G. M. SHAH, J.-The appellant was tried for an offence under section 302, P. P. C. For the murder of Shahoo alias Shah Muhammad and was sentenced to death for the said offence, by the learned III Additional Sessions Judge, Sukkur, by the judgment dated 13th September, 1977.
2. The appellant has filed the Jail appeal through the Assistant Superintendent, Sukkur Central Prison against the judgment of conviction and sentence. There is also the Reference made by the learned trial Judge for confirmation of the death sentence. This judgment will dispose of both, the appeal, as well as, the Reference.
3. The prosecution case briefly is that the complainant Jumo is an old man aged about 75 years.
He had three wives Mst. Saliman, whom he had divorced, Mst. Zainab had died. The third is Mst. Alim Khatoon aged between 25 to 28 years, who is alive, from whom be has two children. From Zainab, he had a son called Illahi Bux. Deceased Shah Mohammad was his son. Alim and P. W. Jurio are brothers of the complainant. P. W. Mitho is their cousin appellant is son of Alim and is the nephew of the complainant. They had their houses in the same enclosure, near the village Bashir Abad.
4. About 3/4 months before the occurrence, his were Mst. Alim Khatoon had complained to him, as well as, the deceased Shahoo, that the appellant was pressing her for developing illicit relationship with him. On getting such a report, the deceased drove the appellant out of the house and asked him not to visit them again. The appellant left the house, but threw a challenge, to deceased Shahoo, that he would see him. He went and lived in a separate house nearby in the same village.
5. On 3rd June, 1975 at about 11, in the night, when all the inmates residing in the same enclosure of the house of the complainant viz. Mst. Alim Khatoon Mitho, Jurio, Golo, complainant Jumo and the deceased Shah Mohammad, were asleep' on their respective cots, suddenly shrieks of Shah Mohammad deceased were heard from the direction of his cot, which was about 54 feet away from the cot of the complainant. The complainant, his were Mst. Alim Khatoon, Jurio, Mitho and others got up. They saw one person giving hatchet blows to Shah Mohammad. They challenged the man and followed him, who was trying to run away. P. Ws. Mitho, Jurio and others chased him.
Mitho was the first person who had caught him with the hatchet at a distance of only 10 paces outside the enclosure. It was appellant Karam. They brought him back to the house and tied him and kept him there. His clothes and the axe were blood-stained. The axe .Was secured from him.
Complainant Jumo was asked by the witnesses to report the matter to the Police. Being an old man and due to late hours, he went first to his Zamindar Jan Aftab Ahmed in the village Bashirabad, who directed him to Ubauro Police Station, where he reached early in the morning, covering a distance of the three miles and lodge the report at 6 a.m. Then F. I. R. Exh. 7 was recorded Pay A. S. I. P. Syed Wasi Hyder, who was the incharge of the police station.
6. After registering the case, the Police accompanied the complainant to the Wardat, which was in the courtyard of his house, having about 3/4 houses in the same enclosure. The Village comprises of about 8 to 9 houses. The wardat was inspected and blood was found lying on the ---Rilli' of the bed. The cot was smeared with blood. There was a pool of blood under the cot. The appellant, who had already been apprehended by the witnesses, was present at the wardat, with the blood- stained axe. He was wearing a yellow-coloured shirt, with lines, which was smeared with blood on its front and back side and a cotton Tahmad (loin-cloth) with black squares, which was also stained with blood. He was arrested and his blood stained-clothes and the axe were seized under the Mashirnama Exh.
12. The dead body of Shah Mohammad was sent to the Medical Officer Ubauro for port-mortem. Statements of witnesses, Mst. Alim Khatoon, Mitho and Jurio were recorded on the same day at the wardat. Due to the carelessness of the Investigating Officer, the blood--stained articles, axe and clothes of the appellant, were not sent to the Chemical Analyser.
After completing the investigation, the case was submitted to the Court.
