1983 P Cr (PLP)

(2) Contused wound 2" x " x " on bead 4 " from right ear. (3) Bruise mark 3' x 2' on the right elbow joint. (4) Bruise mark 6' x 4" on the right fore-arm 2 " from the right wrist joint. (5) Bruise mark 3" x 1" on right wrist joint. (6) Bruise mark " x "on dorsum of right hand. (7) Bruise mark 4" x 4" on left arm near left elbow joint. (8) Contused wound " x ", skin deep on left leg 6" from left knee joint. (9) Contused wound " x " x " on left leg 5 " from left knee joint. (10) Bruise mark 2" x "on the front of left knee joint. (11) Bruise mark 4" x 1' on outer aspect of left thigh. (12) Bruise mark 3 " x 1" on right thigh on front 6" from right knee joint. (13) Bruise mark 3" x 1" on right thigh 2 " from right knee joint: (14) Contused wound " x " x " on right knee joint. (15) Contused wound " x " on right leg on front 4" from the right knee ,joint. (I6) Contused wound " x " x " on right leg on front 4" from the right knee joint. Her hair had been cut. Injuries were caused within the duration of 12 hours. Injury No. 15 was grievous which resulted in the fracture of the right leg. The rest of the injuries were simple. .

6. Mst. Kaneezan P. W. 11. (1) Incised wound " x " x " on bead oblique in direction 4" from right eye-brow. (2) Incised wound 1 " x " x "on head oblique in direction 4 " from the left eye-brow. (3) Incised wound " x " on left forearm 4" from the left elbow joint. (4) Bruise mark 1 " x " on left knee joint. (5) Bruise mark 2" x " on left leg 1 " from the left knee joint. (6) Bruise mark 3" x " on left leg on outer aspect 6" from the left knee joint. (7) Contused wound " x " x " on left leg 3" from the left ankle joint. (8) Bruise mark 1 " x " on left leg on front 3' from the left ankle joint. (9) Bruise mark 1" x " on right leg 2 " from the right knee joint. (10) Contused wound " x " x " on the front of right leg 6" from right knee joint. Her hair had been cut. Injuries Nos. 1, 2, 3 were caused with a sharp-edged weapon and the rest with blunt weapon, within the duration of 12 hours. Injury No. 10 was grievous and the rest were simple in nature.

7. Mst. Aziz P. W. 12. (1) Bruise mark 8" x 1' on back on right side on right scapula: (2) Bruise mark 4" x 1' on back on right side. (3) Bruise mark 3" x 1 " on left arm near left elbow joint. (4) Bruise mark 1 " x 1" on right elbow joint. (5) Bruise mark 3 x " on left forearm 2 " from the left elbow joint. All the injuries were simple, caused with a 'blunt weapon, within the duration of 12 hours.

8. Mst. Noor Bibi (given up). (1) Contused wound 1." x " x 1" on left leg on front oblique in direc tion 3" from the left knee joint. Underlying bone was broken. (2) Bruise mark 3 " x 1" on the front of right knee joint. Her hair had been cut. The injuries were caused with a blunt weapon, within the duration of 12 hours. Injury No. 1 was grievous.

4. On. 8-9-1978 P. W. 4, . Dr. Syed Zia-ud-Din Zaidi, Medical Officer, Civil Hospial, Kabirwala, held the autopsy on the dead body of Muhammad Anwar and found the following injuries on it :- (1) Incised wound on the part of the head on left side obliquely 5" x " x bone deep, with fracture of the skul underneath 3" from the left ear. (2) A lacerated wound 2 " behind injury No. 1, measuring 3 " x " x bone deep, irregular. (3) Swelling on the left temporal region 2" x 2". (4) Multiple contusion marks on the front, back of the left upper and forearm in area of 12" x 14" with fracture of the lower end of Numerous bone and ulna bone. (5) Contusion mark on the outer side of right upper arm 3" x 2' obli quely with a contused wound on the centre 1" x " x 1. (6) Multiple contusion marks on the front of right leg in area of 12" x 5" with fracture of tibia bone (right). (7) Multiple contusion mark on the front and lateral part of the left leg in area of 10' X 5" with a contused wound on the lower one-third of leg 1" x " x bone deep with fracture of fabula. (8) Contusion mark on the front of left thigh 3" x 1" obliquely. (9) Contusion mark on the front of left knee 2" x 1" with fracture of patella bone. (10) Three contusion marks on the back of chest crossing each other 8' x 1" each. There were multiple fractures of the skull under injury No.

