1968 P Cr (PLP)

H. T. RAYMOND, J.-The appellant Kalu alias Kalandar Bux son of Allah Bux Khokar aged 25 was convicted by the learned Sessions Judge, Larkana, of the offence of murder under section 302, P. P. C. and sentenced to death. This appeal has been filed against his conviction and sentence. This matter is also before us for confirmation of the death sentence. Both the appeal as well as the murder reference will be disposed of by this judgment.

2. The deceased in this case is one Haji a younger brother of complainant Juman P. W. 1 who is a Mukadam of the P. W. D. on the Dadu Canal in Taluka Ratodero. The deceased used to be in the private service of Abdul Fatah a resident of village Moria Fakir in Taluka Ratodero. While in this service he had enticed away Mst. Rehmat a sister of the appellant and on account of the opposition raised by the appellant and his family the deceased had left the service of Abdul Fatah some six months before his murder. He had also some two months before his murder returned the woman to her people as a result of pressure brought upon him by the police - and the good men of the locality. But, it appears that he was still in love with this woman and he wanted to have her back and towards that end he had filed a complaint in the Court of the Mukhtiarkar and F. C. M Ratodero and had got a search warrant issued for the recovery of Mst. Rehmat.

3. On being discharged from the service of Abdul Fatah the deceased went to reside with his brother complainant Juman. On the day of the incident in. this case complainant Juman had gone into Moria Fakir village to convey a message to Mukadam Kadir Bux P. W. 4 that the Engineer of the beat was to pass along the Bund and hence it should be put in proper order. The deceased accompanied his brother Juman to village Moria Fakir and after having delivered the message to Kadir Bux they both went to the house of Ghulam Sarwar a P. W. D. Contractor who also resides in the same village. As the hour for the mid-day meal approached Ghulam Sarwar leaving them in his Otak went into his house to procure the meal. Being a hot summer after noon they both retired to sleep and while asleep complainant Juman was rudely awakened on hearing the noise of a thud and on opening his eyes he saw the appellant giving two hatchet blows to the deceased. He raised cries which brought to the scene Ghulam Sarwar P. W. 2 and Hidayatullah P. W.

3. The appellant leaving his hatchet behind ran away from the scene and on seeing Ghulam Sarwar with Hidayatullah enter the Otak he told them that he had killed his enemy. Complainant Juman went to the Naodero Police Station five miles away where his F. I. R. was recorded at 5 p. m. that same evening by S. H. O. Mir' Mohammad P. W.

6. This S. H. O. accompanied the complainant to the Otak of Ghulam Sarwar where he found the dead body of Haji lying on a cot which was stained with blood. He also saw a blood-stained hatchet lying there which he secured and mentioned in the mashirnama of the scene Exh. 11 then prepared by him. He recovered a typed application Exh. 12 from the deceased's pocket. He prepared an inquest report Exh. 13, and sent the dead body for post-mortem examination. He then recorded the statement of Ghulam Sarwar P. W. 2, Hidayatullah P. W. 3, Kadir Bux P. W. 4 and Sanaullah P. W.

5. The following morning he secured the appellant and recovered from his person his blood stained turban, loin cloth and banyan under mashirnama Exh.

14. He sent these blood-stained articles to the Chemical Examiner. On 15-6-1965 he produced the appellant before the Mukhtiarkar and F. C. M. Ratodero who recorded his judicial confession Exh.

24. On concluding his investigation into this case he challaned the appellant in Court.

5. The statements of the appellant in the two Courts below consist of denials of every allegation put to him and the averment that he has been involved in this case on account of enmity with the prosecution witnesses. He denied that his blood-stained clothes were secured from his person, that he had made any extra judicial confession to Ghulam Sarwar and Hidayatullah and with regard to his judicial confession he said that the same was extorted from him by the police who confined his mother and sister at the police station and detained them there until he had made this confession.

6. It is not denied in this case that deceased Haji died a9 a result of hatchet injuries. Apart from the ocular testimony, there is on record the evidence of Dr. Abdul Qayum then Sub -Charge Civil Hospital Larkana who performed the post-mortem examination on his dead body. On external examination he found three incised wounds the first being 7" x 1'` fracturing the bones under the right side of the head extending from the middle of the forehead going up to behind the right parietal eminence. The second was an incised wound 5" x 2" x 3" deep on the back of the neck with fracture of the 5th and 6th cervical (spines) vertebra and a complete cut of the spinal chord and the soft tissues of neck. The third was an incised wound 1 " x " muscle deep on the lower part of the front of the right fore-arm. On internal examination he found corresponding internal injuries to the external injuries 1 and 2 and gave it as his opinion that the cause of death was due to shock and haemorrhage as a result of -these injuries. He added that external injuries Nos. 1 and 2 were individually sufficient in the ordinary course of nature to cause death and that death was instantaneous.

