Z. A. CHANNA, J.---Appellant Wali Muhammad, a young man of about 20 years of age, has been sentenced to death under section 302, P. P. C., by a learned Sessions Judge, Hyderabad, on the charge of committing the murder of his relation, Muhammad Ismail. Two other persons, namely, Uris and Noor Muhammad, who were jointly tried with the appellant, were given the benefit of doubt. The appellant has preferred an appeal against his conviction and sentence and his case is also before us for the confirmation of the capital sentence awarded to him. This judgment will dispose of both the appeal and the reference for confirmation.
2. The incident resulting in the murder of deceased Ismail occurred on 28-2-1974, at about 3-00 p.m. In the uncultivated land about a call's distance away from the village of the deceased and first informant, Muhammad Arif. The first information report of the incident was lodged promptly the same day at 3-30 p.m. At police Outpost, Kadhan, which is at a distance of one furlong from the scene of offence. On the day of the incident, deceased Muhammad Ismail was to be married to Mst. Fatima daughter of Ali Muhammad. Over the hand' of Mst. Fatima there was a dispute as on the one hand the deceased was anxious to marry her and on the other hand Tamachi, who is Nekmard of the village demanded her hand for the appellant. Ali Muhammad, however, preferred Ismail and accordingly rejected the proposal of Tamachi. This rejection, which is stated to have occurred about 2 months prior to Ismail's murder, is said to have angered Tamachi and the appellant who refused to participate in the marriage ceremony of Muhammad Ismail despite their relationship with Muhammad Ismail and the entreaties of the other relations. It is alleged that on the day of the incident, the deceased and first informant Muhammad Arif bad taken their bullock- cart to Kadhan village for the purposes of getting kit and beddings for the marriage guests. After loading the bullock-cart with the bedding and the kit, first informant Arif asked the deceased to take the baggage to his village, informing him that he would join him a little later after purchasing the mantle of a petromax lantern. After making the deceased, taking a short cut alongwtth a bridle-path, it is alleged that when he neared the sim culvert, at a call's distance from his village, he heard cries and saw that the two acquitted accused, Uris and Nooro, had caught hold of the deceased, while the appellant gave the deceased two blows with a hatchet with which be was armed. The incident is also said to have been witnessed by Rajab, Allah Dinno and Uris, who are stated to have been attracted to the scene of offence by the cries bf the deceased. After causing the hatchet blows to the deceased, the 3 culprits ran away, 2 in one direction and the appellant in another direction. The deceased, who was still alive, was taken by the first informant and the other witnesses to Kadhan police outpost, but he died on the way.
3. The F. I. R. Was recorded by A. S. I. Ghulam Rasool, who also recorded the statements of 3 P. Ws.
Uris, Allah Dinno, Rajab, Ali Muhammad, Hasbim and Noor Muhammad, who had reached the police Outpost. On the same day, at 8-00 p.m. The two acquitted accusad, Uris and Nooro, voluntarily appeared at the Police Station and the A. S. I. Arrested them. On the following day, the A. S. I.
Arrested the appellant from his house in his fields and secured in the presence of Mashirs the shirt and the loin-cloth which he was wearing, as the latter was found to be stained with blood. The A. S. I. Also secured in the presence of Mashirs and at the pointation of the appellant a blood-stained hatchet from the loosan cultivation of the appellant, which was at a distance of about 3-- acres from his house.
4. The autopsy on the deceased was performed at Kadhan village by Medical Officer, Dr. Jamilur Rehman, who found the following two external injuries on the body of the deceased :- "(1) Incised wound on the middle third left side of the head obliquely 6" x 2 x skull bone fractured into pieces, brain matter lying outside the cranium.
(2) Lacerated wound on the medial side of the right eye brow I" x 1" x skin deep."
The Medical Officer has opined that Injury No. 1 appeared to have been caused with a sharp- cutting weapon applied with great force like a hatchet while injury No. 2 appeared to have been caused by a hard blunt substance such as back side of a hatchet or Lathi. On internal examination, the Medical Officer found the membrane of the brain ruptured and the blood vessels at the site of the injuries cut. The stomach contained watery fluid contents.
6. The appellant denied the prosecution allegations and alleged that he had b.-en falsely implicated. He further stated as follows in the Sessions Court :- "My father Tamachi had jointly owned with Ramzan the uncle of P. W. Rajab Ali, Tabayab father of P.
W. Uria, Mashir Hashim who is uncle of deceased Ismail the land situated in Deh Sutiari Tatuka Badin. There is dispute between us and complainant. When bullock cart and bullocks reached house, P. Ws. Came to know of the murder of Ismail. They falsely implicated me and the co- accused who are my cousins. Allahdino my maternal uncle had filed a case against H. C. Rashid who is cousin of A. S. I. Ghulam Rasool. My brother Chuttan was P. W. In that case against the H. C.
