Z. A. CHANNA, J---Appellant Niaz Ali has been sentenced by the learned Sessions Judge, Dadu, to death and also to pay a fine of Rs. 1,000 on the charge of committing the murders of his brother, Ghulam Muhammad, and the latter's wife, Mst. Lai Khatoon. The appellant has appealed from jail against his conviction and sentence and also the learned Sessions Judge has referred his case under section 374, Cr. P. C. For confirmation of the capital sentence awarded to him. The murders of Ghulam Muhammad and Mst. Lai Khatoon were committed on the night intervening between the 22nd and 23rd of July, 1975, in their house, in village Issa Khan Thebo, which is at a distance of about 12 miles from Thariri Mohabbat Police Station. Both deceased Ghulam Muhammad and appellant Niaz Ali were putting up in that house along with their father, Muhammad Umar. It is alleged that in the earlier part of that night there was an exchange of harsh words between the appellant and deceased Ghulam Muhammad over matrimonial affairs but the quarrel was averted at the instance of their father. Later that night, at about 2-00 a.m. First informant Muhammad Bux, who is a neighbour of Muhammad Umar, heard cries coming from Muhammad Umar's house, whereupon he went to that house where he is stated to have seen the appellant giving blows to Ghulam Muhammad and the latter's wife with a spade. It is alleged that first informant Muhammad Bux challenged the appellant whereupon he ran away carrying with himself his spade. In the meanwhile, other neighbours of Muhammad Umar, namely Soomar and Muhammad Hasan, also arrived. Mst. Lai Khatoon, who was still alive, is stated to have told the witnesses that her husband's brother, Niaz Ali, had given blows to her and to her husband and requested the witnesses not to allow their murders to go unredressed, otherwise they would have to answer on dooms-day. Early the next morning, Muhammad Bux set out for Thariri Mohabbat Police Station, where he lodged his first information report at 11-00 a.m. Which was recorded by S. H.
O. Muhammad Saddiq.
2. After recording the F. I. R., S. H. O. Muhammad Sadiq accompanied the first informant to the scene of offence, where he found the dead' bodies of Mst. Lai Khatoon and Ghulam Muhammad on one cot. There was blood on the cot and on the ground under the cot. The S. H. O. Prepared the mashirnama of the vardat and secured the blood-stained earth. He then sent the two dead bodies to the Medical Officer for post-mortem examination. Thereafter, the S. H. O. Recorded the statements of Muhammad Umar, Mst. Hakimzadi, Muhammad Hassan and Muhammad Soomar.
The same day, one Noor Muhammad produced the appellant before the S. H. O. The appellant at that time was wearing a bush-shirt which had blood on it and accordingly the S. H. O. Secured the same in the presence of mashirs and sealed the same. On the following day, the S. H. O. Produced the appellant before Mr. Abdul Razzaq, Mukhtiarkar and F. C. M., Kandiaro, Who recorded his judicial confession. On 25-7-1975, the appellant took the S. H. O. And the mashirs to a ditch, which was 10 or 15 paces from his house, and produced a spade which however, was not blood-stained. The bush- shirt seized from the person of the appellant was sent to the Chemical Analyser to the Government whose report is to the effect that it was stained with human blood.
3. The autopsy on deceased Ghulam Muhammad and Mst. Lai Khatoon was conducted by Dr. Shamsul Haq who found the following external injuries on their persons :- "Ghulam Muhammad-(1) Incised wound extending from the right axillary angle towards the space between the nose and the upper lip up to the right cheek measuring 7" x 1" x 1" cutting the muscles and the bones underneath.
(2) Incised wound extending from left axillary angle towards the, left angle of the mouth cutting the muscles and the underlying bones and small portions about J" of the upper and lower lips at the place their apposition measuring 4" x 1" x 1'.
Mst. Lai Khatoon.-(1) Incised wound extending from in front of the right ear towards the bridge of the nose up to the outer canthus of the left thigh measuring 6f x I-- x j" cutting the muscles and bones underneath.
(2) Incised wound extending from the outer border of the left eye towards the middle of the nose up to the right cheek measuring 8" x 1 x 1----- cutting the muscles and the bones underneath.
(3) Incised wound extending from the right maxillary angle towards the space between the upper lip and the nose measuring 7----- x 1" x 1----- and cutting the muscles and bones underneath.
4. The defence of the appellant was one of complete denial of the prosecution allegations.
However, in respect of his judicial confession he stated that he did not know if he had signed it or not.
