Z. A. CHANNA, J.---The two appellants were tried by a learned Additional Sessions Judge, Nawabshah; on the charge of committing murder of one Razi, and while Chatto was acquitted, the two appellants were sentenced by the learned Additional Sessions Judge, by his judgment delivered on 26-3-1977, to death. The appellants have appealed against their convictions and sentence and the learned Additional Sessions Judge has also referred their case to us for confirmation of the death sentence awarded by him to the two appellants: This judgment will dispose of both the appeal-and the death sentences awarded to the appellants.
2. The murder of Razi was committed on the night intervening between 16th and 17th of June, 1975, in the courtyard of the house of his father-in-law, Allah Rakhio, in . Doodhan Khamiso village, Taluka Moro, 15 miles away from Moro Police Station, where the first information report of the offence was lodged by Allah Rakhio at 1000 a.m. According to the F. I. R. On the night of the incident, the deceased and Mst. Anwar, who were recently married, were sleeping on the same cot on the north side of the terrace of the house of Razi's brother Allah Rakhio, when at about 3-00 a.m., Mst. Anwar woke up from sleep on receiving an injury on her right wrist, and saw, by the light of a lantern which was burning on the wall nearby, the two appellants and acquitted accused, Chatto, all of whom were armed with hatchets, standing near their cot. They had already inflicted one hatchet blow to the deceased and after Mst. Anwar had got up they inflicted a second injury upon the deceased within her sight and also within the view of first informant Allah Rakhio and Qurban; the son-in-law of Allah Rakhio, who were sleeping on the same terrace, a little distance away from the cot of the deceased and who had got up on the cries and commotion raised by Mst. Anwar. On seeing them, appellant Muharam took out a pistol and fired in the air, threatening any one who came near him with death. Due to the fear of the weapons carried by the appellants and their companion and the threats given by appellant Muharam, the witnesses suffered the appellants and their companions to escape by scaling over the compound wall. On the cries and commotion, Pir Buxil and Ganwar Khoso, who are residing close to the house of Allah Rakhio, came up running. Allah Rakhio opened the gate of his house, admitted the above witnesses in the house, informed them about the murder, and gave them the names of the appellants and Chatto as the culprits. Due to the late hour and possibly more on account of fear of the assailants of the deceased, Allah Rakhio did not dare to set out from the house at that time. In the morning, he left for Moro Police Station, where his F. I. R. Was recorded by A. S. I. Mohammad Akram. The motive for the murder is stated to be the fact that appellant Muharam, who is a cousin of Mst. Anwar, and his two com--panions were annoyed at her marriage with deceased Razi.
3. After recording the F. I. R., A. S. I. Mohammad Akram proceeded to the scene of offence which he inspected in the presence of mashirs Darya Khan and Waryam. At the wardat he saw the dead body of Razi lying on a cot in the courtyard of the house. There was blood-stained earth under the cot. A lantern was hooked on the wall near the dead body. The A. S. I. Secured the blood-stained earth and sealed the same, He then sent the dead body to the Medical Officer, Moro, for post- mortem examination. The A. S. 1. Thereafter prepared mashirnama of the injury on Mst. Anwar and after recording her statements, referred her the Medical Officer; Moro, through P. C. Shamshuddin for examination and treatment. On the same day, the A. S. I. Recorded the statements of P. Ws.
Qurban, Pir Buxil, Ganwar and Pharho. On the following day, namely 18-6-1975, the A. S. I. Arrested appellant Muharam in the presence of mashirs Darya Khan and Waryam. Appellant Muharam is said to have produced before the A. S. I. And mashirs an unlicensed country made pistol, containing an empty cartridge, which was lying concealed in the roof of his house. He is also said to have produced a blood-stained hatchet; which was lying near the bedding in his house and a blood-stained shirt from a wooden box in the house. All these articles were sealed by the A. S. I. On the same day, appellant Dino was arrested. He is said to have produced before the A. S. I. From a dilapidated room of his house a blood-stained hatchet, which the A. S. I. Sealed and seized. The same day, acquitted accused Chatto is stated to have been arrested and to have produced before the A. S. I. One hatchet, which, however, was not blood-stained, from under the cot in his house.
