P L D 1975 Lahore 295 (PLP)

GULBAZ KHAN, J.‑Mitha son of Muhammad Bakhsh, caste Birmani, aged 25 years, labourer, resident of Sahuwala, was convicted by the learned Sessions Judge, Dera Ghazi Khan, on 12‑9‑1972, under section 302, P. P. C. and sentenced to death. He filed Criminal Appeal No. 693 of 1973 through Jail, which was argued by a counsel engaged by the appellant. This judgment would dispose of Murder Reference No‑ 20 of 1972, and Criminal Appeal No. 693 of 1973.

2. Mst. Zainab deceased lived at Chah Baseera, dakhli Sahuwala, alongwith her husband Muhammad Hussain with whom she was married 8 years ago and she gave birth to a daughter aged 4 years. On 7‑11‑1971, at about 4‑30 p.m. Muhammad Hussain husband of the deceased was returning to his house with his cattle and when he reached near his house, he heard the alarm of his wife Mst. Zainab deceased. He saw Mitha accused inflicting hatchet blows to the deceased. One hatchet blow was given to the deceased from the wrong side while others from the sharp side. Muhammad Hussain P. W. raised noise, which attracted Muhammad Aslam (P. W. 8) and Muhammad Bakhsh (P. W. 9) to the spot who were near about. The occurrence was also witnessed by the said two witnesses. Mst. Zainab expired at the spot immediately. The witnesses tried to apprehend the accused but the accused threatened them with death and succeeded in running away. Malik Rahim Bakhsh (P: W. 6) saw the accused running away from the spot of occurrence armed with hatchet. The motive for the murder was that Mitha accused wanted to contact illicit relations with Mst. Zainab deceased to which she had not agreed. A complaint was made .to Abdul Hayee lambardar (P. W. 10) and Khuda Bakhsh about the misconduct of the accused who reprimanded the accused, but the accused did not desist and ultimately killed the deceased as she did not submit to his wishes.

3. Muhammad Hussain reached Police Station, Jampur, the same evening at 6‑30 p.m., after covering a distance of three miles and lodged F.I.R. Exh. PA., which was recorded by Maqbool Beg, S. H. O. (P. W. i 1). On reaching the spot, the S H.O. prepared inquest report Exh. P.K. and injury statement Exh. P. L. of the deceased and sent her dead body for post‑mortem examination. He recovered blood‑stained earth from the spot and sealed it into a parcel vide memo. Exh. P.B. He prepared memo. Exh. P. .C. relating to the articles of the deceased. He arrested the accused on 10‑11‑1971. The accused was Wearing blood‑stained shirt P. 6 and blood stained chaddar P. `7 which were removed from his person and sealed into a parcel vide memo. Exh. P.D. The accused produced blood‑stained hatchet P. 8 from a ditch near Band Dina and it was sealed into a parcel vide memo. Exh. P.E. These memos. were attested by Muhammad Aslam (P. W. 8) and Abdul Hayee (P. W. 10). ''The accused was challaned after investigation.

4. The prosecution examined 11 witnesses in support of the case. Doctor Ghulam Farid (P. W. 1) conducted post‑mortem examination. Fateh Muhammad F. C. (P.W. 2) escorted the dead body and produced clothes and other articles of the deceased before the S.H.O., after post‑mortem examination, which were taken into possession vide memo. Exh. P.C. He delivered sealed parcels of this case intact in the office of Chemical Examiner, Lahore. Fazal Muhammad Moharrir A.S.I. (P. W. 3) kept the sealed parcels of this case intact in police malkhana. Allah Ditta‑ (P. W. 4) identified the dead body of his sister Mst. Zainab deceased at the time of post‑mortem examina tion. Piran Ditta Patwari (P. W. 5) prepared site plan Exh. P. G. Muhammad Hussain (P. W. 7), Muhammad Aslam (P. W. 8) and Muhammad Bakhsh (P. W. 9) gave the eye account of the occurrence. Rahim Bakhsh (P. W. 6) saw the accused running away armed with blood‑stained hatchet and after one hour, came to know that Mst. Zainab had been murdered. Muhammad Hussain (P. W. 7) and Abdul Hayee (P. W: 10) gave evidence regarding the motive of the case. Muhammad Aslam (P. W., 8) and Maqbool Beg, S.R.O. (P.W. 11) corroborated the recoveries. Abdul Hayee (P. W. 10) was not examined about the recoveries although he had attested the recovery memos. but during cross‑examination he stated that the clothes of the accused were blood‑stained at the time of his arrest.

