P L D 1975 Lahore 460 (PLP)

2. The occurrence took place on 2nd of July 1972, at about shamwela in the area of village Salar Sayyedan, Police Station Khanqah Dogran. Distt. Sheikhupura. The F. I. R. was lodged by Lai Shah (P. W. 9) father of Mst. Mumtaz Begum deceased at 9-30 p.m. in the Police Station and was recorded by S. I. Ghulam Murtaza (P. W. 12). The distance between the place of occurrence and the Police Station is four miles.

3. The motive for the crime, as described by the first informant, is that Mst. Mumtaz Begum eloped with one Dr. Muhammad Ashraf. She was restored to her father, but the relatives of her father extremely resented the action of Mst. Mumtaz Begum in developing a liaison with Muhammad Ashraf.

4. Zafar Shah accused is the maternal cousin of Mst. Mumtaz Begum and Pir Shah appellant is his maternal uncle. The paternal uncle of Mst. Mumtaz Begum is married to the sister of Pir Shah, appellant.

5. According to the story narrated in the first information report, on the evening of 2nd of July 1972, the deceased and her sister Mst. Zubaida Begum (P. W. 10) went to the fields to ease themselves. The two sisters after having relieved themselves were standing in the fields when the two accused came armed with guns and fired at the deceased, who fell down. Lai Shah (P. W. 9) the father of the deceased was offering his evening prayers in the village mosque when he heard the report of gun-fire. He reached the place of occurrence which is at a distance of about four killas from the mosque and found his daughter Mst. Mumtaz Begum lying dead in a pool of blood. Mst. Zubaida Begum, on enquiry, told him that Pir Shah and Zafar Hussain had murdered Mst. Mumtaz Begum.

6. The police during the investigation recovered the last worn clothes of the deceased, the blood-stained earth and three empties from the spot. The accused were arrested an 3rd of July 1972. On 9th of July 1972, Zafar Shah led to the recovery of a gun from an iron box in his house. A country-made pistol was recovered at the instance of Pir Shah from his house on the same day. These recoveries were witnessed by Lai Shah (P. W. 7) and Nazar Shah (P. W. 8). The Ballistics Expert found that empty P. 2 matched with gun P. 7 recovered from War Shah.

7. During the evidence before the Committing Magistrate and the Sessions Judge, Mst. Zubaida Begum attributed the fatal shot squarely to Pir Shah. In her statement before the police, however, she had said that War Shah had fired the fatal shot when Mst. Mumtaz Begum deceased resisted the attempt of the two accused to drag her.

8. It appears that on account of relationship between the accused and the complainant party some influence was used at the time when the accused were facing the inquiry. Lai Shah P. W. father of the deceased girl stated before the committing Magistrate that his daughter Mst. Zubaida Begum had told him that the two accused "appeared" to be Pir Shah and Zafar Shah. He was declared hostile and cross-examined by the P. S.

1. He repeated the statement that his daughter had told him, that the accused "appeared" to be Zafar Shah and Pir Shah and both were armed with guns. Mst. Zubaida Begum named Pir Shah as one of thef culprits before the committing Magistrate. She further stated that one of the accused had caught hold of her from behind and when she looked back after the fatal shot had been fired, she found that it was Zafa Shah. At the trial she omitted to state that she identified afar Shah a one of the culprits and was cross-examined as a hostile witness. She denied that she had admitted before the committing Magistrate that she had identified Zafar Shah.

9. The weapon recovered from Pir Shah was a country-made pistol while the case of the prosecution from the very start had been that the two accused were armed with guns. The learned counsel for the appellant submitted that there was no corroborative evidence against Pir Shah and his convictions could not be based on the testimony of Mst. Zubaida Begum which on the own showing of the prosecution was hostile to them. He further submitted that the occurrence had taken place at shamwela and the vicinity of the crime being surrounded by crops the identity of the assailants could not have been clearly established. The learned counsel also pointed out that the two sisters had gone to ease themselves, but according to the post-mortem report there were gases and faecal matter in the large intestines of the deceased. He, therefore, said that the reasons advanced by Mst. Zubaida Begum for going to the fields with her sister does not appear to be correct. The learned counsel also pointed out the fact that according to the post-mortem report there was undigested food in the stomach of the deceased and it was his contention that the occurrence took place some time after the deceased had taken her evening meals. The learned counsel finally canvassed the possibility of the deceased having been murdered by her father or her grown-up brother or some other close relatives. He argued that the immediate motive for the murder could have been with nearer relatives, and not with Pir Shah who is distantly related to the complainants.