4. On 23-6-1975, appellant Muharam was produced before the S. D. M. Moro, who recorded his judicial confession on the same day. This confes--sion; however, has not been relied typon by the trial Court as in its opinion it is neither true nor voluntary, and furthermore, it was recorded after Muharam was in police custody for 5 days. The appellants were ultimately challaned by S. H. O.
Tajammal Hussain.
5. The autopsy on the deceased was conducted by Dr. Ghulam Sarwar,' who had testified that he found the following external injuries on the dead body:- "(1) "(1) Incised wound 6" x 4" x neck cavity deep on the right side of neck and all the structures of the neck cut.
(2) Incised wound 3" x 2" x bone deep on left hand and all matacarpal bones cut except 1st and 2nd bones."
6. On internal examination, the Medical Officer found that the larynx and the tracheae were found cut, the blood vessels on the neck were cut, and so also the Pharynx and the Oesophagus. The stomach contained semi-digested food. In the opinion of the Medical Officer, the above injuries were caused by some sharp cutting substance such as a hatchet, and were sufficient in the ordinary course of nature to cause death. According to him, the time between injuries and death was instantaneous and between death and post-mortem was about 14 hours.
7. The appellants have denied all the allegations made against them and have claimed that they have been falsely implicated by the P. Ws. Who are related inter se and hostile towards them.
Appellant Muharam's stand is that first informant Allah Rakhio, who is his cousin, had usurped his share of ancestral property and when he demanded the same, the first informant foisted this case against him so as to prevent him from claiming his share of the ancestral property. As to the judicial confession, he explained that he was forced by the police to make it as he was in police custody and his women folk were being humiliated.
8. As regards appellant Dino, he has alleged enmity with P. W. Ganhwar, who, according to him had become annoyed with him as he had refused to sell his land to Ganhwar and the latter accordingly had got him falsely involved in this case. He has further stated that previously also Ganhwar bad got him falsely involved in a case under section 13(d) of the Arms Ordinance, in which he was acquitted. A perusal of the judgment in that case, however, shows that Ganhwar was not a witness in that case. Moreover, in that case no allegation was made by the appellant that Ganhwar was either hostile to him or had any hand in his prosecution. On the other hand, he alleged that he had been implicated by S. H. O. Mohammad Ramzan at the instance of Haji Karimbux Jatoi. No connection is shown to exist between Haji Karimbux Jatoi and P. W. Ganhwar who was at the relevant time the Kamdar of Rais Ghulam Mustafa Jatoi. It may finally be mentioned that P. W.
Ganhwar has not even been examined by the prosecution.
9. In convicting the two appellants, the learned Additional Sessions Judge relied upon firstly the ocular testimony, specially the evidence of Mohammad Anwar, secondly, medical evidence, thirdly, evidence as to the recovery of incriminating articles from the appellants, and lastly, evidence of motive. As already indicated, the learned Additional Sessions Judge rejected the judicial confession made by appellant Muharam, firstly because it was retracted, secondly as it was exculpatory, thirdly, as in his opinion, it was not true on account of the fact that Chatto had not been involved, fourthly, because it was recorded five days after the arrest of Muharam, and finally by reason of the allegation made by Muharam that his female folk were humiliated. The learned Additional Sessions Judge also was of the view that the identity of the unlicensed country-made pistol recovered from the possession of this appellant with that of the pistol used at the time of committing the murder had not been established, as no crime empty had been recovered from the vardat which would have established or contradicted the fact whether they were identical and consequently acquitted him of the charge under section 13(d) of the Arms Ordinance. The learned Additional Sessions Judge was persuaded to this view also by reason of the fact that this appellant had been separately challaned for being in possession of an unlicensed revolver at the time of his arrest.
