G. M. SHAH, J.-----Appellants Ranjho (31) and his brother Abdul Rehman's (26) were tried alongwith their father Abdul Majid by the learned IInd Additional Sessions Judge Larkana, for offences under sections 302 read with 34, P. P. C. For committing the murders of Ali Nawaz and Mst.
Razia were of appellant Abdul Rehman's, and by the judgment dated 21st September, 1977 convicted the two appellants and sentenced each of them to suffer imprisonment for life and also to pay a fine of Rs. 1,000, in default thereof, to suffer further R. I. Two years ; whereas, acquitted their father Abdul Majid.
2. The learned Judge, while acquitting Abdul Majid, was of the opinion that this was not the case of grave and sudden provocation and both the appellants had killed the two deceased, because they had doubts about the illicit relation between the two deceased. The learned Judge was further of the opinion that though the prosecution case was that the three accused had, first killed the deceased Ali Nawaz in Naudero Town, but their father Abdul Majid was empty handed and had only instigated the two appellants who were armed with hatchets, not to spare Ali Nawaz and he himself did not take part in the actual assault on Ali Nawaz. While giving the benefit of doubt to Abdul Majid 'and acquitting him, the learned Judge had observed as under:- "I am conscious that in this part of the country there are instances, where the complainants party tries to enrope as many members of the family of the accused as possible: In the present case, possibility of false involvement of accused,. Abdul Majid cannot be lost sight of. He is an old man, being father of the remaining two accused and at this age, a person is not expected to be so provocative or emotional or sentimental, so as to go to the extent of committing two murders to avenge vendetta feeling that his daughter-in-law had or has illicit relations with some one. It cannot be said for the remaining two accused one being the husband and the other brother-in- law of deceased Mst. Razia, and of being of young age that their sentiments and emotions might have reached the climax, after hearing about 'illicit connections of Mst. Razia and Ali Nawaz, which they were doubting since long and therefore, on the day of incident, both the brothers, on seeing Ali Nawaz thought it a valuable opportunity to attack and kill him. I therefore, consider that since there is no evidence against accused Abdul Majid, except the version of P. Ws. Ghulam Kadir, Moharam and Ali Hyder, he can be given the benefit of doubt, keeping in view his age."
The appellants have filed the appeal against the judgment of conviction and sentence.
3. The prosecution case briefly is that Mst. Razia is the were of appellant Abdul Rehman's, who was doubting his were and had suspicious that she had illicit intimacy with deceased Ali Nawaz.
Appellant Ranjho is his elder brother. Both the appellants are sons of the acquitted accused Abdul Majid. There are two sets of eye-witnesses in this case. One set is of those who had witnessed the murder of deceased Ali Nawaz and the other is for the murder of deceased Razia. First informant Ghulam Kadir is the uncle of deceased Ali Nawaz, and Moharam (P. W. 4) is his (All Nawaz) maternal uncle. Ali Haider son of Mohammad (P. W. 5) is the brother of Ghulam Kadir; whereas from the second set of witnesses, Ali Hyder son of Qaimuddin (P W. 6) is the father of Mst. Razia He is cousin of Gul Hassan (P. W. 9) and both, Ali Hyder and Gul Hassan are uncles of Mohammad Laik (P. W. 7).
4. On 10th February, 1976 at about 4 p. m. The first in informant Ghulam Kadir, while returning home after finishing his duty in the Naudero Sugar Mill, where he works as a peon, went to Naudero Town, on his cycle, to purchase some house hold articles like potato, onions, etc. From the shop of one Panjal. P. W. Muharam also came and met him there at the shop. When they finished shopping, Ghulam Kadir and Muharam left the shop together for home. At about 6 p. m when they reached near the `Karkbana' (factory) of Nanik Ram, by the side of the main Road, going from Naudero to Ratodero, they saw deceased Ali Nawaz and Ali Hyder (P. W. 5) coming from the northern side on the same Road. Deceased Ali Nawaz was ahead of Ali Hyder. When deceased Ali Nawaz reached near the `Karkhana' of Nanik Road, in Naudero Town, they heard "Hakal" (challenges) and saw the two appellants armed with hatchets, and their father, the acquitted accused Abdul Majid who was empty handed. The prosecution case further is that acquitted accused Abdul Majid instigated the two appellants to kill the deceased Ali Nawaz. It is alleged that both the appellants attacked the deceased with hatchets and caused him two injuries on the neck and killed him at the spot. Before any one could intervene, the appellants and the acquitted accused ran away. The first informant Ghulam Kadir went and lodged the F. I. R. (Exh. 11) at the Police Station Naudero, which was recorded by S. H. O. Mohammad Iqbal at 6-45 p. m. P. Ws. Muharam and Ali Hyder stayed behind with the dead body of Ali Nawaz.
