 366, P. P. C. And three years rigorous imprisonment under section 325, P. P. C. For causing injuries to Mst. Mulkhan. The sentences of imprisonment were ordered to run concurrently if the death sentence was not confirmed by this Court. The appellant has challenged his convictions and sentences through the present appeal. The case is also before us under section 374, Cr. P. C. For the confirmation of the sentence of death. This judgment will dispose of both the criminal appeal as well as the Murder Reference. The State has also challenged the acquittal of Feroze Khan and Jehan Khan co-accused by filing Criminal Appeal No. 543 of 1972.
Without admitting this appeal to regular bearing and issuing any notice to the acquitted accused persons, it was ordered to be heard alongwith the present Murder Reference.
2. Dr. Muhammad Usman Qureshi on 24-6-1970 at 7-30 p. m. Performed the post-mortem examination on the dead body of Rozi Khan and found the following injuries on it:-
(1) An incised wound obliquely on the left side of the forehead 3" above the left eye-brew, 1/--' x 1/4' x bone cut underneath, along--with cutting the brain membranes and the parts of the brain.
(2) An incised wound below the left ear obliquely measuring 1/--" x 1/4' x muscle deep.
(3) A contused wound on the tip of the left elbow measuring ----- x --' x skin deep.
(4) An abrasion mark on the outer end lower part of the left upper arm, 4--x 3--.
(5) A contusion bluish on the middle and outer part of the left upper arm underneath the bone of the left upper arm broken, measurement of the contusion being 3--x 2".
(6) An abrasion mark on the top of the left shoulder 1--x --".
(7) An abrasion mark on the back of the right elbow measuring 2" x 1'.
(8) A pinkish bluish mark on the front of the right shoulder, 3" x 2'.
(9) A pinkish bluish contusion on the upper and outer part of the right side of the chest obliquely, 5- -x 3'.
(10) An abrasion mark on the upper part of the right shoulder blade, 4' x 1/2'.
(11) An abraded contusion on the lower and outer part of the right side of the back 3" x 1--'.
(12) An abrasion mark on the outer and upper part of the left thigh, 1' x --'.
3. The same doctor on the same day performed the medico-leGul examination of Mst. Mulkhan P.
W. And found the following injuries on her person:-
(1) An incised wound obliquely on the top of the head slightly on the right side with clean cut margins, 2' x --" x bone deep.
(2) An incised wound on the back and middle of the left forearm, 1" x 3/8' x muscle deep obliquely.
(3) An incised wound on the middle and back of the left forearm --' away from injury No. 2 measuring --' x --" muscle deep.
(4) A pinkish contusion on the lower part of the left shoulder blade, 4' x 1-- "
(5) A pinkish blue contusion on the front and middle of the right thigh, 4"x2",
(6) An abrasion mark on the lower part of the right knee, --" x --".
(7) An abrasion mark on the upper part of the right knee, --" x --".
(8) An abrasion mark on the lower part of the left knee, --" x --".
(9) A bluish contusion on the back of the right hand just above the wrist, 2` x. 1--"; the whole of the right hand was swollen.
(10) There was bluish contusion on the palm of the right hand near the lower part of the thumb, 2-- "x 1--'; with thumbs and fingers, swollen.
Injuries Nos. 9 and 10 were declared to be grievous, while the rest were-- simple in nature. Injuries Nos. 1, 2 and 3 could be caused by a sharp---edged weapon, while the rest by a blunt weapon. Dr. Naeemudah had examined X-ray film of right hand of Mst. Mulkhan P. W. And had found that there was fracture of metacarpal bones of the index and middle fingers of the right hand. Exh. P.Y. Is his report.
4. Lady Doctor Amtul Hamid on 4-7-1970 at 5-00 p.m. Examined Mst. Ghulam Zarina P. W. And observed the following injuries on her---person:- A healed abrasion, 2--- x 2" on the left of back. In the opinion of the Lady Doctor, Mst. Ghulam Zarina was aged about 15-16 years.
5. The appellant when examined under section 342, Cr P. C. Denied the prosecution allegations and stated that the prosecution witnesses had deposed against him because they were inimical towards him and his father on account of unwarranted divorce to his sister Mst. Ghulam Fatima. He has, however, admitted that Allah Ditta P. W. Had divorced his sister condemning her as barren and wanted to remarry. However, no defence evidence was produced by him.