10. As regards co-accused Chatto, the learned Additional Sessions Judge gave him the benefit of doubt because in his opinion the ocular evidence against him was not corroborated by recoveries.
By this the learned Addi--tional Sessions Judge apparently meant that the ocular evidence required corroboration and that further as the hatchet recovered from this appellant was not blood-stained there appeared to be no nexus between it and the murder of Razi.
11. The ocular evidence is furnished by first informant Allah Rakhio, his sister-in-law, Mst. Anwar, and his son-in-law, Qurban. All three of them have testified to having witnessed the fatal assault on deceased Razi by the appellants and further to seeing appellant Muharam firing in the air in order to scare them. The testimony of the three eye-witnesses has been assailed by Mr. Mohammad Hayat Junejo, the learned counsel for the appellants; mainly on the ground that it is interested. No doubt the witnesses are inter-related and were also closely related to the deceased either by blood or marriage, but we find that they are natural witnesses, that they had no motive for falsely implicating the appellants and that finally they are also closely related to the appellants, appellant Muharam being the cousin of Mst. Anwar and P. W. Qurban. It is now settled law that mere inter relationship of the witnesses is no ground for rejecting their evidence, in the absence of any inherent infirmities or improbabilities in their statements, specially if they have no animus against the accused (see 1968 SCMR 1059 and PLD 1974 SC 65).
12. The incident occurred in the house of Allah Rakhio. As such his presence at the scene of offence cannot possibly be doubted. Similarly, Mst. Anwar, being the wife of Allah Rakhio's brother, Razi, who was putting up with the complainant, was a member of the house, and as she was married to the deceased only 13 or 14 days prior to the incident, she would naturally be sharing the cot with him, as candidly stated by her. Moreover; the receipt of her of an injury which is established to have been sustained, by her during the incident, establishes her presence at the relevant time beyond any reasonable doubt. The learned counsel for the appellants submitted that there was no proof that she had sustained any injury and in support of his contention relied upon the, evidence of Dr. Abdul Karim, the then M. O. Moro, who has stated that there is no record at the Moro dispensary indicating that Mst. Anwar was either treated at the said dispensary or was referred to it for treatment. We do not think that from this evidence a conclusion can be drawn that Mst. Anwar did not sustain an injury during the incident or that she did not receive treatment for that injury or that her testimony on these points is unreliable or doubtful. In the first pace, she has very categorically stated that while she was sleeping with her husband she woke up on receiving an injury on her right wrist. She has remained unshaken on this point. Next there is evidence of P. Ws. Allah Rakhio Qurban and Pir Buxal (who had come from his neighbouring house on hearing the fire-arm shot and cries) that they bad seen a bleeding injury on her right wrist. Then there is evidence of A. S. I. Muhammad Akram, who saw her injury the next morning prepared mashirnama of the injury and referred her through P. C. Shamshud--din to the Moro dispensary for treatment, and the testimony of Daryah Khan who was one of the mashirs of the memo of the injury. Finally, there is the mashirnama of the injuries and the letter by which the A. S. I. Had referred Mst. Anwar to M. O. Moro for treatment. This letter bears the initials of the person who had received it at the Moro dispensary. Now, according to the A. S. I. And letter which he had sent to the M. O. Moro for the treatment of Mst. Anwar, which is Exh. 30 on the record of the trial Court, the lady was sent for, treatment on 17-6-1975. However, on that day Dr. Abdul Karim was on casual leave, as admitted by him. In the circumstances we are inclined to agree with the view of the learned Additional Sessions Judge that as Mst. Anwar apparently had only a slight injury, she was treated by the compounder or dresser of the Moro dispensary, but as he was not entitled to treat a patient or issue a certificate he made no record of the matter. A further circumstance which may have influenced the dispenser or compounder to treat Mst. Anwar could have b.-en that she was unwilling for a minor journey to be referred to another hospital, specially in view of the murder of her husband. All these circumstances impel us to the conclusion that Mst. Anwar did receive an injury as stated by her. No doubt, the F. I. R. Does not mention the receipt of an injury by her but that was, in our opinion, due to the fact that she had sustained a minor injury, while her husband had been murdered.
