1. ABDUL HAFEEZ MEMON, J.-Appellant Sherdil and his father appellant Umar Hayat have been convicted by the learned Sessions Judge, Jacobabad, of an offence under section 302 read with section 34, P. P. C. For committing murder of Mst. Jivi wife of appellant Sherdil and Mst. Sharam Khatoon wife of Rahimdil, cousin of appellant Sheidil, and sentenced to death on each count and to pay a fine of Rs. 1000 or in default suffer R. I. For 6 months on each count. Appellant Sherdil has been further convicted under section 13-D of the Arms Ordinance and sentenced to R. I. For one year. They have both appealed against their conviction and sentence, and the case is also before us on reference under section 374, Cr. P. C. For confirmation of the sentence of death passed on each of the appellants. By this judgment we propose to dispose of both the appeal as well as the Reference.
2. The incident resulting in the unfortunate death of the two women took place on 22nd August, 1976 at about 8 a. m. In the house of Rahimdil, husband of deceased Mst. Sharam Khatoon, in the village Jani Jakhrani Taluka Thul, District Jacobabad. The report of the incident was lodged by complainant Ghulam Qadir, uncle of deceased Mst. Sharam Khatoon on the same day at 11 p. m. At Police Station Karim Bux at a distance of 20 miles which was recorded by S. H.
0. Noor Hussain in the following words :- "Complaint is that house of Rahimdil Jakhrani is adjacent to my house. Today in the morning at about 8.00 a. m. I, Noor Khan son of Ghulam Nabi, Ghulam Nabi son of Mohammad Khan Jakhrani were standing near my house. When we heard gun report and cries of murder-murder from the house of Rahimdil Jakhrani Whereupon 1, Noor Khan and Ghulam Nabi rushed to that side, where we saw Mst. Sharam Khatoon wife of Rahimdil, my niece, lying on the ground while accused Sherdil son of Umar Hayat who was armed with a gun and Umar Hayat who had a lathi, were giving blows to Mst. Jeewi wife of Sherdil Jakhrani by lathi and butt of the gun. On seeing us, accused persons challenged us that we should not approach them as they were killing Kari and if we tried to approach them, we would also be murdered. Due to fear, we did not go near them. After giving blows, accused persons ran away towards west. After departure of the accused persons, we saw that Mst. Sharam Khatoon had gunshot injury on her left side below breast. Blood was ozing out.
3. She was in senses. Ms/. Jeewi had injuries on her hand and she was unconscious. On enquiry Mst.
4. Sharam Khatoon told that "I and Mst. Jeewi were in the house when above-named accused persons came there. They declared Mst. Jeewi as Kari and accused told me that I was also in collusion with her ; and therefore they would kill us. Whereupon I requested them not to commit murder. In the meantime Sherdil fired at me which hit me and "I fell down. Thereafter both accused persons gave lathi and butt blows to Mst. Jeewi and on seeing you accused persons have run away. Thereafter we took Mst. Sharam Khatoon to Thul for treatment but she died on the way. Noor Khan and Ghulam Nabi went to Thul alongwith dead body and I have come for report. Accused persons, without any justification, have blamed Mst. Jeewi to be kart and Mst. Sharam Khatoon to be in collusion with her, and they had caused injuries to Mst. Jeewi with intent to commit her murder and caused death of Sharam Khatoon. Justice be done."
5. After recording the F.. I. R., S. H.
0. Noor Hussain accompanied the complainant to the vardat where he found Mst. Jivi lying injured and unconscious. He prepared mashirnama of injuries on her person, sent her to Thul Dispensary for treatment, secured and sealed blood-stained earth from the vardat, prepared mashirnama of vardat and went to the house of the appellants but they were not available. He then went to the Thul Dispensary and found that Mst. Sharam Khatoon had expired.
