1969 PLP 865 (SCMR)

S. A. RAHMAN, J.‑Amber Khan was tried for the murder of his second wife, Mst. Nur Baha, and condemned to death. Mst. Papara, his first wife, and Mst. Shamai, his mother, were co‑accused with Amber Khan in the trial Court. They too were found guilty of murder, the former being sentenced to death and the latter to transportation for life. On appeal and reference, the learned Judges of the High Court of West Pakistan, Peshawar Bench, set aside the conviction of the two women on the murder charge and indicated that their convictions should have been only under section 352, Pakistan Penal Code, for assault, for which offence the sentences already undergone by them were considered to be sufficient punishment. Amber Khan's conviction and sentence were upheld and his appeal dismissed. Leave to appeal was granted in this case to Amber Khan to consider the question whether, on the findings recorded by the High Court, the conviction of the appellant could be said to rest on no evidence and whether, in the circumstances, the petitioner's conviction was consistent with 'the principles governing the safe administration of justice in criminal matters. The appellant was stated to have married the deceased whose hand was offered to him by her brother, Safdar P. W., in an effort to reconcile him to the abduction of his own sister by Safdar. The first wife of the appellant, Mst. Papara, naturally resented the new matrimonial alliance entered into by her husband and the peace of the family was disrupted. As the result of a quarrel, Nur Baha, the second wife, went away to her brother's house in the same village, but was brought back on the day of the occurrence to the house of Mst. Shamai. accused, who lived next door to her son, Amber Khan. At evening time, she was said to have been strangulated by Amber Khan in Mst. Shamai's house. The two women were charged with facilitating the crime by holding the deceased down. Muhammad Zaman, Muhammad Hasan and Abdur Rahim were cited as eye‑witnesses of the crime, they being neighbours of Mst. Shamai. Information of the incident was conveyed to Safdar Khan, the deceased's brother, by Muhammad Zaman P. W. Safdar came to the spot, but by that time the dead woman had been removed to the appellant's house. A report was lodged with the police about an hour later. The defence suggestion was that the woman had committed suicide by taking poison as she could not longer endure the constant bickerings between her and Mst. Papara. The learned Judges of the High Court recorded the finding that the death of Mst. Nur Baha was the result of strangulation, the fact being consistent with the medical evidence, and that the defence suggestion of the deceased taking poison to commit suicide was definitely false. While discussing this point, the learned Judges observed that the ocular evidence of the three eye‑witnesses was very definite and positive that Mst. Nur Baha died as a result of homicidal strangulation. The tenor of the remarks clearly points to the conclusion that they were in agreement with the evaluation of their testimony by the trial Court. They then found that the venue of the occurrence was Mst. Shamai's house and they believed the prosecution allegation that after the murder, the dead body was removed to the appellant's house next door. They attached considerable importance to this aspect of the case and held Muhammad Zaman and Abdur Rahim, two of the eye‑witnesses, to be natural witnesses, as their houses adjoin that of Mst. Shamai and they were likely to be attracted by any noise in Mst. Shamai's premises. They entertained no doubt that all the three accused were present at the time when Mst. Nur Baha died. The conduct of the accused immediately following the death of Mst. Nur Baha in giving out a false explanation for her death was commented upon as pointing to their complicity in the heinous crime. While, however, assessing the extent of individual liability of three accused, the learned Judges made certain observations, Which have been seized upon by the learned counsel for the appellant as justifying the inference that the eye‑witnesses' version was not believed by the learned Judges. The learned Judges took the view that none of the accused had a strong motive to kill the deceased and that from the circumstances it appeared that the three accused had not planned to commit the murder and had not formed a common intention to do so. They then gave free rein to their imagination and the learned Judge who wrote the judgment expressed himself as follows :‑ "It appears to me that Mst. Nur Balia, having become tired of her co‑wife's taunts and nags, went to her parent's house from where she was brought by Mst. Shamai to her own house. Amber Khan was already there waiting for the return of his Mst. Papara, having come to know of the fact that Mst. Nur Baha was being brought by Mst. 5hamai, also went to the latter's house. When Mst. Nur Baha arrived an explanation must have been sought from her by her husband as to why did she go away. This appears to have led to an altercation in