1. SAJJAD ALI SHAH, J.-This appeal is filed against the judgment dated 21-6-1978 of learned Sessions Judge, Badin whereby the appellant has been convicted under section 302, P. P. C. And sentenced to death and a fine of Rs. 2,000 and in default R. I. For six months more. There is also reference before us under section 374, Cr: P. C. For confirmation of death sentence. We proposed to dispose of both the appeal as well as reference by this single judgment.
2. After hearing the learned Advocates by a short order passed on 4-4-1979 we dismissed the appeal with modification that the conviction is maintained and sentence is reduced to life imprisonment from death for reasons to be recorded later which follow now.
3. Shortly stated the prosecution case is that on 3-5-1976 at 5-30 p. m. Deceased Muhammad Hashim was returning from his field alongwith P. Ws. Abdul Hussain, Hussain Ali and Soomaro and when they reached uncultivated land of Dodo Khan in Deh Dabahro, Taluka Tando Bago, deceased Muhammad Hashim called appellant Manthar from his house and asked him to return the articles stolen by him from the house of Sawan son of Jugo Bheel. Appellant did not admit the theft and inflicted hatchet blow on the neck of Muhammad Hashim who fell down injured and died. Appellant left his blood-stained hatchet at the spot and ran away. P. W. Abdul Hussain went to Police Station Tando Bago at a distance of 12 miles and registered F. I. R. At 8 p. m. S. H. O. Khurshid Alam went to the place of occurrence and posted guard over the dead body for the night and inspected the vardat in the morning. He recorded police statements of witnesses Soomaro and Hussain Ali. He prepared inquest report and despatched the dead body to the hospital for post-mortem examination. He prepared mashirnama of vardat, recovered blood-stained hatchet and blood- stained earth and put them into sealed parcels. On that day at 7-00 a. m. He arrested appellant Mantbar from near his house, 'recovered his blood-stained shirt and shalwar which he put into sealed parcel. On the same day he got confession of appellant recorded -before S. D. M., Matli.
4. After completing usual steps of investigation he presented the challan in the Court.
5. Prosecution has examined 9 witnesses in support of its case. P. W. 1 Dr. Sitaldas has performed post-mortem examination on the dead body on 4-5-1976 at 7 a. m. He found a transverse incised wound measuring 6' x 4' x 5' on the left side of neck extending from 1J' anterior to the left ear towards the back of the neck cutting the underlying muscles, blood vessels, second cervical vertebrae and spinal cord. This injury is stated to have been caused by sharp cutting weapon such as a hatchet. Cause of death given by -doctor is haemorrhage and shock as a result of the injury stated above. The death was instantaneous. The time between death and post-mortem examination was about 14 hours. The doctor produced post-mortem notes as Exh.
5. P. W. 2 Ismail is tapedar who has prepared the sketch of vardat Exh. 7 P. W. 3 is Haji M. Haroon, S. D. M. Who has recorded confession of appellant on 4-5-1976. He has produced the confession as Exh.
10. P. W. 4 is Muhammad Usman, Constable who took the dead body to the hospital for post-mortem examination. P. W. 5 is Abdul Hussain -complainant. P. W. 6 Hussain Ali and P. W. 7 Soomaro have been examined as eye-witnesses of the incident who have supported .The prosecution case as stated above. P. W. 8 Din Muhammad is a mashir who has produced mashirnama of vardat Exh. 19.
6. Inquest report Exh.. 20 and mashirnama of. Recovery of blood--stained clothes from accused Exh.
21. Lastly prosecution has examined Khurshid Alam, who has investigated the case. The report of Chemical Examiner Exh. 23 on the record is to the effect that earth, hatchet, clothes of the accused and Ajrak were found to be stained with human blood.
7. Before the trial Court the appellant in his statement under section 342, Cr. P. C. Has denied the allegation levelled by prosecution. He has resiled from his confession and has further stated that witnesses have deposed against him due to enmity. Appellant has also stated in his statement before the trial court that deceased had illicit relations with Shirimati Miri were of Murad Bheel.
8. Muhammad Hashim was murdered by Bheels. Appellant was called from his house by Bheels and he raw Muhammad Hashim lying murdered there. Appellant was tied with a piece of cloth and handed over to the police. Appellant was maltreated by police and was forcibly made to confess.
9. After the statement of appellant was recorded he offered to examine two witnesses in defence but subsequently did not examine them on the ground that they had been won over by the prosecution.
10. We have heard the learned counsel for the appellant and the State and have also examined the record in the light of their arguments. It is a case of broad daylight murder. The incident took place at 5.30 p. m. On 3-5-1976, which was evening time allowing no room for mistaken identity. The incident also took place in the uncultivated land of Dodo Khan as such there was no cultivation in the immediate vicinity of the place of occurrence to obstruct the view of eye-witnesses.
