P L D 1965 (W (PLP)

MUHAMMAD DAUD KHAN, J.-Sikandar Shah (33), son of Fazal Shah, Pathan, of village Nartopa, Tahsil and District Attock, was tried by Mr. Muhammad Ayyub Khan Sessions Judge, Campbellpur, and was sentenced to transportation for life under section 302, P. P. C. He has appealed against his conviction and sentence. The State has also lodged a revision petition for enhancement of the sentence from transportation for life to death. This judgment will dispose of the- appeal and the revision both.

2. Sikandar Shah appellant was tried for the murder of his step-mother, Mst. Ghulzar Begum (50), by firing at her with a shot-gun in her house in village Nartopa, situated at a distance of two miles from Police Station, Hazro on the 25th of June 1963, at about 5 p.m., as a result of which she died instantaneously on the spot.

3. The following pedigree will be helpful in understanding the relationship between the parties:- Mst. Gulzar Begum=Fazal Shah = Mst. Hussan Jan (Deceased, married in 1932) (1st wife married in 1923). ____________|________________ _________|_________ | | | | | Safdar Bashir Mst. Suraya Sikandar Shah Sadiq Shah (Born in (Born in (Born in (Appellant) 1941, who 1936). 1934). is S. I. police).

4. The prosecution case, as narrated at the trial, is as follows:- Sikandar Shah appellant and his brother, Sadiq Shah, were both employed as Telephone Operators at Peshawar and were serving as such during the days of the occurrence. Their mother, Mst. Hussan Jan, was also living with them in a quarter situated across the road, near the Peshawar Club. Mst. Gulzar Begum was living in the house of her husband, Fazal Shah, during the days of the occurrence, in village Nartopa. Mst. Gulzar Begum was first married to one Fazal Ilahi, and later she remarried one Abdul Haq. She eloped with Ghulam Qadir, who was convicted under section 498, Cr. P. C. (vide the entries of the relevant register Exh. D. D.). After Abdul Haq, she remarried Fazal Shah. From Fazal Ilahi, she had a daughter, Mst. Firdaus, who is the mother of Mst. Arab Sultana (P. W. 16). From Mst. Suraya, daughter of Fazal Shah, Mst. Rifat (P. W. 17), a daughter, was born. Both Mst. Firdaus, and Mst. Suraya were married in village Pirdad, situated at a distance of about two miles from village Nartopa. Mst. Firdaus was married to one Salim, while Mst. Suraya was married to one Sardar. The prosecution case is that Mst. Arab Sultana (P. W. 16), aged 9 years, and Mst. Rifat (P. W. 17), aged 8 years, were living in the house of Fazal Shah, their maternal grand-father, and Mst. Gulzar Begum, their maternal grand-mother, during; the days of the occurrence. As Mst. Gulzar Begum was feeling lonely, she brought her grand-daughters to live with her so that she should have some one to keep company with her, since her daughter had been married and her sons were in service outside.

5. Fazal Shah owned about 20 bighas of agricultural land, out of which he had sold 8 kanals on a previous occasion. One day previous to this occurrence, Fazal Shah sold 32 kanals 3 marlas of land for Rs. 32,473 to one Fazal Dad Khan by a registered deed, and Muzaffar Shah, uncle of the appellant, informed the appellant of the transaction. The appellant suspected that the sale was made at the instance of the deceased so that the proceeds of the sale should be paid to her and the appellant and his full brother should be deprived of inheriting this land. This was stated to be the motive for the offence.

6. The occurrence was said to have taken place in the following manner:- At about 5 p.m. on the 25th of June 1963, the deceased was cutting karelas, onion, and potatoes for preparing the evening meals for herself, her husband, and the two grand-daughters. She was then sitting in the verandah of the house. Her two minor grand-daughters, Arab Sultana (P. W. 16) and Mst. Rifat (P. W. 17), were playing with dolls under the shade of saplings of apricot and cypress in the courtyard. A little earlier, Fazal Shah (P. W. 14), father of the appellant, had gone to the shop of the milk-seller, to purchase milk for evening tea. In the meantime the appellant entered the house from outside, armed with a shot-gun. He inquired as to where his father was. Simultaneously with this, he fired a shot, with which the deceased got hit, while she was still sitting in the verandah. Fazal Shah heard the report of the shot when he was a few paces away from the entrance of his house. He hastened his steps and saw the appellant standing in the courtyard facing, and standing near the deceased. The appellant then fired a second shot at her. Fazal Shah witnessed the firing of the second shot by the appellant while standing in front of the entrance of his house in the street. He apprehended danger to his life also, and therefore, he slipped away before the appellant could notice him, and entered the house of one Dilawar Khan, his neighbour, whose house was situated on the west across a street. The appellant thereafter turned round and emerged out of the house. Making himself sure that the appellant had left the house, Fazal Shah came to his own house, and chained it from inside, and found his wife lying dead in the verandah of the house. At that time, his grand daughters, Arab Sultana (P. W. 16) and Mst. Rifat (P. W. 17), were hiding themselves inside the kotha of the house after they had seen the appellant murdering their grand-mother by firing at her. In order to save himself from being killed, he remained inside the house, the door of which was also chained, for about three quarters of an hour, and when he was satisfied that the appellant would not return, he opened the door, and the ladies of the neighbouring houses assembled, and put the dead body of the deceased on a cot by lifting it from the floor of the verandah.

