GHAUS ALI SHAH, J.--This appeal under section 410, Cr. P. C. Is directed against the judgment dated 6th November, 1978 of the learned Sessions Judge, Thatta, whereby he convicted the appellant under section 302, P. P. C. And sentenced him to death. The matter is also before us for confirmation of sentence of death passed on the appellant and we shall dispose of the appeal and the murder reference by this judgment.
2. The brief facts of the case are that complainant Ismail son of Abdullah by caste Jakhro resident of village Dadal Jakhro, Taluka and District Thatta, lodged his F. I. R. On 27th January, 1975, at 9.30 a. m. At Police Station Thatta, which reads as under:- "The complainant reports that deceased Siddik son of Usman is the son of my maternal uncle.
Deceased Mst. Fatima was the were of my maternal uncle Usman. About three years back deceas- -ed Siddik gave his sister Mst. Sathi to Abbas Jokhio in marriage, on which accused Ishaque and other Jakhras were annoyed. About 15 months back. Peero and other Jakhtas abducted Mst. Sathi from her house, such report was lodged by Mst. Fatima. Ishaque and eight other persons are accused in that case which is under trial in the Court of Sub-Judge, Thatta. Today was the date of hearing of that case. Today in the morning I, deceased Siddik and deceased Mst. Fatima came from Gharo via Bus and alighted at Makli. I urinated by the side of the road. Accused Ishaque was standing at 30-40 paces from road in southern direction. He had a hatchet in his hand. Deceased Siddik and deceased Mst. Fatima started going ahead on the road. I having urinated tied the tape of shalwar and saw that accused Ishaque son of Sacho gave three-four hatchet-blows by the sharp side of the hatchet in his hand and I witnessed that he caused deceased Siddik to fall down by those blows, thereupon deceased Mst. Fatima came running between them when accused Ishaque caused her to fall down by giving her three-four blows by the sharp side of the hatchet.
Meanwhile one A. S. I. Two Police Constables, I, Atta Mohammad Gabol, Muhammad Hashim Bakari, Mohammad Ali Khawajo, my brother Yakoob and many other persons came running there. Those persons also saw accused Ishaque causing blows, causing both of them falling down due to blows.
Police who had reached there running, caught hold of accused Ishaque son of Sacho along--with his hatchet. We saw that both Siddik and Mst. Fatima had expired. The blood was oozing out from their heads and bodies. --Then A. S. I. Mohammad Juman asked me that we are standing here to guard the corpses and. That I should go to report at the P. S. I have therefore started and lodged this report. To guard the arrested accused Ishaque and corpses, the Police is standing on the place of vardat. Deceased Siddik had complained to me two three times that Ishaque is threatening to murder him and is asking us to back away from the case. Deceased Siddiq, not backing away from the case, accused Ishaque has killed them by causing blows of the sharp side of hatchet. That neither Siddik and Fatima would be alive nor the case will proceed. I am making the report, investigation may be made."
3. The F. I. R. Exh. 6 was recorded by Nizamuddin P. W. 10 S. H. O. Thatta who after recording the F. I. R.
Proceeded to the place of incident which was situated near Ghulamullah Road in front of the office of the Sub-Engineer Agricultural Department on the side of the District Office on National High Way.
He saw two corpses one of "Siddiq" and another of "Mst. Fatima" lying there with hatchet injuries on their dead bodies. There was blood on the ground at both the places and the corpses were lying at a distance of 4-5 paces from each other. Their clothes were found besmeared with blood. He collected blood--stained earth from both the places and after packing it sealed the same and prepared such mashirnama Exh. 15 in presence of mashirs Abdul Karim and Habibullah. He thereafter prepared inquest report on both the deceased as Exh. 16 and Exh. 17 respectively. He sent the corpses to Civil Hospital through Muhammad Ismail and Mohammad Jam P. Cs. For their post- mortem examination. 1-to also found Muhammad Juman, A. S. I. P. Yaqoob, Muhammad Hashim Bukhari. Pir Bux and Mohammad Juman P. Cs. avaiLahle there. The appellant accused Mohammad Ishaque was in custody of Mohammad Juman A. S. I. P. Who produced him alongwith a blood- stained hatchet before the S. H. O. Who took him in his custody, and the S. H. O. Found shirt and shalwar on person of the accused stained with blood and he secured the blood stained clothes from his person. He also secured hatchet in presence of same mashirs and prepared such mashirnama Exh.
18. He then interrogated the appel--lant/accused who was willing to make judicial confession. The S. H. O. After recording statements of Mohammad Juman A. S. I. P.