5. Although according to the prosecution the commission of the murders was witnessed by first informant Muhammad Bux, who is a cousin of the appellant, and the appellant's father, Muhammad Umar, neither of them have supported the prosecution case at the trial. This is not surprising in view of their close relationship with the appellant. Muhammad Bux alleged that his first information report is not correct and he had signed it because of the pressure of the police. We find no substance whatsoever in this allegation, as it was he himself who had gone to the Police Station and lodged the F. I. R. Which bears his thumb impression. The two witnesses stated at the trial that the murders had been committed by thieves, but in view of the evidence which will be presently discussed, we are of the opinion that this is palpably false story concocted to save the appellant because of his close relationship with them.
6. The prosecution had also examined the two neighbours of Muhammad Umar, namely, Muhammad Soomar and Muhammad Hassan, who, according to the F. I. R., had also come on the cries shortly after the murders, but they too did not support the prosecution. According to P. W.
Muhammad Soomar deceased Ghulam Muhammad had abducted Mst. Lai Khatoon and when he went to the vardat he was informed by P. W. Muhammad Umar that the relations of Mst. Lai Khatoon had committed the murders. However, according to P. W. Muhammad Hassan, he was informed by Muhammad Umar that 3 thieves, whom he had not identified, had entered his house and had caused injuries both to Ghulam Muhammad and Mst. Lai Khatoon.
7. The case against the appellant thus rests upon, firstly, the extra judicial confession made by the appellant to P. W. Noor Muhammad, secondly, his judicial confession, thirdly, the recovery from his person of the bush-shirt stained with human blood and lastly the pointation by him of the spade with which the murders are stated to have been committed. P. W. Noor Muhammad is an Advocate and a Zamindar. He is also Nek Mard of village Issa Khan Thebo where the two murders were committed. He has stated that the appellant had come to him along with Muhammad Soomar, Achar and some others and on his enquiries the appellant had told him that he had committed the murders of his brother and sister-in-law. The witness has further stated that he immediately produced the appellant before the police. Mr. Manzoor Hussain, the learned counsel for the pauper appellant, assailed the evidence of this witness on two grounds, namely, that the police had not recorded the statement of the witness and that further the witness was inimical towards the appellant as the latter had refused to do free labour for him. No doubt, the statement of the witness was not recorded by the police, as candidly admittedly by the witness himself, but from this fact no presumption can validly be drawn that the witness is either untruthful or unreliable. The credibility of a witness is not dependent upon the fact whether his statement was recorded by the police or not but upon his moral fibre and regard for truth. No doubt, the absence of the police statement of the witness places the defence at disadvantage as thereby it is deprived of an opportunity of confronting the witness with his earlier statement and bringing out on record possible contradictions, but allowing for this handicap to the defence, the evidence of a respectable witness, who has no possible reason for falsely implicating the accused, is not to be excluded merely because the police have failed to record his statement. The S. H. O. Has supported the witness that the appellant was produced before him by the witness. Since the witness is an Advocate, a Zamindar and also the Nekmard of the appellant's village, it is but natural that he must have questioned the appellant prior to producing him before the police. It is common knowledge that in the rural areas of Sind, accused do approach their Nekmards and Zamindars for being taken to the police in the hope that they would intercede with the police on their behalf. The evidence of the witness, in our opinion, is natural and true and we find no reason to doubt the same. No enmity has been alleged by the appellant with the witness. The only allegation put to the witness in cross-examination was that the appellant had refused to do free work for him but the witness denied this allegation. No attempt was made by the defence to prove this allegation or even to pursue the same.
8. Support to the extra judicial confession deposed to by P. W. Noor Muhammad is provided by the judicial confession made by the witness to the Mukhtiarkar and F. C. M. On the very next day of the incident. The judicial confession was recorded by the learned Magistrate with due formalities and after cautioning the appellant that he was not bound to make it and giving him two hours for reflection. The material part of the confession reads as follows :- "On 22-7-75 in the evening I and my brother deceased Ghulam Muhammad exchanged harsh words and abused me and my brother's wife Mst. Lai Khatoon, our father however settled the dispute. My brother's wife used to insult me daily. Thereafter taking night meals I went to sleep. I and my wife Mst. Hakimzadi slept on a cot together while my brother deceased Ghulam Muhammad and his wife deceased Lai Khatoon also slept together on a cot. My father was sleeping on a cot placed at the entrance offence. My wife and father were having nap. As regards my brother's wife Mst. Lai Khatoon I cannot ascertain whether she was asleep or awaken. At #bout 2 a.m. I got up and took spade in my hand and threw it with its sharp side to my brother's wife Mst.