which it is possible that Mst. Nur Baha used some such language which annoyed Amber Khan to such an extent that he caught hold the throat and throttled her. The girl fell down on the ground when the two women, that is Mst. Shamai and Mst. Papara, went near per one sat her legs and the other on her chest. As to how did the whole occurrence initiate will always remain a mystery. The observations made above, must confess, are nothing but conjectures. The witnesses came oil the scene after the deceased had fallen down on the ground probably dead. They cannot be the witnesses of what happened immediately before that. If the conjectures are eliminated then the motive behind the murder remains shrouded in mystery, but I must say, even if I were to repeat it, that whole affair was sudden, unpremeditated and unplanned. Having arrived at the conclusion that there was no pre‑planning or premeditation, the only person guilty of the murder would be the one who throttled the girl and that was Amber Khan. So far as the two old women ace concerned, they were seen one sitting oil the legs and the other on it difficult to understand explanation has occurred Shamai wanted to straighten the legs of the deceased Papara sat order respiration to revive her to life assaulted her. Whatever their purpose might have beer it can certainly not be said that they formed a common intention with Amber Khan to commit the murder, or by their conduct, they in any way, facilitated the strangulation of Mst. Nur Baha. At the utmost, they can be held guilty of an offence under section 352, Pakistan Penal Code, and found responsible for assault. The sentences which they have already undergone can be considered enough for the parts that they played in this unfortunate tragedy. So far as Amber Khan is concerned, whereas it is possible to imagine that ‑he had no intention to commit the murder of his wife, yet considering that his wife was a frail emaciated woman, and he is a stout strong young man, when he caught hold of his wife by her throat and pressed it with that force that caused the strangulation, he must, as a reasonable man have known that his act was so imminently dangerous that it would necessarily result in the death of the person whose throat he was pressing. He definitely would be guilty under section 302, Pakistan Penal Code." In reconstructing the scene on the basis of surmises, the learned Judges, appear to us, to have travelled beyond the scope of the judicial function. It was their duty to have decided the case on the basis of the evidence on the record and there was no warrant in law for indulging in profitless and somewhat misleading conjectures as to how the incident started or what motive impelled the two women accused to sit on the body of the fallen deceased without there being the least foundation for the assumptions made, in the evidence. The passage reproduced above amounts to a special pleading for the benefit of the women accused and this has introduced an element of inconsistency in the judgment. A fair reading of the whole judgment, however, satisfies us that the learned Judges did not disbelieve the eye‑witnesses in this case and indeed they have not expressly said so. The prosecution witnesses's version was that all the three accused persons were seen holding down the deceased Amber Khan by the throat and the women by sitting on other parts of her body. Mr. Abdul Qaiyum Khan apparently has some justification for urging that the evidence of the witnesses against the three accused was of identical character and no reasonable grounds existed for distinguishing the case of the women accused from that of Amber Khan. But this amounts, at best, to saying that the acquittal of the two women on the murder charge was erroneous. With regard to the parts assigned to Amber Khan, however, the learned Judges were quite clear in their minds and were prepared to accept the testimony of the ocular witnesses. In the circumstances, no interference appears to be called for by this Court with the conviction or sentence of Amber Khan as the question essentially remains one of evaluation of evidence. The reasons given by the learned Judges for differential treatment o the women accused may be unsound, but that fact by itself, cannot be pressed into service to displace the clear finding recorded against the appellant on the basis of acceptable evidence. Mr. Abdul Qaiyum Khan also invited our attention to the fact that some time after the occurrence in this case, Safdar P. W., the brother of the deceased, was charged with the murder of his own wife, the sister of Amber Khan, whom he had abducted. Mr. Abdul Qaiyum Khan informs us that the trial of Safdar on the charge of murdering his wife has ended in his acquittal. The learned counsel suggested that this subsequent circumstance might be taken into account while deciding the question of sentence in this case. We are unable to accede to this contention. No case has been made out, calling for the exercise of the special jurisdiction of the Court in criminal matters and we dismiss the appeal. Appeal dismissed.