1981 P Cr (PLP)

AJMAL MIAN, J.--This is an appeal filed by the two accused Hussain son of Ismail and Allahdino son of Murad Machi against the conviction under sections 302 and 307/34, P.P.C. for causing the death of deceased Moharram and injuries to Mst. Rash, daughter of deceased Moharram and wife of accused Hussain respectively, awarding death sentences and life imprison ment for the murder and injuries respectively, and also against the imposi tion of compensation of Rs. 10,000 against each of the appellants under section 544-A, Cr. P. C. in default R. I. for 5 years. There is also a reference from the ex officio Additional District Judge, Hyderabad for the confirmation of the death sentences awarded to the two appellants. The brief facts leading to the filing of the appeal and making of the reference, as discussed in the F. I. R. are that on 29th May, 1974 at 12-30 p. m. the complainant Ismail son of Khamiso Machi P. W. 1 (a nephew of the deceased) was going from Pandhi Canal to his house in the village alongwith P. W. 4 Sooniar. When they reached near the house of Akan they heard cries of deceased Moharram coming from the side of his house and then they turned towards the aforesaid direction and saw accused Hussain and Allahdino armed with hatchets giving sharp side hatchet blows to the complainant's uncle deceased Moharram and thereafter, running away from the house. The complainant and Soomar went and challenged the accused, but the accused gave sharp side blows to Moharram and got him down. Mst. Rasti and Mst. Soomri were raising cries. Accused Hussain and Allahdino gave sharpside hatchet blows to Mst. Rasti and got her down on the ground. On receiving the injuries Moharram died on the spot. The complainant after leaving P. W. 4 Soomar and Akan at the dead body of his uncle Moharram and injured P. W. 2 Mst. Rasti went to the Police Station in order to lodge F. I. R. the motive disclosed in the complaint was that deceased Moharram about 6/7 months prior to the incident got his daughter Mst. Rasti P. W. 2 married with accused Hussain on the condition that he would live as "Ghar-Damad" and that if he would not live as such, he would have to leave his wife, Hussain used to live with Mst. Rasti as husband and wife, but a month prior to the incident Hussain started putting up with his uncle Haji Machi to village Murad Machi. After that 2/3 times Hussain asked Moharram for taking his wife to his village, but deceased Moharram told him, that he was his Ghar-Daniad and he would have to stay with his wife in his house, upon which accused Hussain got annoyed. F. I. R. was lodged at 2-30 p. m. on the same day.

2. P. W. 9 Khurshid Ahmed, S. H. O. Police Station, Tando Mohammad Khan after recording the F. I. R. proceeded to the place of wardat alongwith his subordinates, and the complainant which was shown to him by the complainant, and in respect whereof he prepared Mashirnama Exh.

50. He found the dead body of Moharrarm lying there. He held an inquest and prepared an inquest report Exh.

16. After that he sent the dead body through the Police Constable Abutalib to the Medical Officer, Tando Mohammad Khan for post-mortem examination. He also prepared Mashirnama of the injuries of Mst. Rasti before referring her to the Medical Officer. He did not prepare separate Mashirnama of injuries of Mst. Rash, but described the same in the Mashirnama Exh.

15. After that he recorded the statements of P. Ws. Soomar, Ramoo and Mst. Soomri. Thereafter, he left the place of vardat in search of the accused persons named in the F. I. R., but could not get any one of them and, therefore, went to his Station. He asked the Nekmard of the area for arranging the arrest of the accused person. He took the blood-stained earth from the place of vardat to the Police Station. He also sent a letter through his Head Constable to the Medical Officer requesting him for making arrangements, so that a dying declaration of the injured Mst. Rasti could be recorded. On 30thMay, 1977 when the S. H. O. Khurshid Ahmed was at the Police Station, P. W. 5 Kazi and Khuda Bux produced before him both the accused. Thereupon, he arrested them under Mashirnama Exh.

