1969 PLP 821 (SCMR)

(b) Penal Code (XLV of 1860)

S. 302‑Sister and brother of deceased, in circumstances of case, considered natural eye witnesses. M. Z. Kitchlew, Advocate Supreme Court for Appellant. Jamil Hussain Rizvi, Advocate‑General West Pakistan (Qalandar Ali Khan, Advocate Supreme Court with him) instructed by Ijaz Ali, Attorney for the State. Date of hearing : 15th February 1960. AMIRUDDIN AHMAD, J.‑This is an appeal, by special leave of this Court, by one Lala, who was convicted under section 302/34 of the Pakistan Penal Code and sentenced to death for the murder of his brother's widow, Mst. Fatima, which occurred on the night of the 28th August 1957 at village Muradwal in the District of Gujrat. The appellant was tried alongwith two others for the murder under section 302/34 of the Pakistan Penal Code by the Sessions Judge of Gujranwala at Camp Gujrat, and all the three were convicted of that charge and sentenced to death. The three persons including the appellant appealed to the High Court against their conviction and sentences and there was also a reference made under section 374 of the Criminal Procedure Code. The two Judges of the High Court of West Pakistan at Lahore, namely, Abdul Aziz Khan and Munshi, JJ., who heard the appeal and reference, agreed that the two accused other than the appellant should be acquitted on a benefit of the doubt and they were acquitted accordingly; but with regard to the case of the appellant Lala there was a difference of opinion, Munshi, J. holding that he also should be acquitted while Abdul Aziz Khan, J. held that the evidence on the record had sufficiently proved the charge against Lala whose conviction and sentence should be upheld.. The appellant's case was then referred under section 429 of the Code of Criminal Procedure to a third Judge, namely, Shabbir Ahmad, J., who agreed with Abdu Aziz Khan, J. and upheld the conviction and sentence of the appellant. Lala then sought special leave to appeal to this Court which was granted, as it was considered desirable in view of the difference of opinion among the Judges of the High Court that this Court should examine the evidence. The facts of this case briefly stated are that Mst. Fatima, deceased, who was a sister of Umar Hayat, P. W. 11 and Mst. Saqina, P. W.. 12, who are inhabitants of village Hariya, was married to one Salehon, a brother of the appellant, Lala, resident of a neighbouring village Muradwal. Salehon died six or seven years before the occurrence in question leaving a son and a daughter. Some time after his death Mst. Fatima fell ill and her brother Umar Hayat took her and her children to his own house in village Hariya, where she lived for over five years. About two years before the occurrence Lala, the appellant, came to Hariya and told Umar Hayat that he was being taunted by his co‑villagers for allowing his sister‑in‑law, Mst. Fatima, to live with her brother, upon which Umar Hayat agreed to send Mst. Fatima and her children to village Muradwal to live with.Lala, appellant. As by this time the house of Salehon had fallen down, Lala requested his collateral relation, named Baqri, who incidentally was one of the acquitted accused, to allow her to live in the kotha which he owned in the same compound. Mst. Fatima lived in this kotha for about a year during which period Baqri tried to persuade her to marry him, to which she did not agree and she communicated her resentment to her brother Umar Hayat and asked him to build a separate kotha for her in the same courtyard where her deceased husband's now fallen down house was. Accordingly Umar Hayat built a kotha on a vacant site in the common courtyard. After she had lived in the newly‑built kotha for a few months, the appellant Lala tried to persuade her to marry him and caught hold of her and on her refusal threatened her with dire consequences. Mst. Fatima then came to her brother's village Hariya, informed him of the incident and requested him to bring her household effects from village Muradwal to this village arid accommodate her in his house. Upon this Umar Hayat accompanied by his two sisters, Fatima and Saqina, went to village Muradwal to fetch her goods and effects and as by the time they finished packing up of the things it became late in the evening, they decided to spend the night at the deceased's kotha at Muradwal intending to leave for Hariya the following morning. It was the 28th of August 1957 when the weather was quite warm the two sisters slept in the open courtyard on separate charpoys and the brother got on top of the kotha and slept on the roof. At about 10 p. m. when most of the people had said their Isha prayers arid had gone to bed, Umar Hayat and Sakina heard cries of Fatima and saw the appellant Lala accompanied by two other persons, who have been acquitted, inflicting injuries on their sister Mst. Fatima with a toka. By the time Umar Hayat managed to get down from the room the culprits had left. He then went back to his village Hariya, and from there he went to village Salina, where an A. S. I. was camping, and made a statement to him on the 29th of August 1957 at 2‑00 a. m. The A. S. I. sent a copy of the statement to Police Station, Malakwal, where a first information report was registered at 3‑30 a.m. the same day, and himself went to the place of occurrence for investigation. It was urged in support of this appeal that the view taken by Munshi, J. was correct ; that the conviction was based on the evidence of the brother and sister of the deceased who are highly interested witnesses; that it was improbable that the brother and sister would have stayed for the night at Muradwal when both Lala and Baqri in the same house were their enemies, and that the evidence of the recovery of the toka and its identity were doubtful, as the toka was not sealed in the presence of witnesses and that it having been lain under water for a long time, it was not likely that it would retain any traces of blood on it. We have considered these contentions in the light of the evidence and the findings of Shabbir Ahmed, J. with which we agree. The brother and sister of the deceased were the natural witnesses, who, under the circumstances of danger to their sister stated by them, would be expected to be present in the house. In view of the hostile atmosphere, in which the deceased was living, one could not expect her brother and sister to leave her in danger having been unable to return to their village before evening and after the deceased had finally decided to sever connection from her deceased husband's relations. With regard to the recovery of the toka, the evidence shows that the appellant went direct to the spot in the pond from where he producedthe toka from under water. The two Mashirs stated in their examination‑in‑chief that the Police took the toka into possession and made it into a sealed parcel, but, however, both stated in cross‑examination that the parcel was not sewn in their presence. There is, however, the evidence of the A. S. I., who sealed the parcel, to whom no suggestion as to the sewing of the parcel was made. With regard to the suggestion made in the argument that if the toka was lying for over two days under water it would not retain any stains of blood, it is enough to say that it was still water under which it was lying, and not running water, and so it is not improbable that the stains would be retained. There is a further corroboration of the two eye‑witnesses in the evidence of the other witnesses, to whom they spoke about it immediately after the occurrence, and the evidence of motive against the appellant, Lala. We, therefore, hold that he has been convicted on sufficient and reliable evidence and the appeal is accordingly dismissed. Appeal dismissed.