P L D 1969 Lahore 386 (PLP)

MUHAMMAD AFZAL ZULLAH, J. Mir Muhammad and Jabir Khan were tried under section 302/34, P. P. C. for the murder of Mst. Zarposhan, mother‑in‑law of Mir Muhammad in the latrine of 3rd class compartment in Chenab Express between Taxila and Wah Railway Station on the 3rd September 1965, at morning time by the Additional Sessions Judge, Rawalpindi who convicted and sentenced them under section 302/34, P. P. C. to suffer death. The condemned persons have appealed and there is also usual reference under section 374, CT. P. C. for the confirmation of their death sentences.

2. The case of the prosecution is that the deceased and her husband Mir Zaman were living at Karachi. They have children from the wedlock and one of their daughters is married to Mir Muhammad appellant. They had not happy life and Mir Zaman suspected liaison of his wife with Misri Khan. The latter also belonged to the northern area but was working at Karachi. The illicit intimacy of the deceased with Misri Khan embittered the relations of the spouses and the father of the deceased was obliged to visit Karachi to iron out the differences. On his visit he found that the deceased was living at Karachi with Mian Gul (P. W. 14), who is her sister's husband. The deceased did not agree to her father's suggestion to go to her husband's house nor did she accompany, him to their village, though she sent her minor children with him to her village. Thereafter, it appears that she was taken to the house of her husband where she could not stay any longer and ultimately was corning to her village by Chanab Express when she was murdered in the latrine of a third class compartment, between Taxila and Wah Railway Stations on the 3rd of September 1965 at morning time. It is suggested that her murder was a result of a conspiracy between the two appellants, her husband and one Mst. Faroshan, the acquitted accused.

3. The prosecution has produced evidence to show that the two appellants, the said Mst. Faroshan and the deceased boarded Chanab Express from Karachi on the evening of the 1st of September 1965. They were to get down at Naushehra Railway Station. When the train after running for two nights and a day, passed Taxila the deceased went to the latrine. The two appellants followed her in the latrine. Soon after they. took out the body of the deceased and threw it out of the train. At that time the clothes of the appellants and their hands were blood‑stained. Talib Hussain (P. W. 15) and Nazir (P. W. 16) saw the whole of this incident. One Raza Khan (not produced at trial) pulled the alarm chain and the train &topped. Noor Ali.(P.W.8), the guard pf the train immediately came in the compartment to make inquiries about the pulling of the alarm chain. On information received from Nazir P. W., other passengers and from his own observations he prepared the memo. (Exh. P. A.) which was subsequently used as F. I. R. The appellants were over powered by the passengers in the compartment and were subsequently secured and finally arrested by the police from the same compartment. Blood‑stained shirts (Exh. P. 10 and Exh. P. 11) were taken into possession vide memos. Exhs. P. K. and P. L. from the persons of Mir Muhammad and Jabir Khan appellants, respectively. Four tickets from Karachi to Naushehra in consecution from Mir Muhammad appellant vide memo. Exh. P. G. The blood found on these clothes has turned out to be of human origin. Blood was found in the latrine and the space between the latrine and the door of the compartment. This circum stance is also indicated in site‑in site plan (Exh. P. C.). The train was brought back for a distance of more than a mile and the dead body of Mst. Zurp03han was found near the track. Karam Dad (P. W. 11) and Attar Khan (P. W. 12), two gangmen, were standing at that time near the dead body. Rs. 300 were recovered from the search of the clothes on the dead body. The notes were tied in the azarband. The dead body had sixteen injuries in all, out of them nine injuries were caused by sharp‑edged weapon the remaining (four of which were multiple) appeared to have been caused by fall and friction. The fatal injury is a typical cut‑throat wound and is described by the doctor as follows :‑ "As incident wound on interior surface on her neck from chin to third cervical vertebrae, 5" x 2 ", into breadth variable according to position of neck, cutting the neck above the thyroid cartilage across the neck. Epiglotis was visible in the wound on the right side. Another wound was extending from lobule of right ear, 1 " x ". Meeting wound No. 1 on the left. Main vessels of neck right and left side were cut across. The body of 3rd cervical vertebrae was cut under the wound " deep. Out of the remaining incised wounds four are on the face and head one is on the shoulder and three are on the hands. They are all cuts, skin and bone deep only. She was found to be Pregnant with a 22 weeks' foetus. The doctor also found a discharge from the vagina which was subsequently confirmed to be semen. The police also found near the railway track at some distance from the dead body towards Taxila, a knife (Exh. P. 5) which appeared to be blood‑stained and was taken into possession vide memo. Exh. P. D. The place of this recovery is also shown in the general site plan (Exh. P. L.). The origin of the blood on this knife could not be found due to its disintegration. The police officer who conducted major portion of the investigation is Sh. Muhammad Iqbal (P. W. 17). He was travelling in the same train. Incidentally, he happened also to be the S. H. O., campbellpur Railway Station where the case was registered. He sent the memo. mentioned above to the police station. A formal F. I. R. (Exh. P. A/1) was registered. Allah Ditta, Head Constable (P. W. 9) and some other police officials were also in the same train. Subsequently, some photograph (Exhs. P. 1 to P. 4) were also prepared with the focus at places inside the compartment and outside the compartment, wherein sufficient marks of blood are clearly visible.

