' This judgment will dispose of Criminal Appeal as well as the Criminal Revision as the appeal and Revision has been filed against the same order of the learned Sessions Judge dated 22-10-1975 by which the appellant was convicted under section 302, P. P. C. And was sentenced to life imprisonment and fine of Rs, 2,000 in default of payment to suffer one year R. I. And the fine if realized, the whole or part of which will be paid to the heirs of the deceased as compensation.
2. According to the prosecution story the appellant suspected the deceased Hakim of having illicit relations with his mother Mst. Bakhan. On 13.10-1973 the complainant Allah Yar P. W. 9 and Hakim deceased went to village Jamia Abad and had taken their motor to Bhowana to get it repaired from the shop of one Muhammad Iqbal Qazi. The motor was got back and left it at Jamia Abad.
The complainant and the deceased left for their home thereafter. In their way while reaching the tube-well of Sheikh near Chiniot Rajbah the complainant was a few paces behind the deceased when all of a sudden the appellant and his co-accused Yousaf who were hiding themselves behind the bushes emerged, the appellant was armed with hatchet while Yousaf was empty- handed, the former attacked the deceased who tried to run away but the appellant hit the deceased with a hatchet and he fell down. The co-accused Yousaf got hold of Hakim and pressed his head when Hakim was lying down, the appellant again gave a blow on his leg and cut it completely. In the meantime the other witnesses Gaman and Patch Sher P. W. 10 and P. W. 11 respectively, who were on the bicycles also reached the spot. The witnesses tried to apprehend them but they escaped and after a short time Hakim succumbed to the injuries. The two witnesses i,e, Gaman and Fateh Sher, remained at the spot while the complainant reached the Police Station Bhowana and lodged the F. I. R. Exh. P. A. Which was recorded by Rukan Alam Shah Sub-Inspector Police on the same day at about 7-00 p.m.
3. The Sub-Inspector proceeded to the spot and prepared injury statement Exh. P. F. And inquest report Exh. P. G. And sent the body for post mortem examination. Blood-stained earth was also taken into possession from the spot and made into a sealed parcel vide Memo. Exh. P. B. After the post-mortem examination Ghulam Muhammad F. C. P. W. 2 produced the worn clothes of the deceased viz., shirt Exh. P. 2, vest Exh. 3, chadar Exh. 4 and pair of shoes Exh. 5 which were taken into possession vide Memo. Exh. P D. On 14-10-1973 the appellant and his co-accused Yousaf were arrested.
4. While in custody the appellant offered to lead to the recovery of hatchet i,e, the weapon of offence and as a consequence of this offer the police recovered the blood-stained hatchet P. I.
From his residential Kotha. It was lying under the heap of cow dung-cake and it was taken into possession vide Memo. Exh. P. C. Sketch of the place of recovery is Exh. P C/1.
5. Ch. Tufail Muhammad Patwari P. W. 5 prepared site plan Exh. P. G., Exhs. P. G./1 and P. G./2. The appellant alongwith his co-accused, after the completion of investigation, were challaned.
6. Dr. Hafiz-ur-Rehman conducted a post-mortem examination on 14-10-73 at 8 a.m. And found the following injuries on his person t- "(1) An incised wound 3' x 2i" cutting both the bones of right leg completely just near the right knee.
(2) An abrasion j" on the right knee cap. Injury No, 1 was caused by a sharp-edged weapon and was grievous in nature."
' The injury was sufficient to cause death in the ordinary course of nature. Injury No, 2 was caused by a blunt weapon and was simple in nature. Injuries were ante-mortem. The time between injuries and death was between 30 to 60 minutes and between death and post-mortem examination 16 hours. The death ensued on account of haemorrhage and shock as a result of injury No,
1. Exh. P. H.
Is copy of the post-mortem examination report whereas Exh. P 11/1 is the sketch of the injuries.
7. The prosecution case is based on the following evidence:-(I) Motive.
(ii) The ocular testimony.
(iii) Recovery of blood-stained hatchet Exh. P. I. At the instance of the appelllant.
(iv) Medical evidence.
8. The motive has been proved by P. W. 9 the real brother of the deceased. He has specifically stated that the appellant was suspecting the deceased Hakim of having illicit intimacy with his mother and the same fact was oho mentioned in the F. I. R. Exh. P. A. P. W. 9 Allah Yar was cross examined in detail and his testimony remained unshaken.
