1. MAIJAMMAD ZAHOORUL HAQ, J.--This is a case for confirmation of death sentence under section 302, P, P. C. Awarded to Jaro by the II Additional Sessions Judge, Larkana on 30th May, 1979, Jaro was also convicted under section 326, P. P. C. And sentenced to suffer four years' R. I. And he was further sentenced to suffer one year R. I. Under section 324, P. P. C. Sentences of imprisonment were ordered to run concurrently in case the sentence of death was not confirmed. The appellant has also sent an appeal from Jail, which is being disposed of by the same judgment. The appellant was heard in person and he submitted that he was innocent and had been falsely involve.". Mr. Salman Ansari also appeared for him on State expense;.
2. The relevant facts are disclosed in the F. I. R. Filed by the complainant Jumo P. W. 2 on 11April, 1975 at 18.00 hours at Drigh Police Station, District Larkana, which reads as under:- ''Complaint is that I reside in village Boohar Hsthian, Taluka Kambar. My were Mst. Kauri, nephew Jaro son of Alam Khan Thaheem and grand-daughter girl Mst. Ghulam Fatima daughter of Mir Mohammad Thaheem, reside with m in the house. Mst. Ghulam Fatima is aged about 10-11 years.
3. Mir Mohammad, the father of Mst. Ghulam Fatima had died about 5 years back, hence after the death of Mir, Mohammad the previous husband of Mst. Khatoon, my daughter, I had got her married with Parial Kumber, I have got Mst. Ghulam Fatima betrothed with my nephew Jaro about a year back. Today at noon time, I, my were Mst. Kauri and girl Mst. Ghulam Fatima were sitting in the house when Jaro came in the house from outside with hatchet and gave injuries to Mst.
4. Ghulam Fatima with sharp side of hatchet and fell her down. I intervened to rescue her but Jaro gave me also two injuries with sharp side of his hatchet on my head. I, girl Ghulam Fatima and my were Mst. Kauri raised cries of "murder ! Murder !", on which Ghulam Rasool son of Mohammadth Parial Kumbar, (2) Abdul Nabi son of Qadir Bux Magheri and Ali Sher son of Imam Bux Runghoo all residents of Boohar Hathian and other villagers cartel-running immediately and saw the accused giving us injuries ant rescued us. Accused Jaro went outside the house alongwith hatched and ran away. We then saw the girl Ghulam Fatima, who had one injury on the palm of left hand, (2) injury on the left side of head, ear cut. (3) One injury on the left side of the head like incised wound. (4)
5. One injury on the right side of lower lip like cut. She was bleeding. The girl Ghulam Fatima after receiving injuries went unconscious. Then Dost Mohammad son of Mohammad Parial Kumbhar was taking me and girl Ghulam Fatima in the bullock-cart to the Police Station, when Mst. Ghulam Fatima died on the way; Accused Jaro used to ask us to get him married with Ghulam Fatima, but we used to ask him that the girl is minor and she is in the house and after attaining puberty, her marriage will be performed with him. Due to this grudge, she has been giver, injuries with sharp side of hatchet and killed and I have also been injured by giving injuries with sharp side of hatchet on my head, I am complainant. Justice be done."
6. The F. I. R. Was recorded by P. W. 9 Fida Hussain, head constable. Since, complainant Jumo P. W. 2 had injuries on his person, therefore, he prepared the memo of Injuries Exh.
12. At that time P. W. 5 Ali Nawaz brought accused /appellant Jaro alongwith blood-stained hatchet to the Police Station. P.
7. W. 9 Fida Hussain arrested the accused/appellant Jaro. He also secured the blood-stained clothes of the accused/appellant Jaro Exh. 15 and sealed the same. He also prepared the inquest report of the dead body of the Mst. Ghulam Fatima Exh. 11, and thereafter, sent the dead body for post- mortem. He then proceeded to the vardat and exami--ned P. W. 8 Ghulam Rasool and Abdul Nabi P. W.