1. Membranes were congested and blood clotted in anterior cranial fossa. Stomach con tained digested food. The small intestine and the bladder was empty. There was faecal matter in the large intestine. In the doctor's opinion, death occurred due to injury No. 1 caused by a sharp-edged weapon resulting in intra cranial haemorrhage. This injury was sufficient to cause death in the ordinary course of nature. The probable time that lapsed between injuries and death was an hour and between death and post-mortem was 30 hours.

5. On 9-9-1978, P. W. 18 Muhammad Afzal S. L/S. H. O. recorded the statements of P. Ws. 7afar, Iqbal and Maqbool Ahmad in the hospital. On 10-9-1978 the S. I. arrested Zaboora, Afzal and Feroze accused. The same day Zahoora accused in custody got recovered hatchet (P. 14) from his house: It was made into a sealed parcel vide Memo. Exh. P. AA. attested by the same aforesaid witnesses, namely, P. W. 9 Haq Nawaz and Malik Zamau Mehdi (given up as having been won-over), besides the investigating officer. Afzal accused got recovered a blood-stained handle of a hand-pump (P. 15) which was taken into possession and made into a sealed parcel vide Memo. Exh. P. BB. attested by the same aforesaid witnesses. Similarly, the same day Feroze accused, while in custody, got recovered a blood-stained stick (P. 16) from his Khola situated near his cattle-shed. It was taken into possession and made into a sealed parcel vide Memo. Exh P. CC. attested by the same aforesaid witnesses. On the same day, i.e. 10-9-1978, Shakoor, Nawaz, Anwar, Ayub, Ahmad Yar Mochi and Ahmad Noon (accused) were produced before him and they were arrested. Nawaz got recovered a handle of the hand-pump (P. 17), Anwar hatchet (P.21), Ayub a stick (P. 18), Ahmad Yar Mochi a stick (P. 20) and Ahmad Noon a stick (P. 19) which were taken into possession through memos. Exh. P. DD.; P. HH, P. EE. P. GG. and P. FF., respectively, attested by the aforesaid witnesses.

6. On 10-9-1978 P. W. 1, Dr. Fateh Khan, Medical Officer, Makhdoom pur Pahoran, examined Mst. Ghulam Zohran (informant) and noted the following injuries on her body:-- (1) Bruise mark 1 " x " on back on lower part in the centre. (2) Bruise mark 2" x " on the left forearm 2" from the left elbow joint. (3) Bruise mark 2 " x " on left shoulder joint. All the injuries were simple, caused with blunt weapon, within the duration of 12 hours.

7. On 11-9-1978 the investigating officer (P. W. 18 Muhammad Afzal) recorded the statements of P. Ws. Noor Muhammad and Munawwar Ahmad in the Nishtar Hospital, Multan. The same day he got examined Zahoora, Afzal and Feroze accused for sexual fitness and on 12-9-1978 he arrested Arif accused, who, in custody, got recovered a blood-stained handle of the hand-pump (P. 21) from his cattle-shed, which was taken into posses sion and made into a sealed parcel, vide memo. P. JJ. attested by the same aforesaid witnesses. After completing the investigation, the accused were sent up for trial.

8. All accused denied guilt and ascribed the case to enmity. According to Zahoora, Noor Muhammad had a large number of enemies in the village, who might have committed the clime and due to the enmity, he falsety implicated him and his relations. He produced copies of "Rapat Rozenamcha Waqiati" dated 15-7-1977 and 13-6-1978 (Exhs. D. E. & D. F.) respectively, certified copy of a complaint dated 20-7-1977 (Exh. D. G.) in re: Ahmad Yar v. Feroze etc., a photostat copy of F.

