' M. S. H. QURESIII, J.-This is the convict's appeal from the award of death sentence to him on his conviction under section 302, P. P. C. Of the double murder of Hidayat Ali and Muhammad sharif deceased. The trial had proceeded against appellant Abdullah as well as co-accused Arshad son of the appellant, Ghulam Qadir and Ghulam Shabbir, under section 302/34, P. P. C. And 201/34, P. P.
C. The three co-accused were acquitted on the benefit of doubt he charge under section 201, P. P.
C. Was not proved. The sentence of death is also before us for confirmation.
2. The facts, in brief, are that Sharif deceased resided in Chak No. 151/T. D. A. His nephew, Hidayat Ali deceased, lived about a mile away in Chak No. 522/T. D. A. Adjacent to the house of Hidayat Ali was the house of Abdullah the appellant. According to the prosecution, Anwar son of Sharif deceased, and his cousin Khusbi Muhammad had misbehaved with the appellant's daughters who had gone to see the fair at Noor Shah Talai on 8-1-1969. On coming to know of the incident from his daughters, the appellant felt greatly agitated and accompanied by his co-accused went to the house of Sharif deceased from where he forcibly abducted Mst. Khurshid, daughter of the said deceased, and brought her to his own house. When Sharif came to know of it on returning home in the evening, he went and narrated the incident to his elder brother Ghulam Muhammad who lived in the neighbouring village No. 521/T. D. A. Both then went to the village of the appellant. They first went to the house of Hidayat Ali deceased and informed him of the incident. Thereafter, Sharif, Hidayat Ali and Ghulam Muhammad along with Nazir, younger brother of Sharif, Inayat brother of Hidayat Ali, and Mubarak father of Hidayat Ali went to the house of the appellant at about maghrib wela. There, they found the appellant armed with a gun, his son Arshad with a sword and the other two co-accused, namely Ghulam Qadir and Ghulam Shabbir, armed with sticks, on the roof of the appellant's house. Ghulam Muhammad called to the appellant to return Msg. Khurshid. The accused party told them not to come near the house. Mian while, Mst. Khurshid, who was confined in a room of the appellant's house, on hearing the voice of Ghulam Muhammad started raising cries. On hearing the cries, Sharif proceeded towards that room followed by Hidayat Ali. At that time, the appellant fired a shot which hit Hidayat Ali, who fell down near the cattle-shed of the appellant adjoining the compound of the appellant's hope. The appellant then turned towards Sharif who had, by then, reached inside the courtyard of the appellant's house and fired 2/3 shots.
He, too, fell down fatally injured. The witnesses took shelter behind the cattle-shed. The appellant then threw sun sticks from the roof into the courtyard and asked his companions to set fire to the body of Sharif, which was accordingly done and the body of Sharif, who was still alive, was thrown into the fire. The appellant thereafter unchained the door of his kotha, took out the women-folk, including Mst. Khurshid, and went away. Mst. Khurshid, however, managed to run to the house of Hidayat Ali. The witnesses carried Hidayat Ali in injured condition to his house where he died shortly thereafter. Ghulam Muhammad then proceeded to the Police Station Dera Din Panah where he lodged report at 8-30 p.m. The same day, Le, 8-1-1969.
3. In the course of the investigation, which was taken up promptly, 12 empties (Exh. P 4-15) were recovered from the roof of the appellant's house. The appellant who was arrested on 10-1-1969 produced his licensed gun (Exh. P. 16). The co-accused were also arrested in due course and certain recoveries were effected at their instance. At the end of the commitment proceedings, the case was sent up for trial only against the appellant, but in the result of a revision filed by the complainant, the co-accused were also committed to stand their trial along with the appellant.
4. The crime empties recovered matched with the appellant's gun in the result of the test made by the Ballistics -expert.
5. The post-mortem examination held on 10-1-1969, at 9-30 a.m., disclosed the presence of the following injuries on the person of Sharif deceased :- ( I) A gunshot wound of the entrance x just below the right elbow on the front side.
(2) A gunshot wound of exit 1' x r an inch below the right elbow joint on the outer side of the back of the right forearm. The direction of the wound was from front to outwards, downwards and backwards.
(3) A gunshot wound of entrance 3/4' x 3/4' just behind the left exilla. There was another wound of exit 1' x 3/4' on the right side of the eh, st at the level 7i* from the left nipple. The direction of the wound was from the left side of the back downwards, forwards and towards the right side. There was destruction of the lower border of the third rib and the upper border of the fourth rib. The soft tissues in the space between 3rd and 4th ribs was destroyed producing a gap of 5' x 1 r in front of the left side of the chest cavity. The front and the left side of the sternum were also destroyed making the right side of the gap mentioned above. There was fracture of the sternum 3rd rib and the 4th rib. There was tear 3 inches deep extending from the anterior border of the left lung to its hilum. The left pleural cavity was full of dark fluid and clotted blood. There was also a tear in front part of the paricardium. The side of the tear was x I". The pericardial cavity was also full of blood.