5. Post‑mortem examination was conducted on the dead body of Mst. Zainab, on 8‑1 I‑1971, at 9‑00 a.m. The doctor found the following injuries on her person:‑ (1) One incised wound 1 x bone deep on the front of the head from before backwards 2" above the forehead slightly to the right. (2) One incised wound 1" x bone deep on the front of the head on left side 3" above the forehead. (3) One incised wound 2 x cutting the bone to the left of injury No. 2. (4) One incised wound 3" x 1" brain was out of the wound, on the right side on the back of the head 1" above the right ear horizontally. (5) One lacerated wound 2 x 1" x brain was out of the wound on the left side on the back of the head 2" above the left ear. Note.‑Injuries Nos. 4 and 5 were separate on skirt level but overlapped deep to the skin, (6) One incised wound 1" x bone deep on the back of a right fore‑arm near about the middle. Skull bone was broken into pieces under injuries Nos. 4 and 5 and ‑cut at injury No.

3. Brain was coming out from injuries Nos. 4 and 5 and the skull cavity had clotted blood. Stomach contained 4 ounces of semi digested food. In the opinion of the doctor, the death was due to shock as the result of injuries Nos. 4 and 5, which were sufficient to cause the death individually in the ordinary course of nature. Injury No. 5 was caused by blunt weapon while rest with sharp‑edged weapon. Injuries Nos. 1, 2 and 6 were simple. Injury No. 3 was grievous. All the injuries were anti‑mortem. Time between injuries and death was instantaneously and between death and post‑mortem within 24 hours.

6. The learned counsel for the appellant took us through the entire evidence. Muhammad Hussain (P. W. 7), Muhammad Aslam (P. W. 8) and Muhammad Bakhsh (P. W. 9) deposed before the trial Court that they had seen Mitha accused inflicting hatchet blows to Mst. Zainab deceased from the sharp side as well as from the blunt side of the hatchet in front of the house of the deceased. Muhammad Hussain (P. W. 7) is husband while Mohd. Bakhsh (P. W. 9) is an uncle of the deceased. Both these witnesses had no motive to make false statements against the accused. The occurrence had taken place just in front of the house of the deceased. Muhammad Hussain was returning to his house at about deegarwela. There is slight variation in his statement made before the police and before the committing Magis trate. In the F. I. R. he had mentioned that he was returning to his house with cattle, while before the committing Magistrate, he mentioned that he was returning after his day's labour. But this variation is unimportant in view of the fact that the occurrence had taken place just in front of his house when he was returning to his house at deegarwela. During cross -examination, Muhammad Hussain (P. W. 7) stated that the deceased was fasting on the day of occurrence. Semi‑digested food was found in the stomach of the deceased. The death had occurred instantaneously. The complainant might not be sure if the deceased was fasting. She might have taken her sehri and the complainant was under bona fide impression that she was fasting. In case the deceased had taken the meals at noon time and the death having occurred at deegarwela, the stomach should contain semi‑digested food. The doctor had stated that the deceased bad .taken the meals within 4 hours of her death. Muhammad Bakhsh (P. W. 9) a resident of village Baigraj, had his fields at a distance of 30/35 karams from the spot of occurrence and was present in the fields since morning. His statement was not challenged on the fact that he did not own land near the spot of occurrence. Since the land of Muhammad Bakhsh was situated close to the spot and he was present in his land, we take him to be a natural witness. House of Muhammad Aslam was situated close to the spot of occurrence. His land was also situated near the spot of occurrence. He was returning to his house after having a round of the fields and on hearing the noise, he rushed towards the spot and saw the occurrence. This witness is absolutely disinterested. He is neither related to the complainant nor inimical towards the deceased. We have not come across any inherent defect in the statements of the eye‑witnesses. All the three eye‑witnesses made consistent statements and nothing could be elicited in favour of the accused during the cross‑examination. After having carefully examined the statements of three eye‑witnesses, we have come to the conclusion that the three eye‑witnesses had seen ,the accused inflicting. hatchet blows to the deceased with the sharp side and wrong side of the hatchet.