Hence the A. S. I. With the help of complainant and P. Ws. Fabricated evidence against me, and my cousins the co-accused."
7. The learned Additional Sessions Judge gave the benefit of doubt to the two acquitted accused on the ground that they were admittedly empty handed and the only overt act alleged against them was -that they had either encircled or caught hold of the deceased, which circumstance, in his opinion, was not sufficient for making them liable as participants in the murder of the deceased. In support of this view he placed reliance on the decision reported in PLD 1963 Kar. 745.
8. We have been taken through the evidence in the case by Mr. Muhammad Hayat Junejo, the learned counsel for the appellant, and also by Mr. S. Nasiruddin, who appeared for the State, and we are of the opinion that there is overhelming evidence to sustain the conviction of the appellant.
The primary evidence against the appellant consists of the ocular testimony of first informant Arif and P. Ws. Rajab and Uris. As already stated, accord--ing to the first informant Arif, he had accompanied the deceased to Kadhan village for the purposes of securing bedding and other articles required for the wedding of the deceased, which was to take place on that day, and after securing the required articles he despatched the deceased with the baggage in a bullock-cart, telling him that he would join him in a short while after purchasing the mantle for the petromax lantern. The witness has further testified that after making the purchase, he went by a short cut to join the deceased, but when he neared the sim culvert, he saw the two acquitted accused catching hold of the deceased while the appellant was giving him blows with the sharp side of a hatchet, and after giving him two blows with the hatchet, the appellant and his companions ran away.
9. According to P. W. Rajab he was cutting Loosan in the Maqqta land of Soomar and after finishing his work he was on his way to Kadhan village when he heard the cries and saw the incident. He too has testified that he had seen the two acquitted accused catching hold of the deceased while the appellant gave the deceased two hatchet blows. P. W. Uris, like P. W. Rajab, is a cousin of the deceased. According to him, on the day of the incident, he was going with Allahdinno to Kadhan village for making purchases when near the aim culvert they heard cries and saw the appellant giving two hatchet blows to the deceased who had been caught, hold of by the two acquitted accused.
10. Mr. Muhammad Hayat Junejo, the learned counsel for the appellant, has submitted that this was an unwitnessed crime and no reliance could be placed on the 3 alleged eye-witnesses, who are not only closely connected with and have interest in the deceased, but furthermore are chance witnesses whose version of how they happened to be at the scene of offence, when the incident occurred, is unworthy of credit. The further submission of the learned counsel was that the murder was discovered when the bullock-cart containing the bedding acquired from Kadhan village reached the house of the deceased without the deceased. According to the learned counsel, the witnesses suspected that the appellant must have committed the crime because of his rivalry over the hand of Mst. Fatima and consequently they have implicated him. We have carefully examined these submissions but find no substance in them. There is no doubt thas there is close relationship between the 3 eye-witnesses and the deceased, inasmuch as the first informant is the brother of the deceased, while P. Ws. Rajah and Arif are his cousins, but we find that there is also fairly close relationship between the witnesses and the appellant. Complainant Arif has stated that Hafiz Ali was the common ancestor of the complainant party as well as appellant party, as he was the maternal-uncle of the accused and the grandfather of the deceased and his brothers. P. W. Rajab has stated that the deceased as well as the accused are his cousins. P. W. Uris has also stated that the accused are related to him, but he did not specify the exact relationship. He, however, added in his cross-examination that he was afraid of God and hence he has deposed according to what he had seen at the incident. The 3 eye-witnesses were put to searching cross-examination but nothing was illicited which is of material assistance to the appellant or which would tend to cast doubt on the veracity of the witnesses. There is nothing unusual in the two brothers having gone to the neighboring village for collecting beddings, etc. For the guests who were to attend the marriage. This is a quite common practice in the villages of Sind. The first informant has given what appears to us to be a satisfactory explanation of why he was following the deceased rather than accompanying him though they had set out together for Kadhan village. The names of the 3 eye- witnesses are not only given in the F. I. R. But they had taken the deceased to the Police Outpost at Kadhan and. Their statements were recorded there and then. There is no doubt that there is a slight contradiction between the statement made by P. W. Rajah in the committal Court and his evidence in the Sessions Court. In the committal Court he had stated that he was going from his village to Kadhan village when he saw the incident while in the Sessions Court he has testified that he was going from the land of Soomar, where he had been cutting Loosan, to Kadhan village when he heard the cries. This contradiction, apart from being minor, could be easily explained on the hypothesis that after cutting the grass the witness must have left the same at his house before proceeding to Kadhan. Village, since the place where he was cutting grass was only about a call's distance from his vill4ge. Another minor contradiction which may be noticed is between the ocular evidence and the medical evidence as to whether the sharp side or the blunt side of the hatchet was used in inflicting the two injuries on the deceased. According to all the three eye-witnesses, both the blows to the deceased ware given with the sharp side of the hatchet while according to the medical evidence one blow was given with the sharp side of the hatchet and the second with either the back side of a hatchet or even with a stick. This point has been carefully examined by the learned trial Court and it came to the conclusion, which conclusion in our view was perfectly justified on the evidence on record, that since the eye-witnesses saw the incident from a distance varying from 80' to 150', they could only be certain as to the weapon used by the assailant on the deceased but could not have been in a position to see whether the sharp side or the blunt side of the hatchet was used and must have surmised that the sharp side of the hatchet was used on both the occasions.