(4) A wound of entrance 1' x 1' on the outer side of the left knee and a wound of exit le x on the front just below the knee joint. The patella bone was crusted and was coming out of the exit wound.
Lower end the outer side of the femur was destroyed.
' The body was found in a fancing posture due to excessive burning. The burns were of first, second, third and fourth decree. The burns were, according to the doctor, post-mortem. The doctor noted the considerable damage caused by the injuries and opined that the death was due to haemorrhage and shock resulting from tear of the lung and left thorax on account of injury No. 3 which was sufficient in the ordinary course of nature to cause death. He described injuries 1 and 2 as simple, and injury No. 4 as grievous. Death, according to him, had occurred within 15 minutes of the receipt of the injuries which had been caused by fire-arm.
6. The post-mortem examination held on the body of Hidayat Ali deceased, at 10-30 a.m. The same day, disclosed the presence of a gunshot wound of entry on the left side of the chest with a corresponding wound of exit. There was a big tear on the medial side of the left lung and a hole on the outer side and the lower side of the left lung. The injury had been responsible for the death of the deceased.
7. The ocular account of the occurrence was furnished by Ghulam Muhammad (P. W. 8) the complainant and the elder brother of Sharif deceased, Nazir (P. W. 9) younger brother of Sharif deceased, Inayat (P. W. 10) the brother of Hidayat Ali deceased, Mst. Khurshid (P. W. 11) daughter of Sharif deceased, Mst. Barkat Bibi (P. W. 12) widow of Hidayat Ali deceased, and Mubarak (P. W. 13) father of Hidayat Ali deceased, Anwar (P. W. 6) son of Sharif deceased and Khushid Muhammad (P.
W. 7) deposed to the incident at the fair at Noor Shah Talai. They were supported by Atta Muhammad (P. W. 5) who had been on duty in that fair as a Police razakar. The statement of Mst.
Zubaida, another daughter of Sharif deceased, made before the Committal Court was transferred under section 33, Evidence Act, as she had died in the meanwhile. She had supported the factum of abduction of Mst. Khurshid. The recoveries were proved by Abdullah (P. W. 14).
8. The appellant admitted the occurrence but gave his own version of it in his statement recorded under section 342, Cr. P. C. He denied the incident at the fair. He also denied havi g gone to the house of Sharif deceased and having forcibly brought therefrom, Mst. Khurshid to his house.
According to him the complainant party suspected him and his son co-accused Arshaf of having a hand in the abduction of Mat. Hamidan daughter of Nazir P. W. Who, in spite of efforts of the appellant and Arshad, could not be recovered. The appellant's case was that the two deceased along with Ghulam Muhammad, Nazir, lnayat, Mubarak and others numbering eight or ten had come to his house, at about 9 or 10 p.m., to take away his daughters that apprehending troubles, the appellant had locked his daughters in a room of his house and had himself gone to the roof, and that on seeing their efforts thus frustrated the complainant party had set fire to the LOOM wherein the daughters had taken refuge, whereupon the appellant had fired in self defence to save his daughters and his property. The co-accused had totally denied any involvement, saying that they were not present at the spot at the time of the occurrence.
9. The learned Trial Judge believed the evidence relating to the Incident at the Fair and the abduction of Mst. Khurshid by the appellant which, according to him, had brought the complainant party to the scene. He doubted the presence of Nazir and Inayat prosecution witnesses at the spot but believed the other ocular witnesses in regard to the occurrence itself. In consequence he rejected the version put forth by the appellant. He was, however, not satisfied that the appellant had any intention to cause the disappearance of the evidence of murder. In this view of the matter, he convicted the appellant of the double murder. As he doubted the participation of the co- accused he acquitted them on the benefit of doubt.
10. M the occurrence was admitted, the arguments before us were directed to the question as to which of the two versions, the one given by the appellant or the other by the prosecution, was true.
It is to be noticed in this connection that the appellant had not come out with his version earlier. Ali he had stated before the Enquiry Magistrate was that the complainant party had implicated him falsely on account of their suspicion of his complicity in the abduction of the daughter of Nazir P. W.
If his story of the occurrence was as simple and if he had really acted purely in self-defence, as he wishes us to believe, we see no reason why he should not have come out with his version of the occurrence at any stage earlier.
11. Nor does the material before us lend support to the appellant's account of the occurrence. The abduction of Mat. Hamida daughter of Nazir P. W. Took place some two years before the occurrence and there is no evidence to show that the relations between the parties had become strained on that account to a degree to warrant the complainant party raiding the house of the appellant for the purpose of abducting his daughters in revenge. In fact the prosecution witnesses, who admitted the abduction of Mst. Hamida by a Pathan, consistently denied that they had any grudge against the appellant on that account. It is to be noted in this connection that the complainant party was completely unarmed. There is nothing to show that they had come with a criminal intent. The complainant party included a woman, i.e. Mst. Barkat Bibi. They did not counterattack even after receiving fatal injuries to two of them. There is also little material to support that the complainant party had tried to set fire to the room in which the appellant, as stated by him, had locked in his daughters. The site plan shows that the burning had taken place in the courtyard of the appellant. The fire had damaged the roof of the verandah but had not touched the rooms. Ghulam Muhammad P. W. Stated : "The verandah of accused Abdullah was also burnt during the occurrence". This was supported by Muhammad lqbal Patwari (P. W. 4). Mst.
