P L D 1963 (W (PLP)

(1) Incised wound 5" x " x 1" on the occipital bone cutting the underlying bone transverse, and (2) Incised wound 3" x 1" x 1" on the right temporal region cutting the underlying bone oblique. These were also caused by a sharp cutting weapon such as a hatchet. The membrances of the brain had been lacerated, and the occipital bone below injury No. 1 and the right temporal bone under injury No. 2 was damaged. In her case also, death was due to shock and haemorrhage consequent to the head injuries which were both individually sufficient in the ordinary course of nature to cause death. This point is not disputed, nor indeed is the fact that the incident took place at the scene contended by the prosecution.

5. It is clear from what we have heard from the arguments on either side that the prosecution relies on the following circumstances to establish its case against the appellants (1) The motive on account of which the appellants committed the crime ; (2) The ocular evidence of Allahdino, P. W. 1, Exh. 5, Umar, P. W. 2, Exh. 8, Muhammad Hussain Kirio, P. W. 3 Exh. 9, with the corroborative evidence of Kassim, P. W.

4. Exh. 10 and Muhammad Usman, P. W. 6 Exh. 13 ; ;,, : ,p:. (3) The extra‑judicial confession made before Usman by the .appellant Mevo immediately after the crime, and (4) The recovery of the two blood‑stained hatchets ; one from appellant Mevo at the time he was produced by P. W. Usman, and the other recovered at the showing of appellant Ali Khan in the presence of mashirs from a huri, a short distance from the scene, from a heap of thorns.

6. The prosecution case has been assailed by Mr. Hayat Junejo for the appellants on the grounds that there are no independent witnesses implicating the appellants, that the pro secution witnesses who have adduced against them are interested and have enmity with them, that Hussain Kirio is a chance witness and was not mentioned as an eye witness in the F. I. R., that Usman is a false witness, and that there has been a delay in the recording of the First Information Report,

7. We have been taken through the evidence of the three important eye‑witnesses, Allahdino, Haji Umar and Muhammad Usman. It is apparent why Haji Peroze, Allahdino and Umar were requested by Haji Usman to help him to restore Mst. Khairi. It cannot be denied that Khairi had eloped or left the home of her husband Allah Warayo, and of her uncle‑in‑law Uaji Usman, on the night between the 22nd and the 23rd of June, Haji Peroze, as the evidence indicates was related to Ghulam Nabi, the paramour of Khairi. He was also related to Guhram, who was the nekmard of the village where Ghulam Nabi resided. Allahdino is the son‑in‑law of Peroze, and Haji Umar is a partner of Peroze in his business. It is, therefore, understandable why these three persons were chosen by Usman to meet the relations of Ghulam Nabi and the nekmards of the village in an effort to have Khairi restored. There is nothing we can find in the testimony of either Allabdino or Haji Umar to disbelieve the manner in which the incident took place. They have stated that when Khairi was restored to them through the good offices of Kassim and Guhram in Guhram's otak, they were served meals, and late in the afternoon they were returning with Mst. Khairi, when they were accosted by the two appellants earlier in the day, these appellants had demanded that Mst. Khairi be handed over to them, but they had refused to do so as they apprehended that Khairi would be done to death by the appellants, and Peroze was anxious to restore Khairi back to Usman. Half a mile outside Usman's village, the two appellants accosted Haji Peroze and his party, and as Peroze still obstinately persisted in refusing to hand over Khairi they first disabled him, Mevo striking him with hatchet blow, and Peroze fell down. They followed the unfortunate Khairi, who took to her heels realising what was very shortly in store for her, and reaching her after a short chase, they cut her down. Then there is the testimony of Hussain Kirio, P. W.

3. The time of the incident is alleged to be a little before sunset. Hussain had just finished answering a call of nature, and as Haji Peroze and his party with Khairi were wending their way along the path leading to Usman's village, at a distance of an athas, he saw the party later followed by the two appellants armed with hatchets. The appellants talked to Peroze. There after Mevo struck Peroze a blow felling him down. Mst. Khairi was chased by the appellants after she started to run. She was also cut down. Hussain challenged the appellants and joined in the cries of Allahdino and Haji Umar. Nevertheless, after finishing Khairi, they returned to Peroze and inflicted further blows on him. The reason for this conduct of the appellants is easy to understand, for Mevo is a brother of the deceased Khairi, and was anxious to wreak vengeance on his young sister who had disgraced them, by leaving the house of her husband the previous night. Appellant Ali Khan was her cousin Haji Peroze's refusal to hand over the girl to them was natural, in view of the fact that he was related to Ghulam Nabi and Guhram, and having succeeded in having her recovered from her paramour, Ghulam Nabi, he was anxious to return her to Usman, and thus satisfied the confidence that Usman had reposed in him. We see nothing unusual in the presence of Muhammad Hussain Kirio, Exh. 9, at the time of the incident, and we are convinced that he is a truthful witness. His name has been mentioned in the F.I. R., by Allahdino. This witness and others are alleged to have responded to the cries of Allahdino.