7. Village Nartopa lies at a distance of two miles on Hatian-Turbela Road. The appellant travelled on foot from village Nartopa, carrying a shot-gun with him, and reached the road. It was about 6 p.m. when he reached the road, where Salim Khan (P. W. 11) with his Taxi Car, bearing Registration No. C. R. 5436, was present. The appellant inquired from Salim P. W. if he would transport him in the taxi to Peshawar. The appellant agreed to pay Rs. 60 as hire charges. The appellant thereafter travelled in the same taxi and crossed Attock Bridge at 6-32 p.m. The appellant reached Peshawar at 8-30 p.m. Salim (P. W. 11) set out for the return journey, but since he could not cross the Attock Bridge, he halted on the Peshawar side of the Bridge till dawn on the following morning. On the following morning, F. C. Muhammad Khan (P. W. 10), on learning that the appellant had travelled in this taxi, escorted Salim (P. W. 11) with the taxi, to the investigating officer, and produced him before him. Asghar Ali A. S. I. (P. W. 13) was deputed by the Sub-Inspector Incharge of the investigation to go with Salim P. W. in his taxi to Peshawar. The appellant was arrested, and after taking remand from a Magistrate at Peshawar, the appellant was brought in the same taxi to Hazro.

8. After this occurrence, Muzaffar Khan, the uncle of the appellant, died of heart failure on the same evening. One Ayyub, a son-in-law of Muzaffar Khan, sent a telegram to Mubarik Shah, son of Muzaffar Khan, who was then staying with the appellant and his brother as their guest at Peshawar. On receipt of the telegram, Sikandar Shah applied at 00-15 hours on the 26th of June 1963, to Mr. Tajul Maluk (P. W. 5), A. E. Trunks, Peshawar, who sanctioned seven days' casual leave as a special case. Similarly, Sadiq Shah, his brother, also applied for leave at 00-15 hours on tile same date, and the same officer, (A. E. Trunks) also sanctioned his leave. The same witness produced the relevant record, which shows that on the 25th of June 1963, the accused was on duty from 7-30 a.m. to 1-30 p.m., and after 1-30 p.m., the office closed for the day.

9. Fazal Shah, leaving the dead body of the deceased in the care of the females of the neighbourhood, left his house and went to Police Station Hazro, and on reaching there at 7-30 p.m., lodged the first information report. It was recorded by Muhammad Roshan Khan S. I. (P. W. 18). Muhammad Roshan Khan S. I. visited the spot at 9-30 p.m. Before that he had deputed some policemen for the arrest of the accused. On their return, he contacted Police Post Attock, Police Station Nowshera, and Police Station West Cantt. Peshawar, on telephone directing the arrest of the appellant. After reaching the spot, he saw the dead body of the deceased lying on a cot in the courtyard. He prepared the injury sheet and inquest report of the deceased, and sent the dead body under the escort of F. C. Sher Muhammad to the mortuary for post-mortem examination. He recovered bloodstained earth, piece of karelas, and a basket, containing karelas, from the spot.