4. Raza Khan, the person who pulled the alarm chain, Mir Zaman, the husband of the deceased and his sister‑in‑law, Mst. Safia, wife of Mian Gul (P. W. 14), were examined before the Committing Court as P. Ws. They were given up at the trial with the usual prosecution excuse of having been won over. All the P. Ws. including the eye‑witness, P. Ws. 15 and 16, have supported the prosecution case as detailed above. The appellant accepted the relationship with Mir Zaman, have denied any connection with murder of Mst. Zarposhan and have pleaded not guilty. They accepted that they were travelling by the Chenab Express but they denied that Mst. Zarposhan was travelling in that train. They have, however, accepted that the deceased was carrying on with Misri Khan and that she was also abducted by him. About the occurrence, Mir Muhammad, appellant, has suggested that the real culprits ran away and the police arrested them on mere suspicion. The connection with incriminating recoveries has also been denied by them. No defence was produced. The learned Additional Sessions Judge has accepted the motive evidence and so also the evidence about the occurrence. In respect of the eye‑witness P. WS. 15' and 16 his findings are that they are disinterested and that he felt convinced that‑ (i) they were natural witnesses; (ii) they were truthful witnesses; and (iii) their statements fit in with the circumstances of the case. He has not believed the conspiracy part of the prosecution case but believed that the murder of Mst. Zarposhan was due to her illicit connection with Misri Khan. He gave benefit of his findings about lack of conspiracy to Mst. Faroshan (the co‑accused) and acquitted her but convicted and sentenced the appellants under section 302/34, P. P. C.

5. Mr. Mahmood Ali, Qureshi, the learned counsel for the appellants, has argued the case at length. His arguments can he considered in three parts:- With regard to the truth of the prosecution story; With regard to the participation of Jabir Khan appellant; and With regard to the proper sentence in this case. On the first part, the learned counsel urged various points each one of which is of some importance, therefore, I will deal with each one of them separately.

6. It is argued that Exh. P. A., i.e., the F. I. R., was prepared by the Guard (P W. 8) after almost the whole of the material investigation was over; therefore, it should be treated as a case without F. I. R. and Exh. P. A. should be treated as a statement under section 161, Cr. P. C. The argument further proceeds to its logical and that in the absence of F. I. R there is no material to test the correctness of the prosecution story. No case‑law was cited on this point presumably because the proposition is obviously correct if the foundation is sound. On the first glance it looked to be correct position on facts as well as on law, but on careful consideration of the whole evidence on this point and the surrounding circumstances I have come to the conclusion that there is no real foundation for the proposition in so far as the facts are concerned. The main circumstance relied by the learned counsel is that the time of report mentioned in Exh. P. A. is 8‑45 a.m. The occurrence had taken place at about 5‑45 a.m., the accused were arrested and the weapon and the dead body were recovered by the time that the said F. I. R. was recorded (by 8‑45 a.m.). These being substantial steps in the investigation, it has been urged by the learned counsel, that this statement which according to him was recorded after or at about 8‑45 a.m. should be treated as a statement during the investigation. It is clarified in the statement of the Guard (P. W. 8) that he reached the compartment and after making the inquiries started writing the memo. Exh. P. A. He has further stated that in the meanwhile the police came and after that the train was brought back, the dead body was found and the accused and the said memo. (Exh. P. A.) were made over to the police. The following portions in his statement are significant in this connection:‑ "While I was preparing memo in that compartment Exh. P. A. the police also reached there in the compartment * * * * * * * * At the instance of the police, the train was taken back at mile No. 960/12 where the dead body was lying. The memo. Exh. P. A. was then handed over by me to the police." The Guard is not correct when he says that thereafter the police took in custody the dead body and then started the investigation. In fact, he clarified in his cross‑examination that he did not remember where he passed on the memo to the police, at Wah or at the spot. Admittedly the train was brought to Wah after the recovery of the dead body and the start of the investigation. Moreover, it is stated in Exh. P.A. itself that the memo was handed over to the police after the discovery of the dead body. The following portion from the statement of this witness in his cross‑examination is also important :‑ "Exhibit P. A. was prepared by me in the affected compartment but I do not remember if. I handed over the same to the police at the place where it was prepared or at Railway Station Wah. I do not remember if I handed over Exh. P. A. to the police at the place of the recovery of the dead body. I do not remember if Exh. P. A. was made over by me after the police had completed its record. It is incorrect that Exh. P. A. was prepared by me after the police took the, dead body in custody. I do not remember if I stated before the Committing Magistrate that Exh. P. A. was prepared by me after the dead body was taken into possession by the police. (Confronted. So recorded. It is also recorded in the same statement that `memo. Exh. P. A. was recorded by me at 8‑