12. At the time of the above arrest both the accused were having blood-stained clothes on their persons and, therefore, the same were secured by P. W. Khurshid Ahmed and sealed in two parcels under a mashirnama, to which the aforesaid P. W. 5 Kazi and Khuda Bux acted as mashirs. Thereafter, P. W. Khurshid Ahmed interrogated the accused, who volunteered to produce the incriminating weapons and led them to their house situated in the village Murad Machi. Accused Hussain after recovering a blood-stained hatchet from Lorha (i.e. fencing) of his house produced the same, whereas accused Allahdino also produced a hatchet from the said Lorha. Both the hatchets were blood-stained. He prepared mashirnama of recovery of both the hatchets as Exh.

13. After that he got Soomar, Ramu, Soomri, Khuda Bux and Kazi's statements recorded under section 164, Cr. P. C, by the 1stClass Magistrate at Tando Mohammad Khan. On the completion of the investigation he challaned the accused. Blood-stained articles secured in connection with the investigation were sent to the Chemical Analyser, who gave a positive report in respect of the articles Exh. 24.

3. The prosecution, in support of the case has examined P. W. 1 Ismail, P. W. 2 Mst. Rasti (injured) daughter of the deceased and wife of accused Hussain. P. W. 3 Mst. Soomri daughter of deceased Moharram, P. W. 4 Soomar an eye-witness of the incident, P. W. 5 Kazi one of the mashirs to the mashirnama of arrest who alongwith Khuda Bux produced the two accused before the P. W. 9 S. H. O. Khurshid Ahmed, P. W. 6 Muhammad Siddiqui a mashir of the place of vardat Ex. 15, P. W. 8 Dr. Muhammad Azim, the Medical Officer of Tando Muhammad Khan, P. W. 9, Khurshid Ahmed S. H. O. who investigated the case. The accused in addition to making of their .own statements in reply to a Court questions, also examined three defence witnesses, namely, D. W. 1 Loung D. W. 2 Mangrio and D. W. 3 Nur Hussain, Accused Hussain in reply to the Court question stated that the Police had falsely foisted the case on him and that one Allahdino Kamdar was on illicit terms with his wife. He and deceased Moharram had prevented Allahdino from visiting his house but Allahdino continued visiting his house with the connivance of P. W. Ismail and his relatives in his absence and in the absence of deceased Moharram and that Allahdino Kamdar got his (accused) father-in-law Moharram murdered. Whereas accused Allahdino in reply to the Court question before the Sessions Court stated that the co-accused Hussain is his cousin and that he had prevented Kamdar Allahdino from visiting the wife of accused Hussain and, therefore, Allahdino Kamdar got him involved falsely in the case. Both the accused made complete denial of having committed the offence. 4.--(a) P, W. I Ismail in his testimony before the Sessions Court has deposed that about 6 months prior to the date of murder Mst. Rasti daughter of Moharram was married to accused Hussain, in which he participated and that at the time of the marriage, it was agreed by accused Hussain that after his marriage with Mst, Rasti, he would stay in the house of deceased Moharram as their Ghar-Damad and it was also agreed that in case the accused did not want to live as Ghar-Damad With Moharram he would divorce Mst. Rasti. He has further deposed that for about 5 months the accused lived as Ghar-Damad in the house of deceased Moharram, but about a month prior to the date of incident accused expressed his desire to live separately with his own relations. He also desired that his wife should also be allowed to accompany him to his relations, in reply to which deceased Moharram told accused Hussain that he had agreed to live as Ghar-Damad and as such if he did not wish to live as Ghar-Damad, he would have to divorce Mst. Rasti. P. W. Ismail has further deposed, that on hearing the aforesaid reply, accused Hussain became annoyed. He goes on to state that on the day of the incident he was employed as beldar for Pandhiwah and that at the time of the incident he was going to his house for having lunch and that Soomar and Ramoo who were his co-villagers, had met him on the way at Koorwah Road, He has also deposed that when they were at a distance of 100 paces from their village they heard cries coming from the house of deceased Moharram. They rushed towards the source of cries. When they reached near the Ghitti outside the Lorha (i. e, fencing) of the house of deceased Moharram they observed both the accused Hussain and Allahdino inflicting injuries on Moharram who was unarmed and was trying to rush inside the house to escape and that deceased Moharram entered inside the Lorha and fell down on the Thalla of Manah (i.e. cattle pen) of his house. But both the accused followed him inside the Lorha of the house anal they continued inflicting injuries upon the deceased Moharram even inside the Lorha. He has also deposed that at the time of the incident, when the accused were inflicting injuries upon Maharram his daughters were available inside the house. These two ladies were raising cries and that both the accused with hatchets attacked Mst. Rasti who received hatchet injuries at her shoulder, head and other parts of the body and that one of the arms of Mst. Rasti was severed from the body. He has also stated that as they were empty-handed, they could not intervene because the accused had threatened them and asked them not to approach near. After that the accused alongwith their hatchets ran away from the scene of occurrence, and, therefore, he went to the Police Station Tando Muhammad Khan and lodged the F. I. R. Exh. 6. (b) P. W. 2 Mst. Rasti on all material facts has corroborated the testimony of P. W. 1 Ismail. She has inter alia deposed that after the accused Hussain left her father's house, he came to their house twice and on each occasion, he insisted that she should be allowed to accompany him, but her father reminded him of his oath and told him that in case he wanted to leave his house, he would have to divorce her. She has further deposed that refusal of her father had annoyed accused Hussain and that on the day of the incident she and her sister Soomri were inside the house while their father was near Ghetti, when both accused Hussain and Allahdino attacked her father with hatchets, thereupon, they raised cries And on their cries Ismail, Ramoo and Soomar had come running. She has also stated that the accused had threatened that in case they approached near them, they would have to face dire consequences and thus the above persons did not intervene. She has further stated that her father