1992 P Cr (PLP)

JUSTICE ABDUL MAJID TIWANA (MEMBER).

Irshad alias Shada, the appellant herein, was tried by the learned Judge of Special Court for Speedy Trial No.1, Lahore, for committing "Qatl-e-Amd" of Mst. Husina Bibi punishable under section, 302, P.P.C. (as recently substituted). On the conclusion of the trial, vide judgment, dated 29-4-1992, he convicted him under the said provision of law and sentenced him to suffer death as Qisas.

2. Briefly stated that prosecution story is that the appellant, aged about 25/26 years, was employed as a servant of one Shafi, a milk seller of village Bhuneke, District Kasur. He used to collect milk for his employer and in that connection often visited the house of Mst. Rehmat Bibi complainant, his co- villager, who was keeping two buffaloes for selling the milk. Mst. Husina Bibi (deceased) was a married lady residing with her mother on account of her estrangement with her husband. The appellant, while collecting milk from the house of Mst. Rehmat Bibi complainant, happened to fall out with her daughter. Mst. Husina Bibi (.deceased) as he dishonestly measured more quantity of milk than the actual one, to which she had seriously objected. They exchanged hot words: She even abused him and he left the place after posing a threat to her. The incident was reported by Mst. Rehmat Bibi complainant to his employer Shafi who turned out the appellant from his employment.

3. In the above background, on 31-10-1991 at about 7-00 a.m., Mst. Rehmat Bibi complainant accompanied by her daughter Mst. Husina Bibi (deceased) and her grand-daughter Mst. Seeman, aged about 12/13 years, took her buffaloes towards the watercourse (Khal) situated in the land of Niaz Muhammad Dogan When they reached near the watercourse, the applicant armed with a "Chhuri" suddenly, emerged in their front and attacked Mst. Husina Bibi (deceased) after raising a "Lalkara" that he had come to avenge the insult heaped on him earlier. He caught hold of her by the head hair and inflicted Chhuri blows on her. She fell on the ground and he severed her head from the rest of her body by slaughtering her with the "Chhuri". Mst. Rehmat Bibi complainant and her grand-daughter Mst. Seeman raised alarm, attracting Bashir Ahmad P.W. and her other co-villagers. After the commission of the crime, the appellant ran away with the blood-stained "Chhuri".

4. S.I. Muhammad Rafique (P.W.11) of Police Station Sarai Mughal, who was on patrol, reached the village (Bhuneke) at 8-45 a.m. on the same day and Mst. Rehmat Bibi recorded her statement to him, narrating the above facts: He sent her statement to the police station for the registration of the case and himself took up its investigation.

5. He went to the spot, prepared the injury statement and inquest report of the dead body of Mst. Husina Bibi and depatched it to the mortuary under the escort of the police officials for post-mortem examination. After completing on the spot formalities he returned to the police station. He arrested the appellant on 5-11-1991 and the latter on 8-11-1991 got recovered blood-stained Chhuri (P.8) from the sugarcane field of one Ismail in the village. It was seized vide seizure memo (Exh.P.8). On the completion of investigation, he submitted the challan to the Court concerned and sent up the appellant for trial.

6. On the commencement of trial the appellant was charged for the murder of Mst. Husina Bibi (deceased) and, on his pleading not guilty, the prosecution led evidence against him by producing as many as 11 witnesses. To be a little more precise, Dr. Muhammad Arif Mahmood Medical Officer, T.H.Q. Hospital, Chunian (P.W.1), who had conducted post-mortem examination on the dead body of Mst. Husina Bibi, proved the post-mortem report (Exh.P.A.) containing the following injuries:-- (1) Neck was completely amputated from the trunk. Blood vessels of neck were completely cut and severed. Spinal card was all amputated and cut. (2) Multiple incised wounds size 6 x 1/4 c.m. on the right shoulder into skin deep.

7. Injury No.1, which was caused by a sharp-edged weapon and was ante -mortem, according to him, was sufficient in the ordinary course of nature to cause immediate death.

8. H.C. Muhammad Akbar (P.W.2), Muhammad Jahangir Patwari (P.W.3), Muhammad Anwar (P.W.4), Muhammad Din (P.W.5) and F.C. Liaqat Ali (P.W.7) were formal witnesses and their testimony needs no detailed discussion.

9. Bashir Ahmad (P.W.6) had witnessed the recovery of blood-stained Chhuri (P.8) at the instance of the appellant while the latter was in police custody and he deposed, accordingly.

10. Mst. Rehmat Bibi complainant (P.W.8) and her minor grand-daughter Mst. Seeman (P.W.9) aged about 12/13 years and Bashir Ahmad (P.W.10) gave the eye-witness account, including the details of motive. Their testimony finds reflection in the above narration of the prosecution case and might be subjected to detailed appraisal, in due course, if necessary.

11. The last witness was S.I. Muhammad Rafique (P.W.11). The part played by him as Investigating Officer has already been outlined.