45. The time of pulling the chain was 5‑

45. The memo. was prepared at the same time). My reading of the whole of the evidence on this subject including the statement of the S. I. P. W. 17 and the memo. Exh. P. A. is that the witness, i.e. the Guard (P. W. 8) started writing memo. Exh. P. A. immediately on reaching the com partment at about 5‑45 a.m. in the form of a Telegram. The police came in the meanwhile, therefore, the memo. was completed during the various acts done by the police and was then handed over to the police at some subsequent stage. The witness is corroborated by the intrinsic evidence contained in the memo. itself. The minute examination of Exh. P. A. has revealed that it was scribbled on two small (about 4" x. about 3") leaves of pauper. They are in fact two printed forms for sending railway telegrams. On the back of 'the second leaf (form) the S. I., Sh. Muhammad Iqbal (P. W. S 7), has made the usual endorsement in the form of Karvai Police. It appears, that the Guard wanted to write and send the memo as a telegram because he filled in the column as follows Class Recd. From Sent to Code 33 Date 3-9-65 At 8 H 45 M By At By Officer of Origin BUO To: G. R. P. on train O/‑SM W A H No. 2/65 A C pulled from (sic) compt. VVTY 40 61 a M 961/18 by Nazir son of Fazal Gujar of Bura (sic) informed me that he saw two men Jabar Khan and Meer Muhammad of Hamza Der P. S. Kalu Khan took over woman inside latrine about hr. before this then I saw them throwing the woman and I informed Raza Khan of Telaband Police Station Matni who pulled the AC, both the accused have been captured." On the second leaf the following appears:‑ "Sh. Muhammad Iqbal S. H. O. along with S. Mahmud Shah Incharge VIP staff RWP. and Allah Ditta Head Constable arrived in the meantime then the train was backed and dead body of a woman was found on right side near the track at mile 960/12 and memo. dead body and the accused were made over to the police. (Sd.) N. A. Chaudhry (Ch. Noor Ali) Gd. 1/C, 11 UP RV.P.‑P.S.C." The endorsement by the police on the reverse of the second leaf is at 8‑45 a.m. The above exact picture of the memo. establishes that the Guard started writing it before the arrival of the police and completed it sometime afterwards. The words used in the beginning of the first leaf, i.e. the filling of the form etc. with regard to time, place, date, addresses and also the last words on the first leave, i.e. accused have been captured', together with the use of words `arrived in the meanwhile' on the second leaf are very significant. These circumstances corroborate the Guard when he says in his examination‑in‑chief that he started writing the memo. (imme diately) and when it is mentioned in cross‑examination that he started it at about 5‑45 a.m. If we read the memo as explained above, the whole of the statement of the Guard (P. W. 8) becomes consistent and to my mind no inconsistency remains either in his statement or between his statement at trial and his statement made before the Committing Magistrate. Therefore, I hold that a part of this memo. i.e. up to the end of first leaf, as indicated by the contents thereof, was written before the arrival of the police and the second part, i.e., containing the facts about the arrival of the police in the meanwhile and what the police did, was written after the arrival of the police and after they had started investigation. I also hold that there was no delay in writing the first part of the memo. because it was started near about 5‑45 a.m. The time of completion at about 8‑45 a.m. may `3' be not correct as the witness (P. W. 8) has in his cross‑examination explained that 8‑45 a.m. could be the result of error for the correct time, which according to him was about 6‑45 a.m. The conduct of the investigation and all the circumstances show that the acts which were to be done at the spot were done within a short time and the dead body, the weapon and the accused were secured within that time. These circumstances do support the Guard when he says that the time might be 6‑45 a.m, When the memo might have been completed. Even if the time of completion of memo. is 8‑45 a.m., in view of the fact that the material portion of the first information, in the form of the contents on the first leaf, was written near about 5‑45 a.m., I hold that there was no delay in the making of the F. I. R. If the position explained by me is correct, which I hold to be correct, then only that portion of Exh. P; A. will be hit by section 162, Cr. P. C,, which was written after the arrival of the police as is indicated on the second leaf. The first portion, which according to my finding was written before the arrival of the police, will not be hit by that section. It is always a question of fact, whether a statement was made during the investigation. In my view there is nothing impossible in a part of the one continuous statement having been made before and the other part during the investigation, when the making of the F. I. R. merges into the taking of the steps in the investigation due to the peculiar circumstances of a particular case. In the present case those peculiar circum stances are present. Therefore, I have come to the conclusion, after going through the evidence :oil this point, and the contents of Exh. P. A., that the first part, i.e., the first leaf of Exh. P. A. quoted by me above, is not hit by section 162, Cr. P. C. and has been correctly used by the prosecution as F.

