' ABDUL HAFEEZ CHEEMA, J.---Abdullah Khan (35) and Jumma Khan (26) sons of Bhangi Khan, appellants were tried alongwith their father Bhangi Khan (70) by the Additional Sessions Judge, Bhakkar and convicted under sections 302 and 337-E(2)(0, P.P.C. Respectively for the murder of and causing injuries to Nasir Bibi, wife of Abdullah Khan and sister of Babar Khan, complainant.
Abdullah Khan was sentenced to death and a fine of Rs,25,000 or in default thereof to undergo S.I.
For six months. He was also ordered to pay Rs,25,000 as compensation to the heirs of the deceased or in default thereof to undergo further S.I. For six months. Jumma Khan, appellant was convicted as aforesaid for causing Shajjah-i-Munaqqilah to the deceased and sentenced to undergo ten years' R.I. And a fine of Rs,25,000 or in default thereof to undergo further six months' S.I. He was also given the benefit of the provisions of section 382-B, Cr.P.C. Bhangi Khan, accused, the father of the appellants was, however, acquitted vide judgment dated 22-11-1993. The convicts have filed an appeal (Crl. Appeal No, 756/93) while Babar Khan, complainant has filed Crl. Revision No,561/93 for the enhancement of the amount of compensation ordered to be paid by Abdullah Khan, appellant and Crl. Revision No,141/94 for enhancement of the sentence of Jumma Khan, appellant No,2 as also against acquittal of Bhangi Khan, father of the appellants. The learned Trial Judge has, however, referred the matter to us for confirmation of the death sentence awarded to Abdullah Khan, appellant No,1 (M.R. No,290/93) under section 374, Cr.P.C. All these matters are proposed to be disposed of by this judgment.
' The facts of this episode are given hereunder: ' The parties are Pathans and had come from South Wazirastan Agency and their main business is collection and disposal of firewood. They also work as carriers and transporters of bricks at the brick-kilns. These Pathans temporarily migrate from the tribal areas to the settled area and perform such duties at various places in the Province. Some of them go back to their homes but other prefer to remain in this part of the country for prosecution of their pursuits.
3. Babar Khan, brother of the deceased is settled near Faisalabad and is carrying on the business of collection and disposal of firewood like other members of his brotherhood. Some of them are in Bhakkar and a few in other areas of Faisalabad. Mst. Nasir Bibi, deceased, according to the complainant, was married to Abdullah Khan, appellant three years prior to the occurrence and she lived with her husband at Bhakkar and a daughter named Gulnaz aged 2 years was born to her out of this wedlock. The accused party during the days of occurrence were residing in the riverine area in the vicinity of brick kiln of Hafiz Baqir near Bhakkar. On 4-9-1992 Abdullah Khan, his father Bhangi Khan, Jumma Khan and a few others brought the dead body of Mst. Nasir Bibi to Chak No,272/RB, P.S. Dijkot, Faisalabad by means of a Wagon No,6249/DNB from Bhakkar with an intimation that she had suffered accidental death while travelling in a bus. The dead body was buried in the graveyard of Chak No,357/GB, Tehsil Gojra, District Toba Tek Singh where some other Pathans had already been buried.
4. After two days of the burial Babar Khan went to Bhakkar to condole the death of his sister with her husband Abdullah Khan and Bhangi Khan his father but was astonished to find that none of them was there at brick kiln of Hafiz Baqir and had suddenly disappeared from there. He was informed by his Pathan relatives there that they had disappeared and no accident in fact took place. The death of Mst. Nasir Bibi occurred due to severe beating by Abdullah Khan, his father Bhangi Khan and others. He rushed to Toba Tek Singh and filed application (Exh. D.B.) before the District Magistrate that this was not a natural death and prayed for the exhumation of the dead body.
5. In pursuance of the orders of the District Magistrate, body was disinterrted under the supervision of Pirzada Muhammad Khalid, R.M., Gojra (P.W.6) and the post-mortem examination was conducted by Dr. Saeed Ahmad (P.W.7), Medical Officer, Basic Helath Unit, Chak No,418/JB, Tehsil Gojra, District Toba Tek Singh. According to the post-mortem examination following injuries were found on the body of the deceased:--
(1) A fracture of mendible at the level of incisor teeth and the ends of fracture were wide apart.
