JUDGMBNT ' JAVID IQBAL J.-Allah Yar, aged 17 years and his brother Allah Ditta, aged 20 years both sons of Suba, as well as Ali Sher, aged 18/19 years and his brother Amir, aged 34 years sons of Ghazi Khan, have been convicted under section 302/34, P. P. C. For the murder of Allah Yar, aged 46 years, third husband of Mst. Ihsan Bibi (P. W. 9), and Allah Yar, Allah Ditta as well as All Sher were sentenced to death whereas Amir was sentenced to imprisonment for life. 1 hey were also convicted under section 323/34, P. P. C. For causing simple injuries to Mst. Ihsan Bibi (P. W. 9) and each of them was sentenced to six months R. I. Each of them has also been fined Rs, 500 which is to be paid as compensation to Mst. Ihsan Bibi P. W. The judgment has been passed by the Additional Sessions Judge, Multan, on the 6th of November, 1973. The appeal of the convicts as well as reference for the confirmation of death sentence awarded to Allah Yar, Allah Ditta and Ali Sher are being taken up and disposed of together by this judgment. It may be pointed out at this stage that Allah Yar and Allah Ditta are real brothers and sons of Mst. 'bean Bibi (P. W. 9) from her first husband Snba, whereas Ali Sher and Amir are her step-sons from the second husband, namely, Ghazi Khan. The deceased in the present case is stated to be her third husband.
2. The occurrence took place at Digarwela (about 5-00 p.m.), on the 5th of May 1972, in Mauza Chadhar Bhida at a distance of 9 miles from Police Station Mailsi, District Multan. F. I. R. (Exh. P. B.) was lodged by Ghulam Haider (P. W. 10), phuphizad of the deceased at 5-00 a.m. On the bth of May 1972, at Police Station, Mailsi and it was recorded by Maqsood Ahmad S. I. (P. W. 12).
3. The motive for crime as set up by the prosecution is that Ghazi Khan, second husband of Mst.
Ihsan Bibi P. W. And father of Ali Sher as well as Amir appellants had gifted 40 bighas of land to Mst.
Ihsan Bibi P. W. Out of this land she gave 20 bighas to her real sons from her first husband, namely, Suba, thus benefiting Allah Yar and Allah Ditta appellants as well as their third brother. Thereafter, she married the deceased which had annoyed Ali Sher and Amir appellants. On the other hand Allah Yar and Allah Ditta appellants demanded from her that she should also give to them the remaining 20 bighas of land the produce of which was being enjoyed by the deceased. There was also litigation pending involving land between the deceased and the appellants. Since the deceased would not agree to surrender the remaining land, the appellants attacked and murdered him.
4. The prosecution has produced three eye-witnesses of the occurrence, namely, Mst. Ihsan Bibi P.
W. (injured widow of the deceased), Ghulam Haider (P. W. 10), cousin of the deceased and Allah Bakhsh (P. W. 11), maternal uncle of the deceased. Khuda Bakhsh was mentioned as eye-witness in F. I. R. But was not produced and was given up as unnecessary.
5. Allah Yar and Allah Ditta appellants were arrested by Maqsood Ahmad S. I. (P. W. 12) on the ninth of May 1972 whereas Ali Sher and Amir appellant, were arrested by him on the 18th of May 1972.
Bloodstained hatchet P. 4 was recovered at the instance of Allah Yar appellant and taken into possession vide memo. Exh. P. K., dated the 8th of May 1972. The attesting witnesses are Allah Yar (not produced), Noor Muhammad (P. W. 8) and the Investigating Officer, Blood-stained hatchet P. 5 was recovered at the instance of Allah Ditta appellant and taken into possession vide memo. Exh. P.
L. Dated the 8th of May, 1972. The attesting witnesses are the same. Blood-stained clothes namely, kurta P. 6 and enaddar P. 7 were got removed from the person of Allah Yar appellant and taken into possession vide memo Exh. P. M. Dated the 8th of May 1972. The attesting witnesses are the same.