13. The presence at the scene of offence of P. W. Qurban also, in our opinion, is not open to doubt. In the first place, his name is mentioned in the F. I. R. It also appears that he had become Ghar Damad of the complainant, though his own house was only 100 paces away from the complainant's house.
The learned counsel for the appellant pointed out to us an apparent contradiction between the evidence of P. W. Qurban and Mst. Anwar as to the date when he came to stay in the house of the complainant, but in the first place we do not think that it is a contradiction, and even if it is we consider it to be of no signific--ance and clearly due to loss of memory on account of lapse of time, since the witnesses were giving evidence more than 16 months after the- incident. According to P.W. Qurban, he had been residing in the house of the complainant since 12 days prior to the incident, while according to P. W. Mst. Anwar he had come along with his wife to stay with the complainant on the third day of the marriage. If Qurban's marriage took place at about the same time as that for Razi, which seems to us most likely, as Razi married his sister in exchange of the marriage of the witness to complainant---s daughter, and since Razi's marriage took place 13 or 1.4 days prior to his marriage; the time given by troth Qurban and Mst. Anwar whets the former came to live in the house of the complainant would appear to tally fully.
14. Mr. Mohammad Hayat next submitted that since deceased Razi and Mst. Anwar were a newly- wedded couple and further as P. W. Qurban and his wife also had been newly married, Qurban, his wife and Allah Rakhio must have been sleeping far away fro them, as to allow them privacy and hence could not have witnessed the fatal assault on Razi which must have been over in a minute or even less as only two hatchet blows where given to the deceased. The evidence of the Tapedar, who had prepared the sketch, is to the effect that while deceased Razi and his wife were sleeping to the north of the terrace of the complainant's house, P. Ws. Qurban and Allah Rakhio were sleeping to the south of the said terrace, the former at a distance of 32 feet and the latter at a distance of 29 feet from the cot of Razi. Although it is possible for persons who have just awakened from sleep on hearing a cry to rush to the place of the cry within a minute and perceive what is going on, we are inclined to the view that most likely these witnesses did not see the actual inflicting of blows to the deceased since Mst. Anwar raised cries only after her husband had already received one hatchet blow and the second blow must have followed seconds later.
However, the witnesses must have come almost immediately after the second blow was given and seen the assailants before they could make good their escape, which they could only do by climbing over the Kot since the gate was locked. That this is so is borne out by the fact that appellant Muharam had to fire a shot in the air to scare the witnesses and to threaten them with death if any approached nearer or attempted to interfere with them, as stated in F. I. R. And by all the eye-witnesses.
15. Mr. Mohammad Hayat also submitted that there was undue delay in the lodging of the F. I. R.
And this circumstance according to him materially detracts from the prosecution case. The learned counsel also pointed out that there was a police out post, Deeparja, only 3 miles from the scene of offence, but no attempt was made to lodge a report at that out post. So far as the delay in the lodging of the F. I. R. Is concerned, the complainant has explained in the F. I. R. That as the murder took place at odd hours of the night he did not consider it advisable to leave for the police station immediately but waited till day break for doing so. It is very likely that the complainant was terrified of the appellants and their weapons and did not consider it safe to move out till morning. It further appears from the evidence of the complainant that there is a pucca road from New Jatoi, which is stated to be two miles from his village, to Moro and on that road buses and taxis ply from 8 a.m. Till sunset. The complainant may have thought it advisable to take a bus or taxi and this could well have been an added reason which influenced him to wait till morning for going to the police station. So far as complainant's failure to lodge a report at Deeparja out post is concerned, we are inclined to agree with the view of the learned Additional Sessions Judge that most people prefer to go direct to the Police Station rather than first go to the police out post and then be referred to the police station. An added reason may well have been the fact that at most out posts no F. I. R.
Registers are maintained.
