1982 P Cr (PLP)

G. M. SHAH, J.‑‑The appellant Gaao Bheel (35) is convicted under sections 302/326, 324/323, P. P. C. for the murder of his mother‑in‑law Shr. Sanko and causing grievous injuries to his wife Shr. Reshman, and is sentenced to death for an offence under section 302, P. P. C. and to suffer R. I. for five years under section 326, P. P. C. and R. I. for one year under section 324, and six months under section 323, P. P. C. by the learned Ex Officio Additional Sessions Judge Badin vide his judgment dated 15th November, 1978. He is also directed to pay Rs. 5,000 (Rupees five thousand only), as compensation to Achalo, his father‑in‑law, who is husband of deceased Sanko, in default thereof to suffer R. I. for three months. The appellant has preferred the appeal against the judgment of his conviction and sentence. There is also a reference made by the learned trial Judge for confirmation of the death sentence under section 374, Cr. P. C. This judgment will dispose off both, the appeal and the refer ence for confirmation.

2. Shortly stated the prosecution case is that Shr. Reshman was married to the appellant about a year before the occurrence. This was the second marriage of the appellant. He was living at village Abdullah Hale poto before the marriage. The father‑in‑law of the appellant, Achalo, was also living nearby. The appellants had a daughter by the name Shr. Supi from his previous wife. She was living with the appellant and his wife Shr. Reshman. After the marriage, the appellant and his wife came and lived in the village of Haji Moheb Ali. The appellant became the hari of Dhani Bux Legbari. His father‑in‑law Achalo, also came and lived in the same village. He bad a house about 50 paces away from the house of the appellant. Over the household work, Shr. Reshman had scolded Shr. Supi the daughter of the appellant, over which, the appellant had lost his tamper and bad quarrelled with his wife and had threatened to see her after sunset. Consequently, Shr. Reshman went to her father Achalo, and informed him about the behaviour of the appellant. She did not return to the house of the appellant that night and stayed away in the house of her father. On the same night at about 11 p. m. the appellant went to the house of his father‑in‑law Achalo in order to bring back Sbr. Reshman : but she refused to accompany him, as she apprehended danger to her life. Achalo had explained to the appellant that they would discuss and decide the matter, next morning. Achalo wanted to refer the dispute for settlement to his father, Shevo who was residing at Digri. For that reason, Achalo had asked his daughter Shr. Reshman and his wife deceased Sanko to proceed to Digri, where he would explain the position to his father and bring him to their village for settlement of the dispute. He himself was to follow his wife and daughter. The deceased Sanko and her daughter Shr. Reshman left their house at about 1 l a. m. and bad proceeded towards the bus stop for going to Digri. They were followed by Achalo and Pehlaj (P. W. .4). P. Ws Taglo and Raglo were also coming behind them. When the deceased Sanko and Shr. Reshman had hardly covered a distance of about half mile, they saw the appellant standing under a babul tree, armed with a hatchet. He at once abused his wife Shr. Reshman and attacked her with the hatchet. He inflicted hatchet blows upon her and she fell down. In the meantime deceased Sanko intervened to save her daughter and the appellant caused her, as many as, four hatchet injuries with the sharp, as well as, back side of the hatchet and killed her at the spot. On the cries raised by the deceased as well as, Shr. Reshman, Achalo, the first informant and witnesses Pehlaj, Taglo and Raglo ran towards them. They also saw the appellant causing injuries to both of them. On seeing the witnesses coming, the appellant ran away with the hatchet. Achalo left witnesses Pehlaj and others at the vardat and rushed to inform his Zamindar Moheb Ali and narrated the occurrence to him, who advised him to lodge the report with the police. Achalo proceeded to the Police Station Tando Ghulam Ali, covering a distance of 4 miles and lodged the F. I. R. (Exh. 9) which was recorded at 2 p. m. by the S. H. O. Mohammad Khan.

3. After recording the F.I.R. the S. H. O. accompanied the first informant Achalo, and proceeded to the vardat, which was in the land of Amanullah, outside the village of Haii Moheb Ali. The dead body of Shr. Sanko was lying there in a pool of blood. The injured Shr. Reshman was alive. She was lying near the babul tree but was unconscious. The dead body of Shr. Sanko was sent for post‑mortem to Medical Officer Tando Ghulam Ali, alongwith the injured Shr. Reshman who was sent for treatment, examination and certificate. The S. H. O. also recorded the statements of witnesses Tagio, Raglo and Pehlaj. On the following day (20th June, 1976) the appellant was also arrested at 4‑30 as he had appeared before the police and had produced the blood‑stained hatchet. The appellant was found wearing a white shirt, which was stained with blood found on its left arm. The blood‑stained articles were separately sealed under the Mashirnama Exh.

