EID WALI Versus STATE
1. SARDAR MUHAMMAD SHARIF KHAN, J.‑‑ The appellant Eid Wall faced a trial of the case under section 307/302, P. P. C. in the Court of the Sessions Judge, Rawalakot who found him guilty on both the counts and sentenced him to rigorous imprisonment of seven years under section 307 and a fine of Rs. 30 and to death under section 302 and a fine of Rs. 50 was also added to sentence of death. In default of payment of fine, he was ordered to undergo rigorous imprisonment of three months in the first case and six months in the second one.
2. Eid Wali was married to Shah Jahan Begum about five years before the incident occurred. After the marriage it is said that he also took his wife to Rawalpindi where he had been working as a labourer. She lived there with her husband for about a year and then came back to the house g of her parents in the village known as Nar Sher Ali Khan. She left the company of her husband from Rawalpindi accompanied by her maternal uncle Mohammad Sadiq, by name and reached the village to join her parents. Their parting took place because of quarrel and non‑supply of ornaments to the wife by the husband which were promised to be given to her at the time of their marriage. Eid Wali tried for her return to Rawalpindi but having failed in his attempts from Rawalpindi came to the house of his father‑in‑law in order to .seek return of Mst. Shah Jahan Begum but she refused to go with him on the plea that he used to torture her and moreover the ornaments promised were not given to her. It was four days before the incident that Eid Wali had come to the louse of his parents‑in‑law and tried to take his wife to Rawalpindi but Mst. Shah Jahan Begum made a flat denial and so her parents. This was not the only relationship between the parties but they were even otherwise closely related, Eid Wali being the son of maternal uncle of Ghaffar Sheikh deceased..
3. According to the prosecution, on the night falling between the 8th and 9th of January, 1969, the accused‑appellant was also in the house of his father‑in‑law where Noor Hussain and Bashir were also present for the night. The other inmates of the house were Ghaffar Sheikh, his daughters and children, whereas Mst. Zdoni, the wife of Ghaffar Sheikh had left for Rawalpindi two days earlier to see her brother there. Siddique son of Sheikh Ghaffar was a very small boy of a tender age. Bashir and Noor‑, Hussain slept on the same cot in a separate room; whereas Ghaffar Sheikh, his daughters, the other children and Eid Wali slept in one room. Both the sisters namely; Shah Jahan Begum and Fatima deceased slept on the same cot. Eid Wali and a minor son of Ghaffar Sheikh took one cot to . sleep and Ghaffar Sheikh deceased had also one cot to sleep alongwith his other small children. They all went to sleep for the night.
4. It so happened that Mst. Shah Jahan Begum wife 'of Eid Wali accused appellant changed her side on the cot' and slept to the other side of her sister Fatima deceased. At about midnight crying of Mst. Fatima made Mst. Shah Jahan Begum wake up. Mst. Fatima was inflicted a blow on her head with an axe from its sharp side by the accused as a result of which she had to cry making her sister awake. Mst: Shah Jahan Begum saw the accused‑appellant standing closely armed with an axe P/1 and having a torch glowing in his hand. She was also given a blow sharp with the axe on her head. She raised much of hues and cries which attracted the other inmates of the house and the accused‑appellant rushed out of the house who was then followed by her father Ghaffar Sheikh even in a naked state, in order to apprehend the appellant and it was then outside the house in the adjacent field that Eid Wali inflicted axe‑blow on the head of. Ghaffar Sheikh from the sharp side who then fell down bleeding in the field. The weapon of offence was also thrown in the field nearby the victim and thus Eid Wali could make his escape good. All the persons injured were found in a precarious condition. Ghaffar Sheikh and Mst. Fatima on receipt of the injuries on their heads became unconscious though Mst. Shah Jahan Begum remained conscious. Noor Hussain who also saw the accused appellant after inflicting injuries on the head of Ghaffar Sheikh, went to inform Khadim Hussain Khan who on information of Noor Hussain reached the spot and found Ghaffar Sheikh and Mst. Fatima uncon scious who were just gasping and breathing convulsively. Mst. Shah Jahan Begum P. W. related the tale of woe as a whole to him who then went to Police Station for lodging a report. He while ‑going to the Police Station informed Ali ‑Akbar Khan, a respectable man of the village who also went to the scene of the occurrence. On report P. C. given by Khadim Hussain Khan, a case under section 307 was registered against the accused‑appellant. The Police started from the Police Station for con ducting the investigation of the case but before their arrival on the spot, Ghaffar Sheikh and Mst. Fatima succumbed to their injuries, which were inflicted on their heads with the sharp side of the axe. Thus section 302, P. P. C. was added to the charge under section 307 for which a case was already registered against the accused appellant.