7. The case of the appellant, at the trial, was of denial of the prosecution version of the case. He further asserted that the witnesses against him were the complainant and his relative Mitho and Jurio, who were interested and inimical to him. He denied to have been arrested at the spot. He claimed to have been called from his house and the blood-stained clothes and the hatchet were foisted upon him and he was falsely implicated. He led no defence.
8. The question whether Shah Mohammad died of the injuries received by him on the night of 3rd June, 1975, is not disputed. Even otherwise, it is satisfactorily proved from the evidence of the three eye-witnesses Jumo, Mst. Alim Khatoon and Mitho that he died on account of the said injuries. The evidence of the doctor Abdul Salam, who performed the Autopsy on the dead body of Shah Mohammad is that the injuries were caused by a sharp-edged weapon such as a hatchet and the death was instantaneous.
On examination of dead body, the doctor found the following injuries:-
(1) Incised wound of left of the scalp above the left car 4--" x 1" x cavity deep.
(2) Incised wound on left side of the neck cutting the muscles and blood vessels 3" x 1--" x muscle deep.
(3) Two incised wounds on the left side of neck:-
(a) 4" x 1" x bone deep,
(b) 4----- x 1" x bone deep cutting the mandible and maxila on left side with dislocation of two upper teeth on the left side, On the internal examination the doctor found:--
(1) Fracture of left temporal bone with cut on brain and its memberanes on left side plus intracranial bleeding.
(2) Oesophagus cut on the neck of the left side.
(3) The contents of stomach were semi digested food and was normal.
(4) Muscle and blood vessels on left side of mud were cut.
All the internal injuries were coinciding with external injuries. The injuries were ante-mortem. Injuries Nos. 1 and 2 individually and all other injuries collectively were sufficient to cause the death, in the ordinary course of nature.
9. The prosecution case rests on the following pieces of evidence against the appellant.
(i) Ocular evidence of three eye-witnesses.
(ii) Arrest of the appellant almost at the spot, soon after the commission of the crime.
(i.e) Recovery of the blood-stained crime weapon (axe) and clothe smeared with blood.
(iv) Motive.
(v) Medical evidence supporting the ocular version.
10. The appellant is son of Alim, the real brother of the complainant: About three months prior to the incident, the appellant was also living with the complainant in the same enclosure and his house was only about 20 paces away from the house of the complainant. The deceased Shah Mohammad, being the grand son of the complainant, also resided within the same enclosure. So did P. W. Jurio, brother of the complainant and their cousin Mitho.
11. The evidence of the eye-witnesses has been assailed on the ground that they are related inter se and are inimical. Their evidence, therefore, should not be relied upon, unless there is independent corroboration. It was also argued by Mr. Mohammad Maqsood appearing for him that independent witnesses were available but were not produced. The three eye-witnesses are admittedly closely related inter se. They are also related in the same way to the deceased, as well as, the appellant. It is not established on the record that any of these witnesses had enmity or any hostility with the appellant to persuade them to falsely implicate him. The argument of the learned counsel that the evidence of the eyewitnesses should not be accepted in this case, has not appealed to us. No strict rule can be laid down that the statement of every eyewitness must be corroborated irrespective of the fact, whether there is any hostility between the appellant and the deceased. In the instant case the occurrence had taken place in the middle of the night and the inmates of the house would be the persons, available at that time. We have carefully and minutely examined the statements of the three eye-witnesses and we are satisfied that the witnesses are natural and were expected to be in their houses at that hour of the night. Their presence at the scene of occurrence, therefore, cannot be doubted. For the purpose of corrobora--tion, it may be afforded, by any circumstance of the case, which tends sufficiently to satisfy the mind of Court that the witnesses have spoken the truth. We have to this case the motive, coupled with the fact that after killing the deceased the appellant tried to escape, alongwith the hatchet but he was apprehended immediately at a distance of only 10 paces, outside the enclosure and was brought back with blood-stained hatchets and his clothes smeared with blood. The eye-witnesses account finds further support from the medical evidence. There is therefore no hesitation in our mind to accept the version deposed to by the three eye-witnesses. In the case of Mazir and others v. The State (PLD 1962 SC 269) it was observed at page 269 "For corroboration, it is not necessary that there should be a word of an independent witness supporting the story put forward by an interested witness. Corroboration may be afforded by anything in the circumstances of a case which tends sufficiently to satisfy the mind of the Court that; the 'witness has spoken the truth. What circumstances will be sufficient as corroboration, it is not possible to lay down. But, as the question before the Court would be whether some innocent person had not been implicated, in addition to those who were guilty, the circumstances relied upon must have a bearing on this question."