1. R., while the second part, i.e., the contents of the second leaf quoted above, is a statement made during the investigation and is hit by section 162, Cr. P. C. And I will keep that portion only out of consideration as being inadmissible.

7. Next, the learned counsel urged that nobody saw the occurrence, as alleged in the prosecution story. The attack of the learned counsel, in fact, is on the statement of the two witnesses, who according to him, are only so‑call'‑d eye:‑witnesses. They are Talib Hussain (P. W. 15) and Nazir (P. W. 16). . There is some force in the argument of the learned counsel that the name of Talib Hussain P. W. is not mentioned in the F. I. R. (Exh. P. A.) (henceforth when Exh. P. A. is mentioned it means the first part of Exh. P. A., i.e. the first leaf as explained by me in para. No. 6 above). It is not a universal rule that an eye‑witness not mentioned in the F. I. R. is necessarily a false witness. In exceptional circumstances such a witness may also be believed as a true witness. Reliance in support of the last‑mentioned proposition is respectfully placed on Siraj Din v. Kala and another (P L D 1964 S C 26) I have carefully scrutinized the statement of this P. W. keeping in view the observations of their Lordships in the ruling cited above, and have come to the conclusion that he has told the truth, in so far as the occurrence is concerned. The learned counsel did not seriously dispute ‑his presence in the compartment, but be hinted (and this applies to Nazir P. W. also) that the witnesses were detained by the police and were made to support the police case at the risk of being involved as accused persons. True, there is evidence that all the passengers alongwith these witnesses and the accused persons were ordered by the investigation officer to be attained till the conclusion of the preliminaries of the investigation. The learned counsel has misunderstood the use of word `detain' what that word, in the context of this case, really meant was to detain only in so far as the particular train, i.e., '11‑Up‑Chanab Express was concerned. It was necessary that all these persons should be available to the police for further questioning because in a case they had proceeded to their destinations on that train the investigation might have taken very long time. In these circumstances if the, investigating officer detained these P. Ws. I think it was for purpose of proper investigation of the case. There is no evidence that the detention referred to above was in any way the usual physical detention implying coercion. Talib Hussain P. W. is a Naik in the Army and belongs to Lala Musa. He has made a straightforward statement and has denied allegations of pressure by the police. He is not interested against the appellants nor has he any interest for the prosecution. There were 1 0/ t 5 persons in the compartment and not all of them are mentioned in Exh. P. A. In spite of the absence of their names i n Exh. P. A. it cannot be said that none of them could be a witness in this case. In fact, the names of all of them could not be mentioned in Exh. P. A. which is a short sketchy, document. In these circumstances, I have come to t; e conclusion that the absence of the name of, this witness from the F. I. R. is sufficiently explained and does not reduce the credibility of the witness in any manner.