1. R. No. 89 dated 18-5-1974 (Exh. D. H.) of Police Station Siray Siddhu and an uncertified copy of the F.I. R. dated 24-:1-1965 (Exh. D. I.) of Police Station Tolamba. Muhammad Shakoor, who was a police constable, took up the plea of alibi and said that at the time of the occurrence he was on duty at the judicial lock-up Khanewal and he had entered his name in the daily diary register of the police station, which had been summoned and produced in court. Copies Exhs. D. K, D. L. and D. M. are the extracts from the said register. No accused produced any evidence in defence.

9. Relying on the evidence of the eye-witnesses, the trial Court came to the conclusion that the prosecution case was satisfactorily proved against the accused.

10. Learned counsel for the appellants contended that in the absence of evidence of conspiracy, those accused who were said to have injured the witnesses in the behak cannot be said to have come together with the other set of the accused who were said to have committed the murder inside the house of Anwar deceased and raped the three women in their adjoining house; there fore, under these circumstances there should have been a separate trial of the accused responsible for two incidents. We cannot accept the submission because the offences in this case were committed in the course of the same transaction at one and the same time, though at different places. The motive for the attack in this case was common to all accused. Moreover, the behak of the deceased is only at a distance of one and a half Bigha from his house. It is also noteworthy that the three brothers Zahoor, Feroze and Afzal took part in the incident of murder in the house of the deceased with Muhammad Arif accused whereas their fourth brother Muhammad Shakoor attacked the witnesses alongwith the remaining accused in the behak. According to the prosecution it was Mst. Khurshid the sister of the four brothers laccusod; with whom the deceased was carrying on. Fox these reasons, we find no force in the submission that all accused should not have been jointly tried.

11. In support of its case for the occurrence of murder of Muhammad Anwar and for the rape on the three women, prosecution relied on the testimony of P. W. 10 Mst. Ghulam Zohran wife of the deceased, P.W.11 Mst. Kaneez, P. W. 12 Mst. Aziz and P. W. 13 Mst. Manzooran, sisters of the deceased. They are the natural witnesses of the occurrence because they lived in the same house with the deceased. Moreover, each one of B them suffered injuries at the hands of Zahoor, Feroze, Muhammad Afzal and Muhammad Arif. Their presence at the spot, therefore, cannot be doubted. P. W. 10 Mst. Ghulam Zohran fully supported the prosecution case as enumerated by her in the F. I. R. She is also related to the accused and had identified them at the spot with the help of the lantern which was burning in the courtyard. According to her, after the accused had attacked her husband, she had raised an alarm which attracted her mother- in-law Mst. Nooran and her three sisters-in-law. As they all stepped forward to save Muhammad Anwar (deceased), the accused attacked them all. Thereafter, they dragged P. Ws. Mst. Kaniz, Mst. Aziz and Mst. Manzooran in their adjoining house. Mst. Zohran again tried to intervene but was given a Dang blow on her head by Feroze, accused, which fell her on the ground. It was thereafter, that the accused took away the three women to their adjoining house. P. W. 11 Mst. Kaniz, P. W. 12 Mst. Aziz and P. W. 13 Mst. Manzooran have fully supported the testimony of Mst. Ghulam Zohran. These three women are unanimous in deposing about the rape committed on them by the accused. According to them, Zaboor and Feroze committed rape on P. W. Kaniz, Arif raped P. W. Mst. Aziz and Afzal ravished Mst. Manzooran. The four accused also cut their hair and thereafter they left and the three women came into their courtyard. They apprised their mother Mst. Nooran (given up) and their sisters-in-law Mst. Ghulam Zohran (informant) of the rape committed on them.