4. At 10-00 p. m. On the same day, the S. H. O. Ghulam Qadir P. W. 10 reached the wardat and took over the investigation. He secured the blood-stained earth from the wardat and prepared `wardat' Memo on the next day and sealed the blood-stained earth vide a Memo. Exh.
13. The wardat was shown to be located in the house of complainant Jumo P. W.
2. He then examined P. W.
8. Ali Sher, Mst. Noor Khatoon and Piral. On 14April, 1975. He got statements of P. Ws. Ghulam Rasool P.
9. W. 8, Ghulam Nabi P. W. 4, Mst. Kauri P. W. 3, Ali Nawaz P. W. 5, Ali Sher P. W. And P. W. Kauro recorded before the S. D. M. Kamber. Thereafter, he sent the blood-stained articles to the Chemical Examiner.
10. The mashers of the mashirnama was P. W. 5 Ali Nawaz. The Chemical Report Exh. 24 shows that the earth and shirt are found stained with human blood, while the blood on the hatchet was found disintegrated.
11. The post-mortem on the body of Mst. Ghulam Fatima (deceased) was performed by Dr. Manik Ram P. W. 7, who found the following injuries on her person:- ---(1) Incised wound 4" x 1" x bone cut on the left temporal region.
(2) Incised wound 5" x 1" x bone cut on the left temporal occipital region.
(3) Incised wound 2" x --" x bone cut on the dorsum of left hand, fourth metacarpel bone fractured.
(4) Incised wound 1 --' x --" x skin deep on the lower lip right side."
12. The doctor was of the opinion that the cause of death was shock and haemorrhage as a result of the injuries. Injuries Nos. 1 and 2 were sufficient individually to cause death in ordinary course of nature. The Post-mortem Report is Exh. 7 dated 11April, 1975. Post-mortem was performed at 9-30 p. m. The same doctor also examined on the same day P. W: 2, Sumo and found the following two injuries on his person.
(1) "Incised wound 5' x 1", x bone cut on the right Pronto-parietal region (right parietal and frontal bones fractures).
(2) Incised wound 1--" x --" x scalp deep on the left frontal region in transverse direction."
13. Injury No. 1 was found to be grievous, while injury No. 2 was simple.
14. The prosecution examined complainant Jumo P. W.
2. He is the grandfather of the deceased Mst.
15. Ghulam Fatima and she was living it his house. He stated that they had given the hand of Mst.
16. Ghulam Fatima (deceased) to Jaro appellant. The deceased was 10 years of age at the time ofth th incident. The accused/appellant Jaro had come to the house duly armed with hatchet and started giving blows to Mst. Ghulam Fatima (deceased). When this. P. W. 2 Jumo tried to intervene. He wa-- also given hatchet blows by the accused/appellant. He and his were raised cries upon which P. W.
17. 8 Ghulam Rasool, P. W. Ali Sher any Ghulam Nabi P. W. 4 came on cries. The accused appellant, thereafter ran away. Complainant P. W. 2 Jumo and Mst. Ghulam Fatima (deceas--ed) were removed to the police station. Deceased Ghulam Fatima died on the way and complainant P. W. 2 Jumo lodged his F. I. R. Exh.
7. In respect of the motive, this P. W. 2 Jumo stated that he was ready to get the deceased married with Jaro appellant as she was only 10 years and was a minor. In cross- examination he stated that he had given the hand of the deceased Mst. Ghulam Fatima to the accused/appellant. He admitted that he had shifted from Boohar to Bhan for some time as his were was taken away by accused/appellant Jaro to that village and after some time he and Jaro appellant went back to Boohar. This witness a: volunteer to say in cross-examination that verbally he had agreed to give the hand of Mst. Ghulam Fatima (deceased) to the son on Photo. He admitted that Photo had filed a case against Jaro appellant due to difference over Mst. Ghulam Fatima (deceased). He admitted that P. W. 8 Ghulam Rasool is the brother of his son-in-law Piral.
