' MUHAMMAD RAFIQ TARAR, J.-Karim Bakhsh son of Lal, aged 30 years, cultivator, resident of Mitru, District Multan, was tried by the learned Sessions Judge, Multan, for committing lurking house trespass by night and causing the death of Dur Muhammad deceased. By judgment, dated 27th Juno 1974, he was convicted under sections 458 and 302 of the Pakistan Penal Code. Under section 458, P. P. C. He was sentenced to four years' R. I. And under section 302, P. P. C. To death. He was also ordered to pay Rs, 1,000 as compensation to the heirs of the deceased or in default in the payment thereof to suffer further R. I. For six months. '1 he convict has appealed and the case is also before us on reference for confirmation on the death sentence awarded to him. The appeal and the reference are being taken up together and disposed of by this judgment.
2. Mst. Ghulam Zainab complainant and Mst. Amen Bibi P. W. Are real sisters. I he appellant is the son of their real maternal uncle and a cousin of the husband of Mst. Aman Bibi P. W. Mst. Ghulam Zainab complainant is the widow of Dur Muhammad deceased.
3. The brief facts of the prosecution case are that Mst. Ghulam Zainab was previously married to one Muhammad Newest son of Bahadara. About three years after this marriage she was divorced by Muhammad Nawaz and thereafter her mother promised to marry her with Mira. a brother of the appellant. Mst. Ghulam Zainab, however, did not agree to this proposal whereupon net mother married her to Dur Muhammad. It is alleged that the appellant harboured grudge against the deceased on that account. The prosecution story goes that on the night between 30th and 31st March :972 Dur Muhammad deceased and his wife Mst Ghulam Zainab complainant who had come to Mitru Town from Mailsi in order to see a Mela, were sleeping on the same cot in the courtyard of the blouse of Mst. Aman Bibi P. W. In the same courtyard Mst. Aman Bibi was also sleeping on a nearby cot. Sometime after midnight, Karim Bakh h appellant armed with a hatchet entered into the courtyard and inflicted a hatchet blow on the deceased which landed on his chin and neck. He gave another blow on the chest of the deceased. When he extricated the hatchet it struck the complainant and she got down from the cot and raised alarm. Mst. Aman Bibi P. W. Also woke up and joins the complainant in raising alarm. The appellant took to his heels with the hatchet. Allah Nitta and Muhammad P. Ws. Got attracted to the pot and saw the appellant running away with the hatchet. After the occurrence, Mst. Ghulam Zainab went to Police Station, Mitru and reported the occurrence to Amir Abdullah, Naib Muharrir, at 4 a. m. Vide F. I. R. Exh. P. Q alleging that the appellant had committed the murder on the instigation of Ata Muhammad Mitru.
4. Abdul Karim, Assistant Sub-Inspector, Mitru (P. W. 11) reached the spot on 31st March 19; 2 at 10 a. m. He prepared the injury-statement (Exh. P. G. And the inquest-report (Exh. Pi) of the dean body of Dar Muhammad deceased and despatched it to the mortuary for post-mortem examination. He also prepared the injury-statement (Exh. Pi) of Mst. Ghulam Zainab and got her medically examined. He took some bloodstain earth from the spot and made it into a sealed parcel vide memo Exh. A. He took Gadda (Exh. P. 6), pillow (Exh. P. 7) and cot (Exh. P. 8), all blood-stained, into his possession vide memo Exh. PB. On the same day, ne Nadar Bux Mitru produced the appellant before the A. S. I. And he arrested him. He removed shirt (Exh. P. 9), chaddar (Exh. P. 10) and vest (Exh. P. 111, all blood-stained, from the person of the appellant and made these clothes into a scaled parcel vide memo. Exh. PK. The appellant, while in custoc), lea to the recovery of blood-stained hatchet (Exh. P. 1) from his residential kotha which was made into a sealed parce vide memo Exh.
PC. After the investigation, a case under sections 458 a d 302 of the Pakistan Penal Code was sent up against the appellant.