24. Subsequently statements of Shr. Reshman was also recorded in the hospital when she was conscious. The S. H. O. was then transferred and the investigation of the case was taken by A. S. I. P. Hussain Bux on 21st June, 1976. On that day, he produced the appellant before the Civil Judge and F. C. M. Maui for recording of his judicial confession. Since the Court time was over, the confession could not be recorded. The appellant remained in police custody for about 3‑4 days. The appellant was finally produced for recording of his confession on 24th June, 1976 before the Mukhtiarkar and F. C. M. Tando Bago (Exh. 30). The case papers were later on, handed over to the new S. H. O. Abdul Sami, for submitting the final charge‑sheet in the Court. The blood‑stained articles were forwarded to the Chemical Examiner who had given his report (Exh. 28) in the positive, stating therein that the hatchet (Art. 1) and the shirt (Art. 3) were stained with human blood. So were the printed Choli. (Art. 4) and red printed Dopatta (Art. 5) secured from the person of the deceased Shr. Sanko. The (Article 3) printed Choli and red printed Dopatta secured from the person of deceased Sbr. Sanko and the shirt secured from the appellant were found to be of group A. After completing the usual investigation the charge sheet was submitted in the Court.

4. When the appellant was produced for his judicial confession on 24th June, 1976 before the Mukhtiarkar and F. C. M. at about 10 a. m. he made the following judicial confession: "I was arrested at 4‑30 p. m. on 20th June, 1976 in the village of Haji Moheb Ali and was taken to P. S. Tando Ghulam Ali and then produced today for recording of the confession. To a question, as to why he is making the confession, he replied that he had committed the murders and God has witnessed it. To another question whether he wished to say any thing, he replied as under :‑ My further statement is that on 19th June, 1976 at early morning, I went to my land and at 11‑00 a. m. I was returning to my house for meals. When I saw that my wife Reshman and mother‑in‑law Harkoori were coming out from our house for fetching water. Then I saw that my mother‑in‑law sat under a babul tree and my wife went to a Jungle near the watercourse. Immediately after wards, I saw one person going on the bank of watercourse, towards my wife. I also rushed towards them. Having the hatchet in my band shots in the other hand. When I covered half a block, I was seen by my mother‑in‑law. She gave "hukal" (warning call) to my wife to be careful. I also went running to my wife. I saw my wife alone and saw that one man went running. My wife went running towards my mother‑in‑law and that person went away towards the village. I identified that person who was Dbani Bux Laghari son of Kamal Laghari resident of village Haji Moheb Ali Laghari. My wife was wearing a skirt "paro". I gave a hatchet blow with sharp side of hatchet to my wife on her neck. My mother‑in‑law grappled with me. I left my wife and threw down my mother‑in‑law, on the ground, and gave a hatchet blow with sharp side on her neck. Thereafter, I gave another hatchet blow with sharp side to my wife on her neck. I gave third hatchet blow on her shoulder. Thereafter I gave second hatchet blow with sharp side to my mother‑in‑law on her neck adjacent to Ist injury. Afterwards, I left both there and went running to Dhani Bux Laghari, but he made his escape in the village. Then I went to village Moheb Ali Khan where from I went to my house at about 3‑00 p. m. Police came there and took me and made investigation. On following day at about 4‑30 p. m. police arrested me I have murdered my wife and my mother‑in‑law due to Ghairat."

5. In his statement under section 342, Cr. P. C. he had totally denied the prosecution case. As regards his judicial confession, he stated that his thumb impression only was obtained on a paper. About the occurrence, he stated that he did not know any thing. He further conten ded that on the day of the incident, he had gone to excavate the water course of Wadero Moheb Ali early in the morning and had worked there till 3 p. m. when the police came there and arrested him. He further stated that his wife Shr. Reshman is of a bad character. She has many friends. Even prior to her marriage with him, his daughter used to complain to him that in his absence, many persons used to come and visit her (Reshman). Her friends might have committed this offence.

