P L D 1959 (W (PLP)

KHAMISANI, J.‑The appellant was tried along with his brother, Hasssu and sister Mst. Bachi for an offence under section 302 read with section 34, P. P. C. by the learned Sessions Judge, Khairpur Mirs. Mst. Bachi and Hassu were acquitted whereas the appellant was convicted under section 302, P. P. C. and sentenced to death. He has filed this appeal. The matter is also before us for confirma tion of sentence of death passed on him. Both the appeal and the murder reference will be disposed of by this judgment.

2. The prosecution story briefly is that Mst. Baehi was the wife of Bubar deceased. Both of them were sleeping in their house on the night between 23rd and 24th June 1958. Their son Muhammad Sadik aged about 7 years was also sleeping there. At about Sombani time Dost Muhammad, who was living in a house at a distance of 250 paces from the house of the deceased, heard cries from the house of the deceased. He went there and saw Mst. Bachi holding Babur by his hair and the appellant Bahadur and his brother, Hassu, giving him blows with hatchets. Dost Muhammad challenged the accused. He thereafter went and brought Ghulam Kadir and Hayat, the two brothers, of Babur, and narrated to them what he had seen. Both Ghulam Kadir and Hayat saw Babur lying dead. Hayat was then sent to 'file first information report at police outpost Baharo. Hayat did not find any police officer at the outpost. Head Constable Wali Muhammad, however, in the meantime reached the scene of offence at about 10‑30 a.m. He was accompanied by Rahimdad, the tracker. He saw the scene of offence and the foot‑prints on the scene were shown to the Pagi. Inquest report was prepared and the dead body of Babur was sent to Gampat Hospital through Hussain Bux Constable. Hayat in the meantime went to the police station at Gampat and lodged first information report at 5‑30 p.m. which was recorded by Sub- Inspector, Nur Muhammad. The Sub‑Inspector came to the scene of offence and examined Bagh, Hayat, Dost Muhammad and others. The accused were produced before the Sub‑Inspector, Khairpur, on 26th June 1958 who secured the blood‑stained shirt, loin cloth and a hatchet from appellant Bahadur in presence of mashirs Arbab and Alan under mashirnama (Exh. 20). The accused and the property were then produced before Nur Muhammad the Sub‑Inspector in charge of the investigation. Foot‑print test of the accused was held through Rahimdad on the 27th of June 1958 in presence of mashirs Allah Dad and Ahmed Din and the mashirnama (Exh. 17) was prepared. The appellant along with others was consequently challaned on the 4th of July 1958.

3. The motive alleged by the prosecution for the commission of this offence was that the appellant had killed Babur in order to be able to sell Mst. Bachi to someone else.

4. The case of the appellant Bahadur in the lower Court was that he had killed deceased Babur on account of his having been declared 'karo' with his sister Mst. Izat wife of Sanger. According to him, Sanger had declared the deceased 'karo'. He admitted that the police had secured blood‑stained hatchet, shirt and loin cloth from his possession. His case in the Sessions Court was that Babur had been declared 'karo' some three or four years before the date of the incident when he was in jail. He had murdered Babur one month after he had come out of the jail.

5. The evidence of Doctor Khuda Dad Khan (Exh. 12) discloses that the deceased had as many as six incised injuries on his person and that the injuries were ante‑mortem. The deceased, according to the doctor, had died due to shock and haemorrhage as a result of the injuries. Injuries Nos. 1 and 2 were certified by the doctor to be sufficient in the ordinary course of nature to cause death. The question whether the deceased died on account of those injuries having not been disputed, the only question which requires consideration is whether the appellant was responsible for causing those injuries.