5. The prosecution has examined Khadim Hussain, Lambardar, Mst. Shah Jahan Begum, Mst. Zooni, Mst. Arshi, Noor Hussain, Abdul Jabbar, Ghulam Nabi, Kamal Din, Mohammad Hussain, Mohammad Sadiq, Aki Khan Faqir, Mohammad, Ali Akbar Khan, Dr. Mukhtar Ahmed Chaudhry, Raja Mohammad Yusuf S.P. (Rtd), Munshi Sana Ullah Khan, Head Constable (Rtd.) and Sardar Mohammad Aziz Khan, S.I. (Rtd.).
6. Mst. Shah Jahan Begum PW narrated the whole incident holding her husband liable for inflicting injuries with the axe seized on the heads of Ghaffar Sheikh, Mst. Fatima and Mst. Shah Jahan Begum herself. According to her, it was so done by the accused appellant because she refused to accompany her husband to Rawalpindi in order to live with him as he used to torture. her. Noor Hussain P.W. has also supported her statement in context of commission of offence. This Noor Hussain had gone to the house of Ghaffar Sheikh for preparing the arms of the cot who stayed there for the night during which the incident took .place. He was the person who went to inform Khadim Hussain Khan Lambardar who gave the information onward to the Police. After injuring the persons referred to above as such, Eid Wali threw the weapon of offence on the spot where Ghaffar Sheikh was injured and ran away. This weapon of offence was seized by the Police from the spot.
7. Mst. Arshi P. W. is the sister of Ghaffar Sheikh deceased. According to her Eid Wali went to her the day preceding the night of incident and implored her to ask her brother Ghaffar Sheikh that Mst. Shah Jahan Begum should be sent alongwith him to Rawalpindi. She in order to entreat her brother proceeded to the house of her brother but he could not be found though Mst. Shah Jahan Begum met her who refused to go with her husband as according to her, he was in habit o; torturing her.. The denial so made by the girl was disclosed to Eid Wali who then wet to the house of his parents‑in‑law.
8. Mst. Zooni, the mother of Mst. Shah Jahan Begum is also a witness to have deposed that Eid Wali had come to their house four days prior to the occurrence but she herself proceeded to Rawalpindi two days before the occurrence when she was seen off on a Bus Stop by her husband and Eid Wali both. Eid Wali suggested to her in the cross‑examination that even the ticket of Bus was purchased by Eid Wali for her and not by Sheikh Ghaffar. Aki Khan also saw the accused‑appellant in the village who was approached by Eid Wali to ask his father‑in‑law to send his wife to live with him. It also transpired from the statement of Mst. Zooni that Mst. Shah Jahan Begum was very young as compared to her husband who was quite of age.
9. The letter P. A. and agreements P. G. and P. F. produced by Khadim Hussain Khan and Abdul Jabbar brother of Mst. Zooni respectively before the Police were also seen critically in context of the statements made by the witnesses concerned. In the circumstances pointed out by the learned counsel of the appellant, we are not prepared to attach any value to them, as they do not stand proved genuine for the purpose for which‑ they were obtained. It was the case of the prosecution that letter PA was brought by Eid Wali accused himself for Khadim Hussain from Mohammad Hussain P.W. but no hint to it was even given by the maker of the report in his report. Moreover, neither this letter nor the agreements were put to the accused under section 342, Cr. P.C. by the Sessions Judge. Even on ignoring these documents, we find sufficient material on record to hold that Mst. Shah Jahan Begum was not willing to live with her husband any longer. Mst. Shah Jahan Begum never liked to live with Eid Wali who was not a good match to her. It was suggested to Mst. Zooni, the mother of Mst: Shah Jahan Begum that Noor Hussain PW had developed illicit intimacy with Mst. Shah Jahan Begum and Mst. Shah Jahan Begum was also put a question to the effect that on the fateful night Noor Hussain went to her cot in order to carry on with her and it was thus that the incident happened and by doing so it was hinted that Eid Wali had to resort to a course of using criminal force because of this. The plea. of the accused‑appellant was that of alibi and this was a defence taken alternatively. The accused stated that he had very good relations with his wife. He in order to prove alibi examined Mohammad Ishaq, Mirza Amir Mohammad Baig and Sajjawal Khan.
