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Criminal Appeal No. 247 of 1966, decided on 16th February 1968.

S. 154‑F.I.R. recorded at spot after investigation by A. S. L‑Tanta mounts to statement made before police‑Inadmissible and of no value.

S. 302‑Wife alleged to have murdered her husband‑Denial by woman that deceased was her husband‑Marriage alleged by prosecution to have taken place after coming into force of Muslim Family Laws Ordinance, 1961‑Fact that no entry of marriage forthcoming in Register of Nikah Registrar coupled with discrepant evidence on the point‑Marriage, held, not solemnized as alleged‑Muslim Family Laws Ordinance (VIII of 1961), S. 5.

S. 302‑Prosecution witness introducing two other false witnesses and contradicting himself in material particulars‑Conviction cannot be based on such futile and fatuous evidence.

Ss. 302 & 100‑Statement of accused‑Court (in absence of evidence showing any portion of it 2o be false) can only accept or reject it as a whole‑Statement of accused (woman) that deceased was done to death by inhabitants of locality when she apprised them that she had been criminally assaulted by deceased‑Circumstances of case showing possibility of presence of person other than accused to be remote‑Statement that deceased was done to death by inhabitants of locality disbelieved but rest of her statement that deceased tried to criminally assault her, not ruled out of consideration‑Killing of deceased with adze by accused (woman) in circumstances‑Held, to be in self‑defence .even if accused be held to be woman of lax moral‑Criminal Proce dure Code (V of 1898), S. 342.

M. A. Zullah for Appellant.

Abdullah Bajwa for A.‑G. for the State.

Date of hearing : 7th February 1968.

Mst. Nasim Akhtar (40) was tried for the murder of her husband Muhammad Ashiq alias Muhammad Sadiq on 6th October 1966 at about morning prayer time by the Sessions Judge, Rawalpindi, who convicted and sentenced her under section 302, P. P. C. to transportation for life. The convict has appealed.

2. According to the prosecution Muhammad Ashiq was a lessee in a portion of the house of Mst. Nasim Akhtar situated in Tench Bhata, Rawalpindi. About six months prior to the‑ incident the appellant married the deceased and they began to live as husband and wife in the same house. For about two months, the relations between the spouses remained cordial, but. after that differences arose between the two and they were leading a cat and dog life. Ten days before the murder there was an altercation between the two as the deceased would not permit the appellant to later about in the city. A day before the incident the appellant approached Muhammad Nawaz P. W. and complained that her husband was maltreating her. Muhammad Nawaz P. W. in the company of Sher Khan P. W. went to the house of the deceased and resolved their differences.

3. On 6th October 1965, at about morning prayer time Barkat Ali P. W. was attracted to the cries emanating from the house of the appellant. He and his brother Nawab Khan P. W. rushed to the house and found the appellant inflicting injuries on the deceased with a adze Exh. P. 1 Muhammad Nazir P. W was also attracted to the spot. They apprehended the appellant and deprived her of the adze.

4. Barkat Ali P. W. proceeded to Police Post R. A. Bazar, Rawalpindi and made his statement Exh. P. B. which was scribed by Iftikhar Ahmad, A. S. I. (P. W. 15). The A. S. I. sent the report to Police Station Cantonment Rawalpindi for the, registration of the case and a formal first information report Exh. P. C. was recorded by Ghulam Murtaza, Sub‑Inspector. Iftikhar Ahmad, A. S. I. then proceeded to the spot and found the dead body of Muhammad Ashiq lying on the ground in a room. He prepared the injury sheet and the inquest report relating to the deceased and despatched the dead body to the mortuary for post‑mortem examination. Nawab Khan P. W. produced blood stained adze P. 1, which was taken into possession vide memo. Exh. P. H. The A. S. I. took into possession blood‑stained brick P. 6 and made it into a sealed parcel vide memo. Exh. P. J. Malik Muhammad Waris, Sub‑Inspector (P. W. 16), took over the investigation from Iftikhar Ahmad, A. S. I. and he put the appellant under arrest the same day. He got removed blood stained shirt P. 3, Shalwar P. 4 and Dopatta P. 5 from her person and made them into a sealed parcel vide memo. Exh. P. G.

5. The autopsy on the deceased's dead body was conducted by Dr. Muhammad Azhar (P. W. 1) on 7th October 1965 at 11‑30 a.m. The deceased had:‑-

(1) Four incised wounds, 1" x 1/4" x " x " x " x " ands 1" x ", each wound was scalp deep on the top of head.

(2) An incised wound, 1 " x '' bone deep, on the right occipital region.

(3) Two incised wounds, 1" x " each, scalp deep, on the right frontal region.

(4) Two incised wounds intermingled with each other, 2'' x " and 2 " x " bone deep. Bone underneath was cut on right side of face.

(5) An incised wound, 2" x " bone deep. Bone underneath was cut and right ear was also cut on the right ear and right temporal region.

(6) An incised wound, 3" x 2", on the right side of the neck. 3rd, 4th and 5th vertebrae were cut underneath this injury.

(7) Two incised wounds, 1 " x " and 1'' x " muscle deep, on the back of right scapula.