6. The prosecution have examined a number of witnesses out of whom the most important one is Dost Muhammad who, according to his evidence, had seen the occurrence and had found Mst. Bachi holding the deceased by his hair and the appellant Bahadur and his brother Hassu giving injuries to him with a hatchet. The learned Judge has disbelieved his evidence. We see no reason why the evidence of this witness should be believed. The only evidence on which the conviction of the appellant is based is his statement recorded in the Committal Court where he stated as under: "I had killed deceased Babur as he was declared Karo with my sister Mst. Izat by her husband Sanjar. Complainant Ghulam Kadir was also with me at the time of murder". The statement of the appellant so recorded in the Committal Court was brought on record of the Sessions Court as evidence under section 287, Cr. P. C. This was supported by the statement of the appellant recorded under section 342, Cr. P. C. in the Sessions Court in which he stated as under:- "Dost Muhammad had not seen me committing the murder. 3 or 4 years before the murder, Babur was declared Karo. In those days I was in jail. I murdered him after a month of my release. At that time Mst. Bachi was sleeping. I took her. I voluntarily surrendered before police along with Mst. Bachi". The statement of the appellant is further supported by the circum stances of his hatchet, and loin cloth having been secured from his person. They were all found to be blood‑stained. The report of the Chemical Examiner also shows that the shirt was stained was not detected (sic). The appellant admits that hatchet, shirt and loin cloth were secured from his possession and that they were stained with blood. All this is further supported by foot‑print test held through Pagi Rahimdad in presence of mashir Allahdino and S.‑I. Nur Muhammad. The evidence against the appellant has not been challenged before us. Nothing has been brought out on record to show as to why the corroboration evidence should not be relied upon. In fact the appellant admits that he had com mitted the murder of Babur.

8. The only point advanced by the learned counsel for the appellant was that the statement given by the appellant was not true inasmuch as he was interested in saving his brother Hassu and his sister Mst. Bachi. We find ourselves unable to agree with him. In the first instance it is difficult to believe that a person would implicate himself and make himself liable for punishment of death in order that he should be able to save his brother and sister. The argument advanced by the learned counsel also does not find support from the record inasmuch as the appellant has in his memo of appeal adhered to his statements given by him in the Committal Court as well as in the Sessions Court. At any rate an argument cannot be advanced that the appellant at the time when he was filing an appeal had any apprehension of his brother and sister coming to any trouble. We therefore, see no reason to hold that the appellant was not responsible for giving injuries to Babur.

9. The only question which has agitated our mind is the question of sentence. The motive advanced by the prosecution for the commission of this offence was that the appellant had killed Babur in order that his wife Mst. Bachi be sold to someone else. This motive has not been relied upon by the learned Sessions Judge. It is also difficult in the extreme to believe that a Baloch would kill his sister's husband for the purpose of selling his sister to someone else. The other motive for the appellant to commit this offence is the motive given by the appellant himself. According to him he killed Babur because he had been declared 'Kayo' with his sister Mst. Izat some three or four years before the incident and at the time when the appellant himself was in jail. Among Balochis, once a person is declared a `Kayo', it is a matter of honour and prestige for them to dispose of both `Karo' and `Kari' by killing them. They do not brook delay in matters like this. The procrastination in affairs of this type is a matter of very great indignity for them. Somebody related to Babur would have taken upon himself to vindicate his so called honour if Babur had been actually declared `Kayo'. Sanger the husband of Mst. Izat would normally have been the first person to have risen to the occasion and won for himself the laurels of his community. He or other relations of Mst. Izat would not have waited for Bahadur to come out of jail and kill Babur. The motive therefore, as given by the appellant, does not appear to be one which is likely to have actuated the appellant to commit this offence. According to us he has given in this motive in order to mistakenly entitle himself to the benefit of the exception under section 300, P. P. C. of grave and sudden provocation. We are therefore not inclined to place reliance on the motive given by the appellant.

10. In total absence of any evidence on record with regard to the motive, on account of which the appellant killed the deceased, we are inclined to think that the parties have deliberately kept back the real cause for murder. We cannot, under the circumstances, say as to whether the appellant had or had not any justification whatever for killing the deceased. We therefore, in the circumstances of this case, consider the extreme penalty of death to be uncalled for. We shall therefore, while dismissing the appeal of the appellant, reduce his sentence from that of death to transportation for life. A. H. Sentence reduced.