6. He prepared inquest report on her and sent her dead body for post-mortem examination which we conducted at 23rd August, 1976 by the Medical Officer Dr. Muhammad Alam who found the following injuries on her person :-
(1) One oval punctured lacerated wound of entrance C. M. In diameter on the front of left side chest in the middle at 11th rib.
(2) One wall punctured lacerated wound of exit 2" in diameter on the back upper 1/3rd left side abdomen and 3" deep communicated with upper wound i. e. Inquiry No. 1, * The same Dr. Mohammad Alam also examined Mst. Jivi on 22nd August, 1976 and found the following injuries on her person :-
(1) One lacerated wound li" x f" scalp deep on the left partietal region.
(2) One lacerated wound 2" x f" x scalp deep on the left partietal region 2" lateral to the injury No. 1.
(3) One lacerated wound 14" x i" x muscle on the left eye-brow.
(4) One oval abraded contusin 1" in diameter on the middle back stipula.
(5) One oval abraded contusion 1" in diameter, on the middle left lumbar region. Mst. Jivi was thereafter referred to the Civil Hospital Jacobabad from where she was further referred to Liaquat Medical College., Jamshoro, for further treatment but on way her condition became serious and her father Mohammad Hayat Jakhrani brought her to his house in village Jani Jakhrani where she ultimately died and was hurried on 1st September, 1976 without intimation to the Police.
7. On 1st October, 1976 S. H.
0. Noor Hussain arrested appellant Sherdil at the house of one Arz Muhammad and on 15th October, 1976 challaned him in the Court of Civil Judge and F. C. M., Jacobabad. Thereafter he was transferred and the investigation was taken over by Mir Mohammad who got the dead body of Mst.
8. Jivi disentered from the grave in presence of Mukhtiarkar and F. C. M.-Thul and prepared the inquest report. The Medical Officer Dr. Mohammad Alam conducted post-mortem on the dead body of Mst. Jivi and found as under :- "From the external as well as internal examination of the dead body, natural suspicion of fracture of left parietal bone over the head, one can doubt that it could have been caused due to that injury and that could be individually sufficient to cause death in the ordinary course of nature. Time between injury and death could not be given."
9. Investigating Officer Mir Mohammad thereafter arrested the appellant Umar Hayat on 27th April, 1977 and challaned him in the Sessions Court where both the appellants were tried jointly.
10. At the trial, prosecution in support of its case relied On the ocular testimony of complainant Ghulam Qadir, P. W. Noor Khan and P. W. Ghulam Nabi, dying declaration made M.St. Sharam Khatoon to the aforesaid witnesses, motive of appellants suspecting Mst. Jivi to be a 'Kari' and Mst.
11. Sharam Khatoon being in toe with her and the abscon- dence of the appellants. The appellants in their statements under section 342, Cr. P. C. Denied the prosecution case and stated that they were not present in the village on the day of the incident and that the prosecution witnesses were related inter se and inimical to them. In defence, they examined 3 witnesses, namely, Razi Khan (D.
12. W. I), Shah Nawaz (D. W. 2) and Mohammad Hayat (D. W. 3) who all deposed to the effect that the two deceased women were killed at dawn time by some unidentified assailants and denied that the present appellants were there to commit the crime. The trial Court accepted each piece of evidence relied upon by the prosecution and, d;sbelieving the defence witnesses, convicted both the appellants and sentenced them as stated above. The question for consideration is whether the appellants have been rightly convicted and sentenced by the learned Sessions Judge.
13. The prosecution case rests mainly on the ocular testimony of complainant Ghulam Qadir, P. W.
14. Ghulam Nabi and P. W. Noor Khan. Complainant Ghulam Qadir is uncle of the deceased Mst.
15. Sharam Khatoon, P. W. Ghulam Nabi is father of Mst. Sharam Khatoon while P. W Noor Khan is her brother. Complainant Ghulam Qadir deposed in his evidence that on the day of the incident he alongwith P. Ws. Ghulam Nabi and Noor Khan were standing in their cultivation close to their houses when they heard gunshot report and the cries being raised from the house of Rahimdil.