10. Dr. Iqbal Ahmad Mirza, Medical Officer, Civil Hospital Hazro, P. W., conducted the autopsy on the 26th of June 1963, at 7-30 a.m. and found the following injuries:- (1) A lacerated wound, 3 " x 2 ", on the right side of the face, almost round like a crater. Its outer edge being 14' from the ear and lower edge, was running over the low jaw upto the angle of the jaw. Its upper end was 1" below the eye, while its inner end was reaching upto the angle of the mouth, and was deep to the upper three cervical vertebrae. The margins were inverted and charred. All the structures from the skin upto the cervical vertebrae were smashed, including the nerves and muscles. The upper jaw, both the lower jaw bones, and the right nasal bones were completely broken and smashed. Two cardboard covers of the cartridges and small metalic lead pieces (pellets) were removed from the debris lying in the crater of the wound. These were taken out and sealed in a bottle. All the teeth of the upper and lower jaws were broken and injured. (2) A lacerated wound, 4 " x 2 ", obliquely directed on the outer side of the upper part of the right arm near the shoulder; the margins were inverted and charred. All the structures from the skin to the shoulder joint had been completely smashed. The head of the humerus bone and the body of the shoulder bone had been fractured into pieces. A cardboard cover of a cartridge and pieces of metalic (pellets) were recovered and sealed in a bottle. One pellet was recovered from the upper lobe of the right lung which had made a small hole 1/8" in diameter for a depth of ". The right pleura had been injured and the pleural sac contained blood. The cardboard covers of the cartridge were sealed separately in a bottle while pellets Were sealed in aqotller bottle and handed over to the police. On opening the various parts of the body, the following observations were made:- The right pleura and the right lung were injured as described in the injuries. The right lung showed healed focci of T. B, The right side of the heart contained blood. All the blood vessels of the right side of the face were injured. The right side of the mouth cavity was injured. Death, in the opinion of the medical witness, was due to shock and haemorrhage resulting from the injuries to the blood vessels of the face through injury No. 1 and also to the blood vessels of the arms and injury to the right lung through injury No.

2. Injuries Nos. 1 and 2 were both individually, as well as collectively, fatal in the ordinary course of nature. Both the injuries were caused by firearm and were ante-mortem. According to him the firearm had been fired from a very close range, less than four feet from the body.

11. The house of the appellant was searched by A. S. I. Asghar Ali (P. W. 13) and he recovered the following articles:- (1) S. B. shot-gun (Exh. P. 2) licensed in the name of the appellant. (2) Stick-gun,-licensed in the name of Sadiq Shah, brother of the appellant. (3) Revolver (Exh. P. 6) licensed in the name of the appellant. (4) One tin container, containing four cartridges of 12 bore (Exh. P. 7). (5) Three copies of licences (Exhs. P. 9 to P. 11), and (6) One tin containing 22 cartridges of .410 bore (Exh. P. 8).

12. In this case, Fazal Shah (P. W. 14), the father of the appellant, Mst. Arab Sultana (P. W. 16) , aged 9 years, and Mst. Rifat (P. W. 17), aged 8 years, the two grand-daughters of the deceased, were produced as eye-witnesses of the occurrence. The learned trial Judge disbelieved P. W. Fazal Shah mainly, for two reasons. (1) that at the time of the report the appellant was stated to be wielding a stick-gun at the time of the occurrence, and later he said that he had used a S. B. shot-gun and (2) Muhammad Afsar (1'. W. 7), who was produced by the prosecution as a marginal witness of certain memos., when cross-examined, stated that when he came to the spot, a little before joining the investigation, Fazal Shah P. W., who was there, talked to him about the occurrence, and told him that his sons had murdered his wife and luckily his absence saved him from being murdered also. He added that Fazal Shah also told him that he suspected his brother, Muzaffar Shah, also of having a hand in the murder. The learned trial Judge dubbed Fazal Shah as a liar on the ground that before the arrival of the police on the spot he had told Muhammad Afsar (P. W. 7) that he suspected his sons and also his brother, Muzaffar Shah, to be having a hand in the murder of the deceased. It is well-settled that when such like formal witnesses make certain concessions in favour of the accused in their cross-examination, their statements cannot be considered to be of any credence, no matter, if they had been produced by the prosecution. The prosecution produces such witnesses for proving certain formal things, and when they start making concessions with respect to the main occurrence or on some vital parts of the case, then their statements cannot be accepted without a pinch of salt. This reason for disbelieving Fazal Shah, therefore, by the learned trial Judge, is also not sound. Fazal Shah made the first information report, and in that report he had in unambiguous terms charged the appellant for having killed his wife. Muhammad Afsar P. W. admittedly came to the house of Fazal Shah a little before joining the investigation, which obviously meant after Fazal Shah had made the first information report. It is also not reasonable that when Fazal Shah had charged the appellant in the first information report, he should have later stated before Muhammad Afsar that he suspected his sons and brother to be responsible for the murder of his deceased wife. This appears to be against natural human conduct.