12. It has further been argued that independent witnesses bad come from the village on cries, who bad joined in the chase to catch the accused, but none of them had been examined in the Court.
The occurrence in this case took place at an odd hour. It must have already taken a few minutes to commit the crime, The villagers who had come, could not have witnessed the actual assault.
Without losing any time, the appellant was chased and caught. The villagers, who had come, also included the witnesses Mitho, Jurio and Kaloo and others. Besides, in such cases, when witnesses are the inmates of the same house, where the occurrence had taken place, the outsiders are reluctant to offer their services to act as witnesses. In this case, the so-called independent witnesses could have been examined on the point of the arrest of the appellant and recovery of the articles, but it is a sad experience of the criminal Courts that independent witnesses often avoid to volunteer to be witnesses and come in Courts for years together and take the risk of animosity of the accused persons or their relatives. However, in this case, the evidence of the eye-witnesses is by itself sufficient, convincing and reliable. It needs no corroboration to become trustworthy.
13. On perusal of the statement of P. W. Jurio, we find that he has gone out of his way to oblige the appellant by making certain admis--sions, that it was a dark cloudy night and was drizzling when he had got up on the cries of thief! Thief! Coming from the direction of the house of the complainant. He went there and found the deceased lying on the cot and was bleeding from the injuries on his head and neck. Jurio further stated that he saw the hatchet lying there and within five minutes the appellant was brought by P. W. Mitho and Kaloo and many other villagers. He did not see any marks of blood on the clothes of the appellant. That was the main reason why P. W.
Jurio, uncle of the --appellant, had become so soft towards him. On the other hand Jurio, had himself chased the appellant alongwith P. W. Mitho and caught him with the blood-stained hatchet and clothes on his person. The stand that P. W. Jurio took in the trial Court is understandable that on account of relationship, be bad made obliging statements and in an endeavour to save him, he would state any thing.
14. In the F. I. R. The complainant Jumo had stated that on hearing the cry of the deceased he, his were Mst. Alim Khatoon, Jurio, Mitho and others had got up and they had seen one person giving hatchet blows to the deceased. They gave "Hakals" and followed that man who was trying to run away, but they caught him alongwith the hatchet. That man was the appellant with some variation, in his deposition, in the trial Court, the complainant stated that on hearing the shriek of the deceased they got up and found him lying injured in the neck. He raised cries, where--upon Mitho and Jurio also came. They ran after the culprit and they caught hold of the appellant outside the house. He further stated that he had not seen the appellant, because it was night time and his eye- sight was very weak. He however admitted that the appellant was caught red--handed with blood-stained hatchet by the witnesses. He was tied down there. In spite of some variation, the appellant is fully implicated by the complainant.
15. It was contended that the motive was false and cooked up by Mst. Alien Khatoon and the appellant was falsely implicated and the blood-stained articles were foisted upon him. On the point of motive, there is evidence of complainant Jumo, his were Mst. Alim Khatoon as well as, Mitho. It is unbelievable that any of them would make such a false charge in respect of immoral advances made towards the were of the complainant by his own nephew. We have upraised the entire evidence and we do not feel inclined to accept these arguments. The appellant is the real nephew of the complainant and also of P. W. Jurio. We have observed that certain obliging statement were made, not only by Jurio; but also by the complainant himself. Since the deceased was dead, the witnesses had succumbed to the pressure in order to save the appellant.