(8) An incised wound, 2" x " bone deep. Bone under neath was cut on the right scapula I" above the injury.

(9) An incised wound, 1" x 1/3" muscle deep, on the top of right shoulder.

(10) An incised wound, " x " muscle deep, on the lateral side of right upper arm.

Death, in the opinion of the doctor, was due to shock and haemorrhage resulting from the injuries to blood vessels, specially right carotied artery and cutting of vertebrae on the right side of the neck. Injuries Nos. 4, 5 and 8 were grievous and the rest were simple. Injury No. 6 was sufficient, in the ordinary course of nature, to cause death. The injuries were caused by sharp edged weapon. In cross‑examination the doctor admitted that except for the waistcoat the body of the deceased was naked and that the deceased could be done to death at 3‑30 a.m.

6. Direct evidence regarding the commission of the crime is furnished by Barkat Ali (P. W. 12), Nawab Khan (P. W. 13) and Muhammad Nazir (P. W. 14) in their statements. Maulvi Abdul Latif (P. W. 7), Shahbaz (P. W. 9) and Sher Khan (P. W. 10) deposed as to the factum of the marriage of the deceased with the appellant. Muhammad Nawaz (P. W. 11) and Sher Khan (P. W. 10) stated as to the reconciliation between the deceased and the appellant. The evidence of other witnesses is of a formal nature.

7. The appellant, when examined, denied the fact that she was the wife of Muhammad Ashiq deceased and produced a certificate Exh. D. B. from the Chairman of Union Committee, Tench Bhata showing that her marriage with the deceased was not recorded in the office of the Union Council. She denied all the other allegations and pleaded that she was sleeping on the night of the incident when at about 2‑30 a.m. she felt that somebody was picking at her clothes. When she woke up she saw that the deceased wanted to criminally assault her, where upon she raised alarm and other persons of the neighbourhood came to her rescue. When she apprised them about the attempt of the deceased they belaboured him with various weapons until he died. No evidence was examined in defence.

8. To begin with, we may say that it is apparent from the testimony of Barkat Ali P. W. that the first information report in this case was recorded at the spot after the investigation by Iftikhar Ahmad, A. S. I. Therefore, it being a statement before A the police is inadmissible in evidence and cannot be taken notice of. This Court has already warned the Police Officers to make departure from this uncalled for practice, but we are constrained to remark that in several criminal cases we notice the Police Officers, for reasons best known to them, follow this old practice of recording the first information report after the investigation of the case. This is bound to put the Courts on caution as a prepared story is recorded in the first information report. In the light of this background we now proceed to examine the prosecution version in this case.

9. It seems to us that the first question to be considered in this case is whether Mst. Nasim Akhtar appellant was the lawfully wedded wife of Muhammad Ashiq deceased. Maulvi Abdul Latif P. W. deposed that 10/11 months prior to the incident he performed the marriage ceremony of Muhammad Ashiq deceased with Mst. Nasim Akhtar appellant and that he scribed the marriage forms which were signed by Muhammad Nawaz, Sher Khan, Amir Zaman and Shahbaz P. Ws. This witness was confronted with his statements before the police and the committing Magistrate wherein he omitted to mention this fact. He, however, admitted that the marriage forms were not entered in the register maintained by the Registrar of Marriages. Shahbaz P. W. deposed that the marriage forms were filled up by Maulvi Abdul Latif P. W. and he also entered the same in the prescribed register. This witness was confronted with his previous statement before the police where he did not state so. Sher Khan P. W. deposed that he was present at the time of marriage ceremony between Muhammad Ashiq deceased and Mst. Nasim Akhtar appellant. In cross‑examination he admitted that he had been appearing as a prosecution witness in several police cases including 2/3 murder cases. From the facts detailed above, it is obvious that no form was filled by Maulvi Abdul Latif P. W. nor the marriage was entered in the prescribed register. Maulvi Abdul Latif P. W. did not mention of the filling of the forms in his statements before the police and the committing Magistrate. Again the other witness of the marriage, namely, Shahbaz con tradicted Abdul Latif P. W., that the marriage forms were entered in the prescribed register. Therefore, both these witnesses belie one another in material particulars as to the factum of marriage. Muhammad Nawaz P. W. appears to be at the beck and call of the police and it would not be safe to rely on his testimony. It must not be forgotten that at the relevant time Muslim Family Laws Ordinance were in force and every marriage was to be recorded in a register maintained by the Registrar of Marriages. The fact, that this marriage was not entered in the B office of the Union Council coupled with the discrepant evidence on this point, we are of the view that the claim of the prosecution that Muhammad Ashiq deceased was the husband of Mst. Nasim Akhtar, was incorrect and that there was no matrimonial string between the two. It may be that it was a clandestine marriage or that Mst. Nasim Akhtar had illicit intimacy with the deceased.