Mohammad Juman P. C. And Pir Bux. P. C. Under section 161 Cr. P. C. Produced the appellant/accused before the Mukhtiarkar & F. C. M. Thatta on the same day at about 12-30 or 1-00 p.m. For recording his judicial confession. The S. H. O. Thereafter made search for the witnesses who had seen the occurrence and recorded statements of Mohammad Hashim and Yaqoob on 28January, 1975, Atta Mohammad Gabol on 29th January, 1975 and Mohammad Ali P. W. 6 on 30th January, 1975. He after obtaining necessary sanction from the S. P. Thatta des--patched the blood- stained articles to the Chemical Examiner whose report is on the record as Exh.
26. He also produced true copy of the F. I. R. Lodged by the deceased Mst. Fatima, were of Usman Jakhro and also produced true copies of the reports instituted against both the parties under section 107, Cr. P.
C. As Exhs. 28 and 29 respectively.
4. The prosecution case is mainly based on ocular testimony, recoveries of blood-stained hatchet and clothes from the accused, judicial confession, evidence of motive and the circumstances of his having been captured at the spot.
5. The accused however denied all allegations against him and clair4ed to have been involved due to enmity. He has also stated that the deceased had already filed an abduction ease against him and complain--ant Mohammad Isma il was also not happy with him as he had promised band ofth his daughter to him but did not keep his promise and got his daughter married somewhere else.
The complainant Mohammad Ismail had also enmity with him over some land of his father. Abbas and other Jokhias had abducted Mst. Suthi who was restored to her mother and brother and was living with them. Therefore Abbas and others had grudge against the deceased.
6. As far as deaths of Siddique and Mst. Fatima are concerned it has not been disputed that they died as a result of hatchet injuries on the day and place of incident as stated in the F. I. R. Dr. Moinuddin P. W. 4, who performed the autopsy on both the dead bodies has been examined and he has deposed as under:- "On 27th January, 1975, I was Medical Officer on duty. Civil Hospital, Thatta. On that day corpses of two persons namely Siddik son of Usman and Mst. Fatima widow of Usman were received at 11.00 a.m. From S. H. O., Thatta for their post-mortem examination. They were brought by Ali Muhammad, Muhammad Jan Police Constables of Thatta P. S. I started post-mortem examination on the corpse of Siddik son of Usman at 11.30 a.m. And completed it by 1-10 p.m. On the same day. The deceased was a Muslim, male, aged about 30 years. He was identified by Ibrahim son of Muhammad Hussain, a cousin of the deceased, and Soomar son of Abdullah, a maternal brother of the deceased.
The deceased Siddik had following injuries on his person;--
(1) Incised wound 4" x 2" x cutting trachea, oesophagus, sterno---mastoid muscle, common carted artery, on the front of neck.
(2) Incised wound, semi-circular, 5" x 1--- x brain exposed on right parieto temporal region.
(3) Incised wound 3" x 2" x brain exposed, the brain substance oozing out. On the occipital region, mid line.
(4) Incised wound 9" x 2--" x bone deep, cutting the upper part of the left shoulder and scapular bone and the blood vessels.
(5) Incised wound 2--" x --" x bone deep on the back neck at Cervical region.
(6) Incised wound 2--" x --" bone deep cutting the bone, below injure No. 5.
(7) Incised wound 2--'' x bone deep, below injury No. 6.
(8) Incised wound 1--" x 1' bone deep below injury No. 7.
(9) Incised wound 2--" x 1" x none deep below the injury No. 8.
All the injuries were anti-mortem and they were caused by means of a sharp-cutting weapon such as a hatchet.
The deceased had died due to shock and haemorrhage caused by the injuries Nos. 1, 2, 3, 4 and 6, which were individually sufficient to have caused death in ordinary course of nature. The death had beets instan--taneous. The injuries appeared to have been caused within about 21 hours of the commencement of post-mortem examination. I produce the post---mortem report issued by me under my report Exh. 12.
I started post-mortem examination of the corpse of Mst. Fatima were of Usman at 1.30 p.m. And completed it by 2.15 p.m. On the same day. The deceased was aged about 50 years. She was identified by Punhoon son of Chutto and Muhammad son of Soomar. She has sustained following injuries:-
(1) Incised wound 3--" x 21/2" cutting the sterno mastoid muscle, common carotid artery and cervical vertebrae on the left side of neck.
(2) Incised wound 6' x 1" cutting the bone, beginning from the lateral wall of the nose and extending to medial I/3rd of the eye brow and frontal bone to the vertex.
(3) Incised wound 1--" x 1--" x skin deep at outer aspect of the right forearm, as it is medial.
