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Criminal Appeal No. 331 of 1964, decided on 20th January 1966.

Ss. 234, 235 & 537 Murder of one and murderous assault on another occurring at different places and at different times although on same day-Offences cannot be said to have been committed in course of "same transaction"-Offence under S. 307, P. P. C. different from one under S. 302, P. P. C.-Joint trial, in absence of prejudice to accused, however, mere irregularity curable under S. 537-Penal Code (XLV of 1860), Ss. 302 & 307.

S. 302-Murder committed at 3-30 or 4 p.m. but F. 1. R. lodged at police station (5 miles away) at 9-45 p.m.-Delay, held, inordinate-Possibility of charge being false not ruled out-Criminal Procedure Code (V of 1898), S. 154.

A. S. Salam for Appellant.

Syed Nasir-ud-Din, Advocate-General and Nemat Khan for A. G. for the State.

Dates of hearing: 20th December 1965 and 10th January 1966.

-Nura aged 25 years was tried under sections 302/307, P. P. C. for the murder of Mst. Allah Wasai and for causing grievous injuries with a sword to Ramzan (P. W. 9). The learned Additional Sessions Judge, Multan, who tried the case, found him guilty on both the counts and convicted him under section 302, P. P. C. for the murder of Mst. Allah Wasai to suffer death and awarded 10 years' R. I. and a fine of Rs. 500, or in default to further 6 months' R. I. under section 307, P. P. C. for the murderous assault on Ramzan P. W. vide his order dated the 13th of May 1964. The sentence under section 307, P. P. C. was ordered to run concurrently, if the sentence under section 302, P. P. C. was not confirmed by this Court. The condemned person has appealed and the case is also before us under section 374, Cr. P. C. for confirmation of sentence of death. We propose to dispose of the appeal and the reference for confirmation of death sentence by a single judgment.

2. Briefly stated, the prosecution case is that Mst. Allah Wasai was previously married to Khan uncle of Chiragh (P. W. 7). After the demise of Khan she married Chiragh brother of Nura appellant. Mst. Allah Wasai deceased had a pichlagh daughter named Mst. Khanan aged 14 years out of the marital union of Khan. Mst. Panan was born out of the wedlock with Chiragh P. W., who was aged 12 years at the time of the occurrence. Both the girls, Mst. Khanan and Mst. Panan were not married. About a year prior to the occurrence Ramzan (P. W. 9) and Chiragh (P. W. 7) in the company of Nura appellant went to Muhammad (P. W. 8) and requested the hand of his daughter Mst. Saidan for Nura appellant. Muhammad P. W. in exchange desired the hands of Mst. Khanan and Mst. Panan for his sons, Gama and Jahana, who though married, were issueless. Ramzan and Chiragh P. Ws. declined the proposal of Muhammad P. W. As the proposal did not materialize, Ramzan P. W. betrothed Mst. Khanan to one Waryam about six days prior to the occurrence. On the day of occurrence viz. 21st February 1963, at about noon time Lal P. W. and one Fazil Nonari and Nura appellant approached Muhammad P. W. to cancel the aforesaid engagement and desired that Ramzan P. W. should agree to the proposal of Muhammad P. W. but Ramzan P. W. did not comply with the demand. Therefore, Nura appellant threatened him with dire consequences. According to the prosecution this culminated in the present murder of Mst. Allah Wasai and murderous assault on Ramzan P. W.

3. On 21st February 1963, at digerwela Lal (P. W. 11), who was in the latrine attached to kachi Masjid, was attracted to the cries emanating from the house of Mst. Allah Wasai deceased. He saw the appellant inflicting blows with a sword, Exh. P. 1 on Mst. Allah Wasai, while she was in the court-yard. Lal P. W. challenged the appellant, whereupon he left her and ran in the lane, followed by Lal, who was raising an alarm. The appellant ran towards the house of Ramzan P. W. The alarm attracted Khan (P. W. 12) and a shop-keeper, who joined in the pursuit. The party pursued the appellant into the house of Ramzan, where Talib (not produced) also joined them. When they entered the court-yard of the house of Ramzan P. W., they found the appellant inflicting blows with the sword, Exh. P. 1 to Ramzan P. W. Thereafter Lal and Khan P. Ws. along with Talib apprehended the appellant at the spot along with the sword, Exh. P 1. In the meanwhile, Rabnawaz (P. W. 13) and Allah Bakhsh (not produced) also arrived there. Rabnawaz P. W. took away the sword, Exh. P. 1, from. the appellant and on enquiry as to why the appellant had injured Ramzan P. W., the appellant replied that he had killed Mst. Allah Wasai and injured Ramzan, because they stood in the way of his marriage. Thereafter the appellant was taken to the house of Mst. Allah Wasai deceased, who was found lying dead in the court-yard. Leaving Rabnawaz and Khan P. Ws. and Talib, Lal P. W. left for Police Station Tulamba, at a distance of about 5 miles from the place of occurrence and lodged the first information report, Exh. P. A. with Fazal Ahmad, A. S. I. (P. W. 14) at 9-45 p. m. the same day.