Barkat Bibi stated : "None of the doors of the kothas of the accused was burnt". The witnesses had denied the suggestion that they had set fire to the room.
12. Mr. M. Rafiq Advocate, appearing for the appellant, however, contended that Mst. Khurshid was actually in her own house at the time of the occurrence as admitted by Ghulam Muhammad P. W.
This witness had stated before the Committal Court that when he had started towards the house of the appellant he had seen Mst. Khurshid and Mst. Zainab in the house of Sharif deceased. He had also stated that Sharif deceased had himself told him that Mst. Khurshid was present in his (Sharif)'s house. When confronted during the trial, he denied to have made such statements. The effect of these statements is, however, more apparent than real, for they are in serious conflict with the facts, otherwise brought on record by the witness himself and the other witnesses. He resides in a village different from that of Sharif deceased. According to the witness, after Sharif had come and told him of the abduction of Mst. Khurshid, they both had proceeded to the house of Hidayat Ali deceased in Chak No.
522. Obviously he had had no occasion to visit the house of Sharif deceased before proceeding to the house of Hidayat Ali deceased and as such could not have seen Mst. Khurshid in Sharif's house.
His other statement that he had been told by Sharif that Mst. Khurshid was present in the latter's house is in conflict not only with his statement that he bad himself seen Mst. Khurshid there but also with his statement made in the examination-in-chief that Sharif had come and told him about the appellant and the co-accused having abducted Mst. Khurshid. The very fact that he and Sharif deceased had gone to the village of the appellant in order to secure the release of Mst. Khurshid, renders the concession made by him absurd. In this connection we have the statement of Mst.
Khurshid herself. She has fully supported the factum of her abduction and of her being confined in the house of the appellant at the time of the occurrence. She is supported by her sister, Aist.
Zubaida and Mst. Barkat Bibi (P. W. 12). The latter has given some details of Mst. Khurshid having been brought to and lodged in the house of the appellant. Learned counsel, lastly, pointed out that Mst. Khurshid had spoken of only two shots, whereas 12 empties had been recovered which falsified the assertion of her presence in the house of the appellant. The witness speaks of having heard two gun reports but does not expressly say that they were all. The omission on her part to give a count of all the shots fired is not material.
13. We are, therefore, satisfied that the complainant party had come not for the purpose of abducting any of the daughters of the appellant but for securing the return of Mst. Khurshid who was being detained, at that time, by the appellant in his house.;
14. There is also nothing to support that the occurrence had taken place at floor 10 p.m. As stated by the appellant. The fact that the F. I. R. Had been recorded at 8-30 p.m. At the Police Station, which was 12 miles away from the scene of occurrence, gives lie to it, notwithstanding the concession made by Ghulam Muhammad P. W. Before the Committing Court that the incident took place at 8 or 9 p.m.
15. The prosecution version is well supported by its witnesses. It was, however, pointed out that the learned Sessions Judge was not convinced of the presence of Nazir, Inayat and Mubarak P. Ws., that Mst. Khurshid being confined in the room could not see the occurrence, and that Ghulam Muhammad did not inspire confidence because of the conflicting statements made by him. Mat.
Khurshid had deposed as to what she had heard and seen and, to that extent, her evidence can be believed. Ghulam Muhammad had on the whole supported the prosecution case. In any case, there is nothing to discredit the evidence of Mst. Barkat Bibi. She lived in the house near that of the appellant. Her presence, therefore, is not in doubt. Her statement is forthright and worthy of credence. It is to be noted that there was no deep-seated enmity between the complainant party and the appellant who, in fact, was related to them, his sister, Mat. Alam, being the wife of Sadiq, a cousin of Khushi Muhammad P. W. The fact that the F. I. R. Had been lodged promptly rules out any possibility of concoction. In these circumstances, we are satisfied that the learned Trial Judge had rightly accepted the prosecution account of the occurrence and rejected that given by the appellant.
16. Lastly, it was urged that the appellant should not have been convicted on the basis of the same evidence on which his co-accused were acquitted. There is, I am fraid, no such rule of appraisement of evidence. The question of correctness of the decision in regard to the co-accused is not before us. Nor had they admitted their participation in the occurrence as has the appellant done, which has placed the case against him on a different footing. The weight of evidence against him fully warrants his conviction.
17. As regards the sentence we do not find any mitigating circumstance. The appellant had already brought Mat. Khurshid to his house in retaliation for the insult to his daughters given by the son of Sherif deceased, and merely because the complainant party had come to ask for her return gave no justification for him to commit the double murder. He had acted cruelly in shooting at the unarmed victims. He had even lit a fire and had put the dead body of Sharif to burn in it. He is, therefore, deserving of the normal penalty provided by law.
18. We accordingly dismiss the appeal and confirm the death sentence awarded to him. The Reference is answered in the affirmative.