ran inside the Lorha (i.e. fencing), but the accused chased him and that due to the injuries caused by the accused her father fell down under the Manah (i.e. cattle-pen). After that the accused rushed towards her and her sister and that her sister made good her escape, but the accused inflicted injuries to her and after having received the injuries on different parts of her body, she had become unconscious. She has further deposed that she remained in the hospital for more than 2 months for treatment and that she had become destitute and disabled person having lost left arm. (c) P. W. 3 Mst. Soomri's testimony is identical with the testimony of her sister Mst. Rasti. She was also present in the house at the time of the incident, being one of the daughters of the deceased. Similarly P. W. 4 Soomar also on all material facts has corroborated the evidence of P. Ws. 1, 2 and 3. (d) P. W. 5 Kazi has deposed that he was Kamdar of Zamindar Muhammad Saleh at his land in deh Pataghi and that he knew the accused present in the Court, who were Allahdino and Hussain. He has further stated that 2 or 2 years back policemen came to the otak of Mohammad Saleh where he was also present and informed him that accused Allahdino and Hussain were absconders of Moharram's murder case. He has further deposed that the police requested him for assisting them in finding out the whereabouts of the said absconders. He goes on to state that on the next day when he was in the otak of Mohammad Saleh alongwith Khuda Bux both the accused persons entered into the otak. Accused Hussain informed him that he had killed his father-in-law Moharram because he had turned him out of his house with the intention to marry Mst. Rasti with any one else, and that Allahdino also informed him that he accompanied Hussain with the intention to commit the murder of Moharram. He has further deposed that both the accused inquired from him about Zamindar Mohammad Saleh and upon his reply that Zamindar Mohammad Saleh was not available, they requested him to produce them before the Police. Thereupon, he and Khuda Bux took both the accused to the Police Station and produced them before the Police. Thereupon, he and Khuda Bux took both the accused to the Police Station and produced them before the Police, who arrested them and secured blood-stained clothes, which the accused were putting on. He has further deposed that the blood-stained shirt and shalwar of Hussain and blood-stained shirt of accused Allahdino were secured and mashirnama. In respect of there of Exh. 12 was prepared. After that both the accused led them to their village Murad Machi and that accused Hussain after recovering blood-stained hatchet from the Lorha (i.e. fencing) surrounding the house produced the sum before the Police and then accused Allahdino after recovering the blood-stained hatchet from the same Lorha but from a different place in the Lorha at a distance of 3/4 paces away produced the same before the police and that both the hatchets were sealed and mashirnama in respect thereof Exh. 13 was prepared, to which he was a mashir. In the cross-examination he admitted that on the day when the two accused appeared before him at the otak he had asked them to appear before the Police and told them, that it would be in their own interest and that he had also asked them to produce their weapons before the Police as it would also be in their own interest. (e) P. W. 6 Muhammad Siddiqui mashir of mashirnama of vardat Exh. 15 and also mashir of the inquest report Exh. 16 has supported the contents of the above two mashirnamas. (f) Whereas P. W. 7 Ahmed Khan tapedar at Taluka Tando Muhammad Khan had produced the sketch of the place vardat Exh. 18. (g) P. W. 8 Dr. Muhammad Azim, who carried out the post-mortem of deceased Moharram and also examined Mst. Rasti has found the following injuries on the deceased person:- "(1) An incised wound 2 " into " deep to muscles which were cut underneath transverse on the outer wall of the right axilla. (2) An incised wound 3 " into deep to chest cavity cutting the bones underneath, left axillary artery was cut completely ribes under neath wore cut, pectoral muscles was cut from above down wards. (3) An incised wound 8 " into 6" into deep to chest cavity starting " below Injury No. 2 going to the left exilla and coming to the back left side of chest in the middle, cutting the left scapula completely and 2, 3, 4 ribs and muscles and all other structures were cut underneath. All the aforesaid injuries were anti-mortem and appear to have been caused by sharp-cutting weapon like hatchet. On internal examination he found the following:- "(1) Chest Left 1, 2, 3, 4 and 5 ribs were cut under external Injury No. 3. (2) An incised wound 2" x " x 2" deep on the anterior surface and middle of upper lobe of left lung was collapsed. (3) Chest cavity way full with blood on left side. Heart was empty rest was healthy. Abdomen No. 1 Stomach was full with indigested food and gasses. (4) Small and large intestine were full with gasses and forces, rest was all health and normal." According to P. W. Dr Muhammad Azim the death occurred due to shock and hemorrhage because of the injuries received by the deceased and that Injury No. 3 was individually and other injuries collectively were sufficient in the ordinary course of nature to cause the death. He has also produced the post mortem report Exh. 21. (ii) On examining Msg. Rasti P. W. 2 he found the following injuries on her person; "(1) An incised wound 5 ` x 4 x " x bones which were cut underneath from mid back of left forea to the mid front of left biceips cutting the elbow joint and left humerus bone lower all other structures are also cut. (2) An incised wound 4" x 4" into deep to bone which was cut, Cleft humerus upper and was completely cut, oblique on the left upper arm upper part outerside. (3) An incised wound 2 " x 1 " into deep bone which is cut underneath, oblique on the left thigh lower part just above left knee outer side. (4) An incised wound 4" x into deep bone which is cut under neath transferee on the middle of head involving both parietal areas and bones also. (5) An incised wound 1" x " into deep to cartilage on the upper part of left ear front, oblique. Injuries Nos. 1, 2 and 4 were dangerous and Injury No. 3 was grievous and Injury No. 5 was simple. All the injuries were fresh and appeared to have been caused by sharp weapon like hatchet." (h) P. W. 9 Khurshid Ahmed S. H. O. Tando Muhammad Khan has stated the steps taken by him after the recording of the F. I. R. referred to herein above in para. 2. 5.