(2) A hair-line fracture of left frontal bone at the corner of top of the head (left frontal bone).
(3) A fracture of zygomatic bone at the outer margin of left eye cup (orbit).
' Right femur was taken for chemical, analysis and the samples of material at the site of heart and lungs, Stomach, small and large intestines, Liver, kidney and spleen were taken for chemical analysis. Membranes, brain and spinal cord were degenerated.
' Thorax: Walls, ribs and cartilages were N.A.D. Pleurae, larynx, trachea, right and left lungs and the remaining organs of the thorax were N.A.D. And degenerated.
' Abdomen: Walls, peritoneum, mouth and pharyax and oesophagus and diaphragm were putrified.
Samples of stomach, small and large intestines alongwith their contents and liver, spleen and kidneys were taken for chemical analysis. Rest of the organs were found degenerated. Muscles, bones and joints have been described earlier.
' According to the opinion of the doctor the cause of death was shock due to head injury and other injuries collectively. All the injuries were found to be ante-mortem and were caused by blunt weapon. The report of the Chemical Examiner was that the death was not caused on account of poisoning.
6. The District Magistrate, Toba Tek Singh communicated with District Magistrate, Bhakkar and forwarded to him the application of Babar Khan alongwith copy of post-mortem report and other relevant documents for further necessary legal action as the occurrence had taken place within the limits of Bhakkar District. The District Magistrate, Bhakkar vide his office memo. No, 562/R, dated 1-10-1992 sent all these documents to the Office of the Deputy Superintendent of Police (Legal), Bhakkar and in pursuance of his opinion case F.I.R. No,255/92, dated 11-10-1992 (Exh. PF) was registered under section 302/34, P.P.C. At P.S. Sadar, Bhakkar.
7. The investigation of the case was entrusted to many police officers and ultimately after completion of the investigation Raja Muhammad Asghar, S.I. (P.W.15) submitted the challan.
8. In support of their case the prosecution had examined 16 witnesses in all. Muhammd Aslam, H.C.
(P.W.1) has received 7 parcels pertaining to this case for custody in Malkhana and had delivered them intact to Abrar Hussain, FC for taking them to the office of Chemical Examiner. Liaqat Ali, A.S.I.
(P.W.2) of P.S City, Gojra was present at the time of disinternment of the grave of Nasir Bibi. Ubaid Ullah Patwari (P.W.3) prepared site-plans (Exhs. P.A. And P.A./1). Toot Khan (P.W.4) witnessed the recovery of Sotas (P.1 & P.2) from Jumma Khan and Abdullah Khan, appellants. Muhammad Sultan (P.W.5) is an important witness who is driver of Wagon No,6249/DNB and had carried the dead body of Mst. Nasir Bibi from Bhakkar to Chak No,272, Faisalabad. Pirzada Muhammad Khalid, R.M., Gojra (P.W.6) had supervised the exhumation of the dead body in pursuance of the order of the District Magistrate, Toba Tek Singh on application (Exh. D.B) and had also recorded the statement Exh. DC made by Babar Khan, complainant. Saeed Ahmed, M.O. Basic Helath Unit Chak No,418/JB, Tehsil Gojra (P. W.7), as stated above, conducted the post-mortem examination of the dead body after its disinternment. Atta Muhammad (P.W.8) is a witness in whose presence initially the dead body of Mst. Nasir Bibi was buried on Chak No,357/GB. District T.T. Singh. Abrar Hussain, Constable (P.W.9) had obtained seven sealed parcels pertaining to this case from the doctor and has subsequently carried them to the Office of Chemical Examiner, Lahore intact. Babar Khan, complainant (P.W.10) supported his version in the F.I.R (Exh. PF). Sardar Khan and Akbar Khan (P Ws.11 and 12) had given the ocular account of the occurrence. Shafqat Ullah, S.I. (P.W.13) had initially started the investigation of the case and recorded the statements of some of the witnesses.