10. I have considered the arguments of the learned counsel. The name of Pir Shah has consistently been mentioned as one of the accused persons. In the first information report it was stated that both the g accused had fired at the deceased but during the evidence the fatal shot was attributed to Pir Shah. True, that during her statement before the police, Mst. Zubaida Begum had attributed the fatal Shot to Zafar Shah, but this statement in itself in no way affects the vicarious liability of Pir Shah. Mst. Zubaida was cross-examined only in respect of participation of War Shah in the commission of the offence, but so far as the complicity of Pir Shah is concerned, she never indicated any suspicion about it nor did the prosecution find that her statement in this respect was questionable. The parties are related. Lai Shah P. W. admitted that he had appeared as a witness against the father of Zafar Shah, but there is apparently no enmity between Pir Shah and Lai Shah. There was, therefore, no reason for Mst. Zubaida Begum and Lai Shah to falsely involve Pir Shah.

11. The arguments of the learned counsel that there were nearer relations who should have punished Mst. Mumtaz Begum for her indiscre tion is in the form of a general statement and cannot be used to brush aside the positive and consistent evidence in this case. The reaction of each individual would depend upon his own sensibility as to a certain action. Pir Shah's complicity in this case does not appear to be the result of any false involvement.

12. The occurrence took place at about evening time. The dimension of the injuries show that the shot was fired from a very close range and in spite of the fact that darkness had started descending, the identity oil the assailants could not have remained undisclosed to Mst. Zubaida Begum who watched them from a close range. The learned counsel pressed into service the statement of Mst. Zubaida to the effect that a track parade was arranged by the police in which, among others, her own brother was joined. No question was put to the Investigating Officer on this score. It appears to me to be a gratis concession by Mst. Zubaida Begum to make the case doubtful against the accused.

13. The presence of food and faecal matter in the body of the deceased does not advance the case of the appellants. She might have eaten something some time before the occurrence and this explains the presence of the food. The presence of faecal matter shows that she may not have answered the call of nature when she was shot at. The statement attributed to Mst. Zubaida Begum that the deceased was shot at when the two sisters had already eased themselves, may or may not be true, but the fact stands that the murder was committed in the field in which the dead body and the blood-stained earth was found.

14. So far as Appeal No. 49 of 1974 under the Arms Act filed by Pir Shah is concerned, it was urged that the witnesses of recovery bad not supported the prosecution story before the committing Magistrate and that no impartial witness was associated with the recovery. It was further pointed out that Pir Shah lives jointly with his son. The Investigating Officer in answer to cross-examination said that all the witnesses present during the investigation were related to the complainant and he had, therefore, no choice to associate any impartial person in the investigation. The contraband pistol was recovered from an almirah in the southern wall of his residential house and the presumption is that he could have the exclusive knowledge of its presence. The statements of the witnesses before the committing Magistrate cannot be treated as evidence in the case, Their depositions before the trial Court are consistent.

15. The result is that both the appeals filed by Pir Shah i.e. Nos, 816 of 1973 and 49 of 1974 against his convictions under section 302 P.P.C. and Arms Act are hereby dismissed and the convictions and sentences covered by those appeals are maintained.

16. Similar arguments were advanced in respect of Appeal No. 803 of 1973 filed by Zafar Shah in respect of his conviction under the Arms Act. The two witnesses of recovery and the Investigating officer have supported the factum of recovery before the trial Court. The appellant may be living with other family members in the same house, but as the gun was recovered from an iron box from which it was brought out by the accused himself, he is presumed to have the knowledge of the place where it was lying. Appeal of Zafar Shah is also dismissed.

17. I feel that a grave miscarriage of justice has been occasioned because of the acquittal of Zafar Shah in this case. Lal Shah (P. W. 9) -the father of the deceased stuck to the position that he was told by his daughter Mst. Zubaida Begum that Pir Shah and Zafar Shah were the perpetrators of the crime. This was the story of the prosecution from the very start. Before the committing Magistrate Mst. Zubaida Begum had stated that she identified Zafar Shah as the person who had caught hold of her from behind. The gun recovered from Zafar Shah was found to have been used in the commission of the offence. The statement of Mst. Zubaida Begum before the committing Magistrate was not brought on record and, therefore, could not be used in evidence. The learned trial Judge observed that the prosecution had not made any request for the transfer of that statement to the Sessions record. While a Public Prosecutor has to discharge his duties efficiently and vigilantly, which in this case he failed to do, the primary responsibility for deciding as to whether or no a particular statement shall be transferred to the Sessions record under section 288, Cr. P. C., rests with the Court itself. According to the section, it is in the discretion of the Presiding Judge if the evidence of a witness ha to be transferred under section 288, Cr. P. C. for being used as evidence in the case. The learned Sessions Judge has failed to exercise his discretion in the matter and he is equally responsible for this remissness.

18. In exercise of my powers under section 439, Cr. P. C. I issue notice to Zafar Shah to show cause why his acquittal from the charge under section 302, P. P. C. may not be set aside and he be not retried for the murder of Mst. Mumtaz Begum. Bailable warrants in the sum of Rs. 5,000 with one surety in the like amount returnable to the Assistant Commissioner, Sheikhupura, shall be issued against him. S. A. H. Order accordingly.