9. As far as the ocular testimony of the witnesses is concerned P. W. 9 Allah Yee, P. W. 10 Gaman, P.
W. 11 Fateh Sher are the eye-witnesses. P. W. 9 has specifically stated that the appellant who was armed with hatchet gave a blow to the deceased who fell down and Yousaf the co-accused got hold of the deceased. The appellant again gave a hatchet blow on the right leg below the knee joint and it was completely cut. P. Ws. 10 and 11 has stated that when they saw, Hakim deceased had fallen down on the ground and the appellant who was armed with hatchet and co-accused Yousaf got hold of the deceased, the appellant gave a hatchet blow on the leg and the same was cut completely.
10. It may be stated that the commission of murder took place at about 4 p.m. And the matter was reported to the police station at 7 p.m. When there is a distance of about six miles between the place of occurrence and Police Station. There is absolutely no delay nor there was any occasion of fabricating the F. I. R. The statements of the eye-witnesses are in accordance with the prosecution story given in the F. I. R.
11. The blood-stained hatchet was recovered on the pointing out of the appellant from his own Kotha under the heap of cow dung-cake. It was sent to the Chemical Examiner and found to be stained with blood. The report of the Chemical Examiner is Exh. P. J. The pieces and scraps were sent to the Serologist for determining the origin of blood and according to the report of the latter it was stained with human blood. Report of the Sero logist is Exh. P. K. The medical evidence shows two injuries. One is abrasion on tiie right knee and the second is incised wound cutting the bone of the right leg completely. This shows that when the appellant wanted to attack in the first instance it did not cause injury because in the meantime Hakim had started running out of fear but by the hit of the hatchet he fell down and only bruise was caused ; when he was lying down on the ground, the appellant made a second attack with hatchet and cut his leg. The victim succumbed to the injuries and could not survive.
12. The appellant was examined under section 342, Cr. P. C. But he denied all the suggestions but said that he was implicated falsely in a murder case because the complainant wanted to eject him from the land on which he had built a residential house in unauthorised manner but no defence witness was produced to support this enmity.
13. After examining the entire evidence brought on record by the prosecution the learned Sessions Judge gave a benefit of doubt to co-accused Yousaf and convicted the appellant under section 302, P. P. C. And sentenced to life imprisonment with a fine of Rs, 2,000 in default of payment of fine, to suffer one year R. I. And the fine if realized to be paid to the heirs of the deceased Hakim as compensation under section 544-A of Cr. P. C.
14. Against the judgment of the learned Sessions Judge dated 22-10-1975 Criminal Appeal 1104 of 1975 has been filed and a Revision Petition No, 897 of 1976 was filed against the acquittal of Yousaf and for the enhancement of sentence in the case of appellant. The Revision Petition has not so far been admitted and is to be heard alongwith it.
15. The learned counsel appearing on behalf of the appellant has raised the following points t-
(I) That according to 4th Qur'anio verse of Soora Noor of the Holy Qur'an there should be at least 4 witnesses to prove motive. Since there is only one witness the testimony of the ocular witness should be discarded.
(if) Recovery is not reliable.
(iii) The ocular evidence is not consistent and is contradictory to medical evidence and on the basis of this point the learned counsel wants that the appellant be acquitted.
16. The 4th (beanie verso of Soora Noor reads as under :- {{URDU TEXT}} "And those who launch a charge against chaste women and do not produce 4 witnesses to support their allegations flog them with 80 stripes and reject their evidence, oven after for such men are wicked transgressor.
17. This Qur'anic verse cannot be referred in the present proceedings due to the following reasons :-
(i) That the Evidence Act of 1872 applies to all judicial proceedings in or before any Court in the whole of Pakistan. Unless the Evidence Act is repealed and Islamic Law is made applicable to all judicial proceedings, this Qur'anic verse cannot be made the basis for determining the guilt or otherwise of the accused.
Under section 134 of the Evidence Act testimony of even one witness is sufficient if wholly reliable to warrant conviction even in cases involving!, capital punishment. On the basis of this provision the statement of P. W. 9' Allah Yar is quite consistent and can be relied upon even if it is not corroborated by other witnesses on the point of motive.
18. Supposing for the sake of arguments that if the Islamic Law is made applicable by the Legislature, even then this Qur'anic verso is not applicable to the present facts of the case. This Qur'anic verse has taken a serious notice against those persons who put forward slanderous or scandalous suggestion about women without adequate evidence. If anything is said about the women chastity it must be supported by at least four witnesses failing which the slanderer himself be treated as a wicked transgressor and should be punished with 80 stripes. He will not only be subjected to this disgraceful form of punishment but he would be deprived of such right of giving evidence in all matters throughout of his life unless he repents and reforms in which case he will be re-admitted to be a competent witness.