Ghulam Rasool, ASI was at P.S. Sadar, Bhakkar (P.W.14) on 11-10-1992 and had recorded F.I.R.(Exh. PF) on the statement of Babar Khan, complainant. Raja Muhammad Asghar, S.I. (P.W.15) has finally carried out the investigation and had submitted the challan whereas Rana Ghulam Murtaza, S.I.
(P.W.16), P.S. Sadar, Bhakkar had also partly investigated the case.
9. The appellants when examined under section 342, Cr.P.C. Had denied the occurrence and took up no specific plea. The wain statement in this regard was made by Abdullah s/o Bhangi Khan, the husband of Nasir Bibi deceased. He admitted the relationship between him and Nasir Bibi deceased as husband and wife but denied the assertion of the prosecution that she died on account of the beating administered to her by him and the other accused persons. He also denied that the dead body was carried by him and the other accused to the house of the complainant. In answer to a question as to why this case has been made against him, no precise answer was given by him and he felt content by saying that the case had been made against him due to enmity and the P.Ws. Were related inter se closely and it was only on account of relationship that they had falsely deposed against him in the Court. In answer to a question "Have you to say (sic) anything else", Abdullah Khan, appellant made the following statement which is hereby reproduced verbatim:-- ' "I am innocent. Mst. Nasira Bibi was my wife. I had left Mst. Nasira Bibi with her parents at Chak No,272/RB, Teshil and District Faisalabad. I myself proceeded to Bahawalpur side to find labour.
After a month or so I returned to the Chak and was told by Babar Khan that Mst. Nasira had died but did not explain the cause of her death. However during my stay I learnt that in fact she was done to death by her father and uncle on some illicit suspicion and they had buried 'the body at some far off distance. When I insisted to point out the grave they refused and this led to some quarrel. I threatened them that I would proceed against them. Feeling this apprehension they in collusion with police made up a false case against me, my father and brothers at Bhakkar."
' He did not like to appear himself under section 340(2), Cr.P.C. However, he desired to produce evidence in support of his stance but ultimately failed to examine any D.W. As for the other accused, they merely denied the episode and their participation in it.
10. In order to bring the guilt home to the accused the prosecution had led ocular, motive, . Medical and circumstantial evidence. Ocular evidence consists of the testimony of Sardar Khan (P.W.11) and Akbar Khan (P.W. 12), whereas motive in fact stands conceded by the defence. Medical evidence is provided by Dr. Saeed Ahmad (P.W.7) who supervised the exhumation of the dead body and conducted the post-mortem examination. Recoveries have been witnessed by Toot Khan (P.W.4) and by the investigating officer. Circumstantial evidence consists of the statement of Muhammad Sultan, driver (P.W.5) and the dramatic situation was explained by Babar Khan complainant (P.W.10). Shafqat Ullah. S.I. (P.W.13) and Raja Muhammad Ashgar, S.I. (P.W.15) had conducted the main investigation of the case.
11. Sardar Khan and Akbar Khan, P.Ws. Have unanimously deposed that on 3-9-1992 at about Shamwela they were proceeding towards the brick-kiln of Hafiz Baqar and when they arrived near the house of Bhangi Khan they heard the cries of a woman "Save fie", "Save me" in Pushto language.
They were attracted to the spot and saw that Bhangi Khan and his sons administering beating to Nasir Bibi deceased. The head injury which alongwith other injuries was subsequently declared by the doctor to have been the cause of death was attributed to Abdullah Khan appellant.