13. Musammat Arab Sultana and Mst. Rifat were believed by the learned trial Judge, and he found that they were present on the spot at the time of the occurrence, and what they had said was correct. Reliance was also placed by the learned trial Judge on the testimony of Salim (P. W. 11), the driver of the taxi, in which the appellant had travelled from roadside near village Nartopa up to Peshawar.

14. The appellant, when examined in the committing Court, expressed his ignorance about the fact if his father had sold 32 kanals 3 marlas of land one day previous to the occurrence in question, and also denied having committed the offence.

15. At the trial, he admitted that his relations with his father were strained, and that was why he, his brother, and mother, Mst. Hussan Jan, were living in Peshawar. He denied having committed the offence, and also Laving travelled in Taxi No. C. R. 5436 of Salim P. W. from TUI bola load to Peshawar G. T. S. Bus Stand. He admitted to have applied for leave, as per application (Exh. P. E./3), on the night between the 25th and 26th of June 1963, on the receipt of the telegram (Exh. P. D./1), about the death of his uncle. He admitted that the police had recovered the licensed guns, licenses and ammunition from his house search. In reply to a general question if he had got anything else to say, he said in the following words:- "The eye-witnesses are inimical towards me. There is no love-lost between me and my father, who has engineered a false evidence against me by producing Arab and Rifat P. Ws. My father has himself falsely represented himself to be one of the eye-witnesses." When asked if he would produce any defence, he replied as under:- "I tender in evidence D. D. copy of the register Kuliat pertaining to the case under sections 498/109, Penal Code, "Fazal Rahi v. Ghulam Qadir etc." and school leaving certificate pertaining to Arab P. W. Exh. D. F. and the entry relating to the admission in school of Mst. Arab and Rifat P. Ws. Exh. D. G. I do not wish to produce any oral defence. Salim driver P. W. has given false evidence against me because he is under the influence of the police since he has been plying his taxi beyond the permissible regions."

16. Mr. Abdul Latif Khan, counsel for the appellant, raised the following contentions in defence of the appellant:- (1) The motive for the occurrence was not convincing. (2) The eye-witnesses were not dependable because Fazal Shah Shah also disbelieved by the learned trial Judge, and Arab Sultana .end Rifat, being child-witnesses, could have been easily tutored, and there are authorities on the point that .conviction should not be based on the evidence of child-witnesses. (3) The statements of the child-witnesses are discrepant. (4) The gun, recovered from the possession of the appellant, were not proved to have been freshly fired. (5) A stick-gun was mentioned in the first information report by Fazal Shah, but he corrected himself at the trial, and said that it was a S. B. shot-gun, after having learnt of the result of the post-mortem examination. (6) Salim P. W., the driver, is a false witness, and that the entries in the; Register of Attock Bridge (Exh. P.K/1), dated the 26th of June 1963, and Exh. P. L/1, dated 25th of June 1963, had been interpolated, and therefore, cannot be safely relied upon. It may be noticed here that the entry Exh. P. L./1, dated 25-6-1963, is an entry from the Register maintained at the Attock Bridge, with respect to the going of the relevant taxi from Old Punjab side to Old North West Frontier side and Exh. P. IC/7 relates to the return journey from Peshawar to Attock side. Entry Exh. P. L/1 appears obviously to be overwritten, and 'F' was changed into 'P' and 'P' into F'. Qadir Khan F. C. (P. W. 15) admitted that he had originally made a mistake and then corrected it. F. C. Nasrullah (P. W. 9), stated that the entries in the Register Exh. P. K/1 were not interpolated. (7) Salim driver could not be believed because he had a traffic case pending against him, and he was under the thumb of the police, and for that reason, he was not a dependable witness. He contended that the taxi car travelled for the second trip without obtaining a permit while transporting A. S. I. Asghar Ali from Hazro to Peshawar and bringing back the same Assistant Sub-Inspector with the accused under arrest from Peshawar to Hazro.

17. Learned counsel for the appellant further contended that the statement of Mr. Tajul Maluk P. W., who produced the telegram (Exh. P. D.), received by the cousin of the appellant, about the death of his uncle, Muzaffar Shah, and application of the appellant (Exh. P. D/1) and application of his brother (Exh. P. F.), prove the alibi of the appellant that he was present at Peshawar on the 25th of June 1963, and therefore, it was not possible for him to be present at Nartopa at 5 p.m. on the day of occurrence. He further contended that had the appellant murdered his step-mother, he would not have applied for leave, as normally a murderer would not visit the place where some time earlier he has perpetrated a murder himself.

