M. S. H. QURESHI J.----Smail, Faqira son of Mitha, Manzoor and Ellahi Bakhsh, appellants alongwith so-accused Allah Ditta. Faqira son of Bakhaha and Ganhwar were tried by the Sessions Judge, Dera Ghazi Khan, for offences under section 148, 452/149, 302/149 and 307/149 (three counts), P: P.
C. In the result of the trial the three co-accused were acquitted but the four appellants were convicted for the offence of murder under section 302/34, P. P. C. Smail was sentenced to death and the other three to imprisonment for life and each of the four was to pay a fine of Rs: 500 or in default in payment thereof to undergo R. I. For one year. The fine, if realized, was ordered to be paid as compensation to the heirs of the deceased. The sentence of fine was to operate against Smail only in the event of his death sentence being not confirmed. Under section 452/34, P. P. C. They were sentenced to R. I. For two years each and to pay a fine of Rs. 200 each or in default in payment thereof to R.I. For four months each. Under section 325/34, P. P. C. They were sentenced to R. I. For two years and to a fine of Rs. 200 or in default in payment thereof to R. I. For four months each.
Under section 324/34, P. P. C. They were sentenced to R. I. For one year each and to pay a fine of Rs.
50 each or in default in payment thereof to undergo R. I. For one month each. The fines, if realized, were ordered to be paid to the injured persons in equal shares. The sentence of imprison--ment awarded to Smail was operative only in the event of his death sentence not being confirmed. They have filed an appeal. The death sentence passed against Smail is also before us for confirmation.
Aziz the complainant in the case has filed Criminal Revision (No. 945/1973) praying that the sen-- tences of imprisonment for life passed against Manzoor, Faqira son of Mitha and Ellahi Bakhsh be enhanced to death, and that the acquittal of the three co-accused be set aside and their re-trial be ordered. All the three matters are being disposed of by this judgment.
2. The occurrence took place on the night between 22nd/23rd April 1972 in village Naushehra within P. S. Dajal, District D. G. Khan. Abdur Rehman deceased was, at that time, sleeping a little ahead of his courtyard near the cattle. His brother Aziz was sleeping near the exit of the house. Mst. Pairi wife of Aziz, and his father were also sleeping in the courtyard. Mst. Jamal wife of the deceased was not in the house as she had been at her parents' house since 2-3 days before the occurrence. At about midnight, while the moon was still in the sky, Aziz got up on the sound of feet, and in the moonlight saw and identified the seven accused persons Small had a gun, Allah Ditto a pistol, while the others had sotas with them. At the alarm of Aziz, the deceased got up and picked up a sofa. Ellahi Bakhsh and Faqira son of mitha gave sota blows to Aziz. Rifle (Exh. P. 8) was recovered at the instance of Smail from the kotha of his father in Basti Dhandla. From the same kotha, pistol (Exh. P. 9) was recovered at the instance of Allah Ditta co-accused. Blood-stained hatchet (Exh. P. 10) was recovered on 29-4-1972 at the instance of Faqira son of Bakhsha from a khola situate in front of the same kotha. On the same date Ellahi Bakhsh produced sota (Exh. P. 11).
5. The post-mortem examination disclosed the presence of the follow--ing injuries on the person of the deceased :- (i)A gun shot wound of entrance 1/6" x 1 /6" x lung cavity deep on the right side of the front of chest.
The 4th rib was fractured near the sternum. The bullet passed through mediastinum rupturing the heart through the diaphragm, liver, stomach and going downward on the left side of the vertibular column had passed through posterior abdominal wall communicating with the wound of exit of --'' x --'' in the left lumber region,
(ii) an incised wound 2'' x --'' x bone deep oblique on the left side of the head 4'' above the eye- brew,
(iii) a bruise 5'' x --'' horizontal on the middle of right lateral side of chest.
All the injuries had been ante-mortem but injury No.1, which had been caused by a fire-arm, had been fatal. Injury No. 2, which had been caused by a sharp-edged weapon, and injury No. 3, which had been caused by blunt object, were simple. The death had been instantaneous.