4. A. S. I. Fazal Ahmad (P. W. 14), after recording the first information report, proceeded to the spot, reaching there at 1 I p. m. Rabnawaz P. W. produced the appellant before him, and he put him under arrest. Rabnawaz also produced sword Exh. P. l; The same was taken into possession, vide memo. Exh. P. B. and made into a sealed parcel. The clothes, i.e., vest, Exh. P. 2 and the loin cloth, Exh. P. 3 were stained with blood and were got removed vide memo. Exh. P. C. and made into a sealed parcel. The A. S. 1. collected the blood-stained earth, vide memo. Exh. P. D. and made it into a sealed parcel. Thereafter the A. S. I. prepared the injury statement, Exh. P. M. and the inquest report, Exh. P. L. of the dead body of Mst. Allah Wasai and dispatched it to the mortuary Khanewal for post-mortem examina tion. The A. S. I. went to the house of Ramzan P. W. who had already been removed to the Civil Dispensary, He collected blood-stained earth from the court-yard vide memo. Exh. P. E. and made it into a sealed parcel.

5. The autopsy on the dead body of Mst. Allah Wasai was conducted by Dr. Muhammad Ramzan Malik (P.W.1), on the 22nd February 1963, at 3-30 p.m. and tile following injuries were found thereon:

(1) One transverse incised wound, 5" x 2" x 1 " on the left side of the neck. Soft tissues including large vessels on the left side of the neck were cut entirely. Second cervical vertebra was cut;" deep.

(2) One transverse incised wound, 1" x " x ", on the left side of the neck, "3/4" below injury No. 1.

(3) Lateral one-third of the right hand, including right thumb, and right index finger, was cut entirely and lying separately with the body.

All the injuries on the person of Mst. Allah Wasai were found to be caused by sharp-edged weapon. Injuries Nos. 1 and 3 were grievous in nature and injury No. 2 was declared to be simple. In the opinion of the doctor the death of Mst. Allah Wasai had been caused due to shock and hemorrhage as a result of cutting of large vessels of the left side of the neck on account of injury No. 1, which was found sufficient in the ordinary course of nature to cause the death.

6. Doctor Abdul Hamid (P. W. 2) examined Ramzan P. W. on the 22nd February 1963, at 3.15 a. m. and found the following injuries on his person:-

(1) An incised wound, 3 " x " bone deep on the head, 3" above the nose.

(2) An incised wound, 2" x " x ", on the head left side, 2 " below injury No. 1 and on the left side.

(3) An incised wound, 4" x 1" x bone deep on the head left side, 1" below the left ear.

(4) An incised wound, 1" x 1" x bone deep on the under surface of the chin.

(5) An incised wound, 2-2/3" x 2" in the lower third of the right forearm with complete amputation of right hand. Both bones of the right hand were found completely cut.

(6) An incised wound 1" x 1" x bone deep on the left hand with complete amputation of the left thumb.

All the injuries on the person of Ramzan P. W. were found to have been caused by sharp-edged weapon. Injuries Nos. 5 and 6 were declared to be grievous in nature and the rest were simple.

7. Direct evidence regarding the commission of the murder of Mst. Allah Wasai deceased is furnished by Lai (P. W. I1), while the witnesses of assault on Ramzan are Ramzan (P. W. 9) himself, Lai (P. W. 11) and Khan (P. W. 12). Rabnawaz (P. W. 13) reached the house of Ramzan P. W. immediately after the occurrence and deprived the appellant of his sword. Chiragh (P. W. 7) and Muhammad (P. W. 8) in their statements deposed to the motive of assault on Ramzan (P. W. 9). Rabnawaz (P. W. 13) and Fazal Ahmad A. S. I. (P. W. 14) testified to the recovery of blood-stained sword, Exh. P. 1 and clothes of the appellant.