19. This case is not a case of slander or scandalous suggestion against the chastity of a woman. It is a case of illicit relations with a woman and, a line of distinction has to be drawn between putting a scandalous suggestion and by developing relation with a woman. A scandalous suggestion can be put forward out of hatred or to damage her chastity or to injure her modesty but in the development of illicit relations all the factors mentioned above may be lacking and there may he a case of pure affection and love it not platonic love. It was only for the defence to produce Mst.
Bakhan to rebut the suggestion of the prosecution that the deceased had no relation or love with her. In the absence of any evidence on record illicit relations cannot be termed as scandalous suggestion within the meaning of this Qur'anic verse.
20. The learned counsel then has vehemently argued about the disparity of age between the mother of the appellant and the deceased. According to him the deceased was aged 40 to 45 years whereas the mother of the appellant is aged about 50 to 60 years and on the basis of this disparity in age be has argued that it was impossible to develope illicit relations with an old lady.
' I do not find any farce in the argument because the choice of a person to love a lady (may be older in age) cannot be questioned because no hard and fast rules have been laid down either by any statute or otherwise, that a person of particular age can only love a female of the same age. If this was the only point available to falsify the factum of motive then Mst. Bakhan the mother of the appellant should have been produced in defence to prove that the motive is false because she could only say whether the alleged motive is correct or not. In the absence of any such evidence, I hold that the motive stands proved and has rightly been relied by the learned Sessions Judge as a cause of causing intentional death of Hakim deceased by hatchet blow on the suspicion of illicit relations of the deceased with the mother of the appellant. It may be stated that the age of the appellant is only 18 years and this suspicion was sufficient to persuade to the mind of an immature boy of 18 years to commit a murder of the deceased.
21. The learned counsel for the appellant has challenged the testimony of eye-witnesses on the ground of inconsistency and omission which are minor in nature and do not amount to material contradictions. For example it was stated that P. W. 9 had gone to the shop of Qazi Muhammad Iqbal to get his motor repaired and came back to Jamia Abad but why he did not inform to Muhammad Iqbal about the murder of his brother. It was not necessary for the witness to send information to Muhammad Iqbal because he had come back to Jamia Abad. It was further contended that the house of P. W. 9 is at a distance of 4 squares from the place of occurrence and that of Fateh Sher P. W. Is at a distance of 3/4 miles from the place of occurrence and same is the distance of house of Gaman P. W. On the basis of this distance from the place of occurrence to the place of residence, the learned counsel wants to establish that they could not be expected to be present at the place of occurrence. This argument again is not convincing because according to the prosecution story P. W. 9 alongwith deceased was coming back from Bho wana to Mauza Jamia Abad and in their way when they reached the Tube-well of a Sheikh near Rajbah Chiniot the deceased was attacked by the appellant, and the other two witnesses were coming on cycles and witnessed the occurrence whatever the distance of their place of residence and place of occurrence may be. The fact remains that the prosecution witnesses witnessed the occurrence and on the basis of which they deposed before the Court and withstood a detailed cross- examination: It may be stated that all the three witnesses are unanimous in their deposition that the appellant who was armed with hatchet gave a blow with such force on the right leg of the deceased that the leg was completely cut and this statement finds a complete support from the medical evidence. It appears that the appellant, when attacked in the first instance could not cause any injury but the deceased fell down as the latter out of fear wanted to run and save himself from the onslaught of the assailant but when he fell down the second hatchet blow, which was also witnessed by the other P. Ws. I.e. P. W. 10 and P. W. 11, completely cut the right leg. This consistent evidence of the ocular witnesses finds complete support from the medical evidence.
22. It is further contended by the learned counsel that the deceased had taken his meal at 11-00 a.m. 12-00 Noon on the same day and the meal consisted of Dal and Roti. The deceased was killed at about 4 p.m. And according to the contention of the learned counsel there should have been some undigested matter in the stomach but the same has been shown empty by the Doctor in post-mortem examination. This argument is also not acceptable because a period of 4/5 hours is sufficient to digest Dal and Roti and the stomach was rightly shown as empty in the post-mortem examination. The power of digestion varies with different persons. A person of even 35/40 years of age might be having a healthy digesting system and he could easily digest the meal within 4/5 hours and on this view of the matter I find that the report of the Doctor also supports the prosecution story.
23. It may be mentioned that the F. I. R. Was filed with last possible delay. According to prosecution story murder took place at about 4 p.m. And the matter was reported to the Police Station at about 7 p.m. And the distance of the Police Station from the place of occurrence is about six miles. Within three hours the matter has been reported to the police. All the eyewitnesses have been named in the F. I. R. And the complete prosecution story has been reported before the Police Officer. The lodging of F. I. R. Without any delay the production of eye-witnesses who have been mentioned in F.