11. Prosecution has produced ocular testimony of three witnesses who were present with the deceased at the time of occurrence. These three witnesses namely Abdul Hussain complainant, Hussain Ali and Soomaro have fully supported the prosecution case and there are no material discrepancies in their evidence to throw doubt on their credibility. P. Ws. Abdul Hussain and Hussain Ali have both admitted that they are nephews of the deceased and their presence at the spot at the time of occurrence is indisputable for the reason that P. W. Abdul Hussain has stated in his evidence before the Court that he has his agricultural land adjacent to the land of deceased.'
12. Similarly P. W. Hussain Ali has also stated that his agricultural land also adjoins the land of deceased. Further--more it is stated by these witnesses that they have common Chak on the land of Hashim. Both these witnesses have further stated that Soomaro Khoso, a third eye-witness, was their Kamdar and looked after their lands. It is also stated there was going on in their agricultural lands seedling of paddy crop. It appears from the record that deceased as well as P. Ws. Abdul Hussain and Hussain Ali resided in Math Town but at the relevant time as claimed by these witnesses they were available on their lands and were temporarily staying in the common Chak of the deceased. P. W. Soomaro resides in Deh Moro and according to the evidence of all these three eye-witnesses. Soomaro who was Kamdar stayed in the common Chak in the land of the deceased. It is in these circumstances that as the prosecution case goes deceased and these three eye-witnesses after giving round of their agricultural lands were on their way back and reached the uncultivated land of Dodo Khan where 8/10 houses of Bheels are situate, deceased called the appellant and asked him about the return of stolen property of Sanwan. Appellant Manthar is stated to be Hari of complainant Abdul Hussain while Sanwan is stated to be Hari of Hashim deceased. The story of incident is very simple in the sense that appellant Manthar was called and deceased Hashim asked him to return the stolen property of Sanwan upon which appellant denied to have committed the theft and there was a little argument between the two, 'here--after the appellant who had come out from the house duly armed with a hatchet, inflicted a blow with it on the neck of Hashim, who fell down injured and died at the spot. Appellant left his blood-stained hatchet at the spot, and ran away before be could be caught by the witnesses. This version of incident is very much consistent with the evidence of all the eye--witnesses. To P. W.
13. Abdul Hussain complainant in the cross-examination it has been suggested that at the time of incident why the other persons, who could be termed as independent witnesses did not come to the place of occurrence. Complainant Abdul Hussain has explained in his deposition before the trial Court that although there were about 7/8 houses of Bheels near the house of Manthar and there were houses of Allahdino, Usman and Ganhwar Khosas near the Chak and some Punjabis have lands about 5 survey numbers away from rardur, but at the time of incident neither any person from Bheels nor other persons mentioned above came to the vardat. It also appears plausible that as stated above incident took place in a Beet of moment pp and only one hatchet blow was given by the appellant on a sudden impulse, which proved fatal, as such there was no time to raise cries and attract attention of persons at a considerable distance. To the other two witnesses namely Hussain Ali and Soomaro no such questions have been put in their cross- examination as stated above.
14. It also appears from the record that incident took place at 5-30 p. m. And F. I. R. Was registered promptly at 8 a. m. When the distance between the spot and police station is stated to be 12 miles.
15. Complainant has stated that he went to the police station on horse back. The other eye-witnesses are mentioned by complainant in F. I. R. And immediately after the registra--tion of F. I. R. The S. H.
16. O. Came to the spot and found the eye-witnesses present. In this context Khurshid Alam S. H. O. Has stated that be came to the spot on the same day immediately after the registration of F. I. R. And although the night bad fallen and he has postponed the inspection of vardat but since a lantern was available he recorded 161, Cr. P. C. Statements of eye-witnesses Soomaro and Hussain Ali who were available at the spot. This fact is further confirmed by perusal of police statements of these two witnesses available in the original on the record which are dated 3-5-1976, which is the date of incident and also the registration of F. I. R. The presence of these three eye-witnesses at the spot at the time of incident is therefore, satisfactorily established by the prosecution. Furthermore these witnesses have- no enmity against the appellant' and there appears no reason whatsoever for these witnesses to be motivated against the appellant in any manner to implicate him falsely in this case. The name of the appellant is given by complainant Abdul Hussain in F. I. R. To be the person who inflicted hatchet blow on the deceased. It is also stated in F. I. R. That hatchet was left at the spot by the appellant who ran away after causing injury. The same hatchet was recovered by the Investigating Officer from the spot and was found to be stained with blood. The appellant in his 342, Cr. P. C. Statement has stated that he has been implicated due to enmity but has failed to elaborate the enmity as to what it was and with whom he had the enmity. No questions have been put to the eye-witnesses in their cross-examination to suggest that they had been inimical to the appellant and have falsely implicated him in this case. Appellant has also stated that deceased had illicit terms with Shrimati Miri were of Murad Bheel as such murder of deceased was committed by Bheels and the appellant was called by Bheels, saw the dead body of Hashim and was handed over by Bheels to the police. This story of defence is not plausible and convincing because we find no reason which can be attributed to these eye-witnesses to implicate the appellant falsely because these eye-witnesses have no enmity with the appel--lant. 1n fact 'the appellant himself is a Bheel and there are 8/10 other houses of Bheels at the place where murder was committed. If the story given by the appellant was correct then instead of the present eye- witnesses, some Bheels would have come oil as witnesses and would have deposed against the appellant but that is not-The case. The appellant has suggested this version of incident to complainant Abdul Hussain in his cross-examination which is denied by him. To other two eye- witnesses no such suggestion is made. On the other band it is suggested to eye-witness Soomaro that some unknown persons had killed Hashim during the night. This only shows that defence version given by the appellant is not true.
