' SARDAR MUHAMMAD DOGAR, J.--- Sher Dil Khan (28) and his brother Mehr Dil Khan (25) were tried by the Additional Sessions Judge, Mianwali, for having murdered Muhammad Amir on 14-9-1988 at 12-30 a.m. Near the corner of northern wall of Government Girls College, Mianwali, at a distance of 1 k.m. From Police Station City, Mianwali.
' Vide judgment, dated 29-7-1990, they were convicted under section 302/34, P.P.C. And sentenced to death (each) plus to pay a fine of Rs,10,000 each, in default whereof to undergo R.I.-for 2 years each. Half of the fine, on recovery, was directed to be paid as compensation to the heirs of the deceased.
2. The appeal filed by the convicts and the reference made by learned trial Judge for confirmation of death sentence, are being disposed of together.
3. F.I.R. Exh.P.N. Was registered at the police station by Muhammad Ijaz Ahmad, A.S.I. P.W.13, at 1-30 p.m. On the statement of Ghulam Qadir P.W.11.
' According to F.I.R., the complainant, accompanied by his brother Muhammad Amir (deceased) came to Mianwali to deposit the papers of Mst. Saeeda Khatoon (wife of Amir) who was serving as a teachress, in the office of the District Education Officer (Women). They met Ata Muhammad Khan, their sister's husband, near the Railway crossing on Billukhel Road, and started talking to him.
Muhammad Amir told the complainant and Ata Muhammad Khan, that, they should wait there, and he will return after visiting the office of the D.E.O. (Women). The complainant and Ata Muhammad stood under the shade, near the Railway crossing. When Muhammad Amir did not turn up for a sufficiently long time, both of them started walking towards the office, to find out. After having walked a short distance, they saw him (Muhammad Amir) coming towards them. When he reached near the northern corner of the wall of Government Girls College, Sher Dil Khan and Mehr Dil Khan (appellants) came there, armed with Chhuras (daggers), raising Lalkaras, that they will avenge the insult from Muhammad Amir. Sher Dil Khan inflicted an injury to Muhammad Amir on the neck above the left shoulder. Mehr Dil Khan inflicted injury On the right side of his chest.
Thereafter, both of them caused injuries to him on the left shoulder, left upper arm, back and right flank. The accused continued raising Lalkaras that if anybody dared intervene, he will also not be spared. Muhammad Amir fell down, whereafter Sher Dil Khan gave a blow with the dagger on the left side of his chest. The blade of the dagger was broken in the chest.
' The occurrence was witnessed by the complainant and Ata Muhammad Khan. The accused ran away. Muhammad Amir died on the spot.
4. About motive for the occurrence, it is stated therein, that Muhammad Amir (deceased) had married Mst. Saeeda Khatoon, sister of the accused, after having enticed her away about 12/13 years ago.
5. Muhammad Ijaz, A.S.I. After the registration of case, reached the spot and despatched the dead body for post-mortem, after preparing necessary papers. Blood-stained earth was collected by him from there vide memo.
' Exh.P.G. Appointment order P.5, lying near the dead body was secured by him, vide memo. Exh.P.H.
' The investigation was taken over by Wilayat Hussain Shah, S.I. P.W.9 on the same day at 4-00 p.m.
Blade of dagger P.4 produced before him by Niamat Ali, Constable on the same day, alongwith last-worn clothes of the deceased, was taken into possession by him vide memo. Exh.P.E. The clothes were taken into possession vide memo. Exh.P.B.
' His efforts to arrest the accused till 28-9-1988 failed. The investigation thereafter was taken over by Abid Hussain Shah, S.H.O. P.W.14.
' Abid Hussain Shah, S.H.O. Also failed to effect the arrest of the accused. He submitted application Exh.P.R. On 8-10-1988 and obtained warrants of arrest Exhs.P.A. And P.B. From the Court. As the warrants could not be served due to avoidance of the accused, he got issued proclamations Exhs.P.J. And P.K. Under section 87, Cr.P.C. By submitting application Exh.P.S. On 19-10-1988. As the accused could not be arrested even thereafter, he submitted challan Exh.P.T. Under section 512, Cr.P.C. On 25-10-1988.
I-1e succeeded in arresting the accused on 25-11-1988. While being in his custody, Mehr Dil Khan got recovered dagger P.6, from a box lying in his house on the same day, which was taken into possession vide memo. Exh.P.M. On completion of investigation, complete challan was submitted to Court.
6. Statements of fourteen P.Ws. Were recorded at the trial.
' Dr. Mehr Khan who had performed autopsy on 14-9-1988 at 4-15 p.m. Appeared as P.W.7. He had noted following injuries on the body of the deceased:--
(1) The blade of dagger without handle P.4 was stabbed into front of left lower and inner chest.