8. The appellant denied the allegation as to the murder of Mst. Allah Wasai. He made the following statement at the trial:-

"After the death of my uncle Khan, the previous husband of Mst. Allah Wasai, my other uncle Ramzan P. W. wanted to marry Mst. Allah Wasai deceased. Mst. Allah Wasai deceased, however, refused to marry Ramzan P. W. She showed her willingness to marry my brother Chiragh P. W. and accordingly she married him. Thereupon Ramzan P. W. became annoyed with Mst. Allah Wasai as well as my brother Chiragh P. W. After the marriage of Mst. Allah Wasai with my brother Chiragh P. W., Ramzan P. W. threatened her that he would some day take revenge from her. On the day of the occurrence Ramzan P. W. came to the house of my brother where Mst. Allah Wasai used to live. Mst. Allah Wasai was willing to marry both of her daughters to the sons of Muhammad P. W. in exchange of Mst. Saidan to be married to me. My uncle Ramzan P. W. however, did not like the proposal of Mst. Allah Wasai deceased. They started quarrelling and I left the house and went out. After some time I returned to my house and found my niece Mst. Panan bewailing in the court-yard. On my asking she told me that Ramzan had killed her mother, Mst. Allah Wasai deceased. Thereupon I went to the house of Ramzan P. W. to enquire as to what had happened. On reaching there I found Ramzan sitting in his house. A sword was lying near him. I picked up the sword. Ramzan came forward and I inflicted the blows with it which fell on his hand, chopping off his right hand from the wrist. I gave him another blow and then the P. Ws. namely, Lai, Khan and Talib arrived there and caught hold of me. I had no intention to injure Ramzan. I only wanted to take him to the Police Station. I am innocent and have been implicated in this case falsely. Ramzan P. W. is the real murderer of Mst. Allah Wasai."

9. It may incidentally be mentioned here that the sword, Exh. P. 1, vest, Exh. P. 2 and loin cloth, Exh. P.3 were found to be stained with human blood by the Serologist, vide his report, Exh. P. N.

10. Mr. A. S. Salam, who appeared for the appellant, raised the question that the joint trial of the two incidents is not allowed by law and that the proceedings of the trial Court were illegal, because there were two assaults, one on Mst. Allah Wasai deceased and the other on Ramzan P. W. and these being two distinct transactions, there should have been two charges to be tried separately as required under section 233 of the Criminal Procedure Code. Syed Nasir-ud-Din, Advocate-General, who appeared for the State contended that there has been no mis -joinder of charges as the accusation and the evidence on record justified the inference that the two assaults were part of the same transaction, and as such the trial was covered by the provision of section 235 of the Code of Criminal Procedure.

11. Now, it is clear to us, that the appellant has been put on his trial with respect to two incidents, one with respect to the murder of Mst. Allah Wasai and the other with respect to the murderous assault on Ramzan P. W. No doubt, the provision contained in section 235, Cr. P. Code permits the trial of more offences to be tried at one trial, if they are so connected together A as to form part of the same transaction, but in the instant case, it cannot be said that these two incidents form part of the same transaction as according to the prosecution case, they occurred at different places and different times. There is no evidence to suggest any connection between them. We are conscious of the provision contained in section 234, Criminal Procedure Code, which permit the joint trial of three offences of the same kind, committed by an offender within a space of 12 months, but the charge under section 307, P. P. C. is different from the charge under section 302, P. P. C. Therefore, we hold that the join charges of murder and that of murderous assault cannot be tried together and these charges should have been tried separately. The amendment in section 537, Criminal Procedure Code, makes the mis-joinder of charges as an irregularity in the proceedings curable under section 537 of the Code of Criminal Procedure B provided it has not occasioned a failure of justice. In the present' case we find such an irregularity has not occasioned any failure of justice in the trial of this case. Therefore, we find no force it the contention raised by the learned counsel and we proceed to dispose of the case on merits.

