P (PLP)

ABDUL AZIZ, C. J.‑

Naurang, Sultan, Allah Ditta and Kutba were tried by the learned Sessions Judge Bahawalpur under section 302 Indian Penal Code for the double murder of Mst. Sharifan and her father Walli Muhammad. They were acquitted of the charge of murdering Walli Muhammad but were convicted for the murder of Mst. Sharifan, under section. 302' Indian Pena' Code and each was sentenced to transportation for life. There is an appeal before us on behalf of the convicts and a petition by the Crown for enhancement of the sentence of the accused The appeal on behalf of the convicts was through Jail and no body represented them. The application of the Government to enhance their sentence therefore afforded us an opportunity to hear Mr. Farzand Ali Advocate who was engaged by the Crown to represent the accused. The appeal and the application for enhancement of sentence shall be disposed of by the present judgment. The facts which led to these unfortunate murders are very simple and briefly stated are as follows :‑-- Mst. Sharifan, her father Walli Muhammad and her husband Ibrahim originally belonged to District Jullundar and after the partition migrated to seek an abode in this State. Mst. Sharifan and her husband Ibrahim P. W. 3 took their residence in chak 6 Himayati. Walli Muhammad, the father of Mst. Sharifan followed them and secured a square of land in chak 13", Tehsil Chishtian in close vicinity to his uncle Khairud Din P.W.