Blade P.4 was extracted. It was 20 c.m. Long and was 2.7 c.m. Wide. The length of the blade inside the chest was 12 c.m. After pulling out the blade, I measured the size of the wound which was 5 c.m. x 2 c.m. It was 5 c.m. Below and to the right of left nipple, and 1 c.m. From the midline and 6 c.m.
From the cpigestic fossa.
(2) An incised wound 6 c.m. x 2 c.m. Over the front right chest, 4 c.m. From the midline and 1-1/2 c.m. To and below the right nipple.
(3) An incised wound 2-1/2 c.m. x 1 c.Tn. Over the left shoulder, 6 c.m. To the right of the tip of left shoulder-joint.
(4) An incised wound 2 c.m. x 1/2 c.m. On the outer side of left shoulder, 4 c.m. Below the left shoulder.
(5) Multiple incised wound ranging in size from 2 c.m. x 1 c.m. To 2 c.m. x 1/2 c.m. On the outer side of the left arm.
(6) An incised wound 2 c.m. x 1/2 c.m. On the lower back of left chest, 13 c.m. Below the lower angle of the left scapula and.7 c.m. From the midline.
(7) An incised wound 2 c.m. x 1/2 c.m. On the outer side of right abdomen, 7 c.m. Above the right anterior superior iliac spine and 22 c.m. From the midline.
(8) An incised wound 1-1/2 c.m. x 1/2 c.m. On the outer side of right abdomen, 3 c.m. Above the right anterior superior iliac spine and 1.7 c.m. From the midline.
(9) An incised wound 1 c.m. x 1/2 c.m. Over the right forehead, 1/2 c.m. Above the right eyebrow and 4 c.m. From the midline.
' Death was opined to have occurred due to haemorrhage and shock resulting from injuries Nos.1 and 2, which were opined to be sufficient to cause dcath, individually as well as collectively. All the injuries were opined to have been caused by sharp-edged weapon.
' Probable lime between the injuries and death was opined to be immediate, while the time between death and post-mortem was opined to he within 3 to 6 hours.
' During cross-examination he stated that in the column of death (Exh.P.L.) he had given the estimated time of death from 10-15 a.m. To 1-15 p.m. He denied the suggestion that when the dead body was presented to him for post-mortem, the inquest report was blank.
7. Ocular account was deposed to by Ghulam Qadir P.W.11 and Ata Muhammad Khan P.W.12.
' Ghulam Qadir while repeating the facts given by him in the F.I.R. Also stated that he was married to Mst. Ghulam Fatima sister of the accused with the consent of her parents 16/17 years prior to the occurrence. He claimed that he was on visiting terms with the accused prior to the occurrence. He gave out that the deceased was carrying the appointment letter of Mst. Saceda Khatoon his wife, who was serving as a teachress since 15/16 years. He stated that he had no business at Mianwali and he had gone there, on that day, to accompany the deceased. He conceded that the truck- stand of Hayat Ullah Khan was at a distance of 20/22 Karams from the place of occurrence. He claimed that Hayat Ullah Khan was related to them. While denying the suggestion that the deceased was of a bad character, he also denied the suggestion that he was done to death by somebody on being found teasing the students of the Girls College. The suggestion that he had not witnessed the occurrence and had been sent for, by the police from his house, was denied by him.
8. Ata Muhammad P.W.12 corroborated the statement made by P.W.11. He explained that he had come to Mianwali to purchase some household articles, including the stationery for his son who was studying in 9th Class. He admitted that there was a cycle repair shop near the place of occurrence. He denied the suggestion that he had not witnessed the occurrence.
9. Abid Hussain Shah, S.H.O. Who had also partly investigated the case and submitted challan to Court, while appearing as P.W.14, stated that he had obtained warrants Exhs.P.A. And P.B. Of Sher Dil Khan and Mehr Dil Khan from the Court, after submitting application Exh.P.R. He gave out that he had endorsed both the warrants for execution, by a Constable. He further stated that he had obtained proclamations Exhs.P.J. And P.K. From the Court after submitting application Exh.P.S. He claimed that he had arrested both the appellants on 25-11-1988 and had taken into possession dagger P.6, got recovered by Mchr Dil Khan on the same day from his house. During cross- examination he denied the suggestion that he had got the accused declared proclaimed offenders under the influence of the complainant party. He also denied the suggestion that dagger P.6 had been planted by him on the accused, on being procured by the complainant.
10. Rafi Ullah, Constable who had been entrusted the warrants (Exhs.P.A. And P.B.) appeared as P.W.1 and deposed that he had tried to execute the warrants but both the accused were not available.
