P L D 1966 Supreme Court 129 (PLP)

CORNELIUS, C. J.‑This judgment will dispose of two appeals by Muhammad Ramzan (No. 10 of 1965) and by Allah Dad (No. 16 of 1965), who stand convicted under section 302, P. P. C., for the murder of one Abdul Rashid, for which they have been sentenced to death by the High Court enhancing the sentences of transportation for life awarded to them by the Sessions Judge at the trial. We have heard Mr. R. A. Jeremy on behalf of Muhammad Ramzan and Mr. Muhammad Anwar on behalf of Allah Dad and we are satisfied that the case is established on the dying declara tion of Abdul Rashid, Exh. PG, which was recorded by Dr. Muhammad Sami at the District Hospital in Rawalpindi, after he had examined his injuries at 2 a. m. on the 1st October 1961. There were 10 incised wounds and four stab wounds on the person of Abdul Rashid. Two of the stab wounds had cut the lungs and the liver and these led to his death at 5 p. m., on the 2nd October 1961, being necessarily fatal. Only two of the incised wounds could be thought to be superficial, so that it becomes clear that 10 heavy blows with sharp weapons were directed at Abdul Rashid's person. It being in evidence that he ran from the place where he was attacked to a distance of about 30 karams, it is necessary to believe that he was able to move about, in order to avoid the blows, if he had been allowed and therefore, it follows he was attacked by more than one person. In his dying declaration, he named the two appel lants, whom he already knew and said there was with them a third person whom he did not recognise. Although the attack was made at night, it was in an area, where persons were still awake. Abdul Rashid admitted that he had developed illicit connection with a girl, who was cousin to the appellant Allah Dad, some time earlier, and being fearful of reprisals, he left the locality, namely, Mohalla Amarpura, Rawalpindi, where he had been working. On the night in question, he was at the tea shop of his brother‑in‑law, Ramzan on the Murree Road, near the Rawal Dam. In his dying declaration he said that "behind the shop there is a verandah". The two accused came to him and asked him to go with them to the verandah, and there they immediately attacked him with knives without saying a word. He cried out, but no one heard him. Then he ran back to the shop and raised an alarm and people began to collect. He added that certain persons, namely, Ghulam Nabi, Muhammad Azam, Azram and Siddiq had seen him going with the two accused, immediately before the attack. Significantly, he did not include his brother‑in‑law, Ramzan, among these persons. This statement leaves a good deal unexplained concerning Abdul Rashid's movements. Ramzan P. W. deposed that the two appellants, and a third accused, Salim Akhtar, who was acquitted, had tea with Abdul Rashid at his shop that night, after which they asked him "to accompany them to some place," and the four men went out. Shortly after, he heard the alarm, and he and two other tea‑shop owners, Khan Muhammad P. W. 17 and Elahi Baksh P. W. 18, gave evidence that they ran to the spot, and in the light of petromax lamps which they carried saw the three accused stabbing Abdul Rashid. This evidence has been disbelieved, and rightly, since the dying declaration clearly was to the effect that no one appeared until Abdul Rashid had managed to get back to Ramzan's shop, and moreover, none of these persons was named in that report. The place where Abdul Rashid was wounded has been located on the map, Exh. PQ. It is not a verandah attached to Ramzan's shop, but a disused chapper separated from it, by a road and a number of shops, and some 30 karams away. Reading the dying declaration, one might get the impression that Abdul Rashid was induced to go a few .steps to the verandah behind the shop and was immediately attacked there. His going with Allah Dad and Muhammad Ramzan merely at their request without being told what the purpose of the walk was, is not easy to accept. On the other hand, if he was lured to a place where he was told that the girl would meet him, then indeed his movement in the direction of a disused chapper might be explained. It would seem then that in the dying declaration, Abdul Rashid although he admitted his affair with the girl, concealed the reason for his going to the chapper. That however is not an adequate reason for disbelieving his statement that the men with whom he went were the two appellants, Muhammad Ramzan; and Allah Dad, and learned counsel for these two persons have not in their argument contended that their clients are not identified as the killers. The evidence of the dying declaration is sufficient for this purpose, supported to some extent by the evidence of a tea shop proprietor, Muhammad Azam, P. W. 14, (who is named in the dying declaration) who saw the three men walking past his shop on the night in question. The principal argument put forward on behalf of the appel lants is that in enhancing the sentences of transportation for life, which the Sessions Judge had awarded, to the extreme penalty of death, the learned Judges in the High Court had ignored the fact that from the 16th February 1962, when sentence was pronounced at the trial, until the 15th December 1964, when the case was decided in the High Court, the appellants had enjoyed an expectation of life. Reference was made in this connection to the case reported as Ghulam Hussain v. Zainullah (1) P L D 1961 S C 230, where the Supreme Court had allowed an appeal by complainant and altered a conviction under section 304, P. P C., to section 302, P. P. C. but despite the finding that there was a deliberate murder committed in the course of an attack by five persons on a single unarmed man, the Supreme Court declined to impose the death sentence and observed as follows:‑ "In view of the length of time which has elapsed since the occurrence and the intervening incidents, in particular, that as a result of the decision of the High Court, Zainullah was given a full expectation of life, we consider that the justice of the case will be sufficiently met by the lesser sentence." It was also urged that in cases where the honour of their, womenfolk is involved, male members of the family in the rural areas feel under an imperative obligation to vindicate the family honour by resort to violence. In this case it had been clearly admitted that the deceased Abdul Rashid had interfered with the chastity of a girl belonging to Allah Dad's family. That is a circumstance of which notice may appropriately be taken by the Courts after nearly a century of administration of the la 'w relating to murder in cases of this kind. In a recent case, namely, that of Fazal Khan v. State (1) P L D 1964 S C 54, where also a woman's honour was involved, the following observation was made:‑ "it must be remembered that questions of family honour, touching the females of a family, are of almost overpowering importance to the tribes of the Western regions. To vindicate that honour, they feel bound in duty to go to very great lengths." In the present case, some allowance must also be made for the fact that Abdul Rashid furnished so inadequate as reason for his visit to the abandoned chapper where he was attacked. It is reasonable to infer that this was because he had something discreditable to himself to conceal. The crime way committed on the 30th September 1961, four years ago, and in the interval, for no less than two years and ten months, the a convicts were given a full expectation of life. Bearing these cir cumstances in mind, we allow these appeals to the extent that confirming the convictions, we alter the sentences to transporta tion for life in each case. K. B. A. Appeal partly accepted.