6. Three of the eye-witnesses, namely Aziz, Mst. Pairi and Yar Muhammad who had sustained injuries during the occurrence, were also medically examined. Aziz had suffered six injuries, all caused by blunt object, of which one was grievous, the rest being simple. Mst. Pairi had one bruise on the right side of the back of chest and complained of pain in the right lumber region. The injury was simple and caused by blunt weapon. Yar Muhammad had seven injuries, two by sharp-edged weapon and the rest by blunt object, all the injuries being simple.
7. The ocular evidence was furnished by Aziz, the complainant (P. W. 9), Mst Pairi (P.W.10), Yar Muhammad (P.W.11) and Gaman (P. W. 12). Aziz made some improvements in his evidence (which we will discuss later). He added another motive by stating that the deceased suspected his wife Mst. Jamal of having immoral intimacy with Smail appel--lant and used to ask him not to visit his house. The account given by the other eye-witnesses was in line with the one given by the complainant during the trial. The recoveries were proved through Syed Rahim Bakhsh (P.W.13). Sh.
Abdur Rasheed (P.W.14) the Fire-arms Expert, in his evidence confirmed that the crime empty (Exh.
P. 4) had been fired from the rifle (Exh. P. 8). The presence of human blood on the hatchet recovered from Faqira son of Bakhsha, acquitted co-accused, was confirmed by the Serologist. The learned trial Judge examined Shamim Haider Zaidi the then prosecuting Inspector Headquarters, D.
G. Khan (C. W. 1), Ghulam Haider Shah Despatcher in the office of Superintendent of Police, D. G.
Khan (C. W. 2) and Zaheer Ahmad Receipt Clerk in the office of Forensic Science Laboratory (C. W.
3), on the question of the despatch of the crime empty too the Laboratory.
8. All the accused persons denied the allegations and alleged that they were falsely involved. Smail appellant produced some documents in his defence and also examined Muhammad Forced Sial (D. W. 1) Clerk of District Jail, D. G. Khan, to show that Rahim Bakhsh (P. W. 13) had been convicted and sentenced under section 148, 452/149, 307/149, P. P. C. And later under the Arms Ordinance.
9. The learned trial Judge, in view of improvements made by three of the eye-witnesses, namely Aziz, Mst. Pairi and Gaman, held that they could not be relied upon unless corroborated. He found the needed corroboration in the evidence of Yar Muhammad, the fourth eye-witness, and in the recovery of the rifle with which the crime empty had matched. He, however, felt that the participation of Allah Ditta, Ganhwar and Faqira son of Bakhaha was not proved beyond reasonable doubt and that the latter had not even been ascribed any positive role in the F. I. R.
Wherein he was said to have carried a sota and not hatchet. He, therefore, acquitted them.
10. The first point raised before us was that the F. I. R., as held by the lower Court, had been recorded not at the Police Station but at the spot. This contention was based on the fact that the complainant had during the trial stated that he did not know since when the accused had been suspecting immoral connection of the deceased with Mst. Mubarak, that as he had not heard about it, he had not reported it to the Police, and that he had come to know about it from Faqira son of Mitha, who had revealed it at the time of his apprehension by the Police. Since Faqira son of Mitha had been arrested on 24-4-1972, it was urged that the F. I. R., which incorporates the deceased's intimacy with Mst. Mubarak, could have been recorded only after his arrest on 24-4- 1972. It has to be noted that the complainant talks of "the suspicion of the accused" and not of his own knowledge of the intimacy, of which he had spoken in the F. I. R. We, therefore, see no good reason to hold the F. I. R. Had not been recorded at the place and time shown therein.
11. The next contention related to the motive. It was urged that the F. I. R. Disclosed only one motive that is, the deceased's intimacy with Mst. Mubarak and that there being no mention of the other motive relating to the intimacy of Small appellant with Mst. Jamal wife of the deceased, this second motive was an improvement deliberately introduced to connect with the crime Smail and others who were not concerned with the first motive. In regard to the second motive the complainant stated: "Since a year or two before the occurrence, she (Mst. Jamal) was suspected of connection with Smail accused". This shows that he bad knowledge of this motive. His omission to mention it in the F. I. R. Is, therefore, not understood. In fact be asserted that he had given this motive in the F. I. R. But he was duly contradicted. In the circumstance, we shall exclude from consideration the second motive and proceed to examine if the first motive asserted in the F. I. R.