He stated that he had made report Exh.P.C. In that regard. Statement Exh.P.C./1 made by him in that regard was also produced at the trial. During cross-examination he admitted that he had not mentioned the date, on which he had made report Exh.P.C. He denied the suggestion that report Exh.P.C. Was a fabricated one.
11. Muhammad Ramzan, Constable who had been entrusted proclamations Exhs.P.J. And P.K.
Appeared as P.W.6 and deposed that fact. He stated that after having pasted the proclamations, he had returned the proclamations copies, after incorporating reports Exhs.P.J./1 and P.K./1 on their reverse. He denied the suggestion that the proclamations were fake and that the accused actually were with the police when the proclamations had been issued.
12. Muhammad Afzal retired S.I. While appearing as P.W.8, claimed that he had witnessed the recovery of dagger P.6 at the instance of Mehr Dil Khan. During cross-examination he admitted that dagger P.6 was not stained with blood. However, he denied the suggestion that the dagger was planted, at the instance of the complainant, for creating evidence of corroboration.
13. Muhammad Ijaz, A.S.I. Who had registered the case, despatched the dead body for post- mortem, after reaching the spot, collected blood-stained earth from there and collected appointment letter P.5 from the spot, appeared as P.W.13 and deposed those facts. During cross- examination he denied the suggestion that it was an unwitnessed occurrence and that he had summoned the witnesses from Sohrabwala, and put them as false witnesses. He denied the suggestion that he had investigated the case under the influence of the complainant and fabricated the same against the accused.
' The statements of the remaining P.Ws. Are more or less of a formal nature.
14. The appellants during their statements under section 342, Cr.P.C. Denied the prosecution case as a whole and pleaded innocence. Both of them admitted that Muhammad Amir (deceased) had abducted their sister Mst. Saeeda Khatoon 12/13 years before the occurrence and had 3 children from her.
' Sher Dil Khan stated as follows, on being asked to explain, as to how and why he had remained absconding after the registration of case:-- "After the construction of Chashma Barrage our landed property situated in Mauza Yaru Khel Katcha was acquired by the WAPDA. In consequence thereof we shifted to Rakh Maujgarh, District Bhakkar as we obtained land under the Resettlement Scheme in that Rakh much prior to the occurrence. The whole proceedings under section 87/88, Cr.P.C. Have been fabricated in our absence. When I learnt about the occurrence I appeared voluntarily before the Police on the first week of November, 1988."
' He Wok up the plea that he was involved in this case due to enmity and strained relations, on account of abduction of his sister. He stated as follows in answer to the question, "Have you anything else to say"?:-- "I am innocent. On the day of occurrence I was hunting in the Katcha area of Bhakkar and I was challaned by the Game Inspector Bhakkar which is at a distance of 85 miles from the place of occurrence."
' He produced in defence Kalandra Exh.D.A., and Exh.D.B. Receipt of the fine.
' Mehr Dil Khan appellant stated as follows, while explaining his non-availability to the police after the registration of case:-- "After the construction of Chashma Barrage our landed property situated in Yaru Khel Katcha was acquired and as a consequence we had to shift to Rakh Maujgarh where we were allotted land much prior to the occurrence. When I learnt about the occurrence, I voluntarily appeared before the police in the first week of November, 1988. Proceedings have been conducted mala fide under the influence of the complainant."
' He denied that he had got recovered dagger P.6. He stated as follows in answer to the question, "Why this case against you and why the P.Ws. Have deposed against you?":-- "The deceased was a man of bad character. He was loitering near Girls College. Somebody murdered him and due to enmity I and my brother have been falsely implicated. It was an unwitnessed occurrence."
' Both of them declined to make statements on oath under section 340(2), Cr.P.C.
15. Learned counsel for the appellants after having taken us through the evidence, criticised the impugned judgment and contended that both the eyewitnesses were not only related to the deceased closely, but were also inimical to the appellants and that at the best they were chance witnesses. Learned counsel submitted, that, had the complainant gone with the deceased to Mianwali and had Ata Muhammad Khan P.W. Met them, on way to the office of the D.E.O. (Women), both of them, would have definitely accompanied him to the office of the D.E.O.
' Learned counsel submitted that in spite of the fact that the road was frequently used and there was a truck-stand near the place of occurrence, where many labourers were working, no independent witness was named as eye-witness. Learned counsel contended that the evidence of abscondence was a fabricated one and the evidence of recovery of Chhura P.6 was of no consequence as the same had not been found to be stained with blood.
' Lastly, learned counsel submitted that even if the conviction of the appellants under section 302/34, P.P.C. Is maintained, the sentence of death, was not called for, as, even according to the prosecution the appellants, had acted in furtherance of family honour.