16. They all ran to the house and saw appellants Sherdil and Umar Hayat present there with appellant Sherdil having a gun and Umer Hayat having a lathi. They further saw Mst. Sharam Khatoon lying on the ground with gunshot injury and appellant Sherdil giving blows to Mst. Jivi with the butt of his gun and appellant Umar Hayat giving her lathi blows. They tried to approach but the appellants threatened them to keep away declaring that they were killing Mst. Jivi as 'Kari' and made good their escape. They all then went to the injured and found that Mst. Jivi was unconscious while Mst.
17. Sharam Khatoon was in her senses. Mst. Sharam Khatoon told them that the appellants wanted to kill Mst. Jivi as 'Kari' and when she tried to plead her case she was told by the appellants that she was also in collusion with Mst. Jivi and was fired at first by the appellant Sherdil with his gun.
18. Complainant Ghulam Qadir further stated in his evidence that the above statement by Mst.
19. Sharam Khatoon was also heard by P. Ws. Ghulam Nabi and Noor Khan. In his cross-examination he stated that he could not say if appellant Sherdil had a single barrel or double barrel gun and that 5-8 villagers had come at the vardat after the incident after the accused had left. He denied the suggestion by the defence that Mohammad Hayat, Razi and Rahimdil (the first two being the defence witnesses examined by the appellants) were not in the village and had gone for deciding some matter in Tangwani.
20. P. W. Noor Khan, brother of deceased Mst. Sharam Khatoon, deposed to the same effect except that he did not implicate appellant Umar Hayat in any manner beyond showing his presence at the vardat. He deposed that on the day of the incident he alongwith Ghulam Qadir and Ghulam Nabi were standing in their fields when they heard gun report and ran to the house of Rahimdil. They saw Mct. Sharam Khatoon was lying injured on the ground and appellant Sherdil was giving blows to Mst. Jivi with the butt of his gun while appellant Umar Hayat was standing quiet. They tried to approach but appellant Sherdil threatened them not to approach and also told them that his wife Mst. Jivi was 'Kari' and Mst.
21. Sharam Khatoon was in collusion with her. P. W. Noor Khan further stated that he did not see anything in the hands of accused Umer Hayat while leaving and that when they went near Mst.
22. Sharam Khatoon she told them that appellant Sherdil had expressed that Mst. Jivi was 'Kari' while she herself (Mst. Sharam Khatoon) was in collusion with her and therefore fired at her first. He was cross-examined but nothing material was brought out excepting that he denied the suggestion made to him that much before the incident appellant Sherdil had attack of insanity and was taken to the Jamshoro Hospital and was insane and was not in the house as he had fits of insanity. He also denied that Umar Hayat was not present at the time of incident. The last witness is P. W.