11. As to the contention that the eye-witnesses are chance witnesses, we may point out that the first informant, who is the brother of the deceased, had actually accompanied the deceased to Kadhan village and had tarried there for making some purchases while sending back the deceased with the bullock-cart arid the budding. He, has explained that he followed the deceased immediately after making the purchases and took a short cut in order to overtake the deceased. Since the deceased was going with the bullock-cart, and it is notorious that bullock-carts travel very slowly, we see nothing improbable in the complainant having come near the bullock cart at the scene of offence. So far as P. Ws. Rajab and Uris are concerned, we find nothing improbable in their going to Kadhan village on the day of the incident, since on that day the deceased, who was their cousin, was to be married and apparently they had gone to the village for making some purchases in connection with the marriage.
12. We have carefully examined the evidence of the 3 eye-witnesses and find that it has a ring of truth about it. We, therefore, find ourselves in agreement with the view taken by the learned trial Court that they are witnesses of truth and worthy of credit. Certain questions were put to the eye- witnesses suggesting dispute between them and the appellant party over water or land, but they denied this allegation and no attempt was made by the defence to persue this point. The appellant has also alleged that there was a dispute between his party and the complainant party over land situated in Deh Sutiari which was jointly owned by his father Tamachi and the elders of the complainant party, but no such allegation was even suggested to the first informant or the other witnesses, which suggests the inference that the allegation is without foundation. In fact, what was suggested to the two eye-witnesses was that there was a dispute not over land, but over rotation of water, which allegation they strongly denied.
13. The next material piece of evidence against the appellant is furnished by P. W. Noor Muhammad, a School Teacher at Kadhan. He has testified that as he was an invitee to the wedding of the deceased, after the close of School at Kadhan, he set out for the village of the deceased, where on the way, at a distance of about 1 or lit miles from Kadhan, he accosted the appellant who cautioned him not to approach him, but-as he continued to approach the appellant, the latter shouted that he had killed Ismail and the participants of his marriage should now attend his funeral ceremony. The witness has further stated that he found the appellant carrying a hatchet but neither he could see whether the hatchet was blood-stained nor whether 'his clothes were blood-stained. The learned counsel for the appellant has assailed the testimony of this witness also on the ground that he is a chance witness and that it was remarkable that he should be leaving for the village of the deceased at precisely the moment when appellant Wali Muhammad was attempting to make good his escape, and that in any case, it is unbelievable that Wali Muhammad would have so openly confessed to committing a murder. It is true that the meeting of the witness with the appellant was by chance but such chances are by no means so infrequent as to be discarded. Furthermore, we are of the opinion that since the appellant had killed the deceased for wanting to marry the woman whom he coveted, it would not be unnatural for him, in the frame of mind in which he was, to have uttered the taunt which he did. This witness appears to us to be a respectable and a reliable witness having no animus towards the appellant. On the contrary, as stated by him, he is more closely related to the appellant than to the complainant party. Furthermore, he was honest enough not to mention about any blood stains on the hatchet or the clothes of the appellant, since be apparently did not notice them. The witness has also candidly admitted that after the incident he is not on visiting terms with be accused persons though he is still maintaining close relations with the mother and the father of the accused.
Obviously, after being a witness against the accused, the latter could not be maintaining relations with him. It was suggested to him in cross-examination that he is falsely implicating the appellant as he suspected the appellant of being on illicit intimacy with one of his two wives, but the witness not only strongly repudiated the allegation but further stated that the appellant was just like his son. It may also be mentioned that according to Hashim Mirbahar, the Mashir Mirbahar, the Mashir of recoveries, Tamachi, the father of the appellant, is the Nekmard of their village. In the circumstances, it is extremely unlikely that either this witness, the eye-witnesses or any other witness would falsely implicate his son, unless the witness had a strong animosity against him, which we find entirely lacking in the instant case.