5 On 1st April 1972 Dr. Mushtaq Ahmad, Medical Officer, Civil Hospital, Mailsi, conducted the autopsy on the dead body of Dur Muha mad deceased and found the following injuries on it :- ' An incised wound r x r on the front of neck upper part cutting the trachea esophagus and large blood vessels of neck both sides.
' An incised wound 4" x extending from the right side of neck to the left side of chest.
' In the opinion of the Doctor, death was due to shock and haemorrhage. Injury No, 1 was sufficient to cause death in the ordinary course of nature Both the injuries were ante-mortem and had been caused by a sharp-edged weapon. The duration between injuries and death was instantaneous and that between death and post-mortem about 30 to 32 hours.
' On 31st March 1972 Dr. Safia Begum, W. M. O., Civil Hospital, Burewala, examined Mst. Ghulam Zaintib at 7-50 p.m. And found three abrasions ou her person on the front of chest, front of right cervical and neck at right upper arm, respectively. All the injuries were simple in nature, caused by a blunt weapon.
6. To support its case, the prosecution examined eleven witnesses in all. Mst. Ghulam Zainab and Mst. Aman Bibi furnished the ocular account of the occurrence. Allah Ditta and Gul Muhammad P Wa. Did not support the prosecution case and stated that on hearing the alarm they reached the spot and saw a person with muffled face running away from the scene of occurrence. Ths prosecution also relied on the motive and the evidence relating to the recovery of blood-stained clothes and the blood-stained hatchet from the appellant which were found by the Serologist to be stained with human blood.
7. The appellant pleaded not guilty to the charge. He admitted his relationship with Mst. Ghulam Zainab complainant. He denied that Mst. Ghulam Zainab was divorced by Muhammad Nawaz and contended that the deceased had abducted her. He maintained that she was not married to the deceased. He admitted that he was arrested on 1st April 1972. He denied all other allegations, professed innocence and contended that Muhammad Yus f Mitru had falsely implicated him in this case.
8. The learned trial Jud believed the ocular account furnished by Ms:. Ghulam Zainab and Aman Bibi P. Wa. He also accepted the evidence relating to the recovery of blood-stained hatchet at the instance of the appellant, and on the basis of this evidence found him guilty under sections 458 and 302 of the Pakistan Penal Code.
9. The learned counsel for the appellant assailed the evidence relating to the motive and the recovery of blood-stained hatchet and blood-stained clothes. He contended that the F. I. R. Was recorded at the spot at Peshiwela after the preliminary investigation and the complainant gained sufficient time for deliberation. He also criticised the evidence of the eye-witnesses and contended that it was at variance with the medical evidence. He further argued that the presence of Mst.
Ghulam Zainab at the spot was extremely doubtful, therefore, the appellant was entitled to acquittal.
10. We have gone through the entire evidence with the help of the learned counsel for the parties and have given our careful consideration to the arguments addressed by them. The prosecution evidence regarding the motive is inconsistent. In her statement before the police (Eel). P. F.) Mst.
Ghulam Zainab complainant stated that her mother had agreed to marry her with Mira, a brother of the appellant, but at the trial she gave out that her hand was promised to Imam Baksb, another brother of the appellant. At the trial Mat. Aman Bibi also stated that the appellant wanted to marry the complainant with his brother Mira. The statement of the complainant at the trial is thus materially different from her statement before the police in regard to the person to whom her hand was promised, therefore, the motive remains unsubstantiated. Otherwise, too, the motive alleged by the prosecution was inadequate. The non-existence or weakness of the motive, however, is no ground for rejecting the testimony of the ocular witnesses if it is of a reliable character.
11. In examination-in-chief Mat. Ghulam Zainab stated that she went to Police Station, Mitru and reported the occurrence at about 4 a.m. Vide F. I. R. Exh. PF. In cross-examination, however, she admitted : "The Thanedar came to the spot and it was at the spot that be recorded my statement.