Was established. It is in evidence that Mst. Mubarak had been of loose character and had, a few years before, developed intimacy with Sikandar, a brother of Smail, which had led her then husband, Ellahi Bakhsh, appellant, to commit the murder of Sikandar and to cause numerous injuries to gist. Mubarak, wherefore be had been tried and sentenced to a concurrent term of two years' R. I. Under section 304, Part I and 308, P. P. C. (vide judgment Annexure "D F"). Ellabi Bakhsh had later divorced Mst. Mubarak (vide Annexure "D H") who thereafter had begun to live in the house of her father Faqira son of Mitha appellant, which house, accord--ing to the site-plan, is at the entrance to the deceased's house. The witnesses deposed to the existence of deceased's intimacy with Mst. Mubarak at the time of the occurrence which, in the circumstance, can be believed.
12. It was, however, urged that the motive, even if established, could be only against Faqira son of Mitha father of Mst. Mubarak, but not against the other three, particularly Ellahi Bakhah appellant, who having divorced the woman for immorality, could not be interested in vindicating her honour.
It was also urged that Ellahi Bakhsh and Smail could not join hands on account of the murder by Ellabi of Smail's brother Sikandar. The contention when examined is found to be devoid of force because Ellahi Bakhsh was not only the cousin of Smail but also a brother of his was married to Mst.
Kundan sister of Smail, while his own sister Mst. Isal was the wife of Nur Muhammad, a brother of Smail. In fact, in the murder case against Ellahi Bakhsh, the stand taken by Nur Muhammad (brother of Smail) who was the complainant there had been the same as that of Ellabi Bakhsh him--self in regard to the existence of grave and sudden provocation which had prompted him to commit the murder and which had led the trial Court to award a very light punishment to him.
Ellahi, therefore, could share the motive of Smail. Smail himself is related to Faqira son of Mitha as Mitha was the maternal uncle of Qabool, father of Smail. Manzoor appellant is not related to Faqira son of Mitha but belongs to the same tribe i.e. Dhandla. Learned counsel for the State urged that he must have shared the resentment of the Dhandlas at the illicit connection of a person of an--other tribe with a woman of theirs. Even if so, it is too thin a motive for a serious crime like murder. The motive is, therefore, established only against Faqira son of Mitha, Smail and Ellahi and not against Manzoor.
13. Learned counsel for the appellants then led us through the improve--ments made by the complainant and the witnesses in their evidence. The complainant in the F. I. R. Had described the weapon of Faqira son of Bakhsha (acquitted co-accused) to be a sota, but in the evidence, he said it was a hatchet. Mst. Pairi, too, in her 161, Cr. P. C. Statement (Exh. D A) had described the weapon to be a sota but had at the same time also stated that Faqira son of Bakhsha had inflicted a blow with hatchet at the head of the deceased. The other ocular witnesses had, however, been consistent in that the weapon carried by Faqira son of Bakhsha was a hatchet. The complainant in the F. I. R. Had attributed the wound on the lumber region of the deceased to the pistol shot fired by Allah Ditta but upon the dis--closure in the medical evidence that it was the wound of exit, he improved by saying that he did not know if the pistol shot had hit. The F. I. R. Also did not say that the shooting had taken place in the street. Nor did it dis--close the names of the accused who had inflicted the injuries on Mst. Pairi though the complainant named them in the evidence to be Faqira son of Mitha and Ellahi. We find that the improvements are mainly attributable to the complainant, the other eye-witnesses having substantially stuck to their earlier statements. However, in assessing the effect of these improve--ments, we must not be unmindful of the fact that the occurrence had taken place in the middle of the night, and that the complainant who himself bad also been a victim of the assault, could not be expected to note minutely every weapon which the assailants had brought and every injury which they had inflicted therewith on their victims. It is also to be noted that he had started for the Police Station only "after 10-15 minutes of the occurrence".