12. The defence tried to establish that both the ocular witnesses had, in fact, not seen the occurrence and were the close relatives of the complainant. It may be stated here that the complainant while being cross-examined by the defence categorically stated that the accused as well as the P.Ws. Were members of his Biradari and this statement went unchallenged. So, therefore, it was not the eyewitnesses who has relationship with the complainant rather the accused were equally related to the complainant. Motive part of the occurrence virtually hasInot been denied by the defence. According to the statement under section 342, Cr.P.C. Of Abdullah Khan, appellant he had left his wife with her parents before leaving for Bahawalpur and on coming back cause of her death was not told to him by Babar Khan and he came to know of his own that she had been despatched to death by her father and uncle due to her shady character. The motive alleged in the PTP and the one set up by Abdullah Khan, therefore, coincide. This shows that both the parties are in agreement on this aspect. As for medical evidence, three injuries have been found on the body of the deceased which have been described in detail supra. According to the opinion of the doctor the death in this case was due to head and other injuries collectively and all these injuries were ante-mortem and caused by blunt weapon. From the report of the Chemical Examiner it is obvious that poisoning was surely not the cause of the death. The trend and tenor of cross-examination of the doctor by the defence that whether the injuries could be caused by an accident also hints at the version given in the F.I.R. That the accused tried to brand it as an accidental death.
12-A. Recoveries of this case have been proved by Toot Khan (P.W.4) Although he is member of Pathan Biradari working as labourers, nevertheless he remains unshaken during his evidence and positively asserts that the crime weapons were recovered by the police in his presence.
13. The statement of Babar Khan, complainant (P.W.10) read with the statement of P.W.5 Muhammad Sultan driver shows and shows very clearly that Mst. Nasir Bibi was with her husband Abdullah Khan, appellant at Bhakkar and her dead body was carried by the driver on his wagon to Chak No,272/RB, District Faisalabad. It is equally undisputedly proved that after the receipt of dead body it was buried by Babar Khan, complainant in Chak No,357/GE, District Toba Tek Singh and then the body was exhumated in pursuance of the order of the District Magistrate under the supervision of Pirzada Muhammad Khalid, R.M. Gojra (P.W.6) where the complainant had made statement Exh.DC Sardar Khan and Akbar Khan (P.Ws.11 and 12) had given the ocular account of the occurrence.
14. Learned counsel for the appellants raised a few contentions; the first and foremost of them being that there was delay of one month and 9 days in lodging the F.I.R. Which has not been explained by the prosecution satisfactorily and this in itself is sufficient to cast doubt on the prosecution version. The events that led to the registration of this case speak volumes and explain quite reasonably the delay which had taken place in the registration of this case. The occurrence had taken place in such a way that this much time was naturally to be taken by the complainant and the delay has been reasonably explained by Babar Khan (P.W.10). Mst. Nasir Bibi was living with her husband at Bhakkar and that too in a riverine area (Kacha). Both the families belonged to a tribe of Pathans who could neither have a telephonic connection nor could have otherwise contacted the parents of the deceased expeditiously. The main, speedy and effective way, in the circumstances, they could have visualised was to carry the dead body to the village in Faisalabad and to inform the parents about the death of the deceased. Babar Khan, complainant believing the version of the accused, in good faith, buried the dead body in a village which was sufficiently distantly placed from his abode and explained that there was number of graves of the Pathans of his Biradari and as such he thought it more advisable to bury the deceased there. It was subsequently when he goes to Bhakkar, naturally, to condole the death of his sister who was also wife of Abdullah Khan, appellant that he finds that everybody had disappeared from their abode where the occurrence had allegedly taken place. He is surprised and then meets the witnesses and after probing, on his own, comes to the conclusion that the death was not natural and had been caused under dubious circumstances. He comes back to his village and as the deadbody had been buried in Toba Tek Singh, approaches the relevant authorities and procures the order for exhumation of the dead body. The orders passed by the District Magistrate are conveyed to the R.M., Gojra who in the company of the relevant doctor supervises the disintemment. All this process takes quite a few days. Toba Tek Singh authorities were of the view that since the occurrence had taken place at Bhakkar, it fell within their jurisdiction and the matter was referred to District Magistrate, Bhakkar who transmitted it to the local police. The police after doing the requisite proceedings set the criminal law in motion on the statement of Babar Khan complainant. The delay in these circumstances, thus, stands sufficiently explained and the objection has no force.