(a) The defence witness D. W. Loung has deposed that he did not know Moharram Machi and Mst. Rasti, and that he had started knowing them after the incident. He has further deposed that about 3 years back the incident of this case had taken place at Bunni in-between Shakh and the village of the deceased and that it was about 12-30 or 12 noon time, when he was proceeding for Purchasing cattle, he heard at the inspection path the cries ghora ghora'. He has also deposed that he had seen 3/4 persons running away from the source of cries and then he reached the scene of' occurrence :end saw a male injured by name Moharram, but he did not remember the name of the lady and that he had transported the injured to the house of Moharram and place, them at the Thalla. In the cross-examination, he has admitted that after 3 days of the incident, he came to know that the accused in question were arrested but he did not contact the police authorities to let them know that the accused were wrongly arrested and the main culprits were others, nor he told the above story which was witnessed by him to any of the relations of the accused. He went on to admit that the accused were known to him even prior to the incident, but he had no business dealing with them. He has also stated that till the time of making the above statement before the Sessions Court, he never intimated to any of the relations of the accused persons regarding the facts, which were witnessed by him on the day of the incident and that for the first time he narrated the facts to the defence counsel outside the Court on the day of the recording of his statement by the Sessions Court. (b) The second defence witness D. W. Mangrio also came out with the above story but had mentioned that he had seen 4 persons running away instead of 3/4 persons. In the cross-examination, he also admitted the above facts which were admitted by D. W. 1. (c) D. W. 3 Nur Hussain also made identical statement and also admitted the facts in the cross-examination, which were admitted try the other two defence witnesses, inter alia that he did not contract the police to inform about the real culprits after coming to know that tin accused were wrongly arrested inspite of the fact that he was residing one block away from the place of the accused and that they were thoroughly known to him. 6.