(4) Incised wound 3" x --" on the left scapular region, upper part.
All the injuries were anti-mortem and appeared to have been caused by means of a sharp-cutting weapon, such as a hatchet.
The deceased had suffered death due to shock and haemorrhage caused by the injuries No. 1 and 2, which were individually sufficient to have caused death in ordinary course of nature. The death had been instantaneous. The injuries appeared to have been caused within about 4 1/2 hours of the commencement of post-mortem examination. I produce the post-mortem report issued by me under my signature Exh. 13."
7. The question therefore for determination is whether Siddique end Mst. Fatima were murdered by the appellant or somebody else? The prosecution in this regard has led ocular evidence of Mohammad Ismail complainant P. W. 1, Mohammad Juman A. S. I. P. P. W. 2, Mohammad Juman, P.
C. P. W. 3, Mohammad Ali Khawaja P. W. 6 and Atta Mohammad Gabol P. W. 7, evidence of motive recovery of blood-stained hatchet and clothes from the appellant, report of the Chemical Analyser and Medical Evidence.
8. The complainant Ismail P. W. I has stated before the trial Court that Siddique was son of his maternal uncle whereas the deceased Mst. Fatima was mother of Siddique. The appellant Mohammad Ishaque was their caste fellow. The deceased Siddique had a sister by name Mst. Suthi who was married to one Abbas Jakhro and this marriage had taken place about six years ago. The accused Mohammad Ishaque, Piru Jakhro and some other Jakhras did not like this marriage as Abbas belonged to a different caste. The accused party therefore abducted Mst. Suthi from the house of the deceased Siddique, about 4/5 years ago. The deceased Mst. Fatima had fled criminal case against the appellant Ishaque and others in respect of the incident of abduction of Mst. Suthi and the case was pending in the Court of Civil Judge & F. C. M., Thatta. He Siddique (deceased) and Mst. Fatima (deceased) were going to attend bearing of the case at Thatta by way of a bus. They got down from he bus at the bus stop on top of the incline at Makli Hills, Thatta at about 9.00 a. m.
With many other passengers. Atta Mohammad Gabol P. W. 7 and Mohammad Ali Khawaja P. W. 6 were amongst the passengers who had also got down there. When they got down, they found appellant Ishaque standing nearby, on a road. As soon as they proceeded towards the Court of Civil Judge & F. C. M., Thatta, the complainant went to piss a little aside while both the deceased proceeded towards the Court. He had hardly finished pis--sing, when he heard cries and he looked towards there. He saw that the appellant Ishaque was giving hatchet blows to Mst. Fatima and Siddique. He went running. Atta Mohammad Gabol P. W. 7 Mohammad Ali P. W. 6 Mohammad Juman A. S. I. P. And many other persons including a policeman witnessed the incident.
Mohammad Juman P. W. A. S. I. P. Captured the accused on the spot and also snatched the blood- stained hatchet from him. Siddique and Mst. Fatima had died and were bleeding profusely: The above P. Ws. Have stated that they had witnessed the incident and the appellant was captured by Mohammad Juman A. S. I. P. After the incident.
9. Mohammad Juman A. S. I. P. Who resided in a quarter at Makli Township and was working in the office of the S. P. Thatta at the time of the incident has stated that he was going to his office at about 9.00 a.m. When a bus stopped at its stop on the National Highway opposite to S. P's office and some persons got down from it there and one out of them was a lady. Some of the passengers including the lady started going towards the Courts when he saw a person standing armed with a hatchet on a road leading towards the Courts and he started giving hatchet-blows to the lady as well as her male companion. He went running there and so also Mohammad Juman and Pir Bux, Police constables who were also on their way to their office. Some other persons who got down from the bus also rushed towards the stop and the accused was captured on the spot and a blood-stained hatchet was snatched from him. Some of those persons who helped in capturing the accused were, Atta Mohammad Gabol P. W. 7 Mohammad Ali Khawaja P. W. 6, Hashim Bukhari, Yaqoob Jakhro and others. They all found that both the victims had died. Their names were disclosed by Ismail Jakhro and Yakoob Jhakhro as Siddiq and Mst. Fatima. They disclosed the name of the accused/appellant as Ishaq. He had produced the accused/appellant Ishaq and his blood-stained hatchet before the S. H. O. Who had arrived at the scene of offence. The clothes of the appellant/accused were also stained with blood. Nothing useful to the defence was brought out in lengthy cross-examination of this witness. P. Ws. Muhammad Juman P. C. Mohammad Ali Khwaja and Atta Mohammad Gabol who have also witnessed the incident and are eyewit--nesses have also fully supported the prosecution case in the trial Court. No material contradictions have been brought out by the defence to cross-examination of these three eye-witnesses so as to disbelieve their evidence. They are eye-witnesses of the incident apart from being independent and have fully corroborated the version given by the complainant and Mohammad Juman A. S. I. P.