8. About Nazir P. W. I have already explained one part of the criticism by the learned counsel. Another criticism on this witness is that he made certain omissions in what he has stated before the Committing Magistrate. True, there are omissions in his statement before the Committing Magistrate about the recovery of blood‑stained clothes of the accused and so also about the overpowering of the accused by the passengers. There some other minor inconsequential omissions and the stress on those omissions was rightly avoided by the learned counsel. His attack in respect of the above‑mentioned undoubtedly vital omissions was justified. But every omission is not always a contradiction so as to discredit the witness. It all depends on the circumstances in each case. In the present case both the facts pointed out above, as having been omitted from the statement before the Committing Magistrate, Have 'peen established by independent circumstances. Therefore, in my mind, there is no contradiction as asserted by the learned counsel. About the recovery of the blood‑stained clothes not having been mentioned in the .statement before the Committing Magistrate it is necessary to point out that recovery memos. Of these clothes were prepared on the 3rd of September 1965, soon after the occurrence. These clothes were sent to the Chemical Examiner and the Aerologist wherefrom the result had already been received when these P. Ws. were examined before the Committing Magistrate. This omission is also found in the statement of the investigating officer before the Committing Magistrate. At least there are no such indications that this omission has been pointed out in the statements of these P. Ws. before the police. It is true that this last‑mentioned fact cannot be treated as corroboration of these P. Ws. but it can be used as explaining the omission in their statements before the Committing Magistrate. It is also to be noted that no such omission has been pointed out in the statement of Talib Hussain (P. W. 15) before the Committing Magistrate while he was making statement at the trial that blood-stained clothes were recovered from the appellants. In these circumstances, it appears, that the cause of this omission in the statement of Nazir P. W. before the Committing Magistrate must be innocent. The same considerations apply to the statement of Nazir P. W. to the effect that the appellants were fiver-powered in the compartment. That fact is not denied by the appellants, neither through state-menu nor by implication by suggestion to P. Ws. In fact, no other version of their arrest has been suggested. Any way, they do not say that they were arrested from somewhere else. Moreover, it is a fact that soon after the occurrence the accused were secured and arrested by the police and this fact has not been denied by the appellants nor has been controverted in the arguments before us. On the contrary, the learned counsel criticised the arrest of the appellants soon after the occurrence on the grounds that the appellants, being connected with the deceased, were arrested by the police at the spot because of the suspicion due to their relationship. In view of these circumstances the omission by any witness to state this fact before the Committing Magistrate must be explained as innocent. I do not treat it as a contradiction discrediting the witness. In any case, the statements of these witnesses are supported by the Guard (P. W. 8) in all material particulars. The S. H. O., in his statement and the conduct of the whole investigation in the form of a chain of various events, also support the statements of these P. Ws. The presence of these P. Ws. in the compartment not being doubted and there being no motive for these persons tot falsely implicate the appellants, there should be very strong E circumstances to doubt their statements. I fail to find any in the case. The observations of their Lordships of the Supreme Court) in the case of Mithu alias Mitha v. The State (P L D 1964 S C 177), apply to the present case with full force. It was held in the above-mentioned ruling that when presence of a witness is established and the number of the accused persons is not disproportionate from the results of violence, the witnesses cannot be discredited simply on the plea of false implication even if they are interested witnesses. This is a much stronger case. The witnesses are not at all interested.

9. In addition to what I have said above about the value of the statements of these witnesses I have found sufficient corroboration of their statements in the following circumstances :-- (i) Pulling of the alram chain immediately after the throwing of the body shows that some persons must have seen what was done and as a consequence of that perception the chain was pulled. (ii) The presence of the accused persons in the compartment of the deceased before the occurrence. This circumstances by itself is very weak corroboration but coupled with the fact that they did not do anything in respect of the then discovered death of their relation and co-traveller is a very strong circumstances against the accused. They were her relations and were most vitally interested in her. There is no evidence that they said or did anything to indicate that somebody else was the culprit. In fact, if somebody else would have been the culprit these persons would have created a commotion and would have run to capture him/them. The learned counsel wanted to use this very circumstances in his favour by arguing that they were arrested because of suspicion against them due to relationship with the deceased but that is not true because Mst. Faroshan who was also related to the deceased, was her co-traveller and companion, but she was not at all captured by the passengers not arrested by the police. Therefore, the question of suspicion does not arise. In my opinion they were seen by their co-passengers entering the latrine and throwing the dead body, (apart from blood on their persons). Because of these circumstances they appeared to their co-passengers as the culprits, therefore, they were captured by them: (iii) Tire persons present in the compartment -showed to the Guard, on the latter's appearance, the two persons involved in the crime. Those very two persons were subsequently arrested and were tried and are the present appellants. Here it may be mentioned that the Guard showed his inability to identify the accused in the Court probably because of lapse of time, but he has stated definitely that the persons -who were pointed out as culprits were subsequently arrested by the police, therefore, in my mind there is no doubt about the identity of the culprits having been established through the statement of the Guard also. (iv) The shirts of both the appellants were found to be stained with human blood. The statements of the witnesses that they saw that the hands of the appellants were also blood-stained, in the circumstances of the case, cannot be untrue, even if there is some omission in this respect in the statements made before the Committing Court. (v) The detaining of all the passengers from the relevant compartment, together with the appellants, and the blood having been found in its latrine and near its door, show that the deceased and the accused were together in the same compartment where the deceased was murdered. (vi) The recovery of four tickets with consecutive numbers from Mir Muhammad appellant and the absence of any recovery of a ticket from the deceased, show that the ticket of the deceased was with Mir Muhammad and thus at least Mir Muhammad and the deceased were travelling together. (vii) Throughout the evidence there is -no indication or suggestion that any effort to search the culprits, involved in the crime, was made when the train stopped. This shows that the capture and arrest of the appellants as deposed by the eye-witnesses is not only correct but also true and genuine part of the prosecution case. (viii) The time spent at the spot after the occurrence was very short. This shows that the accused had become immediately, known and the case had become simple. Therefore, nothing more was to be done at the spot. It is also significant that there is no evidence or suggestion that any search for any culprits or witnesses was made in the remaining train other than the compartment in question. (ix) The eye‑witnesses have not said any thing substantial against Mst. Faroshan, the third person challaned by the police. This indicates that they are not out to implicate any person challaned by the police if they did not witness anything against that person. In view of all the circumstances mentioned above and in view of my analysis of the statements of the eye‑witnesses I believe them to be true witnesses and place full reliance on them.