16. It was next contended by Mr. Mohammad Hayat that even if it be considered that the witnesses had seen the incident, since the night admittedly was a dark one, they could not have had the opportunity of proper identification of the culprits in the circumstances of the case. We find no substance in this contention. No doubt the night of the incident was not a moonlit night. However, the F. I. R. Itself mentions that a lantern was burning near the deceased at the time of the incident.
All the witnesses, including Pir Buxal, have mentioned this lantern and the fact that it was lit. A. S. I.
Mohammad Akram also saw this lantern hooked on the wall near the cot of the deceased when he went to the scene of offence and has made mention of it in the mashirnama of the vardat.
According to the Tapedar, who prepared the sketch of vardat, it was only 7 feet from the cot of the deceased. Mr. Mohammad Hayat contended that it was unlikely that a newly-married couple, who obviously needed privacy, would tolerate a burning lantern near their cot, and that in any case the practice in the villages is for the lantern to be turned down when retiring for the night. Now so far as the first point is concerned, privacy to Razi and his wife was secured in that whereas they were sleeping to the north of the terrace which had a wall of about 2-- feet, the others were sleeping to the south of this terrace. As to the practice of lowering of the light of the lantern before retiring there is no evidence on record on this point. Furthermore, with the easy avail--ability of kerosene and the fear of thieves and robbers at night in the villages, the practice, if any, of turning down the light when retiring, must have, we are inclined to believe, been abandoned.
17. Taking all the circumstances of the case into careful consideration we are firmly of the view that the eye-witnesses must have seen the incident, that they bad ample opportunity of identifying the assailants and that they had identifed them as stated by them. The witnesses could not have failed to identify the culprits as they were well known to them, being their relations. Appellant Muharam admittedly is the cousin of Mst. Anwar and P. W. Qurban, while appellant Dino is related to appellant Muharam. Under the circumstances the possibility of the witnesses having been mistaken as to the identity of the culprits can be safely ruled out.
18. It was next contended by Mr. Mohammad Hayat Junejo that Chatto, who also was identified by all the witnesses, was acquitted by the learned Additional Sessions Judge on the ground that there was no evidence to corroborate the ocular testimony against him and hence the learned Additional Sessions Judge had considered that it was unsafe to rely on the ocular testimony without corroborations. In the first place we are not bound with the view of the learned Additional Sessions Judge on this point. In the second place, the learned Additional Sessions Judge seems to have been very much impressed with the veracity of P. W. Mst. Anwar and the fact that there was no reasonable possibility of her falsely implicating the appellants, one of whom was her cousin.
Finally, we may add that there is sufficient corrobora--tion to lend assurance to the ocular testimony if such assurance in fact is required.
19. The corroborative evidence consists, firstly, of the testimony of P. W. Pir Buxal, who came on hearing the fire-arm shot and cries and was given the names of the appellants and acquitted accused Chatto as the persons who had committed the murder, secondly, the medical evidence, to which we have already referred, and which shows that the deceased had sustained two hatchet injuries and lastly the recoveries from the two appel--lants. It may, however, be mentioned that there is some confusion as to the correct name of the person who came on cries. Whereas, according to this witness, his correct name is Pir Buxal, although he is also called Pir Buxo, according to the F. I. R. And even the evidence of the complainant, the person who came to the scene of offence was Pir Bux. Perhaps the witness may also have been called or known as Pir Bux since it appears that no other person by name of Pir Bux lives in the neighbourhood of the complain--ant. But even if the evidence of this witness is disregarded, on the ground of confusion of name, there is, in our opinion, overwhelming evidence to establish the participation of the appellants in the crime and guilt.
20. The recoveries consist of a country-made unlicensed pistol, shirt and a blood-stained hatchet from appellant Muharam and a blood-stained hatchet from appellant Dino. According to A. S. I.
