1981 P Cr (PLP)

ABDUL HAYEE KURESHI, ACTG. C. J.-The three appellants, Umer, son of Ashraf Solangi, Muhammad Hassan, son of Ashraf Solangi and Darya Khan, son of Punhoon Bhurgri, were tried before the Additional Sessions Judge, Dadu on charges under section 302/452/34, P. P. C. and sentenced to imprisonment for life and a fine of Rs. 1,000 (in default R. I. for one dear) under section 302/34, P. P. C. and R. I. for two years under section 452/34, P. P. C. The judgment was announced on 27th February, 1977. Appellant Muhammad Hassan was separately tried on a charge under section 13-E of the Arms Act and sentenced to R. I. for one year. All the convictions and sentences have been appealed against. When the appeal against the judgment in the main case of murder and trespass came up for regular hearing before a Division Bench of this Court on 9th October, 1978, the learned Judges had issued suo mot; show-cause notice, calling upon each of the three appellants in that case, to show cause why the sentence should not be enhanced. We have heart the appeals and the suo motu reference together and propose to dispose of the same by this common judgment. The brief facts of the case are that appellants Umer and Muhammad Hassan, who are the sons of Ashraf, lived in the house adjoining the house of deceased Ghulam Nabi. In fact, deceased Ghulam Nabi is an uncle of Ashraf. Between the walls of the house of Ashraf and deceased Ghulam Nabi is a door, which facilitates the residents in the house of Ashraf to fetch water from the house of deceased Ghulam Nabi. The third appellant, Darya Khan, is also intimately known to the complainant party, because he often used to come and reside with the co-appellants Umer and Muhammad Hassan in their House. On 6thMay, 1975 at early Asur time, which would correspond to about 4-00 or 5-00 a. m. The three appellants entered the house of deceased Ghulam Nabi. At that time, deceased Ghulam Nabi, together with his two wives, Mst. Pathani and Mst. Rehmat, his daughter Mst. Khatoon and his Allahdino, was sleeping in the courtyard. Mst. Pathani had woke up for her sleep shortly before the entry of the appellants, as she wanted to case herself. After doing so, she came to lie on the bed, and the appel lants entered immediately. Appellant Hassan was armed with a gun, and appellants Umer and Darya Khan were carrying hatchets. Hassan fired the gun at deceased Ghulam Nabi, whereafter appellants Umer and Darya Khan gave him hatchet blows. Death was instantaneous. The gun report resulted in Mst. Rehmat, Mst. Khatoon and Allahdino to wake up, and they saw hatchet belows being given. Mst. Pathani implored the appellants to spare deceased Ghulam Nabi, but she was given blows by appellant Umer with the blunt side of his hatchet and by appellant Hassan with the butt of the gun that he was carrying. Mst. Rehmat together with her two children, namely, Mst. Khatoon aged about fifteen ears, and Allahdino aged about ten years went into the room of the house for safety. The appellants went away after causing the death of Ghulam Nabi and injuries to Mst. Pathani. Cries were raised which attracted Rab Rakhio, a nephew of deceased Ghulam Nabi and some other persons of the village. All the circum stances of the transaction were related by Mst. Pathani to Rab Rakhio, who was also asked to call Noor Nabi, the Nekmard of the parties. Mst. Pathani also related the story to Noor Nabi, who asked Mst. Pathani to proceed to Thariri Mohabat Police Station at a distance of eight miles and lodge a report. The report was lodged on the same day at 12.30 noon and was recorded by A. S. I. Abdus Sattar. The Police Officer came to the Wardat, which was located in village Miroo Kalhoro, and inspected the same in presence of Mashirs, one out of whom is Rasool Bux. An empty cartridge was secured from the wardat; which was seized and sealed. Statements of Mst. Rehmat. Mst. Khatoon, Allahdino and Rab Rakhio were recorded. The house of the appellants was raided on the same day, but nothing incriminating was secured. On 11thMay, 1975, appellants Hassan and Umer were arrested outside their village, and, on being interrogated, appellant Umer led the Police and the Mashirs to the shop of appellant Hassan, and, after opening the same, he produced a blood stained hatchet on which human hair were sticking. This hatchet had been kept under some tins. The hatchet, was seized and sealed. There after, appellants Muhammad Hassan also led the Police Officer and the mashirs to his shop, from where a gun was secured, and the same was sealed in presence of the mashirs. On 13th May, 1975. appellant Darya Khan was also arrested from village Mizzar Burgari, and at that time he was carrying a hatchet, which was seized, but such hatchet did not bear any marks of blood. Earlier, Mst. Pathani had been sent to the Medical Officer for examination and treatment in respect of the injuries on her person. Post-mortem had also been conducted on the dead body of Ghularn Nabi. The post-mortem examination and the examination of Mst. Pathani were undertaken by Dr. Shamsul Haque. Subsequently, the gun recovered from the shop of Muhammad Hassan, together with the empty secured from the Wardat, were sent to the Ballistic Expert, who has given a report to the effect that the cartridge in question had been fired from the gun, which had been recovered at the instance of appellant Muhammad Hassan. The hatchet of appellant Umer was sent to the Chemical Examiner, who has submitted a positive report that the hatchet bore stains of human blood. On completion of the investigation, the case was sent up for trial, and in the Court of Session Mst. Pathani, Mst. Rehmat