But these clothes were not sent for chemical examination. The report of the Serologist (Exh. P. S.) was to-the effect that a hatchet with broken handle was found to be stained with human blood.
The report does not mention anything about the other hatchet. According to the prosecution no broken hatchet had been sent for chemical examination. Learned trial Judge has discussed these recoveries in para. 16 of his judgment at para. 42 of the paper book and has rightly not placed any reliance on them. It appears that some other broken hatchet had been sent for chemical examination. Anyway, the recovery evidence is of no consequence in the present case.
6. The appellants in their statements before the trial Court denied having participated in the occurrence. Clothes were disowned by Allah Yar appellant and similarly hatchets were disowned by Allah Yar as well as Allah Ditta appellants. They stated that they had been falsely implicated due to previous litigation between the parties and further because their mother Mst. Ihsan Bibi P. W. Was a loose character woman who had been abducted by the deceased, and had subsequently married him, after giving up her second husband, namely, Ghazi Khan father of All Sher and Amir appellants.
7. In the F. I. R. The occurrence is reported to have taken place in the following manner: Ghulam Haider (P. W. 10) who was Lambardar of Mauza Nemat All and also owned some land in village Chaddar Bhinda came to look after his land in village Chaddar Bhinda along with Khuda Bakhsh (not produced). He also met there Allah Bakhsh (P. W. 11) and at the fateful time the three of them were present in the fields. They suddenly heard an alarm and rushed to the scene of crime. They saw Allah Yar, Allah Ditta and All Sher appellants armed with hatchets giving blows to the deceased who was running as well as raising alarm. Amir appellant was giving sota blows to Mst.
Ihsan Bibi (P. W. 9) and she was also raising alarm. The three of them attempted to rescue the deceased and Mst. Ihsan Bibi P. W. But the appellants threatened them and, therefore, they did not go near out of fear. Allah Yar, Allah Ditta and Ali Sher appellants caused injuries to the deceased with their respective weapons on the neck, back and shoulder until he died on the spot. Amir appellant gave some sota blows to Mst. Ibsen Bibi P. W. When the three P. Ws. Started raising alarm, the appellant left the scene of crime along with their weapons. On their inquiry, Mst. Ihsan Bibi P. W.
Told them that she was returning along with the deceased, her husband, on a bicycle to the village after having taken batai of the wheat crop sown on their land. When they arrived at the place of occurrence, the appellant who had been hiding in sarkandas suddenly emerged and attacked them. The deceased left his bicycle and tried to run but Allah Yar, Allah Ditta and Ali Sher appellant chased him and with their hatchets murdered him whereas Amir appellant had given her sota blows. Leaving Khuda Bakhsh and Allah Bakhsh (P. W. 11) with Mst. Ibsen Bibi P. W. And to guard the dead body, Ghulam Haider P. W. Went to lodge the report.
8. Dr. Mushtaq Ahmad (P. W. 1) conducted post-mortem examination on the dead body of the deceased at 1-00 p.m. On the 6th of May 1972, and found on his person 12 incised wounds on the hands, head, back of neck and shoulder. The nose was chooped off and the neck was cut off. In his opinion, the cause of death was shock and haemorrhage due to the cutting of the neck which was sufficient to cause death in the ordinary course of nature. All the injuries were caused by sharp- edged weapon. The time between death and post-mortem was 18 to 20 hours.
' Lady Doctor Safia Begum (P. W. 2) medically examined Mst. Ihsan Bibi P. W. At 11-00 a.m. On the 6th of May 1972 and found on her person three abrasions on the right palm, and left hand, and one contused wound on the left side of head. The injuries were subsequently declared simple. Her statement was recorded by C. M. On the 6th of September 1972. But at the request of the defence she was recalled for cross-examination in the Sessions Court and got her statement recorded on the 17th of October 1973 in which she stated without any support of the record that when Mst. Ihsan Bibi (P. W. 9) was brought to her the injuries on her person were fresh and had been caused to her within a duration of six hours. She had not mentioned the duration of injuries in her medico-legal report at all.