He started from the spot with the dead body for mortuary at about Peshiwela and reached Mailsi in the evening. The Thanedar recorded my statement at the spot 30 or 15 minutes before we lett for the mortuary with the dead body". The Investigating Officer admitted that the dead body was despatched at 2-30 p.m. Mst. Aman Bibi (P. W. 8) also admitted that Allah Ditta and another person had gone to the police station to lodge the report and her sister Mat. Zainab complainant aid not go to the police. This evidence amply shows that the F. I. R. Was recorded at the spot after the preliminary investigation probably a little before 2-30 a.m. It is therefore, inadmissible in evidence and cannot be taken into consideration, but this irregularity is not by itself sufficient to show that the prosecution case was false or unbelievable.
12. There is no dispute about the time and place of occurrence. The venue of occurrence is the house of Mst. Aman Bibi P. W., therefore, she is a natural witness of the occurrence. The presence of Mst. Ghulam Zainab P. W. Is also not open to doubt because she sustained injuries during the occurrence, Mst. Aman Bibi P. W. In whose house the occurrence had taken place and even Allah Ditta and Gut Muhammad P. Ws. Supported her presence at the &spot. It was not suggested to any of them that Mst. Ghulam Zainab was Apt present at the spot. The trend of the cross-examination rather shows Neat her presence at the spot was not denied by the defence. It was suggested to Mat. Ghulam Zainab and Mst. Aman Bibi that some unknown assailant had come to the spot and killed the deceased and they could not identify him due to darkness. We are, therefore, of the view that both Mst. Ghulam Zainab and Mat. Aman Bibi had seen the occurrence. Both of them are clearly related to the appellant and had absolutely no motive to falsely implicate him in as serious an offence as could lead him to gallows. The learned counsel for the appellant pointed out some discrepancies in the statements of Mat. Ghulam Zainab and Mat. Aman Bibi P. Ws. And contended that they were not reliable witnesses. Mst. Ghulam Zainab stated that resides herself, the deceased and Mst. Aman Bibi, two other persons, namely, Rafiq her brother aged 4-5 years, and Khuda Bakhsh, an insane brother of the husband of Mat. Aman Bibi, were also sleeping on cots in the courtyard whereas Mst. Aman Bibi gave out that no other person was sleeping in the courtyard.
Again, Mst. Ghulam Zainab stated that the appellant had come alone to the house of Mat. Aman Bibi and he alone had committed the murder whereas Mst. Aman Bibi deposed that Mat. Zainab had told her that she had also seen Ata Muhammad with the appellant when she got up on receiving an injury on her chest but he had run away. These discrepancies are not sufficient to discard the evidence of the complainant and Mat. Aman Bibi.
' In cross-examination Mat. Aman Bibi stated: "My statement was recorded by the Magistrate during the investigation of the case. I had stated there that when we went to the P. S. To lodge a report, Muhammad Yusuf Lambardar was with us and he insisted that if we did not mention the name of Ata Muhammad, he would not let the case be registered and it was then that my sister named Ata Muhammad in the F.
1. R." Relying on this statement, the learned counsel for the appellant contended that since the complainant and Mst. Aman Bibi had falsely implicated Ata Muhammad at the instance of Yusuf Lambardar, therefore, they could also falsely implicate the appellant and for that reason their evidence was not entitled to any credit. We have already held above that in this case the F. I. R. Was recorded at the spot, and not at the police station. In the first instance, Mst. Aman Bibi stated in cross-examination that her sister had not gone to the police station at all but later on she gave out that her sister had gone to the police station on the following day after the dead body was despatched to the mortuary. On the other hand, Mst. Ghulam Zainab deposed that the Thanedar recorded her statement at the spot 10 or 15 minutes before she left for mortuary with the dead body. The statement of Mst. Aman Bibi that her sister had gone to the police station after the despatch of the dead body does not appear to be correct because it was quite natural for the complainant to 'accompany the dead body to the mortuary. In this behalf we are further fortified by the fact that Mst. Ghulam Zainab was medically examined at 7-50 p.m. Do 31-3-1972 at Mailsy where the post-mortem examination was conducted. The dead body was received at Mailsi on 31st March 1972 and the post-mortem was conducted on 1st April 1972. The statement of Mst. Aman Bibi that Muhammad Yusuf Lambardar was with them when they went to the police station for lodging the F. I. R. And he had insisted for implicating Ata Muhammad does not seem to be correct and this casual and somewhat ambiguous statement in her deposition cannot destroy the very clear effect of whole of her evidence. Evidently, both these eye-witnesses had no motive to falsely implicate the appellant who is very closely related to them. He is not only the son of the maternal uncle of the witnesses but is also the cousin of the husband of Mst. Amen Bibi. We, therefore, do not find any reason to discard their evidence.
