' ABDUL SHAKURUL SALAM, J.-Appellant Sohaila son of Muhammad Khan, weaver, aged 25 years resident of Chak No, 63-RB, Tehsil Jaranwala, District Lyallpur was tried under section 302, P. P.-C.
For the murder of Mst. Fateh Bibi and under section 324, P. P. C. For having caused injuries on Mst.
Rajan Bibi by the learned Additional Sessions Judge, Lyallpur who vide his order dated 12-5-1976 found the appellant guilty on both the counts and sentenced him on the first to death subject to confirmation by this Court and a fine of Rs, 2,000 to be paid to the heirs of the deceased Mst. Fateh Bibi, in default of payment to undergo one year rigorous imprisonment and on the second count to two years' rigorous imprisonment. Reference under section 374, Cr. P. C. For confirmation of the death sentence is Murder Reference No, 166 of 1976. The convict has also filed an appeal through Jail bearing Cr. Appeal No, 680 of 1976. Both will be disposed of by this order.
2. The prosecution case in brief as stated by complainant Muhammad Ismail, P. W. 11 is that while he, his sister Mst. Fateh Bibi and Mst. Rajan Bibi were coming back to their Chak 63/RB after having got the wheat ground from Chak No, 64/RB, the appellant came out from hiding in "Sarkandas", armed with a hatchet and raised lalkara towards Mst. Fateh Bibi saying that he would take revenge of her refusal to prepare his meals. He gave hatchet blows to Mst. Fateh Bibi on neck, forehead and shoulder who fell down. The appellant then, went towards Mst. Rajan Bibi who out of fear fell down and the appellant gave her a hatchet blow on her private parts. On the complainant's raising alarm, Muhammad Sadiq, P. W. 12, who was coming from Chak No, 63 for going to Chak No, 64, reached the spot and saw the occurrence. Mst. Fateh Bibi died on the spot. The motive given was that the complainant's two sisters Mst. Bhagi and Mst. Fateh Bibi deceased were married respectively with the elder brothers of Sohaila appellant, namely, Mathela and Nazra. The father of the appellant was alive but his mother had died. The appellant was residing with his father.
Mathela and Nazra were residing in independent houses. The appellant used to force Mst. Fateh Bibi deceased to prepare his meals and wash his clothes but she would refuse to do so. The occurrence is said to have taken place one hour before the sunset on 19-6-1974. The complainant went to the Police Station at a distance of 10 miles and lodged F. I. R. At 2-00 a.m. On 20 6-1974 which was recorded by Ghulam Qadir S. I., P. W.
14. The Investigation Officer arrived at the spot, prepared inquest report of Fateh Bibi Exh. P. F. And injury statement Exh. P. G. And sent the dead body for post-mortem examination. He also prepared the injury statement of Mst. Rajan Bibi Exh. P. H. He collected bloodstained earth from the place of occurrence and made it into a sealed parcel vide memo. Exh. P. C. He arrested the appellant and recovered hatchet P. 3 from a "chapri" vide memo. E 111. P. B. In the presence of Hayat P. W.
10. It has been found to be stained with human blood by the Serologist vide memo. Exh. P. N.
Muhammad Sadiq, P. W. 12 supported the complainant and stated that nobody else than his nephew had arrived at the spot. He is an uncle of the complainant as well as the deceased. He stated in cross-examination that "I had seen many persons ploughing their land adjacent to the place of occurrence but I do not remember the name of any of those persons." Mst. Rajan, the injured witness, appeared as P. W.
13. Her age was recorded at the time of medical examination by Lady Doctor Kishwar Sultana Naqvi, P. W. 2 to be about 12 years. Because of her minority, the witness was put questions by the learned trial Court to judge her competency to make a statement and after being satisfied recorded her statement which supports the prosecution case. Dr. Mumtaz Ahmad, P. W. 1 performed the post- mortem examination of Mst. Fateh Bibi deceased on 20-6-1974 at 1-00 p m. He stated that the deceased suffered the following injuries "(1) A contusion mark lr x 1" on left side of forehead.
(2) A contusion mark 1" x I" on right side of forehead.
(3) An incised wound 5" x 2" on right side of neck cervical vertebra and spinal cord cut.
(4) A contusion mark 2 r x 1" just below injury No, 3.
(5) An incised wound 5 i" x 1" x on right shoulder."
' Stomach contained about 1 ounce of digested food. Large and small intestines contained feacal matter. Bladder contained about 1 ounce of urine. Ali other organs were pale and healthy.
' Death in my opinion was caused by shock and haemorrhage and injury to spinal cord. Injury No, 3 was grevious and dangerous and fatal in ordinary course of life. Rest all injuries were simple.
Injuries Nos. 3 5 are caused by sharp-edged weapon, rest by blunt weapon. Ali injuries were antimortem. Death occurred immediately after the injury and post-mortem was conducted within 18 to 24 hours after the death. Exh, P. A. Is correct carbon copy of my post-mortem report and Exh. P.