We are, therefore, not inclined to agree that the deviations and improvements made are material such as would justify the discarding of his evidence Three of the eye-witnesses had themselves received injuries during the occurrence. Their presence therefore is not in doubt. None of the eye witnesses, particularly Yar Muhammad who is himself a Dhandla and related to Faqira son of Mitha appellant, had any motive for false implication. They are all natural witnesses being either inmates of the house of the B deceased or persons residing close to the spot. . Learned counsel for the appellants had cited a number of authorities such as 1968 P. Cr. L. J. Pp. 1761 and 1808, and 1972 SCMR pp. 74, 572, 574 and 578, but none of them is of any help in the given circumstances of the present case.
14. The recovery of the rifle (Exh. P. 8) was attacked on the ground that it had been effected from the kotha jointly lived in by the father and brother of Smail. Reliance for this was placed on .The State v. Ahmedali etc. (PLD 1967 Kar. 612) and Ahmad Bakhsh v. The State (1972 P Cr. L J 279). The evidence shows that the rifle had been recovered "from wood pieces lying under a cot in the kotha".
Since Smail appellant himself also lived in the kotha and since the rifle had been lying concealed under faggots, he can be attributed with the special C knowledge of the presence of the rifle there.
The recovery, therefore, is relevant. It was then urged that the same recovery witness had been used for all the recoveries and that he was not a person of the locality as respects the recovery of the rifle. It was also pointed out that the recovery witness, Syed Rahim Bakhsh, was a previous convict as deposed to by Muhammad Fareed Sial Clerk, District Jail, D. G. Khan (D. W. 1). The witness had admitted the conviction but had explained that he had been acquitted by the Supreme Court in appeal. He had, however, produced no proof of such acquittal. The place of the recovery was 5 miles from the village of the witness but since the recovery had been effected from the basti of the Dhandlas, it was not expected that a person of that locality would be avail--able to depose against a member of his own tribe. The basti had, according to the witness, 40-50 houses, but there is nothing to show that the residents included members of other tribe. The absence of a witness of the locality, therefore, is not fatal. No material defect was pointed out in the evidence of the witness to justify the discarding of the same. His previous conviction, even if true, is not such as to affect his credibility. It was pointed out to us that the witness had stated that the baithak of Smail was chained and not locked at the time of the recovery, which statement conflicted with that of the S. H.
O. Who stated that the kotha was locked. The conflict is hardly material. Our attention was also drawn to the fact that the witness bad filed an affidavit in support of a petition for cancellation of bail of Ganhwar and Allah Ditta, acquitted co-accused. Learned counsel for the State explained that the affidavit had been fled only to show that the said co--accused had been misusing their bail and not that the witness was interested in the success of the prosecution. Learned counsel for the appellant, how--ever, urged that the witness was interested in the complainant party because he had stated : "I had only accompanied the complainant to the Police Station. I had taken him along my own horse". In his statement before the Police, he had stated that he and the Lambardai had gone to the Police Station to find out whether the accused had been arrested. He denied to have so stated but he was duly confronted. We, however, do not find from these admissions that the witness was interested in the success of the com--plainant In fact he was not related to either party nor had any enmity or motive been proved against him to justify the assumption of a false deposi--petition on his part. The recovery of the rifle is, therefore, established.