6. In his defence, however, he had examined two witnesses namely More Bheel and Wadero Mohsin Ali. The evidence of More is that on 19th June, 1976, he, alongwith the appellant and others had worked on the watercourse of Haji Moheb Ali and were working there till 3 p. m, Thereafter D. W. More had developed fever and bad gone home.

7. The statement of D. W. 2 Mohsin Ali is that about 1J years ago some work was done on his water course. His Kamdar not named, had taken the labourers there. He bad gone away at Tando Ghulam Ali,

8. The autopsy on the dead body of deceased Shr. Sanko was per formed on 19th June, 1976 at 5 p. m. by Dr. A. Hameed, who had found the following external injuries on her person ;‑ Shr. Satrko : (1) An incised wound 6" x 2" x 6" deep over the left side of the neck from the back of the neck cutting skin left steno mastoid vessels and carotid vessels. (2) A contused wound 2 x 2" over the left mastoid region. (3) An abrasion 4 x 2 over the top of left side of the back side of the chest. (4) A contusion 2" x 2" over the right forehead. The injury No. 1 appeared to have been caused by a sharp cutting weapon such as a hatchet and rest of the injuries were caused by hard blunt substance such as back side of the hatchet. All the injuries were anti mortem. On internal examination of the dead body the doctor found the following damage. There was a fracture of anterior cranial fossa and posterior cranial fossa. There was haemorrhage on the memberance at the right frontal region and the left side of the porterior carnial fossa. Blood vessels and carotid vessels were cut on the right side of the neck. From both external and internal examination of the deceased the doctor was of the opinion that the cause of death was shock and haemorrhage as a result of the above‑mentioned injuries. Injuries Nos. 1, 2 and 4 were individu ally and rest of the injuries collectively were sufficient to cause the death in the ordinary course of nature. According to the doctor the death of the deceased could be instantaneous. The doctor had also examined injured Shr. Reshman and found her in serious condition. She was semi‑conscious and her pulse was fast and thready. The doctor found the following injuries on her person. Shr. Reshman : (1) An incised wound 4" x 1" x 5" deep over the ride side of the neck extending from the back of the neck to the middle of neck cutting right steno mastoid muscle and blood vessels on the right side. (2) An incised wound 3' x 1/4" x skin deep over the top of right scapular region. (3) An incised wound 3' x 1" over the right pinna. (4) A contusion 3" x 1" over the left renal region on the back. (5) 4 linear abrasions over the right of back of the right mid chest, 3" to 2" in length and 1 to 2 c. m. in breadth. The Injuries Nos. 1, 2 and 3 appeared to have been caused by some sharp cutting weapon such as a hatchet, whereas Injuries Nos. 4 and 5 were caused by some hard blunt substance, such as a back side of the hatchet or a lathi. According to the Doctor Injury No. 1 was grievous and rest of' the injuries were simple in nature. Injury No 1 could have been fatal, if no timely treatment was given to her. The injured was kept under observations. She was discharged on 22nd July, 1976.

9. We have perused the entire evidence in the case and have also heard the learned counsel Mr. Ruhullah Chagla for the appellant and Mr. S. Murtaza Hussain for the State. The eye‑witness account in this case is given by Achalo, who is husband of the deceased Shr. Sanko and is father of injured Shr. Reshman. Next we have the testimony of injured Reshman herself. The remaining two eye‑witnesses are Pehlaj P. W. 4 and Raglo P. W.