12. The motive for the murder of Mst. Allah Wasai is also not very convincing, because it is in the statement of Chiragh P. W. that Mst. Allah Wasai deceased had agreed that Mst. Panan should be married to the son of Muhammad P. W. in exchange of the marriage of Mst. Saidan with Nura appellant. Muhammad P. W. had also deposed that Mst. Allah Wasai deceased came to his house along with Chiragh P. W. and demanded the hand of his daughter, Mst. Saidan for Nura. Therefore, it is clear that Mst. Allah Wasai deceased was all out to get the hand of Mst. Saidan for the appellant. We, therefore, hold on the point of motive that it is far from satisfactory and we are not prepared to rely on the story of motive.

13. The occurrence, according to the prosecution took place at digerwela (3-30 or 4 p. m.) but the matter was reported by Lal P. W. to the police at 9-45 p. m., though the police station is at a distance of 5 miles. On the contrary, we notice that Fazal Ahmad A. S. I. (P. W. 14) reached the spot at 11 p. m. within one hour and fifteen minutes after the registration of the case. C These bare facts show that there has been inordinate delay in the lodging of the report to the police and, therefore, the possibility of falsely charging the appellant for the murder of Mst. Allah Wasai deceased cannot be ruled out, as there is evidence that Lal P. W. was sent from the dera of Nasir-ud-Din after some deliberation.

14. Rabnawaz and Lal P. Ws. deposed about the extra- judicial confession of the appellant, but Khan P. W. belies them. Besides as indicated above, there has been delay in reporting the matter to the police. To us, it appears that this piece of evidence is the result of consultation. Therefore, we rule it out of consideration.

15. Learned counsel for the appellant has vehemently argued that the conviction of the appellant on the charge of murder of Mst. Allah Wasai deceased is improper on the sole testimony of Lal P. W. According to Lal P. W. the appellant gave four or five blows with the sword, Exh. P. 1 to the deceased and some of the blows fell on her head, but according to medical evidence there was no injury on the head, but two injuries on the neck and one on the hand of the deceased. The injury on the hand appears to have been suffered while the deceased was attempting to ward off the blows. Therefore, his testimony is not consistent with the medical evidence.

16. Again we find in the testimony of Khan P. W. that after the apprehension of the appellant Lal P. W. did not disclose at that place that the appellant had assaulted the deceased. He also did not even disclose this fact at the dera of Nasir-ud-Din till the breaking of the fast. If Lal P. W. had in fact witnessed the attack he would not have withheld this important disclosure from Rabnawaz and Khan P. Ws., and others. According to Lal P. W. he raised an alarm, but none of the witnesses living in the close proximity was attracted to the spot. If that was so, the people in the neighbourhood would have been attracted to the place of occurrence. This witness is not a Lambardar nor a proprietor in the village, but still he figured at every stage of this case. He deposed about his visit to the house of Muhammad P. W. on the day of the occurrence and thus attempted to become a witness of the motive. Again he became an eyewitness of the two assaults and lastly an informant in the case. This conduct of the witness shows over-zealousness on his part and makes one cautious. Khan P. W. did not see the appellant running towards the house of Ramzan P. W., so the story of pursuit as narrated by Lal P. W., is belied by Khan P. W. Therefore, we hold that Lal P. W. is a false witness of the occur rence of Mst. Allah Wasai deceased. The most natural witness of the occurrence was Mst. Panan, the daughter of the deceased, who was present at the time of the assault, but the prosecution has chosen not to produce her. Therefore, the presumption that if she had been produced, she would not have supported the prosecution version, will arise in this case. In the circumstances, we hold that none had witnessed the murder of Mst. Allah Wasai deceased and, therefore, the charge of murder against the appellant is not proved beyond reasonable doubt. We, therefore, set aside the conviction and sentence of the appellant under section 302, P. P. C. and acquit him. The sentence of death is not confirmed.

17. As to the murderous assault on Ramzan P. W. under section 307, P. P. C. it stands fully proved against the appellant. The testimony of Ramzan P. W., the victim of the assault, is corroborated by Lal anti Khan P. VV. who leave supported the version of Ramzan P. W. in its entirety and gave correct narration of the events. The testimony of these three eye witnesses also finds corroboration from the statement of Rabnawaz P. W., who witnessed the recovery of the blood-stained sword, Exh. P. 1, and the clothes, Exhs. P. 2 and P. 3. Besides the appellant has also admitted having inflicted injuries to Ramzan P. W. Therefore, the conviction of the appellant under section 307 of the Pakistan Penal Code is maintained but we reduce the sentence to five years' rigorous imprisonment and also remit the sentence of fine.

K. B. A.

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