18. We have given the arguments of the learned counsel for the appellant our full consideration, and we feel that the prosecution was successful in bringing home the charge of the murder of the deceased to the appellant. No doubt the sale of a considerable area of land by Fazal Shah would have deprived the two sons and a daughter of Mst. Gulzar Begum deceased also, and their share being larger than the share of the appellant in the inheritance of Fazal Shah, the issues from Mst. Gulzar Begum, therefore, would have been more sufferers, but in this case, the prosecution case is that the sale proceeds were given to Mst. Gulzar Begum, and the sale itself was effected to deprive the appellant, his mother, and his brother, of the inheritance of Fazal Shah's property. Even if this be not the case, the appellant could have a legitimate grouse that it was due to the extravagance of Mst. Guzlar Begum, with whom his father was living, that he had to sell his property. In our view, therefore, the appellant would have naturally been annoyed over his having been deprived of valuable property, which normally, he, his brother, and mother should have also inherited after the death of their father.

19. As regards the eye-witnesses, we are convinced that what they had stated was materially true. Fazal Shah was not rightly disbelieved by the learned trial Judge. The fact that he had stated, in the first information report, that the appellant was wielding a stick-gun was not by itself sufficient for disbelieving him with respect to the fact that lie had seen the appellant firing the second shot at the deceased. A reference to the site plan would point out that Fazal Shah was standing in the lane at point No 4 of the site plan when the appellant, while standing at point No. 2, had fired the second shot on the deceased, who was on point No.

1. Fazal Shah remained at point No. 4 for a very short time when the appellant was leveling his shot-gun towards the deceased. He had, therefore, no chance to see exactly what weapon the appellant was carrying. It was merely his impression, because the brother of the appellant being a licensed holder of a stick-gun, which could conveniently be brought from Peshawar to the scene of occurrence without being noticed, had used that stick-gun. Since Fazal Shah was not in a normal state of mind, and was apprehensive of his own life, he, therefore, stayed for a very short time there, and then retraced his steps, and went to the house of Dilawar Khan, to take refuge there, and as such, what he had said with respect to the weapon which the appellant was holding could no reasonably be said to have been noticed by him during such a short stay in the entrance of the house, but it was merely his impression. There is no other material discrepancy in his statement which could have put one on guard that he might no be a true witness. There is a very important circumstance which points out that he was a true witness. Had he been not an eye-witness of the occurrence, it is highly inconceivable that he should have stated himself to be an eye-witness of the occurrence, in which his son was standing a charge o such a heinous character, which could be visited with death penalty. The father might be on bad terms with his son, but it would be in a very rare case that he would be happy if his son is sentenced to death, when in fact he is innocent. It is unfortunate that the learned trial Judge had not given due weight to this circumstance when considering the evidence of Fazal Shah.

20. The other two eye-witnesses were criticised on two grounds, firstly, that they were child-witnesses and no reliance in law, could be placed on their statements, unless corroborated by other evidence, and secondly, their statements were discrepant. Now, a `child witness' is not defined anywhere, but in our view girls of the ages of 8 and 9 years cannot be said to be child witnesses. Before he had examined them with respect to the occurrence, the trial Judge made himself sure that they were of mature understanding, and capable of giving a picture of the occurrence which they had witnessed. These witnesses had stood the test of cross-examination in no less a manner than a grown-up adult person. It is, therefore, difficult for us to believe that the girls of 8 and 9 years of age are of such immature understanding that they should be found to be child-witnesses.

21. Much has been said about Mst. Arab Sultana's assertion in the cross-examination that she had never been admitted in any school, while in the copy of the school Leaving Certificate (Exh. D. G.), Mst. Arab Sultana was found to have been reading in the Girls Middle School, Hazro, This answer perhaps was the result of Arab Sultana having not fully understood the implication of the question. She perhaps thought that she was being questioned if she was reading in any school at the time of the occurrence, and she replied that she was not admitted in a school at that time. This fact is borne out by the certificate (copy Exh. D. T.), wherein it has been noted that the name of Mst. Arab Sultana was struck off from the roll of the school when she was reading in the 2nd Class, on the 20th of October 1961. The defence, therefore, had failed to prove that Mst. Arab Sultana was reading in any school at the time of the occurrence, and therefore, she could not be present in village Nartopa on the day of occurrence. Mst. Riffat Sultana was admitted to the school on the 15th of April 1964, after the occurrence. Hazro, where the school is situated, is two miles from village Nartopa, while it is three miles from village Pirdad, where the parents of the girls were residing. Since they were not reading in any school at the time of the occurrence, and their grand-mother required their company, it is not possible that they should not have been allowed by their parents to reside with the deceased in village Nartopa. When the investigating officer arrived they were present in the house of the deceased. If anybody was to be cited as a false witness, then the best persons could be the Mothers of these two minor girls. Much confidence could have been reposed in their mothers, rather than in the minor girls, and since these two minor girls were named in the F. I. R. to be present on the spot at the time of the occurrence, and not their mothers, therefore, this circumstance points out that they were really living with their grand-mother at the time of the occurrence and were present in the house when the appellant committed dastardly crime. We are, therefore, of the view that they were rightly believed by the learned trial Judge. It was further contended that the statements of the girl-witnesses are replete with material discrepancies. We have read their statements with great care, and we do not find any material discrepancy in their statements. There are merely certain omissions in their statements which are not material at all.