5. They have testified that on the day of occurrence, injured Shr. Reshman and her mother the deceased Sanko were going to catch the bus, for going to Digri. Achalo, Pehlaj and Raglo were following them. Suddenly they heard the cries of the deceased and P. W. Shr. Reshman. They ran towards them and found the appellant inflicting hatchet blows to Shr. Reshman, who fell down. When the deceased Shr. Sanko intervened and tried to save her daughter, the appellant gave her also hatchet blows and she succumbed to the injuries at the spot. The testimony of injured Shr. Reshman is material on the point of the actual assault on her and her mother. In her statement at the trial, she has, while giving the motive for committing the crime deposed that before the occurrence, she had scolded the daughter of the appellant from first wife, over the household work, on which the appellant had abused her and threatened to ‑see her after sunset. Apprehending maltreatment, she had gone to the house of her father, which was close by, and informed him of the threats administered to her by the appellant. She stayed the night with her parents and did not return to the house of the appellant ; who had gone to the house of Achalo at about I l n. m. and had tried to bring his wife Shr Reshman to his house but she refused to accompany him. At that time her father Achalo had also explained the appellant that they would settle their dispute next morning. The appellant then went away. 1n the meantime, Achalo had asked his daughter Shr. Reshman and his wife Shr. Sanko to proceed to Digri on the next morning as they would like to bring his father Shevo, for negotiating the compromise. Achalo was to follow the two ladies, who had left their house to go to bus stop for going to Digri. She has also testified that they had proceeded towards the bus stop at about 1 l a. m. and were ahead of Achalo and the other two eye‑witnesses Pehlaj and Raglo, who were following them. When they had hardly covered a distance of 2/3 acres, they found the appellant standing armed with a hatchet under a babul tree. It is deposed by her that the appellant at once abused her and attacked her with the hatchet and caused her several injuries. When her mother deceased Shr. Sanko intervened and tried to save her the appellant left her and inflicted hatchet blows upon deceased Sanko and killed her at the spot. She has also deposed that on hearing their cries Achalo, Pehlaj and Raglo ran towards them. When the appellant saw the witnesses coming, he escaped from the vardat carrying the hatchet. In addition to her state ment, her father, Achalo who had lodged the F. I. R , has also testified on the motive that his house was 50 paces away, from the house of the appellant. He has further added that his daughter Shr. Reshman had come to him in his house and had complained about the maltreatment and behaviour of the appellant towards her. She had also informed him that she had scolded the daughter of the appellant (Shr. Supi) from his first wife, over the household matter, over which the appellant had lost his tamper and had threatened to deal with her, after sunset. She had, therefore, stayed away in the house of her father and had refused to return to the appellant in spite of the appellant having gone there at 11 p.m. to take Shr. Reshman. Achalo had further deposed that when the appellant came to take his wife in the night he had asked him to wait, till the next morning, as they wanted to settle this dispute. On hearing, this the appellant returned to his house. Achalo has also testified that on the next morning, he had asked his wife Sanko and daughter Shr. Reshman to go to Digri and he would follow them. The two ladies proceeded towards the bus stop followed by Achalo and Pehlaj. Whereas P. W. Raglo was coming behind them. Suddenly they heard the cries of the two ladies, for help. Achalo and Pehlaj immediately ran towards them, followed by Raglo and Tagio. They saw the appellant inflicting hatchet blows to the deceased and injured Shr. Reshman. On seeing the witnesses coming the appellant had escaped carrying the hatchet.

10. According to S. H. O. Muhammad Khan, whose version is fully corroborated by Mashir Yousuf Khaskheli P. W. 8, the appellant was arrested on 20th June, 1976 at 4‑30 p. m. in the village of Moheb Ali and had produced the blood‑stained hatchet. The appellant was found wearing a shirt, which was also stained with blood. The hatchet and the shirt, both blood stained, were secured and sealed in presence of Mashir Yousuf Khaskheli under the Mashirnama Exh.

24. In fact, when the police reached the village of Moheb Ali and had sent for the appellant, he had appeared before the police and produced the hatchet.

11. The learned counsel Mr. Ruhullah Chagla appearing for the appellant had pointed out certain minor discrepancies in the evidence of the 4 eye‑witnesses, which are hardly material for the just decision of the case. It was pointed out in the evidence of Achalo that he bad not stated in the F.I.R. that Dhani Bux was also with witnesses Raglo and Tagio. It is further pointed out by the learned counsel that Tago and Dhani Bux were not produced by the prosecution otherwise, they would have given a different version than the one, given by the four eye‑witnesses. We have examined the evidence of the four eye‑witnesses and find it consistent, on all the important details relating to the motive, as well as, actual assault on the deceased and her daughter Shr. Reshman. It is also pointed out that the time taken for the examination of the injured Shr. Reshman has remained unexplained. It is contended that according to the S. H. O. her statement was recorded on the same day, whereas she herself has deposed in her statement that she had regained consciousness after 3 days in the hospital which statement remains unexplained. We find no material discrepancy because according to the Doctor A. Hameed (P. W. 1) when he had examined Shr. Reshman, she though, was in a serious condition, but was semi‑conscious. The S. H. O. recorded her statement on the same day in the hospital, when she was found conscious and able to make the statement. However, we consider that nothing turns on these minor points raised by the learned counsel, regarding the time of recording the statement of the witnesses, and the manner in which the appellant was arrested.