17. The appellant was arrested on the following morning of the incident and his blood-stained clothes, i.e. Blue shirt and shalwar were recovered and put into sealed parcel. The hatchet left by the appellant at the spot was also blood--stained and was put into a sealed parcel. The report of the Chemical Examiner is that these articles were found to be stained with human blood. Somehow the clothes of the appellant got misplaced and could not be produced in the trial Court. When the Investigating Officer was in the box no such question was put to him to explain as to why the clothes of the --appellant were not produced in the trial Court. Some inconsistencies have also been pointed out in mashirnama of recovery of clothes of appellant Exh. 21 which are admitted by the Investigating Officer to be the copying mistakes. In these circumstances this piece of evidence is ruled out of consideration There is also on the record retracted confession of the appellant which was recorded on the following day of the incident and on the same day when the appellant was arrested. P. W. 3 Haji M.
18. Haroon S. D. M. Has recorded his confession Exh.
10. From the deposition of this witness it appears that he had taken all the necessary precautions and administered the warnings and gave sufficient time to the appellant for reflection. It has been pointed out that the Magistrate had not put in writing that he had reformed the appellant that he was S. D. M. And also that the appellant would not be remanded to police custody even if he may not make the confession. The Magistrate had explained that he had administered those warnings but dad not add in writing in Exh.
10. Apart from that the confession made by the appellant clearly shows that it was made voluntarily. It is a very short confessional statement which is reproduced as under:- "Yesterday evening time Muhammad Hashim Nizamani called me from the entrance of my house and abused me and asked me to give the cow to Sanwan in exchange of stolen property which is decided by nek--mards. I replied to him not to abuse me but he again abused me. On which I came out of my house armed with hatchet and inflicted sharp side hatchet injury to Muhammad Hashim on neck below the left ear due to grave provocation (Ghairat) and he fell down. Then I stood away from him due to sorrow and then I ran away leaving the Latchet on vardat and concealed myself in 'Jar' trees from where police arrested me."
19. It is clear from this confessional statement that the appellant had admitted that deceased had asked him to give a cow in return of stolen property of Sanwan as decided by nekmard. It is also admitted that appellant came out armed with hatchet and gave a blow with sharp side of the hatchet on the neck. It is also admitted in the confessional statement that appellant left the hatchet at the vardat and concealed himself in Jar trees. These three main features are fully consistent with the prosecution case. The only difference is that appellant has not mentioned the presence of the eye-witnesses. This may be for the reason that the confessional statement is so short that he might have inadvertently committed the names of the eye-witness present at the spot at the time of incident. The prosecution also does not say that eye-witnesses engaged themselves in the conversa--tion between appellant and deceased at the time of incident.
20. Prosecution case is that there was an argument between appellant and the deceased on the subject of return of stolen property of Sanwan. It is stated by the appellant in his statement under section 342, Cr. P. C. That he was maltreated. By the police to make the confession. The magistrate who recorded the confession had noted down in the notes of confession that the body of the appellant was examined and no mark of violence was found on it. It also appears that the appellant was arrested at about 7 a. m. On 4-5-1976 and on the same day was produced before the Magistrate at 11 a. m., hence there was hardly any time for maltreatment and this confession appears to have been recorded in the shortest possible time and sounds very voluntary. The contents of the confession are fully, supported by the evidence produced by the prosecution. There is one other factor which is worthy of notice is that the prosecution has given the time of incident as 5-30 p.m. And the doctor who has performed the post-mortem examination has stated before the trial court in his cross-exam nation that the deceased might have taken his last meal about 6 hours before the death. The last meal being noon meal, if taken at about 12 o'clock brings the time of incident nearly at about 5-30 p. m. As is asserted by the eye-witnesses.
21. AGHA ALI HYDER, J.---I agree.