10. The learned counsel then urged that Raza Khan the so‑called star witness, has not been produced at the trial. I agree with him that the simple statement by the learned public prosecutor that a witness has been won over by the accused is not the proof of that fact. No such presumption can be raised on that statement alone, but it is ]lot necessary in every case that the fact of the withholding of a witness proves that the other witnesses, who were otherwise creditable, are not telling the truth. If, in a case the evidence produced by the prosecution is accepted as true, the failure to examine some particular witness will not necessarily raise a presumption against the witnesses whose statements have been independently tested as true. In fact, it depends upon the circumstances of each case. If, for example, a fact was witnessed by one person alone and that fact is material to the case, in such a way that it either makes or unmakes a vital link, the presumption can be raised against the prosecution if that witness is‑not produced. Similarly if interested are and chance witness arc produced, to support an incident but a disinterested person is withheld, a presumption may be raised against the prosecution. These examples are by no means exhaustive and can be multiplied. In this case, it is true that Raza Khan is said to have pulled the alarm chain but that fact was seen by other persons also who were equally disinterested and had equal opportunity to see the occurrence. Therefore, the non‑production of Raza Khan does not give rise to a presumption against the prosecution in this case. Moreover, there might be other reasons for his non‑production. The possibility that he might have been won over, though it is only in the realm of an explanation by the prosecution, cannot be excluded; though at the same time the simple fact that the learned P. P. made a statement to that effect cannot be accepted as proof of the witness having been wool over. Another factor in the same matter is worth noting. If as prosecution witness is not produced by the state and al presumption is claimed by defence against the prosecution; the accused should also be prepared to met such a criticism if they fail to produce that witness in defence. One answer in some cases by the defence can be that a witness being partisan could not be produced by the defence in this case no sue explanation can be available to the defence in respect of Raza Khan who is not shown to be interested in implicating the appellants falsely. Therefore, it was not impossible for them to produce him. But I am not prepared to raise any presumption against the defence either because it will be a dangerous course in the circumstances of this case to raise any presumption against, any party. Again in the circumstances of this case I am satisfied, that the evidence produced at the trial was sufficient for the' proof of the facts alleged and the same having been believed on its own merits, it cannot be discredited by a simple presumption which the Court may or may not raise. And as explained above, I am not prepared to raise a presumption of Raza Khan at the trial. The same considerations will apply to the other two P. Ws. Mir Zaman, the husband of the deceased, who is also the father‑in‑law of Mir Muhammad appellant and Mst. Safia, the sister‑in‑law of Mir Zaman, who have not been produced by the prosecution at the trial. It may be added about them that their evidence could not have advanced the case of the prosecution any further and it is significant that the appellants have not produced these witnesses in defence, in spite of the fact that they are admittedly related inter se.