and Mst. Khatoon were examined as eye-witnesses Noor Nabi and Rab Rakhio as the corroborating witnesses, who deposed in relation to what Mst. Pathani had told them immediately on their coming to the scene; Rasool Bux had deposed to the several recoveries and arrest of the appellants. Dr. Shamsul Haque has given evidence in regard to the injuries on the person of the deceased, and Mst. Patbani. A. S. I. Abdus Sattar has related the entire story about investigation of the case, besides producing the reports of the chemical examiner and the ballistic expert. The remain ing evidence is of formal nature. The prosecution case mainly stands on the evidence of three eye witnesses Mst. Pathani, Mst. Rehmat and Mst. Khatoon. It is sought to be corroborated by the evidence of Rab Rakhio and Noor Nabi, to whom the circumstances of the transaction we-a related by Mst. Patbani. Corroboration is also sought from the incriminating recoveries consisting of a unlicensed gun from appellant Muhammad Hassan and blood-stained hatchet from appellant Umer. The prosecution has also relied on motive. It seems that there was a case under section 302/328, P. P. C. against Jumo and Muhammad, the brothers of appellants Umer and Muhammad Hassan. In this case, the evidence was furnished by Hassan. Imamzadi and Mehar. The appellant party thought that these witnesses were under the influence of deceased Ghulam Nabi, and therefore they had approached the latter to persuade such witnesses either to withdraw the case, or to soften their evidence, but Ghulam Nabi had refused to oblige the appellants. The appellants, therefore, had a grievance against the deceased for such reason. The primary evidence in this case is furnished by the three eye witnesses, namely, Mst. Pathani, Mst. Rehmat and Mst. Khatoon. Each one of these witnesses had a good reason to be available at the place, where the offence was committed. They are the members of the family of the deceased, and were living with him in the house, and what is more that at the time the offence was committed, they would be found in the house. Since it was the month of May, their sleeping in the courtyard is also very probable. Each one of these three witnesses has given absolutely consistent evidence. There is no contradiction, worth the name, in the version given by these three witnesses in Court in spite of the lengthy and searching cross-examination to which they were subjected. The learned Advocate has, however, pointed out two circumstances to persuade us to come to the conclusion that either their evidence was false, or not worthy of reliance without corroboration by reason of the enmity which they bore towards the appellants. It has been additionally contended that there was no sufficient light, so that identification was doubtful. In regard to light, it must be straightaway stated that time stated by the witnesses is Kachi Assur time, which would mean almost dawn. By the clock, this time would correspond to about 4-30 a. m. The witnesses have also stated that it was a moon lit night, and the calander shows that it was the 24th day of the lunar month. In the last quarter of the lunar month, the moon would rise at about 2-00 a. m. and would continue to throw sufficient light until dawn. It cannot be said that it was a dark night. One cannot even overlook the fact that the parties were intimately known to each other, and therefore the probability of identification was very eminent. The evidence of these witnesses is doubly reliable, because, for the purpose of causing injuries to Mst. Pathani, they must have come very near to her. The fact of their disclosure of the names of the appellants to Rab Rakhio and Noor Nabi lends further Assurance to the statement of the witnesses that they were able to identify he three appellants. There is, indeed, nothing on the record to even remotely suggest that this was a case of mistaken identity, or, substitution of the accused. In regard to the second contention that the complainant party was inimical to the appellants, and therefore it was a case of false implica tion, we have no difficulty in repelling this contention: The statement of the three appellants in the trial Court was one of denials, but they had produced certified copies of some previous judgments and orders in cases against the appellants Umer and Hassan. In some of these cases, even Ashraf, the father of these two appellants had been implicated. We have examined these judgments very carefully. Exh. 41 is a judgment of the Civil Judge and First Class Magistrate, Khsirpur Nathan Shah, in a ass filed by Mst. Chutan, the wife of appellants Hassan against appellants Hassan and Umer and their father Ashraf. In this case, neither the deceased nor the witnesses in the present case had given any evidence against the appellants. Evidence, in fact, had been given by one Mehar, who is the son of one Nabbu, who is married to a sister of Mst. Pathani. Exh. 42 is a judgment of the family Judge, Khairpur Nathan Shah, in a ass filed by appellant Muhammad Hassan against Mst. Chutan for restitution of conjugal rights. This suit was decreed in favour of appel lant Muhammad Hassan. Mst. Chutan, according to the evidence of Mst. Pathani, had not even been seen by the latter. Exh. 44 is again a judgment of the Additional Sessions Judge, Dadu, in a case in which Jumo and Muhammad, the brothers of appellants Hassan and Umer, were tried on a charge under section 302/328, P. P. C. in this case, Evidence was given by one Imamzadi, who is the wife of Mehar, the same person, who was the witnesses against the appellants in the case the judgment whereof has been produced as Exh.