(a) Mr, Muhammad Hayat Junejo learned counsel for the appel lants has urged the following points:- (i) that as P. W. 2 Mst. Rasti had become unconscious after receiving the injuries, she was bound to support the prosecution case as disclosed in the F. I. R., and, therefore, her testimony cannot relied upon. (ii) that the alleged two eye-witnesses, namely, P. W. 1, Ismail and P. W. 4 Soomar are chance witnesses and, therefore, cannot be relied upon; (iii) that the murder was committed by some other persons other than the accused person as Mst. Rasti was carrying on illicit relations with Kamdar Allahdino with the connivance of P. W. 1 Ismail and that at the behest of Kamdar Allahdino the murder had taken place because he was opposed to the above illicit relations. (b) Reverting to the first contention of Mr. Junejo that as Mst. Rasti had become unconscious after receiving the injuries, she was bound to support the prosecution case as disclosed in the F. I. R. and, therefore, her testimoney cannot be relied upon it may be observed that at the time of the incident in addition to Mst. Rasti, P. W. 3 Mst. Soomri was also present in the deceased's house. She has corrob6rated the statement of Mst. Rasti on all material points including about the manner in which the accused entered into the fencing of the deceased's house She has vehemently denied the defence suggestion to her in the cross-examination, that she was not present at the place of the incident. Furthemore, Mst. Rasti had become unconscious after the injuries on deceased moharram had already been inflicted by the accused and, therefore she could have witnessed the incident. A reading of her testimony indicates that she is a natural witness and has stated the truth. The evidence of the 4 eye witnesses have not been shaken in the cross-examination in spite of the lengthy cross-examination encountered by them. In our view the above contention of Mr. Junejo is untenable. (c) Reverting to the second contention, of the learned counsel for the appellants that P. W. 1 Ismail and P. W. 4 Soomar are chance witnesses and, therefore, cannot be relied upon, it may be observed that in our view the presence of above two witnesses cannot be doubted. They have given plausible explanation as to why they happened to be near the place of vardat. P. W. 1 Ismail had come to take lunch from the place of his duty, which situated about a mile, whereas P. W. 4 Soomar was on two days leave as he was working as a chaprasi. Furthemore, their presence also stands proved from the fact that P. W. Ismail had lodged the F. I. R. within 2 hours from the time of the incident at the police station, which was about 3 miles from the place of vardat, in which he has disclosed the names of the P. W. 4 Soomar Machi as well as Mst. Rasti and Mst. Soomri. The statement made by him before the Sessions Court corroborates the contents of the F. I. R. on all meterial particulars. The manner in which the facts the F. I. R. and in the deposition before the Sessions Court have been stated indicate that P. W. 1 Ismail was very much present at the time of the incident. Similarly, the statement of P. W. 4 Soomar also gave the full details of the incident in conson ance with the testimony of the P. Ws. 1, 2 and