7. The next question for determination in this appeal whether the guilt of the appellant has been brought home to him. The evidence available on the record of this case consists in the first place of the ocular testimony of complainant Juman in whose presence his brother was done to death. Next, we have the evidence of Ghulam Sarwar and Hidayatullah P. Ws. 2 and 3 who came up on boating the cries of complainant Juman and who saw the appellant running away from the Otak and heard him say that he had killed. his enemy. Thirdly, we have the evidence of Kadir Bux P. W. 4 and Sanaullah P. W. 5 both of whom were informed by Hidayatullah immediately after the incident that it was the appellant who had slain the deceased, Haji. Fourthly, there is the recovery of the appellant's blood-stained banyan and turban and loin cloth at the time of his arrest early the following morning all of which articles according to the Chemical Examiner were stained with human blood. Finally, there is the judicially confession of the appellant as recorded by the Mukhtiar kar and F. C. M. Ratodero, and the motive for this crime.

8. We have been taken through each of the above pieces of evidence and in our view the sum total of this evidence clearly establishes the guilt of the appellant as being the assailant of deceased Haji. The evidence of complainant Juman discloses how the appellant having lost his job with Abdul Fatah of Moria Fakir Village came and resided with him and how on the day of the incident they both went to Moria Village to convey a message to Mukadam Kadir Bux there. Having done so they repaired to the house of their friend Ghulam Sarwar P. W. 2 a P. W. D. Contractor who invited them to say for lunch. At about 1-30 as he went into the house to prepare the meal Juman and his brother deceased Haji fell asleep in the Otak when Juman was rudely awakened by the loud sound of a blow and on opening his eyes found the appellant deliver two more hatchet blows to his brother deceased Haji. He immediately cried out and on their cries Ghulam Sarwar their host and Hidayatullah who resides only a few paces away came up and saw the appellant running away from the scene. The appellant who resides quite near to Moria Fakir Village was known to them previously and while running away he told them that he had killed his enemy. The news of this tragedy was conveyed by Hidayatullah that same afternoon, to Kadir Bux P. W. 4 and to Sanaullah P. W. 5 both residents of the same village. This Kadir Bux is the same P. W. D. Mukadam to whom the complainant had come to give his message. Besides this evidence, there is also the recovery made the following morning from the appellant soon after his arrest of his blood-stained banyan, turban and loin cloth all of which were sent to the Chemical Examiner who found human blood on each of these articles. The appellant's hatchet which was secured from the scene under rnashirnama Exh. 11 was also sent to the Chemical Examiner and was also found to be stained with human blood. There is also on record the judicial confession of the appellant as recorded by the Mukhtiarkar and F. C. M. Ratodero on 15-6-65. S. H. O. Mir Muhammad has explained in his evidence as to why it was not possible to produce the appellant before a Magistrate earlier for this purpose. Ratodero is 16 to 17 miles away from the appellant's village and besides being summer when the Court time was only up to 2 p. m., it was not possible for the S. H. O. to produce the appellant before a Magistrate at Ratodero on the same day of his arrest. In addition to all this evidence there is also the motive behind this murder. The deceased had enticed away Mst. Rahmat sister of the appellant and this was greatly resented by the appellant, his father, his uncle and other members of his family. It is true that the deceased had returned this woman; but he was still active in trying to get her back and towards this end he first filed a complaint in this Court of the Mukhtiarkar and F. C. M. Ratodero and obtained a search warrant from there. An application Exh. 12 was found in his pocket by the S. H: O. addressed to the Deputy Superintendent of Police Larkana complaining how his wife Mst. Rehmat had been snatched away from him by her father Allahbux and praying that she may be restored to him.

9. In view of this abundant evidence appearing on the record of this case against the appellant his learned Advocate has not seriously questioned his guilt in this case, but has confined his submissions to the question of quantum of sentence. Mr. H. M. Junejo appearing on behalf of the appellant has invited our attention to four recent judgments of our Supreme Court in the cases of Fazal Khan v. The State (P L D 1964 S C 54), All Akbar v. The State (P L D 1965 S C 363), Allahdad and Mohd. Ramzan v. The State (P L D 1966 S C 129) and Umar Hayat v. The State (P L D 1966 S C 602). In each of these cases their Lordships have emphasised the importance of the family honour affecting a female member of the same family and how jealously this honour is guarded by tribes inhabiting the western regions of this Province of West Pakistan. To vindicate that honour these tribal people are prepared to go to any length and no number of death sentences could ever serve to diminish this sentiment of these people. In the instant case, the appellant Kalu was aggrieved not only by the deceased enticing away his sister but also by the subsequent efforts and attempts on the part of the deceased to get her back after having returned her to her parents and her people. Indeed, it appears to us to be more than probable that; brother Juman that day to village Moria Fakir order to be near his beloved one and perhaps in a position to reclaim her. It is in evidence that the appellant's village is only at a call's distance from Moria village. The learned A. A.-G. admitted this aspect of the case in so far as the appropriate sentence to be imposed upon the appellant was concerned. He stated that under Article 63 of the Constitution a decision of the Supreme Court is binding on other Courts and in view of the four reported cases mentioned above he could not oppose the submissions as to sentence of the learned Advocate in this behalf. We ourselves were of the same opinion and hence at the conclusion of the arguments in this matter while dismissing the appeal we declined to confirm the death sentence imposed upon the appellant but reduced it to one of transportation for life. We, there and then, passed a short order to that effect. This judgment contains the reason for that short order. Appeal dismissed. Sentence reduced.