15. Next, it was contended by the learned counsel for the appellants, that the two eye-witnesses are close relatives of the complainant. As such their evidence is those of the interested witnesses and as such conviction cannot be based on such a testimony. It is noteworthy that Babar Khan, complainant while appearing in the Court was asked about his relationship with these two witnesses. He agreed that P.W.11 was his relation and others were the members of his Biradari.
According to him, even the accused were the members of his Biradari and this statement was not questioned by the defence. So, therefore, such witnesses cannot be branded as interested or partisan witnesses. Every case is to be judged according to its peculiar circumstances and no inflexible rule can be laid down in this regard. However, reference may be made to Zar Bahadar v.
The State (1978 SCM R 136) wherein it was held that mere relationship with the deceased is no ground for disbelieving the testimony of eye-witnesses. In this case it is noteworthy that eye- witnesses had no motive to falsely implicate the accused.
16. It was further contended by the learned counsel that if the eye-witnesses had allegedly seen the occurrence it was merely beating and death had not occurred in their presence. As such no benefit can accrue to the prosecution from their statements. This appears something preposterous inasmuch as when the witnesses had seen Mst. Nasir Bibi being beaten on 3-9-1992 and the death had allegedly occurred on the following day and particularly when the doctor says that the injuries were ante-mortem and the death was the result of head and other injuries. This objection, therefore, appears to be devoid of any merit. As for the recoveries it was pointed out by the learned counsel for the appellants that the accused, as claimed by the prosecution, were living closer to brick-kiln of Hafiz Baqir and there were lot of houses around but none from the area was picked up to witness the recoveries and this was a clear violation of section 103, Cr.P.C. We have considered this objection and are of the view that in the given situation of the case recoveries cannot be disbelieved only on this ground. The dispute was between the Pathan tribe and none from the settlers was prepared to risk inviting hostility of the Pathans who are gypsy by nature and even otherwise nobody thinks adivsable to earn their perpetual enmity.
17. In this case the conduct of the accused and particularly that of the husband of the deceased Abdullah Khan is quite un understandable. The record shows and undoubtedly very clearly shows that the husband and wife were living at Bhakkar after their marriage and the dead body of the deceased was transported by Muhammad Sultan (P.W.5) to Faisalabad as alleged by Babar Khan complainant. It was the duty of the husband to show that how did the death of his wife occur and if at all any accident had taken place, it was incumbent upon him to come forward with a solid explanation as to how accident took place and as to whether or not he had approached the police for registration of the case. No such particulars are forthcoming from his mouth. It is, thus, obvious that the death took place as alleged by the prosecution. However, we are constrained to take notice of the fact that Babar Khan while making statement before the Magistrate, who was a Judicial Officer, solely named Abdullah Khan appellant on account of whose beating the death of Mst. Nasir Bibi had occurred. His statement in the application (Exh.DB) before the District Magistrate makes a reference to Abdullah Khan and others but here he is specific. Doubt has, therefore, crept in about the participation of Jumma Khan in the alleged beating. This statement before the Magistrate was made by the complainant after a probe of many days. We cannot ignore the validity of the statement made before a Judicial Officer at the time of distinternment of the dead body. We are, therefore, inclined to acquit him affording him benefit of doubt and . We are, however, clear about the guilt of Abdullah Khan, the principal accused. It was he who was keeping his wife with him and it was he on account of whose beating the death had occurred. As for the quantum of sentence, it is noteworthy that mystery shrouds the fact as to how did the incident start and what was the cause, the two eye-witnesses have not unmasked this part of the episode.
Even otherwise, both the parties have hinted that the deceased was of blamable character. In this view of the matter we are not disposed to confirm the death sentence. Maintaining the conviction under section 302, P.P.C. We hereby alter the death sentence awarded to Abdullah Khan, appellant into imprisonment for life. We, however, maintain and uphold the sentence of fine and compensation and are of the view that there is no merit in Revision Petitions Nos.561/93 and 141/94 and are constrained to dismiss them. The appeal is, therefore, partly accepted. The reference also stands answered. Benefit of section 382-B, Cr.P.C. Shall be accorded to the appellant.