41. Exh. 45 is an order of the Mukhtiarkar and First Class Magistrate, Mehar, in a case under Section 107, Cr. P. C. against appellants Hassan and Umer. In this case also neither the deceased nor the witnesses in this case had furnished any evidence against the two appellants. Similarly, in Exh. 46, which is a judgment of the Assistant Sessions Judge, Mehar, in a case against appellant Umer and his father under section 307/34, P. P. C. It is not shown that the deceased, or witnesses had anything to do with that case. It would thus be seen that the deceased, or the three eye-witnesses in this case have no enmity with any one of the appellants. There appears to be a dispute between the family of Mehar and the family of the appellants Hassan and Umer. The said Mehar is a very distant relative of the complainant party, but, in that context, one cannot lose sight of the fact that even the appellants are equally related to the eye-witnesses. We are, therefore, of the view that the witnesses bore no enmity against the appellants. In any case, the evidence of these witnesses cannot be termed as interested, and this is besides the inherent value of the evidence of these witnesses. Another point was urged by Mr. Muhammad Hayat Junejo on the basis of a seeming conflict in respect of the circumstance of Mst. Pathani receiving injuries. The learned Advocate pointed out passages from the evidence to show that while Hassan caused an injury with the butt of the gun, Umer also caused injuries to her with the blunt side of his hatchet. The learned Advocate stated that since the word "injuries" had been used, the witnesses meant to convey that at least two injuries were caused by each one of these two appellants. In that context he pointed out that the evidence of Dr. Shamsul Haque showed that there was only one injury on her person. It may be stated that the Mashirnama of injuries prepared at the Police Station immediately after the lodging of the First Information Report showed that Mst. Pathani bad three injuries. In our view, this argument can hardly carry any weight. First of all, when injuries are, given, people are apt to make mistakes about the number of injuries. In this case, the Mashirnama of injuries shows that Mst. Pathani had three visible injuries and each one of them was located on the left arm. The first injury is on the upper part of the left arm, the second injury is on the inner aspect of left elbow and the third inside the left armpit. The medical evidence shows that at the time of examination, she had a contusion on the lateral surface of left upper and forearm measuring 7" x 3". It seems that, by the time the Medical Officer examined Mst. Pathani, the three injuries, which were on the left arm of Mst. Pathani had coaleted, so as to give the appearance of one single injury having a length of 7". We, are, therefore, of the view that this circumstance hardly creates any inconsistency. In that context, Mr. Muhammad. Hayat Junejo also pointed out that Dr. Shamsul Haque had stated that the injury could be self-suffered. The words "could be" are indeed significant; and if we may say, several injuries suffered by persons at the hands of others could also be self suffered. The injuries on Mst. Pathani were spoken of in the First information Report, and a Mashirnama in inspect of the said injuries were prepared immediately after the report was lodged. Having regard to the circumstances of this case, we have no doubt that the three eye-witnesses have given true account of the events, and their evidence is not open to any doubt. The next piece of evidence is furnished by witnesses Rab Rakhio and Noor Nabi. While Rab Rakhio is a nephew of the deceased, Noor Nabi is the Nekmard. Rab Rakhio had come on the cries that were raised by the eye-witnesses immediately after the occurrence. All the circumstances of the case were related to him, and he was asked to go and call Noor Nabi, the latter witness also came in the early hours of the morning, and he was also conveyed the same story. Noor Nabi thereafter 'asked Mst. Pathani and Rab Rakhio to go to the Police Station and lodge a report. In the report that is lodged, a mention about the arrival of Rab Rakhio and Noor Nabi is made, and it is further stated that the circumstances of the transaction were related to them. Nothing has transpired in the evidence of these two witnesses to even remotely cast a doubt on their evidence. In fact, these two witnesses have also given very consistent evidence, and this evidence strongly corroborates the evidence of other three eye-witnesses. The prosecution has also relied on the evidence of recoveries. While the blood-stained hatchet was recovered