7. Rahim Bakhsh (P. W. 6) was present in his land, which was at distance of about one square from the spot. He saw Mitha accused going with a fast pace armed with hatchet, which seemed to be blood‑stained. He called out the accused but the accused did not pay any heed and ran away. One hour later he (witness) learnt that Mst. Zainab had been' murdered. No suggestion regarding any hostility with the accused was put to the witness. He is another disinterested witness who had seen the accused shortly after the occurrence armed with blood‑stained hatchet. We have no reason to disbelieve him.

8. The accused was arrested on 10‑11‑1971. He was wearing blood stained clothes. The S. D. O. removed blood‑stained shirt P.6 and blood stained chaddar P. 7 from his person and sealed them into a parcel vide memo. Exh. P. D. The accused also produced blood‑stained hatchet P. 8 from a ditch near Band Dina and it was sealed into a parcel vide memo. Exh. P. M. Muhammad Aslam (P. W. 8) a disinterested witness, and Maqbool Beg, S. H. O. (P. W. 11) supported the recoveries. According to the report of the Serologist Exh. P. J., the blood‑stained clothes of the accused and blood‑stained hatchet were stained with human blood. It was urged by the learned counsel for the accused that it was highly improbable that the accused would wear blood‑stained clothes for 3 days and it was also not believable that he would not wash blood from the hatchet. The accused could wash his clothes or blood from the hatchet if he had thought of it. The accused felt contended by throwing the hatchet in the ditch. He was concealing his presence for three days and appeared only when pressure was put on the relatives. The recovery of blood‑stained clothes from the person of the accused and blood‑stained hatchet at the instance of the accused stand proved from the statement of Muhammad Aslam P. W. who is a disinterested witness. We cannot reject the recoveries for the simple' reason that the accused had sufficient time to wash away the blood from the clothes and the hatchet.

9. The accused wanted to develop illicit relations with the deceased and the deceased complained of it to her husband Muhammad Hussain who informed Abdul Hayee lambardar (P. W. 10), Kbuda Bakhsh and Ghulam Rasool and the said persons reprimanded the accused. The accused took it ill. The statement of Muhammad Hussain regarding motive was fully cor roborated by Abdul Hayee (P. W. 10) who had also no grouse or grudge against the accused. Thus, it was clearly established that the accused made advances towards the deceased but the deceased did not like it and informed her husband and the accused was reprimanded for his misconduct and thus be bore grudge against the deceased on that account.

10. The accused denied the prosecution allegations in his statement before the committing Magistrate. He expressed that he would make a detailed statement in the Court of Session. Before the trial Court, he denied that he wanted to develop illicit relations with the deceased. He added that the deceased was already having illicit connections with him. He gave a. counter‑version that on the date of occurrence, he was sitting with the deceased in the house of the complainant, at about 12 noon, and the com plainant himself appeared there with some weapon in his hand and he: made good his escape while the complainant closed his door. During cross‑examination, suggestions were put to the witnesses to prove that the deceased was a woman of immoral character. Except Rahim Bakhsh (P. W. 6), none of the witnesses stated that the deceased was a woman of loose character. Rahim Bakhsh, however, admitted in the last line of the cross‑examination that it was correct that he had learnt that Mitha accused was having illicit relations with the deceased. He too was not sure about the illicit connection. He did not disclose the source of his knowledge and we are not prepared to accept that the accused was having illicit connection with the deceased. If it had been so, the deceased would not have complained to her husband about the advances made by the accused and her husband would not have complained of it to Abdul Hayee (P. W. 10) and others. In case, Muhammad Hussain had killed his wife, as alleged by the accused, Muhammad Bakhsh (P. W. 9) a real uncle of the deceased, would not have hesitated in involving Muhammad Hussain. Five or six houses were situated near the spot of occurrence. It is not believable that during day time, the accused would go and sit with the deceased in her house. The accused did not take up this plea at the earliest opportunity and reserved it till the start of the trial. When it was put to the accused before the committing Magistrate if he wanted to establish illicit relations with Mst. Zainab, he denied it. He did not state before the committing Magis trate that he had illicit connection with the deceased. We do not find an truth in the statement of the accused that he had illicit relations with the deceased and on the day of occurrence, Muhammad Hussain complainant had seen the accused in the company of the deceased and committed he . murder. We feel no hesitation in rejecting the defence version as being false.

11. The case was clearly proved against Mitha accused beyond any doubt and he was rightly convicted and proper sentence awarded. There are no extenuating circumstances for imposing lesser sentence. We dismiss the appeal, the death sentence passed upon Mitha accused is confirmed. S. A. H. Appeal dismissed.