9. We have heard learned counsel for both the sides and have carefully perused the record. It is submitted by learned counsel for the appellants that in pars 9 of the judgment at page 39 of the paper book learned trial Judge while commenting on the motive had observed that the motive was neither satisfactory nor convincing and that there may be some other motive which made the appellants to murder the deceased and that motive had been hidden. The argument of learned counsel is that it was borne but by the statement of Mst. Ihsan Bibi P. W. That out of the remaining 20 bighas of land she had given 4 bighas to Mst. Faiz Elahi, the previous wife of the deceased and 16 bighas had been transferred by her in the name of the deceased at the same time when she gifted 20 bighas of land to Allah Yar and Allah Ditta appellanrs. It is submitted that when these transfers had been effected at the same time, much before the present occurrence, no land had been left with Mst. Ihsan Bibi P. W. Which Allah Yar and Allah Ditta appellants could have demanded from her. Consequently, according to learned counsel it was a motiveless murder. But this argument of learned counsel as well as the observation of the learned trial Judge, whatever be its worth, can be interpreted in the light of what had been stated in the F. I. R. It is stated in the F. I. R.
That Allah Yar and Allah Ditta appellants wanted that the remaining 20 bighas of land, the produce of which was being enjoyed by the deceased, should be given to them. It could, therefore, mean that they were insisting on their mother to get that land back from the deceased and hand it over to them. But since the deceased would not agree, and litigated with them they got annoyed and, therefore, had a motive to murder him. It is next submitted that the prosecution could not establish the time of murder and the sustaining of the injuries by Mst. Ihsan Bibi P. W. At the hands of the appellants. In this connection reliance was placed on the observations of the medical officers. Lady Doctor Safia Begum P. W. Had stated that when Mst. Ihsan Bibi P. W. Was brought to her, the duration of her injuries was within six hours and that she had medically examined her at 11-00 a.m.
On the 6th of May 1972. We have already observed that this view of the Lady Doctor is not based or anything or the record. Similarly, D. Mushtaq Ahmed P. W. When recalled at the trial stage, had stated that according to his estimate the deceased must have met his death between 7.00 a.m.
And 9-00 a.m. On the 5th of May 1972. He had his own observation. However, he had forgotten that in his post-mortem report he had stated that the time between death and post-mortem was 18 to 20 hours and he had performed post-mortem at 1-00 p.m. On the 6th of May, 1972. According to this calculation the deceased was done to death between 5-00 to 7-00 p.m. On 'the 5th of May 1972, and this is in conformity with the stand taken by the prosecution. Consequently this argument of learned counsel does not appeal to us. It was then submitted that the delay in lodging the F. I. R.
Had not been properly explained. According to the prosecution the occurrence took place at Digarwela on the 5th of May 1972 and the police station was at a distance of 9 miles from the place of occurrence. However, the F. I. R. Was lodged on the following day at 5-00 a.m. It is argued that explanation given by the first informant, namely, Ghulam Haider (P. W. 10) about the delay had not been held satisfactory by the trial Judge in para. 15 of the judgment at page 41 of the paper book. It may be so that the explanation given by the first informant about the delay was not satisfactory but that by itself was not sufficient for rejecting the, ocular testimony in the present case. It must be realized that the husband of Mst. Ihsan Bibi P. W., had been murdered and she herself had sustained injuries. It is reasonably probable that she herself in that condition could not have proceeded to the police station. It is further reasonably probable that few hours thereafter the sun had set and it became dark. In any case, the police station was at a distance of 9 miles and sothe male member had to proceed to it to lodge the report. Whatever be the case the benefit of the delay in lodging of the F. I. R. Could be taken by an accused person in the particular circumstances of each case. In the present case there is ocular testimony of injured real mother of Allah Yar and Allah Ditta appellant and step-mother of Ali Sher and Amir appellants. The former two are her real sons. They have a third brother too, also a real son of Mst. Ihsan Bibi P. W. Namely, Muhammad Yar, whom she does not