18. This witness had disclosed in the F. I. R. That accused /appellant Jaro was his nephew and resided with him. No motive has been suggested by the appellant in cross-examination to this witness. This witness has admittedly suffered two incised wounds on his own head, and therefore, his presence cannot be doubted at the scene of offence.
19. We do not find any ground to disbelieve this P. W. 2 Jumo, who is the uncle of the appellant and grandfather of the deceased Ghulam Fatima. He has given a straightforward account of what happened, and, if anything, he has volunteered statement in favour of she accused/ appellant in cross-examination by admitting that he had verbally agreed to give the hand of Mst. Ghulam Fatima (deceased) to the son of Photo. The statement of this witness is, therefore, completely reliable and worth being believed.
20. The next eye-witness was P. W. 3 Mst. Kauri who is the were of complainant P. W. 2 Jumo and she has fully supported the statement of Jumo P. W. 2 in respect of the incident. In cross-examination, he had admitted that appellant Jaro had not demanded the hand of Mst. Ghulam Fatima (deceased) for himself. She denied that Photo has any dispute with them on matrimonial affairs.
21. The learned counsel for the defence Mr. Salman Ansari wanted its to rely upon her statement in cross-examination that appellant Jaro had not demanded the hand of Mst Ghulam Fatima (deceased) for himself.
22. This statement is, however, of mono significance in view of the fact that she was not cross- examined at all in respect of the actual incident, where she had clearly involved the appellant as the person, who had inflict--ed hatchet blows upon Mst. Ghulam Fatima (deceased) and Jumo P.
23. W.
2. She is the natural witness as the incident bad taken place in her house and her grand- daughter Ghulam Fatima (deceased) and her husband Jumo P. W. 2 have been inflicted hatchet blows in her presence by her own nephew Jaro appellant and there is nothing on record to cast any doubt or other suspicion on bar testimony. There is no enmity even alleged, against her by the appellant. She has, therefore, been rightly believed.
24. P. W. 4 Abdul Nabi anti P. W. 8 Ghulam Rasool have also deposed as eye-witnesses in respect of the incident. Abdul Nabi P. W. 4 heard the cries as his house is at call's distance front the house of complainant P. W. Juma. He wits cleaning the crop with P. W. 8 Ghulam Rasool near the incident at about midday. He saw the incident where appellant Jaro gave hatchet blows to the deceased and also gave hatchet blows on the head of the complainant P. W. Jumo. In cross-examination he stated that P. W. 8 Ghulam Rasool was the only person, who had collected the crop at the vardar.
25. He asserted that they reached the wardat without any loss of time and he stated that accused/appellant Jaro was residing with complainant Jumo P. W. 2 and they were related inter se.
26. P. W. 8 Ghulam Rasool substantially repeated that what has been stated by P. W. 4 Abdul Nabi and he saw the appellant giving injuries to Mst. Ghulam Fatima (deceased) and complainant P. W. 2 Jumo. He admitted in cross-examination that he was the brother of the son-in-law of Jumo P. W. 2.
27. He did not know if the deceased has been agreed to be given to one person, who is son of Photo at Bhan Saeedabad. He further stated that the accused used to live with the complainant P. W. 2 Jumo before they went to 11han Saeedabad and even after they have returned to Bhan.
28. Saeedabad to the place of incident. He admitted that Jaro appellant had not demanded the marriage of Mst. Ghulam Fatima (deceased) with him. He admitted that Ali Sher P. W. And Abdul Nabi P. W. 4 were with him at the place of incident. He asserted that they were standing very neat to the wardat. He denied that he did not witness the incident.
29. Abdul Nabi P. W. 4 is an independent witness belonging to a differ--ent caste and he had no reason to falsely involve the appellant. The appellant had not suggested any enmity or any bad feeling.