16. Learned counsel for the State defended the judgment of the trial Court.
17. Ghulam Qadir complainant was married to another sister of the appellants 16/17 years prior to the occurrence, with the consent of her parents. Actually that lady was first married to the uncle of Ghulam Qadir and he had married her after his uncle had died. Since after his marriage, he had remained on visiting terms with the family of his in-laws, in spite of the marriage of his deceased brother with Mst. Saeeda Khatoon without the consent of her brothers. He, therefore, cannot be dubbed as an inimical witness. We cannot believe that after having lost his brother, he would have chosen to get the real brothers of his wife hanged, had he, himself, not seen them murdering his brother. It is unimaginable that he would lodge a false complaint against so close relatives.
18. Ala Muhammad Khan P.W. Was also related to the appellants, though through Ghulam Qadir. He had no animosity or ill-will against any of the appellants. He thus, had also no reason to make a false statement.
19. No doubt, the occurrence had not taken place near the places of residence of the P.Ws. Or the places of their business, yet both of them gave plausible reasons for being at the spot at the relevant time.
The prompt lodging of the F.I.R. And the availability of both of them for the attestation of documents which were prepared at the spot, soon after the F.I.R. Was lodged, lends support to the claim of both the witnesses that they were near the deceased at the time of occurrence.
20. Hayat Ullah Khan owner of the truck-stand belonged to the tribe of the complainant and was also his relative. He could, thus have, no difficulty in naming him as an eye-witness, had Hayat Ullah Khan witnessed the occurrence. The complainant could have no apprehension that he will not support the case. The very fact that he did not name him, shows that Hayat Ullah Khan and his employees had not witnessed the occurrence, and the complainant did not choose to set up false witnesses.
In the circumstances, we find no justification to disbelieve the ocular testimony.
21. The appellants themselves did not deny the motive mentioned for the occurrence. Both of them candidly admitted that the deceased had married their sister after having abducted her 12/13 years before the occurrence and their relations with him were strained on that account. In the circumstances, there is nothing to hold that the prosecution had not succeeded in proving the motive for the occurrence.
22. The occurrence had taken place on 14-9-1988. The appellants were not available till 3 months thereafter. Abid Hussain Shah, S.H.O. Succeeded in arresting them on 25-11-1988. In the meantime the Investigating Officer had not only obtained their warrants of arrest but had obtained proclamations under section 87, Cr.P.C. As well. The police officials who were entrusted the execution of warrants and the proclamations, appeared at the trial and deposed about that on oath. There appears to be no reason to disbelieve their testimony. The abscondence of the appellants, thus stands proved.
23. The evidence of recovery of dagger P.6., apart from having not been deposed to by anyone from the public, even otherwise is of no consequence, as the same was not found to be stained with blood. Actually the Investigating Officer did not send that to the office of the Chemical Examiner and the Serologist. The evidence of recovery of dagger, therefore, is incapable of lending corroboration to the ocular account.
However, the evidence of motive and the evidence of abscondence end sound support and corroboration to the ocular account.
24. The reliance placed by Sher Dil Khan appellant on Exh.DA. And Exh.D.B. In support of his plea of alibi, does not advance his case. In that, although it is mentioned in Exh.DA. That he had been challaned on having been found hunting on 14-9-1988 but there is no evidence that he was found doing so at the relevant time. He was not arrested there. The occurrence had taken place at mid- day. He could well have gone to the place where, allegedly, he was found hunting, or might have been noted there in the early hours of the morning. The distance was not such, that he could not have reached the place of occurrence. Exh.D.B. Is the receipt of payment of fine on his behalf, on 22-7-1990. The said documents, as such, cannot advance his plea that he was not at the spot on 14-9-1988.
' There is, thus, no probable evidence even, of the appellant, being at some other place than the one where he was alleged to have committed the murder.
For all the reasons noted above, we are convinced that the prosecution has been able to prove the case against the appellants under section 302/34, P.P.C. Their conviction under section 302/34, P.P.C. Is, therefore, maintained.
25. Learned counsel for the appellants while praying for alteration of sentence of death to imprisonment for life on the ground of appellants having acted in furtherance of family honour, also offered, that they may be burdened to pay additional amount of compensation, so that the minor children of the deceased are also compensated to some degree.
Keeping in view the background, which led to the commission of offence and the offer of learned counsel for the appellants, we are of the view that the sentence of imprisonment for life to each of the appellants, plus a direction to pay a sum of Rs,25,000 each, as compensation to the heirs of the deceased, will meet the ends of justice. Order accordingly. The compensation amount shall be recovered as arrears of land revenue. In default of payment, each of them will suffer R.I. For 6 months also. Whole of the fine, on recovery, shall also be paid as compensation to the heirs of the deceased.
' Benefit of the provisions of section 382-B of the Code of Criminal Procedure shall be extended to the appellants.