A. 1 is sketch of injuries prepared by me_'" Lady Dr. Kishwar Sultana Naqvi examined Mst. Rajan Bibi on 20-6-1974 at 1-00 p.m. And "found the following injuries on her person :- "(1) An incised wound 1" x 1/8" muscle deep starting from the hymen at 6 0 'clock to the outside 1" from the anus. There was fresh bleeding from the wound. Rest of the hymen was normal. There was no other injury or mark of violence on her person.
(2)Nature of injuries: Simple.
(3)These injuries were caused with sharp-edged weapon (?) 24 hours, This is in my handwriting and signed by me."
' Hayat P. W. 10 appeared as a witness of the recovery of hatchet P. 3 at the instances of the appellant. Ghulam Qadir S. I. P, W. 14 investigated the case and challaned the accused appellant.
2. The accused appellant pleaded not guilty and stated before the learned trial Court that "1 have been falsely involved in this case due to enmity. Mst. Fateh Bibi was in fact murdered by Yaqub with whom she had been engaged prior to her marriage with Nazra and the real brother of Yaqub, namely, Yousaf." In his appeal from Jail, the appellant has stated that Mst. Fateh Bibi was married with Qaqub but she did not like the latter and had established illicit relationships with the appellant's brother, Yaqub and brothers of Mst. Fateh Bibi resented it and took it as an affront to their honour. On the day of occurrence, the appellant's brother was away to Hyderabad. Taking advantage, thereof, Yaqub and brothers of Mst. Fateh Bibi murdered the latter.
3. Learned counsel appearing for the appellant has submitted that the occurrence was not witnessed by the complainant P. W. 11 and Muhammad Sadiq, P. W.
12. The deposition of the former that he was accompanying the girls coming from Chaks Nos. 64 to 63 and that of the latter that while going from Chaks Nos. 63 to 64 on hearing the alarm he reached the spot and saw the occurrence are unbelievable, especially because if these persons were at the place of occurrence they would not have allowed the appellant as alleged to cause the injuries to the deceased and the injured witness, or, would have at least grappled with the appellant to save the girls who were sisters of the former and nieces of the latter. He has, next, contended that the occurrence had taken place an hour before sunset and the F. I. R. Was lodged at 2.00 a.m. Next morning. Thus, there is inordinate delay of about eight hours. He has also submitted that the motive alleged is trivial that the deceased had refused to cook the meals and clothes of her dewar (brother-in-law), the appellant. The appellant would not have committed the crimes for this reason. Learned counsel has also submitted that the injured witness Mst. Rajan P. W.
13 was about 10/12 years as recorded in the trial Court and her statement is a tutored one by her relatives, the male witnesses. Learned counsel has also submitted that no witness from the nearby fields has been produced. Complainant is a school teacher employed in Lyallpur and his visit to the village is doubtful. Lastly, the recovery of hatchet P. 3 found to be stained with human blood by the Serologist said to have been recovered at the instance of the appellant in Police custody cannot be used against. The appellant because the hatchet which the appellant is said to have got recovered was lying in a "chappri" under water, and was stained with mud which was removed therefrom. The learned counsel contends that if the hatchet was under water and covered with mud, then, with the removal of the mud, the stains of blood if not already washed away with water would have been removed, or at least disintegrated to be unidentifiable as human , blood. Consequently, the recovery of the hatchet with human blood cannot be used against the appellant.
4. Learned counsel for the State has submitted that the complainant although a teacher in Lyallpur was on holidays in summer vacation in his village. He has, next, contended that the eye-witness account is corroborated by medical evidence and recovery of blood-stained hatchet P. 3 at the instance of the appellant which had been found to be stained with human blood by the Serologist vide report Exh. P. N. He has also submitted that the delay in lodging the F. I. R. Is not inordinate because the informant had to travel 4i miles on katcha path and then be could only get a bus which may not be available straightaway.
5. In the first instance, we would like to take up the recovery of hatchet P. 3 vide memo. Exh. P. B.
Said to have been recovered at the instance of accused appellant which has been found to be stained with human blood by the Serologist vide memo. P. N. The hatchet P. 3 is said to have been "recovered from a Chappri." The recovery witness P. W. 10 Hayat said that the "Chappri" may be over an area of 2 marlas. There was water in the Chappri. Sohaila accused picked up the hatchet P. 3 from the Chappri while standing on the bank. The hatchet was stained with mud do not know whether the mud was removed by a cloth or it was washed with water." The Investigating Officer P.