13. The learned counsel for the appellant next contended that the account of injuries given by Mst.
Ghulam Zainab was at variance with the medical evidence. Mst. Ghulam Zainab stated that she was awakened when the appellant gave a hatchet blow to the deceased and he gave two more blows on the neck of the deceased within her view. The medical evidence, however, shows that the deceased had only two injuries on his person. In cross-examination she stated that the appellant gave many hatchet blows to the deceased and all the blows hit him on his neck and chest.
According to the medical evidence, injury No, 1 was an incised wound 7' x 2' on the front of neck upper part which had cut the trachea oesophagus and large blood vessels of the neck on both sides and injury No, 2 was an incised wound extending from the right side of neck to the left side of chest. The dimensions of these injuries would show that each of them could be the result of more than one blow. We are, therefore, of the view that there is no conflict between the medical evidence and the statement of Mst. Ghulam Zainab P. W.
14. Relying on the statements of Allah Ditta and Gul Muhammad P. Ws., it was contended that the deceased was killed by some unknown person who had muffled his face, therefore, the complainant and tifst. Aman Bibi were not in a position to correctly identify the assailant. Allah Ditta and Gul Muhammad P. Ws. Stated that on hearing the alarm they rushed to the house of occurrence and saw a person with muffled face running away. Allah Ditta stated that aforesaid person was carrying a hatchet and appeared to be Karim Bakhsh appellant. He further stated that Mst. Zainab and Mst. Aman Bibi told him and Gul Muhammad P. W. That 'the accused who appeared to be Karim Bakhsh killed the deceased". Gul Muhammad stated that the complainant and ,tfst. Aman Bibi mad told him that Karim Bakhsh accused had killed the deceased. Both these P. Ws, were cross-examined by the Public Prosecutor with the permission of the Court. In cross- examination by the public prosecutor, they admitted having stated before the committing Magistrate that they had seen Karim Belchsh appellant running away with a hatchet. In cross- examination by the learned defence counsel they stated that some other persons were also suspected for this murder. They are self-condemned liars and we do not attach any importance to their evidence.
15. The recovery of blood-stained clothes and blood-stained hatchet from the appellant on the 1st of April 1974, i,e,, only one day after the occurrence, also lends support to the ocular account.
Naseer Khan and Muhammad Shard who witnessed the recovery of blood-stained clothes were given up by the prosecution as having been won over by the appellant while Allah Ditta and Gul Muhammad who were the witnesses of the recovery of blood-stained hatchet were declared hostile. Both of them stated that the appellant, while in custody, led to the recovery of bloodstained hatchet (Exh. P. 1) from inside his house. The statement of Gul Muhammad (P. W. 10) on the point of recovery was not challenged in cross-examination. They are, however, unreliable witnesses as they made divergent statements in the two Courts below. The Investigating Officer supported these recoveries and there is no reason to disbelieve him. The hatchet and the clothes were found by the Serologist to be stained with human blood.
16. For the foregoing reasons, we are of the view that the appellant was rightly convicted. There are no extenuating circumstances on the B file in favour of the appellant justifying the lesser penalty.
We, therefore, dismiss his appeal and confirm the death sentence.