implicate as an assailant of her deceased husband. In that view of the matter the delay in lodging the F. I. R. Could only be of some benefit to the defence provided that we consider the testimony of Ihsan Bibi P. W. As not worthy of any reliance. Learned counsel for the appellants concedes that Mst. Ihsan Bibi P. W. Is mother of the appellants but in his opinion she was hostile towards them and, therefore, should not be relied upon. This argument is not very convincing because she is the real mother not only of Allah Yar and Allah Ditta appellants but also of Muhammad Yar, their third brother. If she was hostile to them, and could have implicated this Muhammad Yar also in the murder of her deceased husband. But she did not name him as one of the assailants. This would indicate that whatever she had stated was the truth and we see reason why her testimony should be disbelieved particularly when she herself had sustained injuries at the hands of Amir appellant in the course of occurrence. It was next submitted that the two eye- witnesses other than Mst. Ihsan Bibi P. W. Could have not seen the occurrence. They were chance witnesses, closely related to the deceased. Had they seen the occurrence themselves, they could have not inquired from Mst. Ihsan Bibi P. W. As to what had happened. It is possible that the two other eyewitnesses arrived at the scene of crime after it had taken place. In'any case, Mst. Ihsan Bibi P. W. Told them soon after the occurrence as to what had happened. Even if they had not seen the occurrence, the testimony of the sole eye-witness of the occurrence, namely, Mst. Ihsan Bibi P.
W. Is itself sufficient. Learned counsel then submitted that in the circumstances the testimony of the sole eye-witness, namely, Mst. Ihsan Bibi P. W. Uncorroborated by any other independent piece of evidence should not be relied upon. We do not agree with learned counsel. Mst. Ihsaa Bibi P. W. Is the mother of the appellants and in our view she had no motive to falsely implicate them. We, therefore, rely on her testimony as it is supported by the medical evidence. In our considered opinion, the prosecution has succeeded in establishing its case as against Allah Yar, Allah Ditta and Ali Sher appellants for having murdered the deceased. Consequently, their conviction under section 302/34, P. P. C. Was quite proper and is accordingly maintained. However, these appellants did not cause any injury to mst. Ihsan Bibi P. W. Therefore they should not have been convicted under section 323/34, P. P. C. As well as sentence thereunder are set aside. It may further be pointed out that Amir appellant did not cause any injury to the deceased. His conviction as well as sentence, therefore, under section 302/34, P. P. C. We're not proper and arc accordingly set aside.
Any way, he had caused simple injuries to Mst. Ihsan Bibi P. W. Alone. Thus, his conviction and sentence under section 323, P. P. C. Are maintained. He has already undergone his sentence. His fine is reduced from Rs, 500 to Rs, 100 or in default to undergo one month's further R. I. If the fine is recovered from him, it should be paid to Mst. Ihsan Bibi P. W. As compensation and he shall be released from jail forthwith if not wanted in any other case, otherwise he shall undergo one month's R. I. In lieu thereof. His appeal is accepted to this extent.
We have already maintained the conviction of Allah Yar, Allah Ditta and All Sher appellants under section 302/34, P. P. C. As for the question of sentence we are aware that the appellants are the sons of Mst. Ihsan Bibi P. W. Who after deserting the first and second husband had married the deceased. According to the appellants she had been abducted by the deceased from her second husband and was a woman of easy virtue of bad character. The deceased had also managed to grab half of the land which she had received from her second husband and which the appellants thought should have been given to them. Keeping these considerations in view and also as an abundant caution, since we are relying on the testimony of the sole eye-witness, we are of the considered opinion that the awarding of lesser penalty to them would be sufficient to meet the ends of justice. Thus, the conviction of Allah Yar, Allah Ditta and Ali Sher appellants under section 302/34, P. P. C. Is maintained but their death sentence is altered to that of imprisonment for life.
Their sentence of fine is maintained and if the fine is recovered from them, it should be paid as compensation to Mst. Ihsan Bibi P. W. With this modification, their appeal is dismissed.
10. The death sentence awarded to Allah Yar, Allah Ditta and Ali Sher appellants is not confirmed.