8. The argument that Hussain Kirio has not been mentioned as an eye‑witness to the incident can be explained by the fact that Allahdino could not have known that Hussain had already witnessed the incident when Hussain came up to the scene having witnessed what had earlier taken place resulting in Mst. Khairi being cut down by the two appellants with their hatchets after a preliminary blow to Peroze, and later of Peroze being dealt with by both of them with their respective weapons.

9. Corroboration to the evidence of these witnesses is obtained in the testimony of P. W. Kassim. He is a cousin of appellant Mevo, and he has supported the prosecution case that Peroze, Umar and Allahdino had earlier come to him and obtained his help and that of Guhram for the return of Khairi, who had been enticed by Ghulam Nabi, the previous night. It was Kassim, who together with Guhram, handed over Khairi to Haji Peroze's party, and it was in his presence and in his otak that the two appellants first appeared armed with hatchets and demanded that Khairi be handed over to them. Kassim stated that Peroze refused to do so, lest they might kill her. The appellants then left the otak, and Peroze and his party in turn left the otak at about 4 p.m. on foot. He came to know of Peroze's death and that of Khairi the next day. We accept the testimony of the three eye witnesses, since it is supported by corroborative evidence, and the motive has been further supported by the testimony of Muhammad Usman, the father‑in‑law of the deceased Khairi, and uncle of her husband, the deaf and dumb Allah Warayo.

10. The defence in the trial Court and the attack against the eye‑witnesses before us was one of enmity of all the prosecu tion witnesses, specially on the score of Muhammad Ally, the father of the appellant Mevo being murdered in 1956. Three persons were tried for his murder, namely, Ghulam Nabi, the alleged paramour of Khairi, Guhram, who has not given evidence in this case and one Hadi Bux. In that case, Mevo was the complainant and Ali Khan was one of the witnesses. Besides, it is clear to us that several defences were set up in the trial Court, none of which have been established in any manner. References have been made to the inimical relations between the parties, but no enmity has been proved. On the other hand, we are satisfied that the appellants and the prosecution witnesses are inter‑related. Indeed, Muhammad Usman, on whose account the entire incident may be said to have taken place, has attempted, in the course of his testimony, to save appellant Ali Khan, for Ali Khan's wife and the wife of Shadi Khan, who is a Sub Inspector and the son of this witness (Muhammad Usman) are sisters. The learned Sessions Judge has correctly characterized Muhammad Usman as being a witness obviously anxious to save appellant Ali Khan. Muhammad Usman has further admitted that Mevo's mother is his cousin, and that Ali Khan is a cousin of his father. Even though it may be conceded that other witnesses are related amongst themselves, no connection whatsoever, nor interest has been shown against P. W. Hussain Kirio and he is for purposes of this case a most important witness indeed. We do not consider him as a chance witness, and we have already explained the reason why he has not been specifically mentioned in the F.I.R.J as an eye‑witness.

11. The securing of the blood‑stained clothes from the persons of the two appellants and the production of the blood stained hatchet by appellant Mevo, and the pointation of the blood‑stained hatchet by appellant Ali Khan is proved 41 our view through the testimony of Issa, P. W. 7, Exh. 14, who was the mashir of the scene. In his presence the scene was inspected, and P. W. Haji Usman produced appellant Mevo about a pahar after sunrise. Mevo was carrying a blood‑stained hatchet at the time. Mevo's clothes were stained with blood. Thereafter Usman produced appellant Ali Khan, a few minutes after he had produced appellant Mevo. Ali Khan volunteered to lead the Police party to hurl; a distance of about a block from the scene, and from there brought out a hatchet, which bore traces of blood, from under some thorns. The place was not otherwise visible, and could only have been known to Ali Khan. The huri is a short distance away from where the incident took place, and this by itself is a strong circumstance connecting the appellants with the crime. Apart from this fact, the securing of the blood stained hatchet and shirt of appellant Ali Khan, and the blood stained hatchet of appellant Mevo, have been in our opinion satisfactorily proved. Issa's cross examination does not show any interest against any of the appellants, nor is he particularly connected with any of the prosecution witnesses, nor has he any reason for falsely implicating the appellants.