30. Similarly, P. W. 8 Ghulam Rasool cannot he disbelieved only because he is the brother of son-in-law of the complainant P. W. 2 Jumo. Even the complainant P. W. 2 Jumo had no enmity with the appellant, and therefore, Ghulam Rasool P. W. 8 could have no enmity. No direct enmity with Ghulam Rasool P. W. 8 was suggested by the appellant in cross-examination to him.
31. These two P. W. 4 Abdul Nabi and Ghulam Rasool P. W. 8, appeared to be truthful witnesses.
32. The strong corroboration to the statements of the P. Ws. Is provided by Ali Nawaz Soomaro P. W. 5.
33. Who is the Zamindar and he had arrested the appellant with the assistance of other villagers about --, mile away from the village and he had produced the accused/appellant along with the blood- stained hatchet at the police station. He has also acted as a mashir of all the Mashirnamas. In cross-examination, he has admitted that he had acted as a mashir of Police in other case, but in the circumstances of the case this circumstance alone would not detract any value from his statement. He has no enmity with the accused/ appellant and he is a respectable man of the village and he was one of the many villagers to apprehend the accused, while the appellant was trying to escape from the village.
34. Moreover, we find that the arrest of the accused/appellant and securing of blood-stained clothes from his person on 11April, 1975 at 18-30 hours has been witnessed by P. W. 6 Dost Mohammad, who is a mashir of Exh.
15. Dost Mohammad P. W. 6 was examined in Court and he stated that Ali Nawaz and others bad produced the accused/ appellant before the Police and hatchet and blood- stained clothes were secured from him P. W. 6 Dost Mohammad admitted in cross-examina--tion that he is the brother of Piral, who is son-in-law of Jumo P. W.
2. He denied that the accused bad been produced by the complainant P. W. 2 Jumo. Beyond these two questions no cross- examination was directed against this prosecution witness. The deposition of a witnesses cannot be rejected only because he is related to the complainant.
35. We do not find any reason to disbelieve the testimony of these P. Ws. And therefore, the arrest of the appellant on 11th April. 1975 and at 18-30 hours and recovery of blood-stained hatchet and his blood stained clothes is substantially and reliably proved by these witnes--ses.
36. The recoveries were also proved by P. W.9 Fida Hussain, who recorded the Memo Exh. 15 and recovery of blood-stained articles. He stated that Ali Nawaz P. W. 5 had brought the accused/appellant Jaro alongwith blood-stained hatchet and he had secured the blood-stained hatchet in presence of mashir Dost Mohammad P. W. 6 and Abdul Nabi P. W. 4 and also secured shirt from the person of accused/appellant Jaro.
37. Since, the Chemical Report Exh. 24 has clearly shown that the white shirt was stained with human blood, therefore, it is established that the accused/appellant Jaro was wearing blood-stained shirt at the time when he was produced before the Police, and therefore, he is the person, who is involved in the incident. Of course, the Chemical Examiner has opined that the blood on hatchetth has disintegrated, and therefore, its origin cannot be determined, but the same is not sufficient to throw any doubt on the prosecution case as the said hatchet had been snatched by the pursurers, from the appellant and was produced before the police and that was the weapon of offence.
38. The appellant Jaro in his statement has simply denied the whole prosecution case and he has stated that be was innocent and the witnesses are interested and hostile, but no particulars of any hostility and interes--tedness of P. Ws. Has been stated by him, and therefore, his statement does not afford any ground for disbelieving the P. Ws.
39. Mr. Salman Ansari submitted that since Abdul Nabi P. W. 4 has n--ot been examined, therefore, the prosecution case should be disbelieved. He asserted that Abdul Nabi P. W. 4 was the only independent witness of the arrest of the accused/appellant Jaro and recoveries of blood-stained hatchet and shirt from him.
40. We do not find any justification to agree with him. The mashir of recoveries and arrest, P. W. 6 Dost Muhammad is a reliable person and his relationship with the complainant is not so close that he should give a false evidence on that account. Moreover, we find that even the complainant has not been burdened with any enmity against the appellant, and therefore, since, the complainant P. W. 2 Jumo is not inimical to the appellant, therefore, any relation of the complainant can hardly be called as inimical to the appellant. Therefore, the non---examination of Abdul Nabi P. W, 4 as mashir of recoveries does not in any way detract from the value of the recoveries.