12. As regards the motive it is argued by the learned counsel that the motive is inadequate. We regret; we do not agree with this conten tion. Injured Shr. Reshman according to her version had scolded the daughter of the appellant from his first wife (Shr. Supi) and when the appellant came to know of it he had threatened his wife Shr. Reshman that he would see her after sunset. Apprehending maltreatment at the hands of the appellant, she had gone to the house of her father Achalo, and did not come back in the night when at 11 p. m. the appellant had gone to fetch her. On the next morning when his wife was seen by him going with her mother towards the bus stop the appellant armed himself with a hatchet and went determined to settle with his wife. We are satisfied that the motive as alleged by the prosecution is strong enough to have pursuaded the appellant to commit the alleged crime.

13. It is next argued that the recovery of the hatchet and the shirt should be discarded and the evidence of the Mashir Yousuf Khaskheli and the S. H. O. Mohammad Khan should be disbelieved particularly when another Mashir Usman had not supported the prosecution case. This argument is also untenable. Mashir Yousuf Khaskheli is an independent witness and has fully supported the production of the hatchet by the appellant and the recovery of the blood‑stained shirt from his person. There is no hostility of the S. H. O. against the appellant shown any where, in the entire evidence. Nothing has been brought out in the cross examination of any of the witnesses to suggest that the appellant was falsely implicated in the case.

14. The Report of the Government Chemical Examiner is clear on the point .‑.at the hatchet produced by the appellant and the shirt recovered from his person were stained with human blood. According to the same Report, the blood found on the shirt of the appellant and the printed Choli and red printed Dupatta secured from the person of the deceased Sanko, were found to be of the same group "A", which establishes, beyond any reasonable doubt that the appellant was preset at the vardat was responsible for alleged murder of the deceased Sanko.

15. Lastly the learned counsel has assailed the judicial confession and has submitted that it was?,te,tracted and has not been corroborated in material particulars. At the samse time, when the learned counsel was confronted with the statement made by the appellant under section 342, as well as, the defence witnesses examined on his behalf, a plea of alibi was taken and the entire prosecution case was denied. The learned counsel immediately took a summer sault and submitted that the judicial confession be relied upon, wherein the plea of provocation has been pleaded by the appellant, who should be given the benefit of grave and sudden provocation. In his judicial confession, the appellant has claimed that he saw one person going on the bank of the watercourse towards his wife Shr. Reshman. He therefore rushed towards them carrying a hatchet. When he covered a distance of about half a block, he bad seen his mother‑in‑law, who warned his wife that the appellant was coming. When the appellant reached there, he found his wife alone, and one man running away towards the village, whom he identified as Dhani Bux. He also saw his wife Shr. Reshman running towards her mother. He therefore inflicted hatchet blows to his wife. When his mother‑in‑law deceased Shr. Sanko, grappled with him, he had caused her hatchet injuries and killed her due to provocation.

16. On careful examination and perusal of the judicial confession, which was recorded on 24th June, 1976 when the appellant was arrested on 20th June, 1976 we are satisfied that the confession was neither voluntary nor true. From the evidence of the eye‑witnesses and the recovery of the blood‑stained hatchet and the shirt, we are satisfied and agree with the judgment of the learned Ex Officio Sessions Judge Badin that the eye‑witness account given by the witnesses was true and reliable and the case against the appellant as regards his guilt, was fully proved. This is the case of a single accused. There is no question of mistaken identity. The crime was committed during the day time at aboat 11 in the morning. This case cannot be the one of substitution of a real culprit with an innocent person. We also find no merit in the argument that this is a case of sudden and grave provocation.

17. For the foregoing reasons, we are of the opinion that the prosecution has fully established the guilt of the appellant, both, on the charge of murder as well as, under section 326,324/323, P. P. C. We accordingly uphold the conviction on all the counts. There are no mitigating circumstances in this case. The appellant had murdered an innocent old woman merely for the sake of satisfying his criminal conduct.

11. Under the circumstances we consider that the death sentence awarded to him is proper and we hereby accept the reference and confirm the same. The appeal, under the circumstances, is dismissed. Appeal dismissed.