1977 PLP 347 (SCMR)

MUHAMMAD HALEEM, J. This appeal is by special leave of this Court against the judgment dated 7‑()‑1972 of a Division Beach of the former High Court of Sind & Baluchistan by which the convictions of the appellants under sections 302 and 307 read with sections 34 of the Pakistan Penal Code were maintained and the death sentence passed on appellant Allah Rakhio was confirmed. Leave to appeal was granted to consider as to whether the appellants could be identified at night by the prosecution witnesses in the light of the moon. It was the prosecution case that complainant, Sher Muhammad, resided at his well in Deft Dilawaro alongwith his two wives Mst. Shahar Bano and Mst. Rani and his nephews Manzoor and Hazoori. From Mst. Rani he had a daughter Mst. Basran, aged one year. Mst. Jatni, the wife of leis deceased brother Khuda Bakhsh also resided in the same house. At Somhani time on 1‑11‑1968 they heard gunshots and saw the light of fire and later heard cries being raised from the house of Sadiq followed by gunshots upon which Manzoor, Mst. Shahar Bano, Mst. Jatni and Mst. Rani holding her daughter in her arms, came out and stood in the courtyard of the house. Soon after a shot struck Mst. Rani upon which she cried out and fell down. Another shot hit Mst. Shahar Bano and she too fell down. Mst Jatni ran inter the house raising cries upon which a third shot was fired but it did not hit her. Masoo Kori and Roopa Kori on hearing the gunshots and the cries range running towards the house and saw the appellants in the light of the moon. Allah Rakhio was armed with a gun and Shorn with a hatchet. The appellants threatened them not to approach them whereupon they halted. The com plainant and Manzoor out of fear hid themselves in the house. The Appellant thereafter decamped from there Mst. Rani expired at the spot but her daughter Mst. Basran who had received gunshot injuries was alive. Mst. Shahar Bano also succumbed to her injuries. The complainant then sent Manzoor to inform Sadiq and Khamiso of what had happened and also to ascertain as to who had fired the earlier gunshots. In the meantime Sadro and Arab came and informed the complainant that Khamiso was shot at and killed while Usman wars lying injured and the houses of Khamiso and Sadiq were set on fire by the appellants. The complainant left Manzoor at the spot and hastened to Police Station, Ubauro, District Sukkur along with Arab and Sadro where he lodged the First Information Report at 00 hours. The motive alleged was that appellant Allah Rakhio suspected Sadiq of having illicit intimacy with his wife Mst. Shejan and in that affair he got the impression that Mst. Rani had acted as an intermediary and, therefore, he had killed the ladies to avenge the grudge. From the courtyard of the house blood‑stained earth was secured. Three crime empties lying about six paces away were also taken into possession. The medical evidence disclosed gunshot injuries on the two deceased and Mst. Basran. The appellants were arrested on 3‑11‑1968. Allah Rakhio produced his licensed gun from his house which matched with the crime empties secured from the spot. The trim Court accepted the ocular testimony of Sher Muhammad, Manzoor and Roopa. Out of them Roopa was a disinterested witness. The trial Court laid stress on the promptness with which the First Information Report was lodged which in its view ruled out the possibility of a false case being concocted against the appellants. In repelling the contention that the incident occurred at night and, therefore, it was not possible to identify the culprits‑ the trial Court held: "The defence counsel has passed the point that it being a night time the identification should not be relied upon. I see no force in this argument at all. The accused are close neighbourers of prosecution witnesses and they must be seeing each other often. The gun that accused was carrying was a single‑barrel gun. He has fired three shots i.e., he must have loaded the gun at least for two times. They (accused) were seen coasting Admittedly the night was full moon night." The trial Court also accepted the motive relying therefore, on the testimony of Sadiq (P. W. 4) who in clear words stated that he was declared Karo by Allah Rakhio who had insisted for a `Faisla' which fact came to the know ledge of the Police and proceedings for keeping peace were initiated and his three sons, Haider, Dado and Allah Yar were taken into custody but he was not arrested as he had absconded. The trial Court gave credence to it because in spite of the lengthy cross‑examination nothing emerged to discredit his statement. It was further held that apart from it the other witnesses also deposed to the suspicion entertained by Allah Rakhio about the illicit intimacy of his wife with Sadiq and also the part played by Mst. Rani as an intermediary and, therefore, there was no reason to doubt it. As to the recovery of the crime empties from the spot, the trial Court in particular relied on the testimony of Kambar Ali, A. S. I. whose statement about such seizure was not even challenged. As to the contention that the recovery witness, Faiz Muhammad, was inimical towards the appellants, the trial Court held that this argument it would be of no avail for he had on the contrary obliged the appellants by stating that the crime empties were secured before he had come to the spot. Accordingly the trial Court hold them guilty for the murders of Mst. Shahar Bano, Mst. Rani and attempted murder of Mst. Basran, under sections 302 and 307 read with 34, P. P. C. and sentenced Allah Rakhio to death and Sheru to transportation for life on the first count and to five years' rigorous imprisonment on the second count. On appeal and reference the learned Judges held that the presence