23. Ghulam Nabi, father of Mst. Sharam Khatoon. His evidence was practically the same as that of his son Noor Khan with this difference that he stated that Sherdil had a gun but he could not say that appellant Umer Hayat was holding in his hand. He was cross-examined at length but nothing worthwhile was brought out excepting that he denied the suggestion that the incident had taken place at `Asur' (Dawn) time and not at 8 a. m., or that appellant Sherdil was mentally imbalanced and had gone for treatment to Hyderabad or the appellants were not present at the vardat. The above ocular evidence of the three witnesses would show that in so far appellant Sherdil is concerned, they all implicated him by stating unanimously that on entering the house they saw Mst. Sharam Khatoon lying injured with the gunshot injury and appellant Sherdil standing with the gun and giving injuries to his wife Mst. Jivi with the butt of his gun. Appellant Sherdil was also implicated by deceased Sharam Khatoon in the oral dying declaration made by her to the aforesaid witnesses that appellant Sherdil had fired gun shot at her. All these three witnesses were cross-examined but, as observed earlier, nothing material was brought out to discredit their testimony. All the three witnesses were, admittedly, related to the deceased Mst. Sharam Khatoon and to Mst. Jivi and had their houses and fields very near to the house of Rahimdil where the incident took place. Their presence near the vardat at 8 a. m. In the morning was therefore quite natural and could not be doubted. That being so, their reaching the vardat immediately on hearing the cries and the gun report was only expected and natural ; and having reached the vardat immediately, their having seen the appellant Sherdil giving injuries to the deceased Msr. Jivi after having fired gunshot at the deceased Mn. Sharam Khatoon cannot be doubted. Thus having seen the incident, they had no reason to speak falsehood and implicate appellant Sherdil who was also related to them. True appellant Sherdil had stated in his statement under section 342, Cr. P. C. That the witnesses were related inter se and inimical to him, but there is nothing independent on record to substantiate the alleged enmity of the witnesses with the appellant Sherdil. As to the witnesses being related inter se it on the contrary goes against the appellant, for, besides being related inter se they were also related closely to the deceased Mst. Sharam Khatoon and to the deceased Mst. Jivi, and that being so, they .Would not let go the real assailants and falsely implicate appellant Sherdil, who was cousin of husband of deceased Mst. Sharam Khatoon their relation. Further, they were supported by the dying declaration made by deceased Sharam Khatoon wherein she fully implicated appellant Sherdil and also disclosed the motive for his committing the crime, and regard being had to the fact that Mst. Sharam Khatoon did not die instantaneously and was alive for some time, her making the dying declaration was not improbable and is not open to doubt. It is true that the fact of Mst. Sharam Khatoon making the dying declaration comes from the same source namely, the P. Ws. Ghulam Qadir, Ghulam Nabi and Noor Khan, but having believed these witnesses as natural and reliable, their testimony regarding the deceased having made the dying declaration to them also could not be doubted, regard being had to the relationship of the deceased with the witnesses.
24. We therefore find that in so far as the appellant Sherdil is concerned, the ocular testimony of the aforesaid witnesses and the dying declaration A made by the deceased Mst. Sharam Khatoon coupled with the motive on on his part fully connected him with the crime beyond reasonable doub and he was rightly convicted by the learned trial Judge.
25. Mr. Mohammad Hayat Junejo, however, contended that the oral evidence of the above named prosecution witnesses against appellant Sherdil was not enough as the same stood contradicted by the three defence witnesses, namely, Razi Khan, Shahnawaz and Mohammad Hayat who all had deposed that on reaching the vardat at 'Isar' time on hearing gun report and the cries they saw the two women lying injured and unconscious but did not see any assailant and that the present appellants were not in the village on the night of the incident ; and since they were all reliable persons out of whom D. W. Mohammad Hayat was the father of deceased Mst. Jivi and father-in- law of deceased Mst. Sharam Khatoon and therefore the person affected most, they were wrongly disbelieved by the trial Court and the appellant Sherdil was entitled to acquittal. We do not agree with the learned counsel. Close scrutiny of the evidence of the said defence witnesses, referred to above, would show that apart from being intrinsically false it is contradictory and unworthy of acceptance. D. W. Mohammad Hayat is brother of appellant Umer Hayat and uncle of appellant Sherdil. D. W. Razi Khan is said to be cousin of the parties. D. W. Razi Khan stated that D. W.
26. Shahnawaz was present at the vardat when the Police came there, whereas D. W. Shahnawaz stated in his evidence that he was not present when the Police came to the vardat. Next, whereas Razi Khan stated in his evidence that Rahimdil husband of Mst. Sharam Khatoon was not present in the house on the night of the incident, whereas D. W. Mohammad Hayat stated in his evidence that Rahimdil was present in the house on the night of the incident. Further. D. W. Razi Khan stated that Mohammad Hayat was not present when the Police came at the vardat and that the Police had prepared memo of injuries on the person of Mst. Jivi at the vardat in his presence. Now, if Mohammad Hayat was not present when the Police came at the vardat where Mst. Jivi was also lying, it is difficult to accept that he was present at the time of the incident which took place few hours before the arrival 'of the Police. Indeed, if he was present at the vardat at the time of the incident, he should have been also present at the vardat when the Police came there, since his daughter and daughter-in-law had been murdered in his house. The learned trial Court was therefore right in observing that such absence of Mohammad Hayat went to confirm the statement made by the complainant Ghulam Qadir that D. W. Mohammad Hayat was not present in the village on the day of the incident. Further, D. W. Shah Nawaz stated that Police had called him but he did not tell them that the accused were innocent or that some unknown persons had attacked the two women.