from appellant Umer, the alleged crime weapon, which matched spent cartridge found at the wardat, was produced by appellant Muhammad Hassan. The report of the chemical analyser in respect of blood on the hatchet recovered froth Muhammad Umer is positive that it was human blood. The report of the ballistic expert' is also positive that the spent cartridge was fired from the gun that was recovered from Muhammad Hassan. The evidence in regard to recoveries has been attacked by the learned Advocate. These recoveries were made in the presence of Mashtr Rasool Bux. This Mashir has so acted in the preparation of mashirnama of scene of occurrence, inquest as well as recoveries, while the scene was inspected on 6th May, 1975 the recoveries were made on 11thMay, 1975. Mr. Muhammad Hayat Junejo, therefore, contends that this Mashir was readily available to the Police Officer, and therefore his evidence should not be given credit. The apathy of persons acting as Mashirs has been proverbial in the Province of Sind. In this case, however, one cannot overlook the fact that Mashir Rasool Bux is a person of the locality and resides at a distance of little over a mile from the scene of occurrence. His presence in the village of the appellants on 11th May, 1975 is also satisfactorily explained, as he bad come to make purchases. It is possible that Police knew that he was available in the village, and therefore they obtained his services. Even otherwise, this Mashir is not shown to bear any enmity with the appellants, he is shown to have acted as a Mashir on one previous occasion also, but that factor by itself will not be sufficient to discredit his evidence. The next contention in the same context is that the evidence oil Rab Rakhio indicates that appellants Umer and Hassan had been arrested on the day of the commission of the offence. In that context, all that Mr. Muhammad Hayat Junejo could point out was the following sentence appearing in the evidence of Rab Rakhio. It reads as follows:- "I do not remember whether I said in lower Court that Thariri Muhbat Police had taken accused Umer and Hassan from wardat in a jeep. I had accompanied Police on that Jeep." First of all, the above sentence does not show that Rab Rakhio was making a positive statement. Secondly, the evidence discloses that, on the day of incident, Police had come to the wardat in a tonga, and not in a jeep. In the sentence immediately preceding the sentence, which has been reproduced above, Rab Rakhio had stated that he was not present when the appellants were arrested. All these factors would conclusively show that the appellants bad not been arrested on the day of the incident, but five days later, as is stated by the Investigation Officer and Mashir Rasool Bux. On a consideration of the evidence of recoveries, we are of the view that the same tend to support the ocular evidence, which, as stated above, is the primary evidence against the appellants which is by itself sufficient. We are of the view that the guilt of the appellants has been satisfacto rily established, and they have been rightly convicted. We; therefore, dismiss the appeals filed by them both in respect of the main case of murder and trespass, as also in respect of conviction of appellant Muhammad Hassan under the Arms Act. We now proceed to consider the question of sentence. A suo motu notice was given to the appellants to show cause against the enhance ment of sentence. While the appellants were convicted on and 22ndFebruary. 1977 notice was given on 9th October, 1978. For this full period of 15 months, the appellants had full expectations of life. During the trial as well as after the conviction, they have remained in jail for a long period of over five years. Whether there are circumstances justifying the imposition of capital sentence now is a question, which we have seriously considered. We are of the view that, looking to the long period that the appellants have remained in custody, together with the circumstance that for a period of 20 months they bad full expectation of life, sentence does not need to be enhanced. The learned Judges of the) Division Bench had referred to the cases of Samano v. The State (1973 S C M R 162) and Muhammad Hussain v. The State (1973 S C M R 344) in their order issuing show-cause notice of enhancement. None of these cases was a case involving the question of enhancement of sentence. A prayer was made for reduction in sentence on ground of long detention during trial and appeals but such prayer was repelled. In the instant case, the appellants had full expectation of life 'for 20 months after their conviction. We therefore, vacate the show-cause notice. Appeal dismissed.