of Sher Muhammad and Manzoor in the house at the time of the incident and the arrival of Roopa near the spot was not open to doubt. In holding so the learned Judges took into consideration that it was Sumhani time and both Sher Muhammad and Manzoor were expected to be in the house and they were, therefore, natural witnesses. As for Roopa, he lived a furlong away and it was natural that he would have been attracted by the gunshots and, therefore, it is difficult to accept that he had not come. The learned Judges further held that the appellants lived a furlong away and they were known to the witnesses. It being the 10th of Sha'ban and the incident having taken place at 9‑30 p. m., there would, therefore, be enough light for the witnesses to identify the appellants more so when the medical evidence showed that gunshot injuries on Mst. Shahar Bano and Mst. Rani were caused from a distance of four feet and about 7 to 10 feet respectively. Both the ladies were shot at in the courtyard of the house and, therefore, the inmates of the house would have had no difficulty in identifying the appellants. The learned Judges also took note of the fact that Faiz Muhammad had stated that the two deceased stood at a distance of 30 paces from the appellants but they held that it was hearsay as no question was put to other witnesses in regard to it. Faiz Muhammad was not an eye‑witness and he could not have stated about it otherwise. As for Roopa, the learned Judges held that he had seen the appellants from a distance of 20 paces in the light of an almost full moon in which case he would have had no difficulty in identifying the appellants. Concluding on this aspect of the case the learned Judges held; "It may be added that the incident had taken place in the open and in a small village unadulterated by city atmosphere. Moreover the eye sight of the people living in the village not used to bright light, like electric is stronger than the people living in the city. We have, there fore, no hesitation in saying that the witnesses had ample opportunity and light to identify the culprits. In regard to motive the learned Judges held that in the events that happened before the present incident it left no room to doubt the motive imputed for killing the two ladies in the context of the fact that no male member was touched. In repelling the contention that the appellants had been implicated on account of previous enmity, the learned Judges held that: "It is inconceivable that the witnesses would spare the real culprit instead substitute the appellants for having committed these murders on account of some previous dispute." Lastly, they held that Allah Rakhio had failed to explain as to how his gun matched with the crime empties seized from the spot apart from denying the fact which corroborates his participation to an extent to exclude reason able doubt. As to the participation of Sheru the learned Judges held that he being his son was equally interested in assisting his father as the crime had to be committed in the house of the victims and, therefore, the participa tion of more than one person was consistent with the circumstances of the case. He had accompanied his father to stand by in case any opposition was offered by the complainant party. It was contended by the learned counsel for the appellants that there was not enough light to facilitate the identification of the appellants. In support of it he relied on the distance shown in the sketch i. e., 45 feet and 25 feet, from where F. Ws. Manzoor and Roopa, respectively, had seen the appellants. According to the learned counsel it would not have been possible for them to have identified the appellants from such distance even in the light of the moon. As for Sher Muhammad, the learned counsel contended that he was not in the house at the time of the incident but had come later as was evident from the Committal Court statement of Manzoor which was duly proved and, therefore, there was no indication of the point in the sketch to show his presence. From the nature and the extent of the gunshot injuries on the two deceased Dr. Muhammad Yousuf has stated that Mst. Rani was fired at fro a distance of 7 to 10 feet whereas Mst. Shaher Bano from about four feet. He was not cross‑examined on this aspect of the case and we have no doubt that his estimation of the distance was correct. Mst. Shahar Bano had received a full burst on the right upper leg near the knee‑joint which evidently showed that she was fired from a very close distance. Mst. Rani had wound of entrance and exit which again gave an indication of the close distance fro which the shots were fired. Besides the crime empties were picked up from a place six paces away from the spot which feature corroborates the medical evidence as to the distance from which the shots were fired. Apparently the single‑barrel gun was loaded thrice and this accounted for the presence of the three crime empties as three shots were fired. It is also not disputed that having regard to the time of the incident there was bright light of the moons and the appellants were known to the witnesses and therefore, being fully aware of their features and familiar with their voices, there could not be any mistake in their identification from a close distance. The learned Judges also relied on the further fact that the eye‑sight of the people living in they villages not used to bright light is stronger than the people living in the city. This consideration can hardly be denied for it is common knowledge that this is so. In addition to others, this factor too must have facilitated the witnesses to determine the identity of the appellants. The contention that Sher Muhammad was not in the house at the time of the incident is again fallacious. Both the Courts