11. Learned counsel for the appellants contended that the rape story put up by Mst. Kaniz, Mst. Aziz and Mst. Manzooran P, Ws., did not appear to be true inasmuch as that according to the medical evidence, the hymen of each one of them was intact and there was no mark of violence on their private parts. In this context, he referred to the statement of P. W. 3 Lady Dr. Kishawar Saeed who examined these three women for rape on 10-9-1978. In the opinion of the lady doctor, intercourse had not taken place. The lady doctor also admitted under cross-examination that there was no possibility of a partial intercourse either because there was no mark of injury on their private parts. It may be mentioned here that rape in this case was not for the satisfaction of lust or passion. In fact the intention of each accused was to disgrace the women to avenge the insult to their family because the brother of these three women had been carrying on with the sister of the four accused. As such it may not be a case of such a rape in which passion is involved. We find that the, Chemical Examiner found the three swabs stained with semens. This circumstance would thus suggest that there was some penetration. It is noteworthy that had these three women not been. subjected to rape, then they would not put up a false case to disgrace themselves. It may be added here that the prosecution has also relied on the recovery of torn clothes of the victims of rape. Their cut hair were also taken into possession by the police. Each on of them was also injured. Under these circumstances, absence of injuries on their private parts was per se not enough to say that they had not bee molested. Slight penetration is enough to constitute the offence of rape. Keeping these circumstances in view, we are satisfied with the prosecution case about the rape story.

12. As to the occurrence which took place in the behak, prosecution has relied on the testimony of P. W. 14 Noor Muhammad father of Muhammad Anwar (deceased), P. W. 15 Muhammad Iqbal and P. W. 16 Munawwar Ahmad brothers of the deceased. It is in the evidence of Mst. Ghulam Zohran (informant) that her husband Muhammad Anwar (deceased) was with these four witnesses in the behak and at about 11 p.m. he came back to the courtyard of his house to sleep. She also said that when her husband dozed off to sleep and she was bolting the doors, the accused entered the courtyard with their respective weapons and opened the attack on her husband. Further according to her, when her sisters -in-law were dragged by the accused, she tried to rescue them but was given a dang blow which felled her and she became unconscious. After she gained consciousness, she went near the charpai of her husband who was dying. She then went to the behak from where she had earlier heard the alarm. On reaching there, she saw P. Ws. Noor Muhammad, Zafur Iqbal, Munawwar and Maqbool lying seriously injured. They were all unconscious. She came back and saw that list. Kaniz, Mst. Aziz and Mst. Manzooran P. Ws. bad come back to the courtyard. She told them that all the male members of their family had been attacked in the behak. This fact is also supported by these three women. The injured witnesses lay unconscious in the behak. They were taken to the hospital and according to the prosecution, they remained unconscious for three days and it was thereafter that their statements were recorded by the police. P. W. 14 Noor Muhammad, P. W. 15 Zafar Iqbal and P. W. 16 Munawwar Ahmad supporting the prosecution case said that Muhammad Anwar deceased) was with them in the behak till about mid-night, after which he left for his house to sleep there. Describing the incident which took place in the behak, P. W. 14 Noor Muhammad said that in order to scare away the mosquitoes they had lit fire in the behak and in the fire light, he identified Shakoor, Nawaz, Anwar, Ayub, Ahmad Yar and Ahmad Noon who entered his behak with their respective weapons and opened the attack. Muhammad Anwar gave a hatchet blow on the head of the witness. Muhammad Nawaz, hit him with the handle of the pump and caused fractures of both his legs and left arm. Muhammad Anwar and Muhammad Shakoor, accused, gave a hatchet blow to his son Munawwar. Zafar Iqbal, was beaten up by Anwar. He was also inflicted dang blows by Ayub, Ahmad Yar and Ahmad Noon. While Shakoor inflicted two hatchet blows to Maqbool, Ayub and Ahmad Yar also inflicted sota blows to him. Out of the three sons who slept with Noor Muhammad at the behak, prosecution produced P. W. 15 Zafar Iqbal and P. W. 16 Munawwer Ahmad. Maqbool, a boy of 12 years of age was given up as unnecessary. The two sons of Noor Muhammad fully supported the statement of their father. P. W. Zafar Iqbal ascribed his injuries to Anwar, Ayub, Ahmad Yar and Ahmad Noon. P. W. 16 Munawwer Ahmad said that he was attacked by Nawaz, Anwar and Shakoor with their respective weapons. It may be mentioned here that these three witnesses who were attacked in the behak also said that they heard the alarm coming from the side of their house. It would thu~ follow that the attack was opened by the two sets of the accused at both places simultaneously. No doubt when the injured were taken to the hospital and after examination, P. W. 1 Dr. Fateh Khan said that P. W'. Munawwer was unconscious but the similar observation was not made about the others, although, the witnesses claimed to have remained unconscious for about 3/4 days. We have no reason to disbelieve the eye-witnesses. The mere fact that the doctor did not specifically mention about the unconsciousness of other would not be material because the Sub-Inspector did make queries from the doctor whether Noor Muhammad and Zafar Iqbal P. Ws. were fit to make statements which he replied in the negative. This indicated that these witnesses were then unconscious in the hospital, therefore,, the incident which took place in the behak was not detailed in the F. I. R. by Mst. Zobran. This shows that the informant did not try to exaggerate.