15. It was next urged, in this connection, that the crime empty (Exh. P. 4) had been fabricated after the recovery of the rifle as both had been sent together to the Laboratory. The record shows that the crime empty (Exh. P. 4) had been recovered from the spot on 23-4-1972 and bad been received by Gul Muhammad Moharrir H. C. (P. W. 6) on 24-4-1972 for custody at the Thana. The Moharrir handed it over to Abmad Khan F. C. (P. W. 4) who delivered the same at the Laboratory on 28-4- 1972. As it had not been indicated in the docket or the robkar whether the parcel was to be kept in safe custody or was to be examined for results, the same was returned by the Laboratory and Ahmad Khan F. C. Brought it back and handed it over to Gul Muhammad Moharrir H. C. At the Thana on 1-5-1972. Mean--while, the rifle (Exh. P. 8), which had been recovered on 2y-4-1972, had also been received for custody at the Police Station the same day i. e. 29-4-1972. The two parcels were then entrusted to Ghulam Farid Constable on 8-5-1972 ' and were delivered at the Laboratory the next day, the objection in the case of the crime empty having been removed in the S.P's Office (vide Annexure "CW 1/A"). The witnesses concerned testified that the sealed parcel of the empty had, during this period, i.e. From 23-4-1972 to 9-5-1972, remained intact. There is, therefore, no reason to believe that any tampering had taken place in regard to that parcel. Muhammad Shafi and another v. The State (PLD 1968 Lah. 869) which was relied upon by learned counsel for the appellants bears no analogy because there the empty, which had been recovered on 4-7-1965, had been despatched alongwith the firearm, which had been recovered subsequently on 13-7- 1965.
16. The ocular testimony, supported by the recoveries as well as the evidence of motive, fully establishes the prosecution case against all the appellants, except Manzoor. The sentences passed against them call for no v interference. Smail, who had caused the fatal blow, has been rightly awarded the normal penalty of death.
17. As already discussed in para. 12 above no motive was established against Manzoor. He is said to have used a chhuri, which is also not in evidence. In fact there is no recovery made from him.
Learned counsel for the appellants pointed out that no specific question had even been put to this appellant in his examination under section 342, Cr. P. C. Regarding his having inflicted the knife blows on Yar Muhammad P. W., and in this connection the ruling in Din Muhammad v. The Crown (1969 P Cr. L J 1573) was pressed. In this case, the following observation had been made by their Lordships of the Supreme Court :- ---In reaching these conclusions the learned Judges have not considered a material defect in the proceedings viz. That three of the circumstances from which they were drawing inferences adverse to the appellant had not been put to him when he was questioned under section 342, Cr. P. C. By the committing Magistrate and the Sessions Judge. No question was put to him in respect of the evidence of P. W. 3 about the reply he was said to have given the witness when asked about the whereabouts of the deceased or the evidence of P. W. 7 or that of P. W.
16. The circumstances spoken to by these witnesses even if accepted as proved, can be made the basis of an adverse in- -ference against the appellant only on the ground that he had no satisfactory explanation for them, but the possibility of bib having been able to give an explanation though not convincing at least plausible enough to create a reasonable doubt cannot reasonably be excluded. The importance of the examination of the accused under section 342, Cr. P. C. Has been pointed out by their Lordships of the Privy Council as well as by this Court in more than one decision, and it is unfortunate that the learned Judges overlooked this serious - omission.--- The above observation, in our humble view, is not attracted in the present case where the defence of Manzoor, appellant, had been of a total denial. His examination under section 342, Cr. P. C.
Cannot be said to be defective merely because elaborate questions had not been put to him drawing his attention to each one of the acts ascribed to him in the evidence of the prosecution.
We, however, feel that in the absence of motive or any other corroborative material, it will not be safe to convict him. We are, therefore inclined to give him the benefit of doubt.
18. We may now come to the revision petition. It was pressed only against the acquittal of Faqira son of Bakhsha. We have seen that although the F. I. R. Speaks of his presence, there is material discrepancy between the F. I. R. And the subsequent evidence in regard to the weapon he had carried and the part he had played in the occurrence. There being no satisfactory explanation for the discrepancy, a doubt could arise about the sufficiency of the case against him. It cannot be said that his acquittal was without any basis or was perverse to the evidence. In this view of the matter the revision petition is deserving of dismissal.
19. In the light of the discussions above, we dismiss the appeal as regards Smail, Faqira son of Mitha and Ellahi Bakhsh appellants, and confirm the death sentence passed against Smail. We allow the appeal as regards Manzoor appellant, set aside his convictions and sentences and acquit him. He shall be released forthwith if not wanted in any other case.