14. The next corroborative piece of evidence against the appellant is the recovery of blood-stained loin-cloth from him and blood-stained hatchet from his house, Mashir Hashim, who is the cousin of the appellant's father, has deposed that on the day following the murder of Ismail, the Police had arrested the appellant from his house on his lands and secured from his person a shirt and loin- cloth, the latter of which was blood-stained. He has further stated that on interrogation the appellant took the Mashirs and the Police to his Loosan cultivation, which was at a distance of about 1-- acres from his house, and produced a blood-stained hatchet, which the Police seized.
The Mashir is an old man of 70 years and moreover, as already pointed out, a cousin of the appellant's father. Nothing has been brought out from his cross-examination which would in any way cast a doubt upon his evidence. On the contrary, the witness has frankly admitted that the appellant's father, Tamachi, is the Nekmard of the villager. He has further admitted that he was convicted for rape and awarded 2 years' R. I. But that was 40 years back. He has also admitted that he and his maternal uncle, Haji Ali, who is the maternal grandfather of the appellant, had quarrelled about 5 years back, in which quarrel both had sustained hatchet injuries, but compromised and settled the dispute. The witness is supported in regardto the recoveries by A. S. I.
Ghulam Rasool. The shirt and the hatchet in question were sent to the Chemical Examiner to the Government whose report is to the effect that both were found to be stained with human whose report is to the effect that both were found to be stained without human blood.
15. Lastly, there is against the appellant strong motive for committing the murder. The main witness in regard to motive is Ali Muhammad, the father of Mst. Fatima. He has testified that both the deceased and Wali Muhammad were aspirants for the hand of his daughter and that the appellant's father, Tamachi, had requested him to give the hand of Mst. Fatima in marriage for the appellant, but he had declined the proposal. The witness has further stated that after the murder of Ismail, he has got Mst. Fatima married to Ismail's brother. Uris, First First informant Arif as well as P.
Ws. Rajab, Uris and Master Noor Muhammad have also testified about the rivalry between the deceased and the appellant over the hand of Mst. Fatima. There is thus overwhelming evidence to show that the appellant had a strong motive for doing away with his rival.
16. Mr. Muhammad Hayat Junejo, the learned counsel for the appellant, finally submitted that as the post-mortem of the deceased was held at Kadhan village and varying reasons have been given by different a witnesses why it was held there, this circumstance should strike in us a note of caution and make us view the evidence against the appellant with suspicion. The mere fact that the post-mortem examination was not done at the mortuary or at the hospital at Kadhan village cannot be considered to be a circumstance even remotely suggesting that the prosecution case is false or concocted. In Aminullah v. State (PLD 1976 SC 629) Muhammad Akram, J., relied upon the observation made by Modi in his "Medical Jurisprudence" at page 58 that ordinarily the dead body is sent to the morgue but in exceptional cases the Medical Officer may be taken to the place where the dead body is lying. In the instant case, the deceased was murdered on the day that he was to be married. In the circumstances, the family of the deceased must have insisted on either no post- mortem being held or it being held at Kadhan, and it was presumably in deference to the wishes of the bereaved family that it was held at Kadhan. It is true that different reasons have been given by different witnesses for the post-mortem, being held at Kadhan. According to the Medical officer, it was held there because there was no suitable conveyance available for taking the dead body to the morgue. According to the S. H. O. The witnesses were not permitting the dead body to be taken to the morgue. According to the complainant the road was not suitable for transportation of the dead body. Finally according to the letter written by the A. S. I. To the Medical Officer the road was not fit for the transportation of the dead body. In our opinion, however, the primary reason for the post-mortem being held at Kadhan was deference to the wishes of the bereaved family which must have felt a profound shock at the murder at such an unfortunate time of the life of the deceased.
17. For the reasons stated by us above, we are satisfied that the guilt of the appellant has been established beyond any reasonable doubt. We would accordingly uphold his conviction. The question of sentence remains to be considered. Mr. Muhammad Hayat Junejo, the learned Counsel for the appellant, submitted that we should take into consideration the feeling of frustration felt by the appellant when his proposal for the hand of Mst. Fatima was rejected and the deceased was preferred over him. He submitted that this circumstance should be considered to be a sufficiently extenuating circumstance for not awarding capital sentence to the appellant. We regret that we are unable to find any substance in this contention. The rejection of the appellant's proposal was two months prior to the murder and during this period of two months the appellant had sufficient time for reflection. Furthermore, the murder was clearly pre-planned. The appellant seems to have way laid the deceased, while the latter was returning to his village from Kadhan, and to have caused him fatal injuries on the eve of his marriage. In the circumstances, we do not consider this to be a case in which any interference with the death sentence is called for. We would accordingly Confirm the death sentence awarded to the appellant and reject the appeal.