6. Out of the three eye-witnesses produced by the prosecution, the learned Sessions Judge did not believe Baz Khan P. W. We have also carefully examined his statement and find that he has been rightly disbelieved. However, as regards the remaining two eye-witnesses, namely, Mst. Mulkhan and Mst. Ghulam Zarina P. Ws., both of them are injured. In addition, Mst. Ghulam Zarina was abducted and recovered by police later on. In these circumstances, the presence of these two eye- witnesses at the spot stands established. The parties are closely related. Mst. Mulkhan P.W, is the real sister of Feroze Khan (acquitted co---accused). She will, therefore, be the real aunt of the appellant. As observed earlier, she was injured, while trying to rescue her daughter from the clutches of the assailants. She would, therefore, be in a position to identify the culprits. She has named the present appellant as on of the assailants. If the offence had been committed by some other persons, there is no reason to believe that she would falsely implicate the present appellant and let off the real culprit. The substitution of the culprit, therefore, would not arise. We have, therefore, no reason disbelieve this witness. Same is the case of Mst. Ghulam Zarina. Sh was forcibly abducted and kept by the present appellant and her father for several days. She was recovered by the police on 3-7-1970 at the Bus Stand She was then medically examined and a healed wound was found on her, person. Her presence at the spot can also not be doubted. She also has no motive to falsely implicate the present appellant. After going through the statements of these two eye-witnesses namely, Mst. Mulkhan and Mst. Ghulam Zarina, we are fully convinced that they have been rightly believed by the trial Court. They are the most natural and truthful witnesses. The mere fact that they are related to the deceased will not in any way discredit their testimony. The statements of Mst. Ghulam Zarina recorded under sections 161 and 164, Cr. P. C. Also corroborate her statement made in Court. The testimony of these two eye-witnesses is further corroborated by the medical evidence. The con--viction of the appellant can safely be maintained on the statements of these injured eye-witnesses.
7. The learned counsel for the appellant has tried to argue that Mst. Mulkhan should not be believed, because she did not mention the name of Feroze Khan, co-accused, in the F. I. R., although Feroze Khan is her real brother. He has further argued that due to the injuries received by her she may not be in a position to correctly identify the assailants. We find no substance in this argument. Her presence at the spot stands established beyond any shadow of doubt. When her daughter Mst. Ghulam Zarina was being forcibly taken away, she and her deceased husband would naturally try to rescue their daughter from the clutches of the assailants. Before she and her husband were inflicted injuries, they would be in a position to identify the culprits. We find Mst.
Mulkhan had no difficulty to identify the present appellant. As regards the omission of the name of Feroze Khan (co-accused) from the F. I. R., it is just possible that at that time he may not be actually participating in the actual defence, but may be standing at a distance and may have joined the party later on while taking away Mst. Ghulam Zarina. It may be due to this circumstance that Mst.
Mulkhan may not have seen this co-accused at the place of occurrence and, therefore, did not mention his name in the F. I. R. This omission does not in any way weaken the prosecution case; rather it supports her truthfulness. If she had any motive to falsely implicate anyone she could easily do so. As mentioned earlier, it was on the recovery of Mst. Ghulam Zarina that she disclosed the true facts and mentioned the name of all the three accused persons. Although Mst. Mulkhan had received several injuries, yet we are of the opinion that she was in a position to lodge the F. I. R.
It is nobody's case that she was unconscious or otherwise unfit to do so. Nawab Khan (P. W. 17) claims to have seen Mst. Ghulam Zarina P. W. In the company of the appellant in the morning on the day of occurrence near his well. Later on, he identified all the three accused persons in the identification parade. Similarly, Habib Khan (P. W. 15) had deposed that he saw the present appellant along with Mst. Ghulam Zarina at the Bus Stand at Khanewal. It was in his presence that the present appellant was arrested and the abductee was recovered. Although the appellant has denied the fact that he was apprehended at Khanewal Bus Stand alongwith the abductee, yet we are satisfied that the prosecution has established this fact beyond any doubt. The recoveries in this case are supported by Sher Muhammad (P. W. 11) apart from the Investigating Officer. This witness was not even cross-examined by the defence.
8. After going through the entire material available on the record we have come to the conclusion that Muhammad Khan appellant had been rightly convicted under section 302, P. P. C. For the murder of Rozi Khan deceased, under section 366, P. P. C. For the abduction of Mst. Ghulam Zarina P. W. And under section 325, P. P. C. For causing injuries Mst. Mulkhan P. W. We accordingly maintain his convictions under these sections. We also maintain his sentences under sections 366 and 325, P. P. C However, as regards his sentence under section 302, P. P. C., we alter the sentence of death to that of life imprisonment. According to the medical evidence, death was due to injury No. 1. It is not clear as to who caused the injury. According to Mst. Ghulam Zarina when her parents got up and the to rescue her, all the accused persons started belabouring her parents. According to her, she did not know who caused the fatal injury to her father. The possibility that this injury could be caused by some other co-accused cannot, therefore, be excluded. There is another circumstance which goes in favour of lesser penalty. According to the prosecution, the sister of the appellant was divorced by the son of the deceased about two years before the occurrence on the allegation that she was barren. Therefore, according to the learned defence counsel that can be a constant mental agony which can be considered as mitigating circumstance. He also relies upon another circumstance in favour of lesser penalty, namely, that after abducting Mst. Ghulam Zarina, she was not raped or otherwise misbehaved. After taking into consideration the various circumstances and the background of the case, we feel that the ends of justice would be met if the appellan is awarded lesser penalty under section 302, P. P. C. Accordingly w alter his sentence of death to that of life imprisonment under section 302 P. P. C. For the murder of Rozi Khan deceased. All the sentences will run concurrently. With this modification, the appeal stands rejected.