Abdul Karim and mashir Daryah Khan, the country-made unlicensed pistol, in the chamber of which there was a spent cartridge, was lying concealed in the thatched roof of appellant Muharam's house, from where he produced it, the blood-stained hatchet was lying near the bedding in his house and the blood-stained shirt was taken out by him from a wooden box. Apart from the fact that the above articles were secured from the house of appellant Muharam, since the pistol and the shirt were lying concealed, appellant Muharam is to be saddled with the knowledge of their hiding, place, and in the absence of any explanation from him and there is none in the instant case to be deemed to be the person who had concealed the same, as held by the Supreme Court in the case of Bakka v. State (1977 SCMR 150).
21. The A. S. I. And mashir Daryah Khan have also deposed that appellant Dino had produced a blood-stained hatchet from a dilapidated room in his house. The fact that the room was delapidated makes little differ--ence as it was a part of his house.
22. Though Daryah Khan is an omnibus mashir in that he was made mashir of vardat, inquest report, injuries on Mst. Anwar and the recoveries 'from the two appellants he is an independent witness, being of different caste from the complainant party and the accused party and having no connection with them save that he is Kamdar of Ghulam Mustafa Jatoi while the P. Ws. Are his haris. The A. S. I. Is not shown to have any motive for falsely implicating the appellants whom he did not appear to have known prior to the case.
23. The medical evidence and the evidence of recoveries, in our opinion, strongly corroborate the ocular evidence and these pieces of evidence together fasten the guilt of the offence upon the appellant without reasonable doubt.
24. Finally, there is evidence of motive which further establishes the guilt of the appellants. There is trustworthy evidence to show that the appellants were annoyed at the marriage of Mst. Anwar with Razi as appellant Muharam himself coveted the lady. It is true that the F. I. R. Does not specifically state that Muharam wanted to marry Mst. Anwar but it does mention that the appellants were annoyed at her marriage with Razi. In the villages, when a person is annoyed at the marriage of his female cousin, it is usually because he himself wants to marry her. In any case, Allah Rakhio, Qurban arid even Mst. Anwar have testified that appellant Muharam had demanded the band of Mst. Anwar but his proposal was rejected, The annoyance of the appellants at her marriage was so apparent that they did not even attend her marriage. Mst. Anwar was sought to be contradicted on this point by her evidence in the committal Court where she had stated that all the accused had participated in her marriage, but we are not inclined to put much value on this admission because brides, on account of their being placed in wannah (seclusion) do not know what is going on and usually are not aware who has and who has .Not participated in the marriage.
25. We have also carefully examined the pleas of the appellants regard--ing their being falsely implicated, in the case of appellant Muharam at the instance of complainant Allah Rakhio, and in the case of appellant Dino, at the hands of P. W. Ganhwar, but find no substan whatsoever in their contentions. AS regards the alleged dispute of appellant Mubaram with the complainant over land, riot only is there no evidence whatsoever in support of the bare unsense word of the appellant, but even no such question has been suggested to the complainant. The latter, however, has admitted in the committal Court that some 20, years back the father of appellant Dino was murdered for which the uncle of the witness Jummo was challaned. However, as this Jummo has since died, it is most unlikely that the said quarrel would still be alive and on that account the appellants would be falsely implicated by the witnesses, who are admittedly related to them. Also that quarrel was between Dino and the children of Jummo and not the complainant.
26. Similarly, as regards the alleged enmity of appellant Dino with P. W. Ganhwar because of this appellant's refusal to sell land to him we have only the bare word of the witness unsupported by any other evidence. Moreover, the appellant has definitely spoken a falsehood in alleging that the said Ganhwar had falsely involved him in a case under section 13(d) of the Arms Ordinance. We have carefully examined the judgment in that case and find that neither Ganhwar's name transpires in that case nor any allegation was made therein that Ganhwar had any hand in that case.
27. On a careful appraisal of the evidence led in the case we are satisfied, that the guilt of the appellants has been established beyond any reasonable doubt. We would accordingly uphold their convictions. The murder was preplanned and wholly injustifiable. We have. Been unable to find any extenuating circumstances and in fact none were pleaded or brought to our notice by the learned counsel for the appellants. We would accordingly confirm the death sentence awarded to the two appellants and dismiss their appeals.