22. Much capital was sought to be made out from the fact that the police had not made any note of the fact that anyone of the firearms recovered from the possession of the appellant was freshly fired, and therefore, it leads to the conclusion that the appellant was not the perpetrator of the crime. It is a matter of common knowledge that the licensed arms are very sparingly used in the commission of premeditated murders. Unlicensed arms are not very difficult to be procured in this part of the country, and therefore, this omission on the part of the police to have not been able to note that anyone of the firearms recovered was smelling of fresh powder could possibly cast any doubt on the prosecution case.

23. The circumstances in which Fazal Shah would have mentioned in the first information report that the stick-gun was used by the appellant in the commission of the offence, have been mentioned above. This circumstance, therefore, is not of much substance.

24. Much has been said about the dependability of Salim driver P. W. No doubt he was under the thumb of the police, as he was being tried in a traffic case, and therefore, he cannot be said to be an independent witness. In the case of such P witnesses, independent corroboration is necessary. It is also true that this witness had used his taxi by entering into the old N.W.F.P. region when he had not the permit to play it in that area, and had thus committed an offence. This, by itself, is no sufficient to discredit him, even if it be found that he had actually travelled from Turbela Road, and had crossed the Attock Bridge on the fateful day, and was caught on the old N.W.F.P. side of the Bridge during the course of his return journey from Peshawar. In this connection, the registers maintained at the old N.W.F.P. side of the Bridge were produced. The entry Exh. P. L/1., dated the 25th of June 1963, was used to prove that Taxi C. R. 5136 had crossed the Bridge from old Punjab side to old Frontier side at 6-30 p.m. The entry P. K./1, dated the 26th of June 1963, was used to prove that this taxi crossed the Bridge on its return journey from Peshawar on the following morning. The entry (Exh. P. K/1), dated the 26th of June 1963, was not tampered with or overwritten in any manner, while the entry (Exh. P. L/1), dated the 25th of June 1963, was admittedly interpolated for purposes of correction. In stead, of `P', showing from which side the taxi had come to the Bridge, `F' was written, and, similarly `P' was written originally, as the direction in which the taxi had proceeded, and it was subsequently corrected as `F'. We have seen the original register, and feel that a caravan of vehicles started proceeding from the old Frontier side at about 18-30 hours, and it continued even after the motor car in question had crossed the Bridge. In other words, this was the solitary vehicle which crossed the Bridge between 18-30 hours to 18-55 hours, which had come from old Punjab side with a view to go to the old N.W.F.P. side, and all other vehicles had come from the old N.W.F.P. side and had crossed to old Punjab side. It is a matter of common knowledge that the policeman on duty writes down the numbers of the cars etc. without making them to stop. It was for this reason that instead of 'P' the policeman had written `F' as he had been doing immediately before, and immediately after that, and wrote `P' in the subsequent column. It has been candidly admitted by Qadir Khan F. C. P. W. that it was by mere inadvertence due to the rush of vehicles crossing from the old Frontier side to the old Punjab side that he had made the same entry in respect of the vehicle which had come from the old Punjab side to the old Frontier side. This honest mistake can well be determined from the fact that on the following morning, the same vehicle on its return journey from Peshawar was entered. If, as during the previous night, this vehicle had crossed the Bridge at odd hours, when no taxi was allowed to do so, the defence could have pointed out quite conveniently by the examination of this register, at the time of the trial. The second entry of the 26th of June 1963, recorded by another Foot Constable on its return journey from Peshawar conclusively established that the entry (Exh. P. L/1) was made incorrectly by inadvertence, and it was subsequently corrected, and it was not done with any ulterior motive. The entry (Exh. P. K/1), dated the 26th of June 1963, with respect to the return journey of the same vehicle, therefore, clinches the matter, and this serves as sufficient corroboration of the statement of Salim P. W., who was unquestionably the driver of this vehicle. Much has been said that this taxi was again used by the police for the transport of the Assistant Sub-Inspector from Hazro to Peshawar, and then from Peshawar to Hazro, with the police officer and the accused under arrest, in it, which shows that Salim P. W. had plied this vehicle again without any special permit when he had not the permit to play this vehicle in that region. No doubt he had violated the relevant rules, and therefore, had committed an offence of plying the taxi in the old Frontier Region without a permit, but that, by itself, is not sufficient to discredit him, in so far as his testimony connecting the accused with the same, is concerned. Much has been also said about the fact that in accordance with the record of the Telephone Exchange, as has been proved by Mr. Tajul Maluk (P. W. 5), the appellant was at Peshawar up to 1-30 p.m. on the 26th of June 1963, and, therefore, he could not have been present at 5 p.m. in Nartopa, which was stated to be the time of the tragic occurrence. It is admitted that the roadside from where people approach Nartopa village is 63 miles from Peshawar. From the roadside, as said above, Nartopa is two miles. It is to be considered whether the appellant could have traversed this distance between 1-30 p.m. to 6 p.m. There is a regular bus traffic between Peshawar and Turbela. There are a large number of taxis available at short notice at Peshawar, and also on Turbela Road, as is evident from the fact that Salim P. W. was engaged with little difficulty, after the commission of the offence, by the appellant. Sixty-three miles, therefore, by motor transport and two miles on foot could easily be traversed within 39' hours. There is no evidence worth the name that the appellant was seen at Peshawar after 1-30 p.m. and unless it was proved as a fact that he had attended the office up to 1-30 p.m., is not of much benefit to him.