27. There is also nothing on record that these witnesses, out of whom Razi Khan claimed to be a Nekmard, did anything by approaching any higher authorities or even filing report or direct complaint giving the version set up by them at the trial, if it was the true one. What is more difficult to believe is that even D. W. Mohammad Hayat, who was brother of appellant Umer Hayat and uncle of appellant Sherdil, should have also sat quiet and not done anything in this regard. Such above conduct of the defence witnesses and the contradictions in their evidence indeed belied their evidence and showed that they had set themselves upto help out the appellants for reasons which one need not go far to seek, in view of the close relationship of Mohammad Hayat with the appellants, one being his brother and the other his nephew. True D. W. Mohammad Hayat was also very closely related to the two deceased women out of whom one Mst. Jivi was his daughter, but then, the incident having happened, it is not uncommon in this part of the Province that when near and dear ones of the dead, like D. W. Mohammad Hayat, are equally related to those accused of the death, they assign the death of the dead to fate and try to save their dear and near ones who are still alive. The learned trial Judge was, therefore, well within his rights in disbelieving the defence witnesses. Mr. Junejo next contended that as against appellant Umar Hayat there was only a solitary word of complainant Ghulam Qadir which stood contradicted by the evidence of his brother P. W. Ghulam Nabi and his nephew Noor Khan both of whom did not implicate or attribute any part, whatsoever, to the appellant Umar Hayat in the commission of the offence except showing his presence at the vardat which was only natural. As such, there being no other corroborative or circumstantial evidence connecting him with the crime, he was entitled to acquittal. This contention of Mr. Junejo requires serious consideration. The evidence of P. Ws.
28. Ghulam Nabi and Noor Khan would indeed show that none of them had implicated or assigned any part, whatsoever, to appellant Umar Hayat in the commission of the crime, except showing his presence at the vardat at the time of the incident. P. W. Noor Khan deposed in his evidence that when they entered the house on hearing the cries and gun shot report they saw that Mst. Sharam Khatoon was lying injured on the ground and appellant Sherdil was giving blows to Mst. Jivi with butt of his gun while appellant Umar Hayat was standing quiet. He further deposed that he did not see anything in the hand of appellant Umar Hayat and that when they went near Mst. Sharam Khatoon, she told them that Sherdil had expressed that Mst. Jivi was Kari while she was in toe with her and then fired at her, and to the same effect was the evidence of P. W. Ghulam Nabi. Thus, according to these witnesses the sole actor in the act of crime was the appellant Sherdil, as it is he alone who had fired gun shot at Mst. Sharam Khatoon, caused injuries to Mst. Jivi with the butt of his gun, threatened the witnesses to keep away and declared that he was killing Mst. Jivi as Kari and Mst. Sharam Khatoon as being in league with her. Also, in the dying declaration made by the deceased Mst. Sharam Khatoon to the witnesses she implicated the appellant Sherdil only and did not implicate appellant Umar Hayat in any manner by assigning him any part, not even of having entered the house along with appellant Sherdil. As to the presence of appellant Umer Hayat at the vardat, there was nothing unnatural about it. Rather, it was very natural, as, his house being next to the house of the vardat at a distance of 5-10 ft. And he having heard the gun report and the cries, he was expected to and must have rushed to the vardat to find as to what had happened. That being so, his mere presence at the vardat at the time of incident could not be construed as his participation in the crime. Further, P. Ws. Ghulam Nabi and Noor Khan being so closely related to Mst. Sharam Khatoon, one being her father and the other her brother, it is hard to believe that if appellant Umar Hayat had taken any part in the commission of the crime, they would have