I. R., their testimony has been corroborated by the medical evidence. The learned Sessions Judge has rightly relied upon the evidence.
24. As far as the recovery of hatchet is concerned it has been proved by P. W. 8 Ahmed Saeed son of Alawal and by P. W. 12 Sub-Inspector Police who specifically stated that after the arrest of appellant on 14-10-1973 the appellant volunteered to get the weapon of offence recovered and eventually he led to the recovery of hatchet P. I. From his residential Kotha from the heap of cow dung cakes. It v. As blood-stained and taken into possession vide Memo Exh. P. C. According to the report of Serologist the blood on the hatchet was of human origin. The recovery of the hatchet from the pointing out of the appellant and further report of the Serologist that it was stained with human blood fully support the prosecution story. I, therefore, agree with the finding of the learned Sessions Judge that the prosecution has successfully proved the guilt of the appellant. The learned counsel for the appellant last of all argued that if for the sake of argument it is considered that the prosecution has proved the guilt of the accused then he may be acquitted under section 302, P. P.
C. And convicted under section 304 (II), P. P. C. Because according to the contention of the learned counsel the appellant attacked the deceased on the non-vital part of the body and there was no intention to commit culpable homicide amounting to murder. This contention is devoid of force because the appellant made an attack with such a force to completely cut the right leg of the deceased knowing well that by cutting a leg a large blood vessel will also be cut and as a result of profuse bleeding, this injury would be sufficient to cause death in the ordinary course of nature. The intention can be judged by the force applied by the assailant to cause injury by which the leg was completely cut which shows that even if the attack was made on the non-vital part of the body, the intention to kill the deceased could be inferred and the case of the appellant falls in 3rd clause of section 300, P. P. C. Reliance can be placed on Muhammad Siddique v. The State (1), which reads as under:- "(a) Penal Code (XLV of 1860), Ss. 300 & 302-Murder-SentenceInjury caused by chhurri of 9 "blade on victim's thigh resulting in cutting away a largo blood-vessel and eventual death of victim- Contention that thigh not being vital part of body, accused should be given lesser penalty of transportation for life-Accused's premeditated use of Churri with such force as to cut away large vessel, held, indicative of intention to cause injury sufficient to cause death in ordinary {{FOOT NOTE}}
(1) 1970 SMCR 313 {{FOOT NOTE}} course of nature-Case severed by third slam of section 300 and accused rightly sentenced to death."
25. On the basis of this authority I hold that the appellant has rightly been convicted under section 302, P. P. C. I, therefore, dismiss the Appeal No, 1104 of 195 and maintain the conviction of the appellant under section 302, P. P. C. And the sentence of life imprisonment with a fine of Rs, 2,000 in default of payment to undergo one year R. I. And the fine if realized should be paid to the heirs of the deceased under section 544-A, Cr. P. C. As compensation.
26. As far as the Revision Petition is concerned it has already been stated earlier that it has not been admitted as yet. Under section 440 of the Cr. P. C. The counsel appearing on behalf of the petitioner has no right to be heard in person in revisional jurisdiction but yet he was given full opportunity to address his case for the enhancement of punishment and for the re-trial of the case as far as the co.Accused is concerned. On the very outset the learned counsel appearing on behalf of the petitioner was pointed out that the Revision Petition which was filed on the 2nd of June 1976 was not competent because by Ordinance No, XXIV of 1975, Law Reforms Ordinance, 1972 (XII of 1972) was enforced on 22nd of December 1975. With the enforcement of Law Reforms Ordinance XII of 1972 special leave to appeal was competent under section 417(2) of the Cr. P. C. Which reads as under t- "If such an order of acquittal is passed in any case instituted upon a complaint and the High Court on an application made to it by the complainant in this behalf grant special leave to appeal from the order of acquittal the complainant may present such an appeal to the High Court."
The word 'special leave to appeal' includes the word 'appeal for the purposes of section 439(5) of Cr. P. C., since right of special leave to appeal has been created, to revision is competent under the provisions stated above. The learned counsel was given sufficient time to address on this point but he has not been able to present convincing arguments. Otherwise on merits as far as Yousaf co- accused is concerned the learned Sessions Judge has rightly acquit. Ted him by giving the benefit of doubt because he has, according to the prosecution story not participated in giving any hatchet attack to the deceased nor there was any motive for him to do the same. I, therefore, dismiss the Revision Petition No, 897 of 1976.