12. There is also no substance in the contention that P. W. Usman is a false witness, even if it be conceded that he has also attempted to save appellant Ali Khan who is more closely related to him by blood ties. This conduct is understandable, but does not affect the prosecution case. There is no delay in the filing of the First Information Report. Considering the distance of the scene from the Sakrand Police Station the report in our view has been made with the least possible delay. There is also the motive for the appellants to have killed Mst. Khairi as she had developed intimacy with Ghulam Nabi.

13. After hearing learned counsel on either side, our considered view is that Khairi and Peroze met a violent death at the hands of the two appellants and that the ocular evidence of the three witnesses establishes this fact. We do not give much credence to the extra judicial confession alleged to have been made to P. W. Usman almost immediately after the incident when he allegedly met Mevo outside the otak with a blood‑stained hatchet, and on inquiries stated to Muhammad Usman in regard to the murders of Mst. Khairi and Peroze : "I have blackened my face." This expression by itself does not necessarily refer to an admission on his part of having killed Mst. Khairi and Peroze, although by implication it may be so. Since, however, there is other sufficient evidence implicating the appellants beyond reason able doubt we do not take this extra‑judicial confession into account against the appellants. We are convinced that the prosecution has sufficiently established their charge against the appellants, and we are satisfied that both the appellants have been rightly convicted by the learned Sessions Judge of having murdered Mst. Khairi and Peroze.

14. Mr. Hayat Junejo has referred us to several rulings on the ground of sentence, urging that appellant Mevo specially, being a brother of the deceased Mst. Khairi and in view of her moral lapse, was to an extent justified in his conduct, since she ]gad brought disgrace to the family. The ground of the youth of the appellants was also urged. Munir, J. in Gurdev Singh v. Pakhar Singh (A I R 1948 Lah. 58) referred to the question whether in a given case the sentence of death or the lesser sentence of transportation for life should be passed, and observed that the matter is only in the discretion of the convicting Judge, who must bear in mind at the time the fact that the usual sentence on conviction of murder is death, unless there are any extenuating circumstances. We feel that there are no extenuating circumstances in this case. Even though Mevo was the brother of Mst. Khairi, we are satisfied, for reasons we have already given, that he accompanied by his companion, the co‑appellant Ali Khan, both properly armed, was deliberately looking for an opportunity to kill Mst. Khairi. It is in evidence that earlier on the day of the incident, both the appellants armed with hatchets, had demanded that Khairi be given to them in Kassim's otak. We are in no doubt that this was a premeditated and planned murder. Besides there is the ghastly murder of Peroze committed, on the evidence we have examined, by both the appellants. Peroze was an old man and had no interest beside that of protecting Khairi and from a sense of duty, he had refused to hand over previously to the appellants. His conduct would not be a ground for any provocation either grave or sudden to hack him to death as these appellants did. There are several reported cases where men of the age of the appellants having been found guilty of murder, in the absence of any extenuating circumstances, have been sentenced to death. It has further been proved that the appellants after accosting Peroze and his party and incapacitating Peroze, turned on Khairi, butchered her to death and then turned their attentions to Peroz, and inflicted what has been proved to be fatal injuries on him. In the peculiar circumstances of the present case, we do not feel that we would be justified in inflicting the lesser sentence, namely, that of transportation for life against the appellant. We have been referred to the opinion of Shabir, J. in The State v. Jamalan and others (P L D 1959 Lah. 442) where he observed : "It is generally believed that a woman who sleeps with a man who is not her husband, disgraces all members of her family". We do not agree that this amounts to an extenuating circumstance. We feel that it is time that it is realised that just because a female member of the family has been guilty of sexual laxity, it is not incumbent on every member of the family to go roving about armed with deadly weapons looking for her and an opportunity to kill her, and then plead for a lessen sentence as an extenuating circumstance.

15. For these reasons we uphold the conviction of both the appellants under section 302 P. P. C. read with section

34. We confirm the sentence of death inflicted on both of them by the trial Court, and dismiss their appeal. K. B. A. Appeal dismissed.