spared him, and there is nothing on the record either to show that they had any motive to do so. Further, the medical evidence is also not inconsistent with their version as it was conceded by the learned counsel for the State that the injuries on the person of Mst. Jivi could have been caused by the butt of the gun held by the appellant Sherdil. In these circumstances participation of appellant Umer Hayat in the crime is not established, beyond doubt, and there being no other confirmatory circumstance against him, he is entitled to the benefit of doubt which we give him, as a measure of precaution in the interest of safe administration of criminal justice, and hold that prosecution has not been able to prove its case against the appellant Umer Hayat beyond reasonable doubt and he is entitled t acquittal. As to the alleged abscondence of appellant Umer Hayat, there is nothing on record to show that beyond going to the house of the appellant on the day of the incident, the Investigating Officer had made any serious effort for arresting the appellant Umar Hayat or that any proceedings had been taken against him in that regard. As was observed by the late C. J. Tufail Ali A. Rehman in Cr. Appeal No. 146/72 "the mere fact that he was arrested some 8 months after the incident does not necessarily show that he was absconding and, even if it does, absconding itself is an indication only of fear and fear might be induced as much by the guilty conscience as by the fact that a person has been falsely implicated.
29. In this case the name of Issan Shah appears in the first information report and the fear may therefore well be due to his having been implicated. I am unable therefore to regard the fact on his absconding, even if held/ proved to be sufficient corroboration". Since in the present case also the appellant Umar Hayat was named in the F. I. R. The above weighty observations by the late C. J.
30. Applied with full force to the case of appellant Umar Hayat and his so called abscondence could not be used against him, in the circumstances of this case. This brings us lastly to the question of sentence passed against the appellant Sherdil. Mr. M. H. Junejo contended that it was prosecution's own case that the appellant Sherdil had committed the murder on account of his suspecting Mst.
31. Jivi to be Kari and Mst. Sharam Khatoon being in toe with her, and since people living in the part of the Province to which the appellant belonged regarded this as a question of family honour, the commission of the offence by the appellant Sherdil did not merit extreme penalty of death and that the lesser sentence of R. I. For life would serve.i the ends of justice. In support, the learned counsel cited Muhammad Mohsin Siddiqui v.
32. Government of West Pakistan (1), PLD 1965 SC 635 (?), Umar Ha yat v. State (2), Muhummad Ramzan v. State (3) and Khudadad v. State (4).
33. We are inclined to agree with the learned counsel in his this contention. Indeed, according to the evidence of prosecutions witnesses and the dying declaration made by Mst. Sharam Khatoon, the sole motive for committing the offence by the appellant was that he believed his wife Mst. Jivi as Kari and Mst. Sharam Khatoon as being in toe with her. That being so, the appellant Sherdil coming from the tribe of Jakhranis from Jacobabad who indeed are known to regard this as question of family honour, we feel that the ends of justice would be met by awarding lesser punishment of R. I.
34. For life to the appellant Sherdil.
35. For the foregoing reasons. We allow the appeal of appellant Umar Hayat and acquit him and direct that he be released forthwith unless required in any other case. As to appellant Sherdil, however, we dismiss his appeal and maintain his conviction, but reduce his sentence from that of death to R.
36. I. For life on each count and a fine of Rs. 1,000 or in default R. I. For 6 months on each count, and reject the reference for confirmation of death sentence passed on him. We also maintain the conviction and sentence of the appellant Sherdil under section 13-D of the Arms Ordinance.
37. Sentences to run concurrently.
(1) PLD 1964 SC 64 (2) PLD 1966 SC 602
(3) PLD 1966 SC 129 (4) 1974 SCM R 485