11. The learned counsel laid stress‑on an admission, by the train Guard (P. W. 8) in favour of the appellants that he had heard someone say that two persons had runaway. He, however, earlier had definitely stated that none had pointed out to him that the two assailants had run away. These two statements will have to be read together with his statement that "the persons in that compartment had pointed out two persons to me saying that those two persons had murdered the women". There is no dispute about the fact that those two persons were subsequently arrested by the police and are the present appellants. One might suspect that the Guard wanted to make small, one or two inconsequential, concessions in favour of the appellants, but there is no proof thereof. Thus, even if they are not inspired concessions, I do not think that the above‑mentioned facts in any way help the appellants. It is nut the case of appellant that they were not arrested from the compartment. As observed somewhere else in this judgment, the chain of events culminating in the arrest of the accused and their neutral or negative conduct during that time, make it amply certain that they were the persons who are being pointed out as the culprits. If the fact, that somebody said to the Guard that two persons had run away be true, then it might have been said by Mst. Faroshan, the acquitted accused to divert the attention of the Guard. It may also be that some persons who were travelling without tickets might, in fact, have run away. The facts, that no search was made for any such person nor at any time it was suspected that the culprits had run away; nor any persons a ere chased by anyone; and the fact that the appellants immediately captured overpowered in the compartment, make the circumstance of somebody saying that two persons had run away unimportant and inconsequential. The learned counsel then drew our attention to some statements as to the exact time spent between the departure of the train from Taxila and the pulling of the alarm chain. According to his calculations, it was only four minutes and he argued that the occurrence could not have taken place is such a short time. He also drew our attention to the estimate of time given by some witnesses which does not tally with the estimate of time made by learned counsel. It cannot be denied that the occurrence took place between Taxila and Wah Railway Stations near about Bhudo which was a run‑through station. It is also a fact that the dead body, the blood and the weapon of offence were found in between these two places. The alarm chain was also pulled there. It would show that the occurrence did happen as deposed to by the eye‑witnesses. Their account of time may not be correct. It is also possible at the same time that the calculation of the learned counsel may not be exactly according to the time, in fact, spent. Whatever the case may be I am not convinced that an occurrence like the present one cannot take place within four‑five minutes; if the victim is a woman sitting on her haunches, or even standing, and being attacked by two male persons. She must have been dazzed and stunned and the powers of resistance and struggle must have been reduced considerably. Moreover, there is only one major injury of cut‑throat type, which could be easily inflicted within very short time. There was no scope of manoeuvrability for the victim because the space in the latrine was limited. The dimensions of the latrine as given in the site‑plan are 4 " x 3" x 6" (height), therefore, in my view the argument on the basis of time spent during the crime has no force.

12. The learned counsel also pointed out some minor discrepancies, for example, how the body of the lady was lifted. To my mind, they are inconsequential and can be due to genuine difference of perception and lapse of memory on unimportant events.

13. The learned counsel also dealt with the evidence of motive and urged that it has not been proved, so as to link the matter of suspicion of bad character of the deceased with the appellants and the consequent murder. There is some force in his argument that there does not appear to be any conspiracy to murder Mst. Zarposhan. I agree with the learned counsel that Mian Gut (P. W. 14) has made considerable improvements in his statement in order to show that the deceased was threatened with murderous assault by her husband. There is nothing on the record to corroborate him on this point. The prosecution evidence and the admission of the accused simply show that there was an illicit connection between the deceased and Misri Khan and the matter ends there. There is no evidence worth reliance that the husband of the deceased had planned, in conspiracy with the appellants, to murder his wife. I, therefore, hold that Mian Gut (P. W. 14) gave an exaggerated version, of the motive. The true motive, as indicated above, was the bad character of the deceased and her intimacy with Misri Khan. In something else, which might have happened in the train; to which I will again advert when I will deal with the question of sentence. After considering all the noticeable points urged by the learned counsel I have come to the conclusion that the prosecution has proved the case against the appellants and they are guilty of murder of Mst. Zarposhan P. Ws. 15 and 16, who have no interest against the appellants, have made true statements, which prove the case against the appellants and the statements of these witnesses are amply corroborated by other ocular evidence and circumstances mentioned in the earlier part of this judgment.

14. Coming now to the second part of Mr. Mahmood Ali's agrument, it is necessary to state as to what precisely is the criticism. His contention is that only one knife has been recovered. Jabir Khan appellant had no direct relationship with Mir Zaman or Mir Muhammad appellant nor has he any direct motive. It is also urged that the space in the latrine would admit only two persons and thus the third persons, i.e., Jabir Khan, would be excluded. Jabir Khan was stated to be of 17 years of age at the trial stage and was not likely to participate in the crime about a year earlier when he must be of tender age. Further that the tickets were recovered from Mir Muhammad appellant only, which would show the participation of only one person. The last leg of argument, in fact, goes against Jabir Khan in so far as it proves that he was travelling with Mir Muhammad and that his ticket was also with that appellant at the time of the occurrence. There is no substance in any of these points. They are nothing more than surmises. There is nothing unusual in one knife being used even if this fact is accepted. Jabir Khan has accepted his relationship with Mir Zaman in his statement during the Commitment proceedings and has accepted that statement as true at the trial. The space in the latrine, to my mind, would easily admit three persons, but, as indicated above, would only reduce the power of resistance by the victim. The age of Jabir Khan appellant, being 16 years only at the time of occurrence, would not show that he was physically incapable of participating in the crime. We have many examples of persons of this age indulging in similar crimes. In view of the simple ocular and circumstantial evidence against Jabir Khan appellant, and there being no force in the above submissions of the learned counsel, it is impossible to distinguish Jabir Khan's case from that of Mir Muhammad appellant in so far as his participation in the crime is concerned.