12. On the completion of prosecution evidence, the appellant was examined under section 342, Cr.P.C. He denied all the incriminating circumstances figuring against him in the prosecution evidence and, alleging his false implication, professed innocence. He, however, admitted the fact that a year before the occurrence he had been an employee of Muhammad Shafi milk-seller of village Bhuneke and used to collect milk from Mst. Rehmat Bibi complainant and on her complaint' he had been turned out by his employer. He stated that he had left village Bhuneke about 7/8 months prior to the -occurrence and had been residing at village Bharihwal, Tehsil Chuman. Explaining his involvement in the case, he alleged that his erstwhile employer Muhammad Shaft had been arrested by the police of Sarai Mughal but being a well off person, he bribed the police and got him involved in this case. He declined to adduce defence.

13. He recorded his statement on oath under section 340, Cr.P.C. wherein he testified that on the day of occurrence he was at village Bharihwal which was at a distance of about 8/9 miles away from village Bhuneke. The prosecution story was put to him in the cross-examination but he repudiated it.

14. It was pointed out at the outset by the learned counsel for the appellant that his client was convicted by the learned Judge under section 302, P.P.C. of the Qisas and Diyat Ordinance but there was no law having this nomenclature and for that reason his conviction and sentence were not sustainable.

15. It is true that there is no law by the name of "Qisas and Diyat Ordinance" and section 302, P.P.C. has recently been substituted by the Criminal Law (Amendment) Ordinance, 1991 making "Qatal-e-Amd", punishable with death as Qisas and also punishable with death or imprisonment for life by way of Tazir. This amending Ordinance ' in the legal circles is generally known as "Qisas-and Diyat Ordinance" and to this misnomer certain law publishers, who have published booklets with this caption, have also contributed. For this reason even some Courts continue to mention it as "Qisas and Diyat Ordinance" and the learned trial Judge also happened to mention it as such. In any case, section 302, P.P.C. was specifically mentioned by the learned trial Judge as the penal provision under which the appellant was convicted and sentenced and the mere mentioning of "Qisas and Diyat Ordinance" did not entail any illegality in the impugned judgment on that account:

16. The next contention of the learned counsel for the appellant was that all the eye-witnesses in this case were interested ones as they were closely related to the deceased and as such the conviction of the appellant could not be based on their testimony. .

17. There is no force in this argument as well. Mere relationship of a witness with a party does not render him as an interested witness. He becomes interested witness only if he, besides being related to the party producing him, is also inimical with the opposite-party and that too when his evidence does not inspire confidence. In the instant case, no doubt Mst. Rehmat Bibi (P.W.8) being the mother of the deceased, Mst. Seeman (P.W.9) being her maternal- niece and Bashir Ahmad (P.W.10) being her brother-in-law, were closely related witnesses but they cannot be dubbed as "interested witnesses" because they had no previous animosity with the opposite-party. So, excepting the testimony of Bashir Ahmad (P.W.10), which can be discarded as that of a chance witness, the evidence of two other eye-witnesses does not suffer from any legal infirmity, including that of interestedness.

18. Another contention of the learned counsel for the appellant was that the appellant could not single-handedly slaughter the deceased and sever her head from the trunk because being a human being she would have struggled to resist and in that event she must have used her hands to ward off the assailant but there was no injury on her hands and arms which fact indicated that some one else was also there to overpower her and to enable the assailant to sever' her head but this was not the prosecution case.

19. There is no substance in this contention either. The appellant being a frenzied young man could easily overpower the deceased, who, in the ordinary course of things, on his frightful sight, could in all probability suffer a shock and in that state of mind submit to his gruesome act without moving her limbs to defend herself, more so if she was a weakling: After all she was a weaker sex in the clutches of a formidable enemy armed with a dangerous weapon.

20. His last contention was that the occurrence took place in the early hours of the morning when Mst. Husina Bibi (deceased) went out to the fields to ease herself and some body, most probably her estranged husband, from whom she had obtained divorce not very long ago, with the help of someone took her life in a cruel manner but since the occurrence remained unwitnessed, the appellant was implicated on mere suspicion on the basis of a petty quarrel which had allegedly taken place about a year, prior to the occurrence. We find no force in this contention also. From the statement of Mst. Rehmat Bibi (P.W.8) and Mst. Seeman (P.W.9) it is obvious that the occurrence took place when the sun was rising or a few moments before or after it. There could be no dark at that time. Both of them had emphatically repudiated the suggestion of defence on the point that the occurrence took place in the darkness and it remained unwitnessed. It is in evidence that Mst. Rehmat Bibi (P.W.8) was keeping buffaloes and to sell their milk was the main source of her livelihood to support herself, her deceased daughter and her grand-daughter Mst. Seeman, who all resided together. There was, therefore, nothing unsual if they all had early in the morning taken their burffaloes and their young ones to the nearby watercourse for watering them. Two untethered animals with their young ones did necessitate their look after by more than one person. Therefore, the presence of Mst. Rehmat Bibi complainant and her grand daughter Mst. Seeman P.W. alongwith the deceased at the time of occurrence was not improbable and we believe that they were there to see the occurrence. One of them being an old lady and the other being a girl of tender age, were certainly not in a position to rescue the deceased from the appellant and they could do nothing except to stand at a distance and raise hue and cry. We are inclined to agree with the contention of the learned counsel for the appellant that Bashir Ahmad (P.W.10) might not be present at the time of occurrence. But his testimony can be discarded without any detriment to the prosecution case.

21. For the foregoing reasons, there is no substance in the above contention of the learned counsel for the appellant and the appeal is dismissed. N.H.Q./58/SAC Appeal dismissed.