W. 14 Ghulam Qadir S. I. Stated that "the 'cliappre from where the hatchet was got recovered by Sohaila accused is on the northern side of the village. The Chappri was 4 feet x 6 feet. The hatchet was under the water. There was a slight mud on the hatchet. When the hatchet has been under the water for some time and there was mud thereon which was removed, it is very unlikely that the stains of blood on th,3 hatchet would still be there or would not be disintegrated so as to be not identifiable. Therefore, it is not safe to rely on the positive report of the Serologist to hold that the hatchet said to have been recovered at the instance of the appellant still carried the stains of human blood of the deceased.
6. Coming to the ,ye-witness account of the occurrence, there is the evidence of P. W. 13 Mst. Rajan who had suffered an "incised wound 1` x 1/8"' muscle deep starting from the hymen at 6 O'clock to the outside from the anus," according to the medical evidence of Lady Dr. Kishwar Sultana Naqvi, P.
W.
2. The witness is no doubt a child of about 12 years as found by the above-named Doctor. But the injury on her person corroborates the contents of the F. I. R. On the point and the learned Sessions Judge had put questions to the witness to ascertain her competency for making a statement and after being satisfied, he had recorded her statement. She was subjected to quite a lengthy cross- examination as well and stood the test thereof. She is supported by Muhammad Ismail P. W. 11 and Muhammad Sadiq, P. W.
12. No doubt these witnesses are closely related to the deceased and the injured witness being brother and uncle respectively but this fact by itself would not be sufficient to discard their testimony. Muhammad Ismail P. W. 11 was employed as a school teacher at Lyallpur during the days of occurrence but he has stated that on the day of occurrence, he was "enjoying summer vacations in the village." His accompanying the sisters is not very unlikely. Muhammad Sadiq P. W.
12 stated that he started from his Chak No, 63 and was going to Chak No, 64 and saw the occurrence from a distance of 10 karams. Nothing has been brought on record to show that he was not right there. Therefore, their depositions about the occurrence, as supported by Mst. Rajan P. W.
13, cannot be discarded simply because they had not intervened as the accused appellant was armed with a hatchet. The contention that Mst. Rajan is a child witness and could be tutored loses sight of the fact that the injury on her person finds mention in the F. I. R. And her medical examination within twenty four hours. Then, she was put questions by the learned trial Court to ascertain her competency and she withstood quite lengthy cross-examination. Then, there is this aspect of the case which is quite important. The appellant is a sole accused. The witnesses would not have left out the real murderer of their close relation Mst. Fateh Bibi and instead implicated the appellant against whom they are not shown to have any enmity. The plea before the learned trial Court that Mst. Fateb Bib' had been engaged to Yaqub prior to her marriage with Nazra, brother of the appellant, and that Yaqub and the latter's brother Yousaf murdered her is without any basis on record. Then, in the grounds of appeal from Jail, the appellant has changed the plea by saying that Mst. Fateh Bibi was married to Yaqub but was carrying on with Nazra, appellant's brother, and that Yaqub and her brothers had murdered Mst. Fateh Bibi. Besides being inconsistent, there is no basis on the record to support this plea either. Therefore, the defence of false implication by substitution is untenable. Delay in lodging the F. I. R. Is not fatal. The occurrence had taken place an hour before sunset which happened at 7-12 p.m. On the day of occurrence per calendar. There was one dead and other injured. Sometime would have been consumed to look after them. Then, from the village, the metalled road is at a distance of 4/ miles. There are 5/ miles further to the Police Station.
Therefore, lodging of F. I. R. At 2 a.m. Next morning is not inordinately delayed. The motive that the deceased had refused to cook meals for the appellant may not be strong reason for murdering her but proof of motive is not always essential and even the Devil does not know what passes through a man's mind at a particular moment. Ocular testimony corroborated by medical evidence on the record is sufficient to bring home the guilt to the appellant.
7. Coming to the sentence, it may be noted that the appellant is alleged to have been concealing himself in "Sarkandas". However, there is nothing in the evidence of the witnesses that the appellant knew that the deceased was coming or likely to come that way at the time of the occurrence.
Immediate circumstances leading to and surrounding the commission of the crimes are shrouded in mystery. The parties are related inter se. Therefore, it seems that capital sentence, in all the circumstances of the case, may not be warranted and that ends of justice may be met if lesser sentence of life imprisonment is substituted. Consequently sentence of death is not confirmed but is substituted with one for life imprisonment on the first count. He shall also suffer the sentence of the fine as imposed by the learned Additional Sessions Judge. On the second count, the learned Additional Sessions Judge has not imposed a sentence of fine for causing injuries to Met. Rajan, as required by section 544-A, Cr. P. C. While maintaining the sentence of imprisonment on this count, sentence of fine of Rs, 1,000 (one thousand) is also imposed on the appellant payable to Mst., Rajan, in case of default in payment of the fine, the appellant shall suffer six months rigorous imprisonment. Subject to the aforesaid modifications in the sentences, the appeal is otherwise dismissed. Thus, the two titled matters are disposed of.