P. W.
2. They have also stated that neither the accused/appellant nor both of the deceased were known to them prior to this incident. Therefore there is no reason for them to implicate the accused/appellant falsely.
10. The recoveries of blood-stained hatchet and clothes from the person of the accused/appellant have been proved by the evidence of Abdul Karim mashir, and Nizamuddin. Investigation Officer P.
W. 10 and the same are further strengthened when they have been found stained with human blood as per Chemical Analyser's report Exh. 26.
11. The accused/appellant who was arrested on the spot on the day of incident i.e. 27th January, 1975 has got his confession recorded on the same day which reads as under:- "Firstly the Nikah of Mst. Suthi was performed with my cousin Peero Jakhro. Then, the deceased mother, of Mst. Suthi and her brother, deceased Siddik gave Mst. Suthi in Nikah to Abbas Jokhio.
Today there was our case in Sessions Court, Thatta regarding Mst. Suthi for that I came from my village Jam Wah and stood at Na--tional High Way at Makli. I had come from my village with inten- -tion to murder both the above-mentioned deceased. That as both the deceased alighted at Makli from Karachi Bus, I first gave hatchet blow to deceased Siddik on his head, who fell down that I gave another blow to other deceased on her head with hatchet. She also fell down. Then I gave other hatchet blows to both of them and murdered both of them. Two three police personnel and other persons were standing there who caught me and I was taken to Thatta P. S."
Mohammad Ismail, who was Mukhtiarkar & F. C. M., Thatta recor--ded the confession on the same day when the incident took place and the accused was captured on the spot. The confession has been recorded after all the necessary precautions were given to the accused appellant and the learned Magistrate, who recorded the confession has stated before the trial Court that he was satisfied of the fact that the confession was true and voluntary. There is nothing to disbelieve this confession.
12. The next piece of evidence against the accused appellant is that of motive which has been given by the complainant Mohammad Ismail Jakhro, in his F. I. R. As well as deposed to by him in the Court that the accused appellant was unhappy and annoyed over marriage of Mst. Suthi with Abbas Jokhro who belonged to a different caste. It was on account of this that Mst. Suthi was abducted from the house of the deceased Siddik about 4/5 years before this incident by the accused appellant and his party. Mst. Fatima (deceased) bad filed such criminal case against accused Ishaq and others in respect of abduction of Mst: Suthi and it was this case which was pending in the Court of Civil Judge & F. C. M., Thatta. It's date of bearing was fixed in the Court on the day of the incident and both the deceased had come to attend to their case. The accused appellant Ishaq has killed Siddik and Mst. Fatima with this view that neither of them would be alive so that they could proceed against him. The motive therefore seems quite natural and stands proved.
13. The last piece of evidence against the accused appellant is that of his having been captured at the spot by independent witnesses including those who had got down from the bus and witnessed the incident which occurred in their presence and they all succeeded in catching hold of the accused appellant on the spot who was handed over to the S. H. O. Along--with his blood-stained hatched,
14. The learned counsel for the appellant contends that too much reliance has been placed on the evidence of Mohammad Juman A. S. I. P., who is otherwise an interested person and he has gone out of way to speak lies in order to get promotion by showing his gallantry by capturing the accused appellant otherwise his presence on the spot is highly doubtful. It has also been contended that the complainant apart from being related and interested witness was also not present on the spot when the incident took place and his evidence cannot be accepted. Moreover he has stated the facts in such a manner that they cannot be accepted under the circumstances that he was present on the spot. The other witnesses have also been managed by the A. S. I. P.
Mohammad Juman, who are otherwise chance witnesses and a case has been fabricated against the accused appellant due to enmity over incident of abduction of Mst. Suthi in which the present accused appellant was an accused person and had gone to attend to the case against him on the day of incident.
15. Mr. Murtaza Hussain, the learned counsel for the state, contends that the incident has been witnessed by independent witnesses who have succeeded in capturing the accused appellant on the spot after the incident and all of them have admitted the presence of the complainant on the spot. It would not be possible in view of such a strong evidence of independent witnesses to doubt that the complainant was not present on the spot. The contention that Mohammad Juman A. S. I. P.