16. Next is the evidence of Mst. Alien Khatoon were of the complainant. She was also sleeping in the courtyard and had got up on the screams of the deceased. She saw one man running away with the hatchet in his hand, When all the inmates raised cries, P. Ws. Mitho, Jurio, and others responded and chased the culprit. After a few minutes, Mitho and Jurio brought the appellant to the `vardat'.
He was caught with the hatchet. His clothes were blood stained. Though P. W. Jurio -had not supported the prosecution version, but Mitho has. There is no reason to doubt his statement. P. W.
Mitho is cousin of the complainant. He 'has described the incident in very unambiguous words, that he was sleeping in the same enclosure of the complainant. At midnight, he heard shrieks coming from the direction of the cot of the deceased at a distance of only 25 paces from his cot. He rushed to the place. Jumo and his were Mst. Alien Khatoon were present there raising cries. Jumo told him that the culprit, after causing the injuries was running away. He, Jurio and other chased the culprit and caught the appellant at a distance of only 10 paces outside the enclosure with the hatchet in his hand. He was caught and was brought to the 'vardat'. His clothes as well as, the hatchet were stained with blood. He was detained and the complainant was asked to inform the Police. Nothing has been brought out in the cross-examination to discredit his statement.
17. The three eyewitnesses have consistently maintained that the appellant, after committing the crime was trying to run away, carrying the hatchet with him, when P. W. Mitho chased him and caught him. Mitho is also closely related to both, the appellant, as well as, the deceased. Mitho was the first person, who had run after the appellant followed by Jurio. In the cross-examination of Mitho nothing substantial has been brought out to discredit his version. The statement of a witness could not be disbelieved merely because he is related inter se unless it is further shown that he has been actuated by enmity and/or malice to falsely implicate the appellant. The statement of a witness is to be judged on its own intrinsic merits in the light of the relevant fact to judge its veracity.
18. The appellant was caught with the crime weapon, axe, which, was stained with blood. So were the clothes `shirt' and `Tahmad' of the appellant. He tied and was detained at the ---vardat'. He was handed over the Police, who arrested him and prepared such a mashirnama (Exh. 12). On the same day statements of the witnesses Mst. Alim Khatoon, Mitho, Jurio who all were .Named in the F.
I. R. By complai--nant, were recorded. We are satisfied that the recovery of the blood-stained articles from the possession of the appellant has been established beyond any shadow of doubt.
The mere fact that the Police did not e send the blood-stained articles to the Chemical Analyser, would not negative the recovery of the hatchet and clothes, from the person of the appellant. Even if the recovery of the hatchet is kept out of consideration in view of the obliging statements of P. W.
Jurio and Mashir Golo out of abundant, caution, the eyewitness account and the motive, supported by medical evidence and other pieces of evidence that leave no doubt in our mind about the guilt of the appellant.
19. There are, no doubt, some minor discrepancies, as regards the details of the occurrence but they were to be expected, for, in such circumstances, when the victim was asleep. It was not possible for the witnesses to see the victim and give the precise details. Having carefully read the evidence of the eye-witnesses with the assistance of the learned counsel for the appellant we find it impossible to agree with him that the witnesses were totally unworthy of credit and had not seen the appellant committing the crime. The learned counsel had faintly argued in respect of the delay in lodging the F. I. R. From the statement of complainant Jamo, we find that being an old man, he had taken some time to go and inform his Zamindar Jam Aftab Ahmed Khan and thereafter proceeded to lodge the report. It is surprising that Alim, father of the appellant, who was present at the time of the occurrence, in the same enclosure, at the time when the appellant was chased, caught and brought back with the blood-stained hatchet and clothes, did not object that his son was being falsely implicated. This aspect of the situation shows that the eye--witness account as furnished by them was beyond any suspicion.
Under the circumstances, we find no merit in the appeal, which is hereby dismissed, and the sentence of death is confirmed.