25. Similarly, the appellant having received a telegram from Hazro that his uncle had expired and his having applied for leave at 00-15 hours to Mr. Tajul Maluk (P. W. 5) is not of any value to him. If the full uncle of a person dies it is but natural for him to apply for leave and proceed to participate in his funeral ceremonies, especially when the son of the deceased was also staying with him.

26. For the aforesaid reasons, we do not consider both the above-mentioned circumstances to have either proved the presence of the appellant at the given time at Peshawar, or his conduct being such that he should not have committed the offence.

27. Learned counsel for the appellant contended that the appellant was charged by Fazal Shah, his father, merely on suspicion. It passes one's comprehension that a father should have charged his own son for such a heinous crime before he was sure that he was guilty of it.

28. For all the above reasons, we feel convinced that the appellant was the murderer of the deceased, and there was sufficient legal evidence to connect him with this offence. His conviction, therefore, under section 302, P. P. C. is well-founded. His appeal was, therefore, dismissed by our short order, dated the 2nd of March 1965.

29. We are left now only with the State Revision for enhancement of the sentence. Section 367, subsection (5), provides:- 11(5) If the accused is convicted of an offence punishable with death, and the Court sentences him to any punishment other than death, the Court shall in its judgment state the reason why sentence of death was not passed."

30. In dealing with the question of sentence, in para. 16 of his judgment, the trial Judge made the following observa tions :- "As regards sentence, I cannot be unmindful of the fact that the accused was led to a state of desperation by such activities of Fazal Shah P. W. as ill-became a father. It is in evidence that when entering the house of the victim, the accused asked her where Fazal Shah was. This shows that the accused intended having a conflict with his father and not with Gulzar Begum. Had the accused been predetermined to kill her, he would have finished with her without the formality of any such interlude, what immediately led the accused to kill his step-mother does not become sufficiently clear from the record. It is just possible that at the consequential moment the deceased had done something to provoke the would-be particide to matricidal act. Extreme penalty of law, therefore, is not called for. The case being one of a mitigated sentence, Sikandar Shah is sentenced to transportation for life.

31. It is not clear to us what conduct of Fazal Shah the trial Judge had considered ill becoming of a father. If he meant that he has married a second wife and is living with her, and ignoring the mother of the appellant, then this not is uncommon in our society. If he meant the sale of the property, then, under the law, a person, who is the owner of the property, has got full powers to dispose it of, and his heirs have no legal status to make any objection whatsoever to such transfers. This cannot be considered as a conduct ill becoming of a father. In our view, therefore, if the appellant had visited the village with a view to kill his father after making full preparations for it then it should have been considered as an aggravation, rather than a mitigation. There is still another aspect of the case. If he was there to kill his father why he should have killed his step-mother without any fault on her part. This also cannot be considered to be an extenuation of a most minor character. The reasons which section 367 (5), Cr. P. C. contemplates are genuine and correct reasons, and not reasons which a Court, according to his whims, consider them to be. This should not have led the learned trial Judge to inflict the lesser penalty provided for the offence of murder.