have held that his presence in the house at Sumhani time was natural as he was an inmate of the house, No question was put to him to suggest his absence from the house and, there, fore, this contention is on a conjectural plan. The learned counsel, however, sought to establish it from what Manzoor had stated in his cross‑examination that Sher Muhammad was not in the house at the time of the incident. This stand is based on his Committal Court deposition with which he was confront ed. But factually there is an error for instead of the word `gone' the word `come' has crept in by mistake. What Manzoor had actually stated before the Committal Court is as under " . . . . I had not gone to the house of the deceased Khamiso but complainant had gone and I sat over the dead bodies." This reply obviously shows that it was after the incident was over that her Muhammad had left the house and not that he had come later. Accordingly, the basis for such contention has no foundation. Equally this fact would not mutually exclude the presence of either Manzoor or Sher Muhammad as was contended by the learned counsel. The presence of the two witnesses is established beyond doubt and we have no hesitation in accepting their statements that they had identified the appellants. The sketch was prepared almost two years after the incident and that too at the instance of a Constable and, P. W. Roopa. In the circumstances it cannot be expected to correctly reflect the distance from where Manzoor had seen the appellants. In his statement he has disclosed that he saw the appellants from a distance of 20 feet which can hardly be questioned. In the face of this disclosure the distance at which he was stated in the sketch to be standing cannot be taken as correct. Again if there is no indication of the point in the sketch as to where Sher Muhammad stood at the time of the incident, that must be due to the lapse on the part of Roopa and nothing can turn on it. Concluding, therefore, Roopa had seen the appellants from a distance of 20 paces and Manzoor from 20 feet, in which case there could not be any possibility of a mistake in their identification in the light of the moon. Sher Muhammad bad seen the appellants as he emerged from the house and in his case too the possibility of a mistake is excluded beyond doubt. Roopa is of different caste and a disinterested witness. No enmity is suggested against him. However, it was put to him that his cousin Jummo had filed a case of theft against Kabil, a son‑in‑law of Allah Rakhio but he denied having known it. Such suggestion of enmity will not affect his credibility. His presence at the spot can hardly be doubted, for, he was attracted on hearing the gunshots and the cries of the inmates of the house as he lived a furlong away from the house of Sher Muhammad. Both the Courts have believed his presence and we have no hesitation in accepting that finding. The learned counsel stressed that since the crime was committed at night, the appellants should have been put to an identification test. This contention is without substance as the appellants were already known to the witnesses and there was no point in holding an identification test. The learned counsel next contended that the recovery of the crime empties was not established as the recovery witness Faiz Muhammad was inimical towards the appellants. In this context the learned counsel relied on his admission that he had filed a theft case against Kabil, a son‑in‑law of Allah Rakhio which ended in acquittal. Further it was brought out that he had appeared as a witness in a case filed by his brother‑in‑law Gohram against Allah Rakhio which also ended in acquittal. Again another case under section 307, P. P. C. was referred to in which Kabil had given evidence against him. The trial Court has held that if he was inimical towards Allah Rakhio, then he would not have obliged the appellants in stating that the crime empties were secured before his arrival at the spot. But apart from it the trial Court has believed the evidence of Kambar Ali, S. I. The learned Judges also agreed with the trial Court in accepting the recovery of the crime empties. In the absence of anything to show that they were planted, it is not possible to disbelieve the testimony of Kamber Ali. In regard to Sheru it was urged that the witnesses had not attributed any overt act to him and, therefore, his participation was doubtful, more so when he lived four miles away with his father‑in‑law Shah Muhammad. In the face of the direct testimony it is not possible to exclude his presence merely because he lived at some distance from the spot. The learned Judges have given cogent reasons for his presence and we have no reason to disagree with that finding. As to the death sentence passed on Allah Rakhio, we see no reason to alter it to transportation for life even if there was delay of 9 years and 7 months in the disposal of the case. It is a case of gruesome murder of two ladies one of whom was unconnected with the suspicion entertained by him and there was, therefore, no reason to kill her in the garb of satisfying hi lust for what is termed as personal honour. The deliberate extinction of life in the circumstances should be visited with the normal penalty of death. Accordingly, we would maintain it. In addition to it we have found that the Courts below have not imposed the fine under section 544‑A, Cr. P. C. which we now propose to inflict. Each of the appellants is ordered to pay a sum of Rs. 1,000 as compensation to the heirs of the deceased or in default to suffer rigorous imprisonment for six months. This sentence shat be suffered by Allah Rakhio in case his death sentence is commuted by the Executive. Subject to this modification the appeal is dismissed. Appeal dismissed.