13. It was next contended that no blood-stained earth was taken into possession from the behak. We do not think that any adverse inference against the prosecution can be drawn from this fact because the investigating officer frankly admitted that since the main incident of murder had taken E place in the courtyard, he collected blood-stained earth from there only though he did see some blood in the behak. We have no reason to doubt the testimony of the injured witnesses.

14. As to the alibi of Shakoor, accused, he claimed to have signed hi name in the register at the police station by which he wanted to prove his presence there. Admittedly an A. S. I. also signed the register but he has not been produced in defence. We are, therefore, not satisfied with the alibi evidence, the same was rightly rejected by the trial Court. We are satisfied with the guilt of the accused. Their appeal fails. Appellant's conviction on each count is maintained.

15. On the question of sentence, it was argued that it was a case of the vindication of family honour because according to the prosecution case, Anwar, deceased who was a neighbour of the four appellants developed illicit relations with their sister Mst. Khurshid who became pregnant and when she was quick with the child, she was made to abort about a month before the occurrence in this case. Learned counsel concluded with the submissions that the death sentence should not be confirmed and it be substituted for life imprisonment. Learned State Counsel replied that in this case, the accused were ten in number. They made a wanton attack at mid-night in the house and behak of the deceased. They caused all kinds of injuries to each and every member of the deceased's family. They killed Muhammad Anwar who was then asleep. Thereafter, they raped naked deceased's three sisters, cut their hair and. raped each one of them. Their barbaric behaviour deserved to be punished with the capital sentence, therefore, the death sentence should be confirmed.

16. We have considered the matter, Undoubtedly, the murder was committed in vindication of family honour which has always been considered as a mitigation for awarding the lesser penalty. With regard to the other offences that the accused committed in this case they are also punished accordingly. Simply because they committed other offences also in the course of the same transaction in our opinion would not affect the basic principle of awarding a lesser sentence for murder which is committed in vindication of family honour. The death sentence of Zahoor, Afzal, Arif and Feroze is, G therefore,; not confirmed which is substituted for life imprisonment to each. Their sentences under sections 452, 366 and 325, P. P. C. read with section 34, P. P. E. are maintained. Maintaining their con viction under section 376, P. P. C. sentence of each is reduced to 10 years' R. I. but the sentence of fine is maintained. In so far as the remaining accused namely Muhammad Shakoor, Muhammad Nawaz, Muhammad Anwar, Muhammad Ayub, Ahmad Yar and Ahmad Noon are concerned, their conviction and sentence under sections 148 & 307, P. P. C. is maintained but their sentence under section 307, P. P. C. is reduced to 7 years' R. I. Their sentence of fine is maintained, in default of payment of fine each to undergo six months' R. I. further. With the above modifications, this appeal is dismissed. Appeal dismissed.