3. In our view his presence also cannot be doubted. The above two witnesses cannot be termed as chance witnesses and their testimony cannot be ignored or doubted. (d) Reverting to the last contention that the murder was committed by some other persons at the behest of Kamdar Allahdino, it will suffice to observe that the testimony of the three defence witnesses does not inspire confidence. The story that the deceased and injured P. W. 2 Mst. Rasti were attacked by unknown four persons in the field where the deceased had gone to cut the grass is belied by the evidence of the prosecution four eye-witnesses. Furthemore, from the various admissions made by the aforesaid defence witnesses in the cross-examination, referred to hereinabove in para. 5, it is evident that the above witnesses were planted by the defence. In cross-examination to the prosecution witnesses, it was suggested by the defence that Mst. Rasti was having illicit connections with one Kamdar Allahdino, but nothing has come Wit. In our view mere suggestion in the cross-examination will not prove the above allegation in the absence of any other evidence on the record. The prosecution case has beef proved beyond reasonable doubt and the pleas of defence are unfoun ded. 7.--(a) Lastly, it was urged by Mr. Junejo that in any case awarding of the capital punishment to the two appellants was not justified for the following reasons (i) that the appellants were arrested on 30thMay, 1974 whereas the conviction was recorded on 20th December, 1978 and therefore, the trial had taken about 4 years. (ii) that there was only one fatal injury on the deceased person, and (iii) that the fatal injury was not ascribed to any of the appellants. (b) In support of the above first reason, Mr. Junejo has refer-red tee t e case of Kamber Ali Shah v. The State (P L D 1959 Kar. 460), and a judgment of a Division Bench of this Court in Confirmation. Case No. 19/76 (Cr. Appeal No. 139/76) viz Bostan v. The State. In the first case the death sentence was converted in to transportation for life for two reasons, namely, that the trial of the case had' taken 4 years, and secondly that the prosecution was not able to prove the motive for the murder. Whereas to the other unreported case the conviction was altered from death to transportation for life inter alia on account of the fact that motive was not proved, and that there was delay in the trial for the about 3 years. However, for the reasons hereinafter recorded in para. (a) we are not inclined to alter the sentences. (c) Whereas in support of the above second reason that there was only one fatal injury, Mr. Janejo has relied upon the case of Muhiwal v. The State (1975 P Cr. L J 1121). In the above case the conviction was altered from 302 to 304, Part II on account of the fact that the accused had inflicted one hatchet injury to the deceased, which proved fatal and the sentence to transportation life was substituted by seven years' R. I. The above cases is distinguishable in as much as there was no premedi tation and it was not the case of cold blooded murder. In the instant case the murder is premeditated one and as many as four grievous injuries were brutally inflicted on the delicate parts of the person of the deceased. The deceased in act was butchered by the accused. (d) Reverting to the last contention that the fatal injury cannot be ascribed to any of the appellants, it may be observed that Mr. Junejo has relied upon the case of Alinawaz and another v. The State (1979 P Cr. L J 877). 1n the above case it was observed that as the deceased had received one fatal injury, lesser punishment of imprisonment for life is to be gran ted. 1 n the instant case, according to the four eye-witnesses both the accused inflicted hatchet injuries on the deceased, Both the appellants had come with the intention to kill the deceased and, therefore, they are jointly liable under section 34, P. P. C. (e) We may observe that an accused person having committed a premeditated murder in cold-blood cannot claim lesser punishment as a matter of right or otherwise on account of the fact that the trial had taken long period or that only one fatal injury was caused by him to the deceased or that the fatal injury cannot be ascribed to any of the accused if there are more than one accused person. The awarding of punishment is a matter of discretion of the Court, though the above discussion is to be exercised reasonably and judiciously. In a fit case the Court instead of awarding capital punishment may award a lesser punishment. In the instant case a cold-blooded murder in a brutal manner has been committed by the two appellants and, therefore, we are not inclined to convert the death sentence into life imprisonment or to impose any other lesser punishment. Furthermore the appellants had also inflicted grievous injuries to Mst. Rasti, her left arm was chopped a and she is now leading a disabled life. Though for the latter offence, the appellant have been awarded life imprisonment, but this offence was committed simultaneously with the commission of the murder.

8. In view of the above discussion we do not find any merit in the above appeal and therefore, the same is dismissed and the convictions and sentences imposed on the two appellants are upheld including the imposi tion the amount of compensation. The reference made by the learned Sessions Judge is accepted. The above reasons are in pursuance of our order of even date. Appeal dismissed.