15. Before coming to third, part, it is necessary to deal with two more contentions of Mr. Mahmood Ali, which were urged by him on the last day of hearing as the last points in his arguments, contained in a lengthy adrens. He did not elaborate one and presented the other in a half‑hearted manner. The first one is that the prosecution has not been able to prove a case beyond section 201, P. P. C. even if the eye‑witnesses are believed. There is no force in this argument because the eye‑witnesses deposed to a complete res geste, i.e. the entering of the lady in the latrine, the appellants following the lady in the latrine, their bringing her body, dead or alive, outside the latrine their throwing her body outside the train and their clothes and hands having been found to be blood‑stained immediately after this incident; and their consequent capture in the compartment by the passengers. These circumstances lead to one and only one inference that they murdered the lady and there is no question of giving them any benefit of an alternative conviction under section 201, Pakistan Penal Code. The second point was that semen having been found in the vagina, it should be presumed that she was guilty of illicit intercourse with somebody in the train, which was found out there and then by the appellants, which gave them sudden and grave provocation, so as to reduce the offence from under section 302; P. P. C. to section 304, part I, P. P. C. There is no doubt that cohabitation can take place in a running train but the circumstances in this case do not warrant any such assumption. The deceased was accompanied by two male members of her family and female, Mst. Faroshan. It is most unlikely that they would have allowed her paramour to enter the compartment or to talk to her. It was also impossible that she would have taken the courage of allowing anybody in the compartment to have sexual intercourse with her and if it would have been a case of rape the circumstances would have been totally different. In fact, the learned counsel, at one stage, categorically asserted. that it could not be a case of rape. Moreover, on the fateful morning, it is indicated in the evidence, that the small compartment was almost crowded. There were 10/15 passengers. Some were sitting on the floor and near the door from which the dead body was thrown out. Therefore, I hold that nothing in the nature of the incident suggested by the learned counsel has happened. Semen having been found in the vagina is not difficult to explain. This circumstances rather fits in with what I have said above about the motive. It appears that the deceased was living with her husband and the presence of semen can be easily traced to him. The fact that it can remain in the vagina for several days has the support of several authorities on medical jurisprudence. The fact that it had come out of vagina when the deed body was examined by the doctor is also not difficult to explain. The fall from the train and the resultant jolts must have caused this appearance of discharge. With these observations I find no substance in these two arguments.

16. There is, however, great force in the third and the last part of the arguments of Mr. Mahmood Ali. He has argued that the appellants belong to an area where family honour is jealously guarded and protected by the men of the tribe. Mst. Zarposhan, admittedly being of bad character, and this according to prosecution being the reason for her murder, the appellants be given the benefit of lesser sentence. He has relied on the rulings of the Supreme Court in P L D 1964 S C 54, P L D 1965 S C 363 and P L D 1966 S C

129. Undoubtedly, these rulings support the learned counsel in so far as the general question of sentences in a murder case like this is concerned. Moreover, in my view, there are additional grounds for imposing lesser sentence. It appears that Mst. Zarposhan has started living with Mir Zaman after the initial estrangement over her intimacy with Misri Khan. Therefore, it appears, that the spouses agreed on Mst. Zarposhan going to her village. It was in these circumstances that Mst. Zarposhan was being sent with the appellants and Mst. Faroshan to her village. The appellants were to accompany her. The facts that Mir Zaman purchased the tickets for all and that these tickets were found with Mir Muhammad and are of consecutive numbers show that at the time they started from Karachi the deceased and the appellants had somewhat normal relations with each other. Had the appellants planned the. murder of Mst. Zarposhan before boarding the train there were better opportunities on the way while passing through Sind area particularly during the night time. They could have also chosen a better opportunity after having reached their village. It appears that during the last night or on the morning of the occurrence something happened, which may be in the form of heated talk about Misri Khan or Mir Zaman or both, whereupon the appellants took it in their heads to kill the deceased. It is also quite possible that they were to reach the railway station of their destination (Naushera), within a couple of hours and at this time the appellants suddenly realised that they are taking along a disgrace to the family or they might have thought that she might cause them further disgrace after reaching the village, therefore, they decided to kill her. From whatever angle the case is looked at, it appears, that something (short of suggested intercourse) occurred during the time, before the occurrence, on the train, which had a connection with the family honour and, therefore, this occurrence took place. In respect of Jabir Khan, there are additional grounds of lesser sentence; in his being of tender age at the time of the occurrence and also being under the influence of his elder, namely, Mir Muhammad. The age difference was of nine years. On this account also he is entitled to lesser sentence. Therefore, while maintaining the conviction under section 302/34, P. P. C. I reduce the sentence of both the appellants to transportation for life. Their sentences of death are not confirmed. SHAUKAT ALI, J.‑I agree with the conclusion arrived at by my learned brother Mr. Justice Muhammad Afzal Zullah. S. Q. Sentence reduced.