Has gone out of way to tell lies in order to get promotion has got absolutely no force as the incident took place on 27th January, 1975 and Mohammad Juman A. S. I. P. P. W. 2 was examined in the Court in this case on 2nd April, 1978, and he still continued to be a A.S.I. P. Of P. P. Jhoogo Jalbani of Police Station Ladiun. The prosecution has produced evidence of independent witnesses supported by the evidence of motive, recoveries, medical evidence and the circumstance of the accused appellant being captured on the spot coupled with a judicial confession recorded on the same day. It would be there--fore crystal clear that guilt against the accused appellant has been proved and there is absolutely no room for any doubt whatsoever in view of the evidence produced against him.
16. We have considered the contentions of the learned counsel for the appellant as well as State.
We have also examined the ocular testimony of all the eye-witnesses and we have found it free from any doubt. The P. Ws. Mohammad Juman P. C., Mohammad Ali Khawaja, Atta Mohammad Gabol and Mohammad Ismail A. S. I. P., are independent as well as natural witnesses and there is absolutely no doubt for their pre--sence at the spot at the time of incident.
There is no denial of the fact that the complainant Mohammad Ismail is related to the deceased Mst. Fatima who was were of his maternal-uncle and the deceased Siddik was her son but all the same it is not sufficient to disbelieve him only because of his relationship otherwise the fact of his accompanying the deceased to atted the Court looks natural in view of the enmity between the parties. He has actually accompanied the deceased as they were apprehending danger from the accused and it was on account of this that he used to accompany them to the Court on the date of hearings on prior occasions also. His evidence is natural and we place reliance on it and so also on the evidence of Mohammad Juman A. S. I. P. And Mohammad Juman P. C. Who were in service at Thatta at the time of incident and their office were nearby the place of incident. Moreover it was at about 8.45 a.m. When the incident took place and it was the usual time when the witnesses were going to their offices. The incident according to both of them took place when they were on way to their respective offices.
The contention that P. Ws. Mohammad Ali Khawaja and Atta Mohammad Gabol be treated as chance witnesses as they belonged to different and distant places has also no value because they boarded the bus in which both the deceased were already travelling and they also got down at the same bus stop in order to pursue their works when the incident took place. Therefore their presence looks quite normal as such co-incidence do occur in ordinary course of life. Moreover names of all the eyewit--nesses have been given in the F. I. .R, which has been lodged without any loss of time within fifteen minutes of the occurrence. It would not have been possible for the complainant to have mentioned their names in the F. I. R. As eye-witnesses to the incident unless he and they were present on the spot at the time when the incident took place.
17. The learned counsel for the appellant has laid great stress on the point that these witnesses were not examined on the day when the incident took place though they have stated that their statements were recorded on the very day and they had not gone to the Police Station after it. But the S. H. O. Has stated that the statement of P. W. Atta Mohammad Gabol was recorded on 29January, 1975, and Muhammad Ali on 31st January, 1975. This of course diminishes it's value as there is inconsistency between their version and that of S. H. O. And recording of their statements after 2-3 days has also no explanation. Even if the evidence of both these witnesses is discarded, there remains evidence of complainant Ismail, Mohammad Juman A. S. I. P. And Mohammad Juman P. C. Who have seen the accused appellant striking at the deceased with his hatchet and have captured him on the spot. Their testimony is beyond any doubt and we therefore accept their version as true. The fact of the accused appellant being captured on the spot has been corroborated by the evidence of' mashie Abdul Karim P. W. And S. H. O. Nizamuddin P. W.
10. It has also been admitted by the accused appellant himself when he stated before the trial Court that he was taken into custody on the spot when he had gone to the vardat after hearing the news of inci- -dent. The accused has not examined any body in defence to support his version that he had actually gone on the spot after hearing the news of the incident. Therefore there is nothing to disbelieve this fact of his being captured on the spot after committing offence as stated by the eye--witnesses.
18. The circumstantial evidence of recoveries of hatchet and blood--stained clothes as already discussed above stand proved and also corro--borated by the report of the Chemical Examiner with Exh. 26 that the hatchet as well as clothes were found stained with human blood.
19. The confession has no doubt been retracted which is not unusual but the evidence of Magistrate who recorded it and the facts which have been stated by the accused appellant in his confession regarding the motive and striking at the deceased make it worthy of reliance. We therefore accept it as true and voluntary one.
20. We are therefore of the view that the evidence against the accused appellant both ocular as well as circumstantial is in abundance which is worthy of credence and is being accepted by us as discussed above.
21. In the result we accept the reference and confirm the sentence of death of the accused appellant. The conviction and sentence awarded to him by the trial Court are upheld and his appeal stands dismissed.