12. A few days before the incident, Ibrahim was sent by Walli Muhammad to the District Layallpur to bring his mother‑in‑law and other relatives of Walli Muhammad to the chak in which land was allotted to the deceased. On the 26th of October 1947, Mst. Sharifan and Walli, Muhammad left for the chak of Khairud Din to stay with him till the return of Ibrahim from Layallpur. They detrained at Chishtian Railway Station. It is not known where they remained till 28th of October 1947. It was on 28th of October 1947 at 10 a.m. that Mst. Sharifan was noticed by Barkat Ali and Karim Bakhsh residents of chak 130 P. W. 9 and 10 entering into a Jawar field which was close to a field where they were working. All the accused in the company of Ghulam absconder, entered the Jawar field where MO. Sharifan was concealing herself and dragged her oat of the field. She offered them what she possessed and entreated them not to treat her like her father: Barkat Ali and Karim Bakbsb ran for the help of the girl and tried to rescue her but could not succeed. ‑Mst. Sharifan therefore .was carried away by those persons. Barkat Ali and Karim Bakhsh informed the residents of their chak who in the company of lambardars convened Panchayats in the chak of the accused and tried to recover the girl from them. Panchayats were held consecutively for six or seven days but the accused refused to return the girl on the pleas that she had run of their possession or that she was out of their control and they were unable to return her. In the meantime, Ibrahim, husband of Mst. Sharifan returned with his mother‑in‑law and other relatives and went to the chak of Khairud Din where he learnt that Sharifan and Walli Muhammad had not reached. Ibrahim in the company of Khairud Din went to chak No. 130‑and learnt what had happened with Mst. Sharifan. He thereupon made a first information report on 4th of November 1947, at 7‑30 a.m. at Thana Dahrariwala. It was on 5th of November 1947, that the dead bodies of Mst. Sharifan and Walli Muhammad were recovered. The medical evidence showed that the death of Mst. Sharifan was caused by strangulation. During the investigation, articles Exhibit P. 31 to P. 34, i.e , Razair Shalwar, Dhoti and Kameez were recovered from the possession of Kutba. Gold Anam Exhibit P. 3 was recover from Naurang on 4th of November 1947. The dead body of Mst. Sharifan was recovered from the field belonging to Naurang. The accused had denied the charge. The learned Sessions judge recorded the conviction of the accused on circumstantial evidence and the circumstantial evidence may be summarised as below :‑‑ (a) Evidence of the two eyewitnesses Barkat Ali and Karim Bakhsh who saw the accused dragging the girl from the Jawar field. (b) Evidence relating to Panchayts. (c) Evidence relating to the recoveries of alleged to be the property of the deceased. (d) The recovery of the dead body at the instance of the accused. As regards the evidence of the eye witnesses it may be stated at the outset that it was not seriously challenged by the learned counsel who represented the case of the accused but his contention It was that that evidence does not connect the accused with the murder of MO. Sharifan. It only proves that the deceased was last seen in the possession of the accused as they dragged her out of the Jawar field in their presence. The contention is correct. Individually this evidence is not sufficient to convict the accused but this circumstance shall be considered along with the other evidence on the file. As regards the evidence relating to the Panchayats, it shows that the accused themselves admitted in the presence of dis?interested persons that the girl was once in their possession. They however stated some time that she had escaped from their posses?sion, at another time that she had gone to a place which was not within their control. The third circumstance relates to the recovery of articles from the possession of the accused. This recovery is of two kinds, firstly the recoveries made from the individual accused and secondly those made at the joint pointing out of the accused. As regards the first, the learned counsel's contention was that neither the Anam recovered from Naurang nor Razai. etc., Exhibits 31 to 34 recovered from Kutba prove that they were the stolen property. As regards Anam it was not mentioned in the first information report. The learned Crown counsel's reply was that the report by Ibrahim was only under section 366, Indian Penal Code, consequently it was not necessary for him to give the details bf the property that was in the possession of his wife and was lost. We do not agree with the view of the learned Crown counsel and are of opinion that the Anam was not mentioned in the first information report and is claimed by Naurang as his own and no specific mark of identity of that ornament was given by the complainant and such an ornament could be found in the possession of Naurang. The recovery of it does not prove that it was stolen property. Similar is our view with regard to the articles Exhibits 31 to 34 recovered from Kutba. As regards the other recoveries which were jointly made by the accused the evidence is inadmissible and it would be sufficient to refer to 1929 Lah. 665 where it was held "where all the accused persons jointly pointed out the place where blood stains were found and subsequently the place where the dead body of a person was discovered buried, such evidence is not admissible at all against any of the accused unless it can be shown who made the discovery first". The evidence of the investigating officer supports the con?tention of the defence counsel. We therefore ignore the evidence relating to the joint recoveries and these observation, also apply to the recovery of the dead body of Mst. Sharifan by all the accused jointly. After discussing this evidence it remains for us to consider whether the circumstantial evidence discussed above is sufficient to hold the accused guilty of the murder of Mst. Sharifan. The first important link of the chain is the most reliable evidence of two eye‑witnesses that the accused were seen by them dragging the woman out of the Jawar field. This evidence shows that the deceased was seen for the last time in the possession of the accused. Along with that we should consider the evidence of Karim Bakhsh P. W. 9 who had deposed that when the girl was in the possession of the accused she had said to then; that they should, not treat her like her father and should take away whatever was in her possession. This statement of Karim Bakhsh which we have .no ground to disbelieve, shows that the girl had seen, the treatment meted out to her father who was eventually found dead. This clearly indicates that the girl had seen 'her father being murdered by ‑those persons otherwise she had no cause to utter that statement. This statement of Karim Bakhsh not only Droves that the girl was seen in the possession of the accused for the last time but also that they had an intention to .kill her. The conduct of the accused before the Panehayat is another link in the chain which pr6ves that the girl remained in their possession till. the last moment. The independent evidence of the Panchayats show that the accused had admitted that the girl was in their possession but they refused to listen to the Panchayat and to, return her on two grounds, firstly that she had rescued herself from their possession which in no manner could‑ be believed as the accused were several in number and their victim was only a young defenceless girl. Their second explanation to the Panchayat does not save them but creates a strong evidence against them. In that explanation they had said that the girl was out of their control. It can be construed that they had killed her or that it was given by them to some person from whom they could not t recover. If second was the fact then they ought to have given the clue of that person in order to allow the Panchayat to recover her. As they have refused to give such a clue the only inter?pretation to their explanation was that they had done away with her and consequently she had gone out of their control. The last factor is the recovery of the dead body from the land of Naurang. We have no doubt held that the evidence of pointing out the dead body of the accused is not admissible in evidence but independently of that evidence we cannot ignore the fact of the recovery of dead body from the land of Naurang. All the accused are closely connected except Kutba who was their servant. To our mind therefore the circumstantial evidence in this case appears quite sufficient to connect the accused with the murder of this innocent girl. In 1933 Pat. 180 while dealing will, the circumstantial evidence in a case like this it was observed: " It is not difficult' to produce false evidence of eye‑witnesses. It is on the other hand, extremely difficult to produce circumstantial evidence of a 1 convincing character and therefore circumstantial evidence if convincing is more cogent than the evidence of eye‑witnesses". These observations amply apply to the present case. Here the evidence of the eye‑witnesses, the conduct of the accused in the Panchayats, the recovery of the dead body from the field of the accused are circumstances which `convincingly establish that the 'murderers of Mst. Sharifan were the present appellants. We therefore find no hesitation in maintaining their conviction. The question is however of sentence. We have not considered it advisable to interfere in the discretion exercised by the learned Sessions Judge in proposing the sentence for the accused. We therefore dismiss the appeal as well as the petition for enhancement of sentence. A.H.???????????????????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.