32. As regards the second reason given by the learned trial Judge for inflicting the lesser penalty, namely, that the deceased must have done something which would have provoked the appellant to commit the merciless act is not borne out by any evidence on the record. This is a mere conjecture and surmise which a Judicial Court should avoid. We are, therefore, not convinced that the reasons assigned by the learned Sessions Judge under section 367 (5) for inflicting the lesser sentence for murder, by any stretch of imagination, be considered to be the reasons contemplated by the said section. The learned trial Judge had, therefore, obviously erred on the side of leniency in inflicting the lesser penalty provided for the offence of murder when the maximum penalty would have been quite appropriate. Khan Abdul Latif Khan relied on three judgments of the Rangoon High Court. The first is Nga Bo Thin v. Emperor (A I R 1937 Rang. 454). The second judgment is Tun Khine v. The King (A I R 1938 Rang. 331) and the third is Nga Chit Tin v. The King (A I R 1939 Rang. 225). In the present case it is clear on the record that after hearing that his father had alienated landed property one day earlier, the appellant armed himself and travelled right from Peshawar to his village, and finding his father absent, fired two shots at his step-mother and killed her. This is obviously, therefore, a premeditated murder of an unarmed and helpless woman committed in an extremely dastardly manner, and therefore, the maximum sentence provided for the, offence of murder was fully justified.

33. In the first Rangoon case, a Division Bench of the Rangoon High Court had observed as under:- "Where a Sessions Judge passes a more lenient sentence in contravention of the rulings of law which are laid down from time to time for the guidance of those dealing with criminal cases, the High Court will interfere and will enhance the sentence. It does not, however, necessarily follow that the High Court must enhance the sentence in revision. It is recognised that a person who has, even wrongly, got the benefit of a lenient sentence at his trial, may sometimes be allowed to benefit by his good fortune, provided the sentence passed is one which is legal. "The accused was sentenced to transportation for life for murder though in fact death sentence ought to have been passed on him. It was, however, found that there was an absence of premeditation on the part of the accused to commit the offence and three months had elapsed from the date of such sentence during which the accused believed that his life would be spared. "Held: that the sentence of transportation for life passed on the accused should not be enhanced under the circumstances."

34. The above case is obviously distinguishable. The murder in that case was not committed with premeditation. This had affected the mind of the Judges deciding the case, in addition to the fact that the accused had been given expectation of life. The latter, by itself, was not considered sufficient for not enhancing the sentence, unless the former reason was also present. This judgment, therefore, is not applicable to the circumstances of the present case.

35. In the second case mentioned above, it could not be determined as to which of the several accused had caused the fatal injuries, and this reason was considered to be sufficient to uphold, the lesser penalty inflicted by the trial Court, although it was considered to be not sufficient reason for awarding the lesser punishment, but since the trial Court had given the impression to the accused that his life had been spared, therefore, it was not considered proper that the sentence should be enhanced. In the present case, the appellant is the only person charged for making a dastardly attack on the life of his step-mother after having come prepared from such a long distance.

36. The third case is also not of much help to the appellant in the present case. In this case, the appeal was heard after a long time of the passing of the sentence of transportation for life for the offence of murder. It was held in this case that the sentence should not be enhanced, though the right sentence was death in that case.

37. If we agree with the learned counsel that if the trial Court awards a lesser sentence for the offence of murder, then the High Court should not interfere and enhance it to capital sentence, then we will be laying a very dangerous principle the trial Courts will, therefore, become the final authority in the determination of the sentences and the provision of law by which the High Court is authorised to review such sentences and to enhance them would become obsolete. No hard and fast rule, therefore, can be laid down as to when the High Court should interfere in such cases. In the present case, the premeditation, the manner of the perpetration of the crime, the helplessness of the victim, and the absence of any legal or other sufficient excuse for the accused person for committing such a heinous crime have come to light, and therefore the withholding of the death sentence would be quite illegal and unjustified.

38. For the aforesaid reasons we have accepted the State revision for the enhancement of the sentence passed on the accused and sentenced Sikandar Shah accused to be hanged by the neck till he is dead, by our short order, dated the 2nd of March 1965. S. Q. Appeal rejected. Sentence enhanced.