10. From the evidence led by the prosecution, coming of Eid Wali to the house of his parents‑in‑law is established without suspicion. Mst. Arshi, though sister of Sheikh Ghaffar. is closely related to Eid Wali as well. She is the daughter of Eid Wall's paternal aunt. She in the circumstances speaking by themselves, could not say against the accused if there was no approach on the part of the accused asking her to persuade her brother Ghaffar Sheikh for sending her daughter to live with her husband on the day preceding the night of occurrence. His own suggestion to his mother‑in‑law on the Bus Stop that it was he who purchased the ticket for her shows that he came to the village of parents‑in‑law from Rawalpindi four days or so before the occurrence and he was very much there in the village when the unfortunate incident took place. After the occurrence, .the accused absconded and this is borne out by the evidence of the pro secution. This is a very strong circumstance which goes against the accused‑appellant in corroboration of the ocular evidence. He has been working as a labourer at Rawalpindi for a number of years but just after the occurrence he left Rawalpindi for Hyderabad as, is evident from his own statement wherefrom he could be located and arrested after the lapse of a period of over 31 years. The circumstances of the case show that Eid Wali had an intention to take the life of his wife, who refused to live with him in spite of the best efforts on his part. It was by fate that fatal blow was inflicted on the person of Mst. Fatima, a girl of about 12 years of age which was to fall on Mst. Shah Jahan Begum who had changed her side by chance with her sister after she had gone to bed to sleep with her sister. It seems that Eid Wali had in mind the side to which he saw her going to bed and it was afterwards that the sides were changed by his wife on the cot for which change of sides he had no knowledge. This part of the statement of Mst. Shah Jahan Begum in respect of change of sides is very much natural. After having given a blow on the head of Mst. Fatima deceased, Eid Wali then turned to his wife who was the actual target and inflicted an injury on her head with the same axe from its sharp side and ran away out of the house along with the weapon of offence. On hues and cries raised by the daughters, Ghaffar Sheikh even without taking care of himself for being naked, ran after the accused‑appellant in order to catch him who to avoid his ap prehension by his father‑in‑law inflicted a blow of axe from its very sharp side with a full force on his head, as a result of which he fell down on the ground. The accused‑appellant then throwing the weapon of offence near the side of his victim ran away.
11. We have given a thorough consideration to the circumstances of the case and find that the prosecution has established its case against Eid Wali accused‑appellant beyond a reasonable doubt and the plea of alibi taken by the accused‑appellant is baseless. We have already indicated while discussing the Prosecution evidence that the presence of Eid Wali at the house of his parents‑in‑law is proved on the night of occurrence and as such no reliance could be placed on the oral evidence led by him,
12. Mst. Fatima, Ghaffar Sheikh and Shah Jahan Begum were inflicted injuries on vulnerable parts of their heads as the medical reports show. Mst. Fatima and Ghaffar Sheikh became unconscious on the very receipt of the injuries on their heads and never regained their senses till the succumbed very soon to the injuries inflicted. Mst. Shah Jahan Begum was inflicted blow on her head with the axe which is a deadly weapon. Eid ,Wall was inspired by the intention to murder her and as such inflicted a blow of axe .from its sharp side on the very vital part of the head which was capable of causing death in the natural and ordinary course of events. The weapon of offence was a sharp weapon used against the persons of both the deceased and Mst. Shah Jahan Begum P. W. The injuries were inflicted on their heads with such a weapon which is an axe seized by the Police from the spot and the use of which against their per, sons is borne out from the testimony of Mst. Shah Jahan Begum and Noor Hussain P. W. This is a deadly weapon. Its very use from the sharp side on the heads of the victims shows the intention with which it was used and that can be the intention to kill the persons attacked.
13. Under these circumstances, offences of murder and attempted murder brought against Eid Wali are proved upto their hilt. Eid Wati has take lives of two innocent persons and also made an atrocious attempt t murder his wife. Therefore, we see no reason to interfere with the sentence of death under section 302, and that ‑of rigorous imprisonment under section 307 passed against him by the Sessions Judge. However, the sentences in default of fine. are not properly and reasonably passed.
14. Therefore, we remit the sentence of fine under section 302, and maintain that of under section 307, but in default only a sentence of simple im prisonment for a week will do.
15. In the result the appeal is dismissed and the file is forwarded Jo the Government for confirmation of the sentence of death.
16. Appeal dismissed.