10. Coming to the actual incident, we find that the prosecution produced Barkat Ali, Nawab Khan and Muhammad Nazir as eye‑witnesses of the occurrence. The learned Sessions Judge gave cogent and convincing reasons to reject the testimony of Nawab Khan and Muhammad Nazir P. Ws. and these findings of the learned Sessions Judge have not been challenged before us by the learned counsel for the State. We are left on record with the testimony of Barkat Ali P. W. We may say that Barkat Ali P. W. in his statements Exh. P. B. to the police and the committing Magistrate mentioned the number of his house as 116, but at the trial he stated that he was the occupant of house No. 1670 which adjoins the house of the appellant. This he obviously did in order to show that he was attracted to the spot being the neighbourer of the appellant. There is no material on the record to show as to the situation of house No. 116 from the house of the appellant in Mohallah Tench Bhata. This witness admitted in the committing Court that the A. S. I. after spot inspection recorded his statement, but he denied this fact at the trial. He denied having stated to the police that the marriage between the deceased and the appellant took place six months prior to the murder. He was confronted with his previous statement wherein it was so recorded. At the trial he stated that the marriage between the deceased and the appellant took place four months prior to the death of Muhammad Ashiq. In cross‑examination he admitted that he did not join the marriage ceremony of the deceased with the appellant. He omitted to mention in his statements before the police and the committing Court that for the first two months the relations between the deceased and the appellant were amicable. He also omitted to mention before the police and the committing Magistrate that there was a dispute between the deceased and the appellants ten days prior to the occurrence. He further omitted to mention before the police and the committing Magistrate that the appellant approached Sher Khan and Muhammad Nawaz P. Ws. when the dispute occurred a day earlier between the two. He did not mention before the police and the committing Court that he was feeding chickens in the morning at about 6 a.m. when he heard the cries of the deceased. This witness has named Nawab Khan and Muhammad Nazir as eye‑witnesses of the occurrence who accompanied him to the place of incident. Their presence has been doubted at the spot. Therefore, it is obvious that this witness has introduced two false witnesses of the occurrence. From his statement it is obvious that he has contradicted himself in material particulars and his statement carries his own condemnation. It is no safe to base a conviction on such futile and fatuous evidence. In the circumstances, we exclude his evidence from consideration.

11. The learned Sessions Judge took the view that the production of adze P. 1 before the police was of no con sequence to the prosecution, because it was not produced by the appellant herself. Furthermore, he disbelieved the recovery of clothes from the person of the appellant as he was of the view that it was not safe to rely on the testimony of Sher Khan P. W.

12. This leaves us on the record with the recovery of the dead body from the house of the appellant and her statement made at the trial. The appellant stated at the trial that she was asleep and when she woke up she saw the deceased tried to assault her and her alarm attracted the neighbourers, who killed Muhammad Ashiq. From her statement it is concluded that the deceased was making an assault on her with the intention of committing rape on her and in order to protect her the neighbourers inflicted injuries on the deceased which resulted in his death. We have no cavil with this proposition of law that if the Court has to take into consideration the statement of the accused, in the absence of any evidence, showing that any G portion of it is false, it can only accept or reject it as a whole and cannot pick and choose and accept only the inculpatory portion and reject the exculpatory part as incredible or false. In the instant case, there are circumstances to show that when the deceased was done to death there was remote possibility of the access of any other person except the appellant. There fore, the version of the appellant that the inhabitants of the locality inflicted injuries on the deceased when she apprised them that she had been criminally assaulted by the deceased is untrue and this part of her statement may be kept out of considera tion. Therefore, from the statement of the appellant and the fact that the dead body was found in her apartment make us believe that what happened is this. That the deceased, who had a liaison with the appellant went to her apartment without her permission and tried to share the bed with her and on her refusal criminally assaulted her and in this struggle the appellant inflicted injuries on the deceased. If that be so, the question to be considered, therefore, is whether the defence under section 100, P. P. C. is available to the appellant. We have already held that the appellant was not the wife of the deceased Even if she had a liaison with the deceased and on the day of the incident she did not submit herself for the sexual act and the deceased assaulted her she would be justified to resist the assault. Section 100, P. P. C. would justify the use of force by a person who is assaulted with the intention of committing rape, even if the force used by that person was to result in death. Provided, of course, it was necessary for that person to use that much force.

13. In the circumstances, the next question is whether the appellant has exceeded the right of self‑defence. Bearing in mind the fact, that there was no other person in the house at that time, it was natural for the appellant to think that the only way in which she could prevent her criminal assault was to incapacitate Muhammad Ashiq deceased from carrying out his design. It was apparently with that object in view that she attacked Muhammad Ashiq with a adze. It may be that she could have stopped after inflicting only injury, but placed as she was, it was certainly difficult for her to judge whether what she had done was enough to serve her object, i e. preventing the deceased from committing the rape on her. That accounts for her inflicting more injuries on the deceased. We are of the view that even if she was a woman of lax moral and was assaulted by the deceased without her consent slip had a right to cause injury/injuries to the deceased.

14. For these reasons we are of the opinion that the appellant did not exceed her right of self‑defence and that consequently she is entitled to an acquittal. Accordingly, we allow the appeal, set aside the conviction and sentence of the appellant and acquit her. She shall be set at liberty forthwith provided always that she is not required to be detained in any other case.

K.B.A. Appeal accepted.

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