Lai Khatoon: It hit her on her face as such she raised cries which resulted into the awakeness of my brother. I thought that my brother would kill me hence I hit him, with spade which hit him on the mouth. He died instantaneously. I then again hit my brother's wife with another blow of spade. She was still breathing. The commotion attracted my father and wife who raised cries and as such Muhammad Bux, Muhammad Hassan, Soomar and others gathered there. On seeing them I threw spade in a ditch and ran towards northern side."
9. The learned counsel for the pauper appellant submitted that the confession was not true and it was not contradicted by the medical evidence. He founded his criticism of the confession on the ground that whereas according to the confession only one blow was given to deceased Ghulam Muhammad and two to deceased Mst. Lai Khatoon, according to the medical evidence two incised wounds were found on the person of Ghulam Muhammad and 3 incised wounds on the person of Mst. Lai Khatoon, suggesting that two and three blows respectively were given to them. No doubt, the judicial confession seems to suggest that only one blow was given to Ghulam Muhammad and two blows to Mst. Lai Khatoon but from this fact alone it cannot be inferred or presumed that the judicial confession is not true, because it is well known that accused persons even while confessing, try to mitigate the enormity of their offence as much as possible. While the judicial confession is somewhat at conflict with the medical evidence as to the number of blows inflicted upon each of the two deceased, it corroborates the judicial confession on a very important point, namely, the location of the injuries on the two deceased. The confession clearly states that Mst. Lai Khatoon was struck with a spade on her face and that deceased Ghulam Muhammad was struck on his mouth. The medical evidence shows injuries on the face of Ghulam Muhammad and the mouth of Mst. Lai Khatoon. The length of the injuries on the two deceased also suggests that they were caused with a weapon having a long and a sharp edge. They thus further corroborate the confession that they were caused with a spade which has a sharp and a long edge.
10. Further corroboration to the judicial confession and the extra judicial confession is provided by the recovery of a bush-shirt from the person of the appellant which according to the report of the Chemical Examiner was found stained with human blood. The recovery of the bush-shirt is established through the evidence of S. H. O. Muhammad Sadiq. Tie only mashir regarding the securing of the bush-shirt who was examined was Gambo Khan but he has not supported the recovery and stated that neither the appellant was arrested in his presence nor the police had secured the bush-shirt from the person of the appellant in his presence. He, however, admitted that he had signed the Mashirnama of the recovery. He has given no explanation of why he signed the Mashirnama being literate, if it was not correct and no recovery was made in his presence. It would appear that like the other witnesses, the mashir was won over by the defence.
11. The last piece of evidence which connects the appellant with the two murders and supports the extra judicial confession and the judicial confession is the recovery of a spade by police at the pointation of the appellant. As already stated, the spade was recovered by the S. H. O on 25-7-1975, from a ditch near the house of the appellant at the litter's pointation It may be pointed out that in his judicial confession the appellant has stated that he had thrown the spade (murder weapon) in a ditch near his house. The recovery of the spade has also been established, through the evidence of S. H. O. Muhammad Sadiq only, as mashir Gambo Khan, who was also the mashir of this recovery, did not support the prosecution case. For the reasons we have already given we consider that the mashir has given obliging evidence in favour of the appellant and has been won over.
There was no reason for the police to foist either the spade or the blood-stained bush-shirt on the appellant. The learned Sessions Judge has carefully examined the evidence in regard to the recoveries as well as the confession and has, in our opinion, rightly relied upon the same. Apart from the old father, Muhammad Umar, the appellant was the only adult male in the house, and this circumstance lends further support to the other evidence against the appellant, which has been discussed.
12. The two murders committed by the appellant were callous an wanton. We find no extenuating circumstances at all in favour of the appellant. The fact that there was an exchange of hot words between the two brothers during the earlier part of the night of the incident does no constitute an extenuating circumstance to justify reduction of sentence to the appellants. We accordingly uphold the conviction of the appellant, confirm the capital sentence awarded to him, but set aside the sentence of fine a being unnecessary in the circumstances of the case. Subject to this modification, the appeal of the appellant is dismissed.