41. Mr. Salman Ansari also submitted that the prosecution story as disclosed is not believable, he says that the appellant has been living with the complainant P. W. 2 Jumo and it does not appear to be reasonable that suddenly on one day the appellant would enter the house with the hatchet in hand to do away with the life of the girl, who had been betro--thed to him. The prosecution has given the motive of the incident as the refusal of complainant to marry the girl with the appellant on account of minority of the girl. The incident has been fully established and proved, and therefore, the working by the mind of the appellant is hot of great significance. It could be possible that the appellant was having an advanced age and he, therefore, felt frustrated due to the delay in the marriage, and therefore, caused the death of Mst. Ghulam Fatima (deceased). The motive given by the prosecution seems to be a plausible one, and therefore, the story does not appear to be unbelievable.
42. Mr. Salman Ansari lastly contended that the origin of the incident has not been fully explained by the prosecution and the incident appears to be without any premeditation, and therefore, appellant should have been convicted only under section 304-1, P. P. C. As he could not be burdened with the intention of causing the death of Mst. Ghulam Fatima (deceased).
43. We find that the two eye-witnesses, namely, Jumo P. W. 2 and Mst. Kauri P. W. 3 have clearly stated that accused/appellant came into the house with hatchet and started giving blows to Mst. Ghulam Fatima (deceased). In these circumstances, the intention of the accused/appellant to cause the death appears to be clear. We also find that he has caused as many as 4 injuries upon the person of the deceased, 2 of which were individually fatal. And in these circumstances, it was apparent that the appellant had no other intention but to cause the death of Mst. Ghulam Fatima (deceased). We also find that the appellant did not even spare P. W. 2 Jumo, complainant who tried to intervene and he was also given 2 incised blows on his head one of which has been found to be grievous. This also shows that the accused/appellant was in a very enraged state and mind and he had no other intention but to cause the death of the deceased and also he might have caused the death of P W. 2 Jumo if God had not been merciful to him and had not spared his life.
44. Therefore, looked at from any point of view, the appellant had no other intention but to cause the death of Mst. Ghulam Fatima (deceased).
45. Mr. Salman Ansari feebly submitted that since P. W. 2 Jumo had himself admitted that he had orally agreed to give the hand of Mst. Ghulam Fatima (deceased) in marriage to sots of Photo, therefore, the same should be regarded as a mitigating circumstance as the appellant may have suffered a great torture on that account. In the first instance we do not feel inclined to believe that P. W. 2 Jumo has made a correct statement when he admitted that he had agreed to give the hand of Mst. Ghulam Fatima (deceased) to son of Photo, The same is voluntary statement made by him and appears to be an obliging statement and could be an effort to try to save his nephew appellant Jaro from the gallows. We find that Mst. Kauri P. W. 3 had definitely denied any dispute with Photo on matrimonal affairs. Moreover, one does not know as to when the incident of oral giving of hand to son of Photo took place. We believe P. W. 2 Jumo, when he had stated that he had refused to marry the girl deceased with Jaro appellant only because she was a minor of 10 years. To the same effect is the statement of Mst. Kauri P. W. 3, and therefore, the volunary statement of P. W. 2 complainant Jumo cannot be treated as a mitigating circumstances. Even otherwise what justification the appellant has to kill the minor girl because her grandfather bad given her once to appellant Jaro and another time to some other person. There was absolutely no justification to cause the death of a girl, who was a poor orphan.
46. We are, therefore, convinced that the appellant, had intended and had in fact, caused the death of Mst. Ghulam Fatima (deceased) and had also grievously injured P. W. 2 Jumo. The death sentence is, therefore, confirmed under section 376, Cr. h. C. And the Appeal is dismissed.