5. After recording the F. I. R., S. H. O. Mohammad Iqbal accompanied the first informant Ghulam Kadir to the vardat, which was on the road side in Naudero Town, where the dead body of Ali Nawaz was lying and there was blood on the ground. The uardat was inspected and the dead body was sent to the Medical Officer, Civil Hospital Larkana. Statements of Muharam and Ali Hyder were also recorded. During the period when the S. H. O. Was absent from the Police Station in connection with the investigation of the murder of Ali Nawaz, another F. I. R. (Exh. 15) was lodged at the same Police Station by Ali Hyder (P. W. 6) father of deceased Mst. Razia, alleging that the appellants had committed the murder of Mst. Razia in their house. The report was recorded by A. S. I. P. Fazal Illahi.
The F. I. R. Was sent to the S. H. O. Mohammad Iqbal for investigation. He then proceeded to the village of the appellants in Garhi Khuda Bux, a distance of about 2 miles from the Police Station Naudero. The S. H. O. Visited and inspected the vardat, where the dead body of Mst. Razia was lying in the house of acquitted accused Abdul Majid. The blood found at the vardat was collected and sealed in a parcel. The dead body of Mst. Razia was sent to the Medical Officer Ratodero, for post- mortem examination. Statements of witnesses Laik and Gul Hassan, who were present, were recorded.
6, On 12February, 1976 both the appellants voluntarily appeared, one after the other in their village before the S. H. O. Mohammad Iqbal, who arrested them. They were wearing blood-stained shirts and ---Potras--- (loin cloth) which were secured and sealed. They voluntarily led the police party separately to their houses and produced blood--stained hatchets, one lying under the `palal' (hay) and the other from lai trees jungle which were secured and sealed. After completing the usual investigation, the charge-sheet was submitted in the Court on 27th February, 1976.
7. The autopsy on the dead body of Ali Nawaz was performed by Dr. Mohammad Shaikh, Medical Officer, C. M. C. Hospital Larkana on 11February, 1976 whereas on the deceased Mst. Razia, by Dr. Nooruddin Medical Officer Ratodero, on the same day. The doctors found the following external injuries on the two deceased.
Ali Nawaz:
(1) One incised wound 6" x 1" bone deep on upper end of the neck posterioly cutting first vertebrae, spinal cord, trachea, oesophagus and blood vessels.
(2) One incised wound 8" x 2" bone deep 1/2" below injury No. 1, cutting second vertebrae, spircal cord, trachea, oesophagus and blood vessels. On internal examination the following damages were found:-
(1) Ist and 2nd vertebraes were cut. Spinal cord, at both levels, was also cut. Oesophagus was cut.
From the external, as well as, internal examination of the dead body, the doctor was of the opinion that death occurred due to shock and haemorrhage caused by the injuries mentioned above. The injuries appeared to have been caused by some sharp cutting weapon such as a hatchet. Both the injuries were ante-mortem in nature. The death was instantaneous.
Mst. Razia: External injuries.
(1) Incised wound 4" x 1/6" x skin deep at the right of the neck.
(2) Incised wound 2" x 1/6" x skin deep, --" below the injury No. 1.
(3) Incised wound 3" x 1" x muscle at the chin.
(4) Incised wound 2" x 1/6" x skin deep at the left side of neck.
(5) Incised wound 2" x --" x cutting the bone at the left side of back of head.
(6) Incise wound 1" x --" x scalp deep at the left occipita region.
(7) Incised wound 1" x --" x scalp deep at the mid of skull.
(8) Incised wound 6" x 1" x cutting the 8th cervical vertebrae at the back.
(9) Incised wound 3" x --" x cutting the right scapula at the lower 1/3rd.
(10) Incised wound 3--- x --" x muscle at the lateral aspect of the right arm.
(11) Incised wound 3" x 1 x --" x muscle deep at the upper 1/3rd of the right scapula.
On internai examination, the following damages were found:-
(1) 8th cervical Vertebrae, posterior part of skull bone on left side, right and left scapular bone at the side of the injuries were all found cut.
According to the death was due to shock and haemorrhage, consequent of the injuries caused by a hatchet. The probable time of death was about a few minutes after receiving the injuries. All the injuries were described as ante-mortem in nature and Injuries Nos. 5, 7, 8 individually, and all the injuries collectively, were suffice in the ordinary course of nature to cause the death.
8. The appellant Ranjho had denied the prosecution allegations and had proclaimed to be innocent, whereas, appellant Abdul Rehman's, in his statement, at the trial under section 342, Cr. P.
C., had admitted, having killed his were Mst. Razia, as well as, deceased Ali Nawaz, due to grave and sudden provocation, in the following words:- "On the day of murder, I had gone to my lands, where from, at about `Bipahri/Tripahri' time, I returned home and found Ali Nawaz and my were Razia, in objectionable state of affairs. This gaveth th me grave and sudden provocation and I lost control over myself. I had a hatchet in my hands. I challenged them "Alt Nawaz succeeded in running away from my house I killed my were Mst. Razia in the house and thereafter followed Ali Nawaz up to his home. I chased him and saw him in Naudero Town and killed him there. Though, I went to the Police Station voluntarily and wanted to lodge the report; but the police did not record my report and thereafter, on the influence of the complainant party, fabricated the present case against me, my brother and my father."
Both the appellants had led no defence.
9. The fact of killing of both deceased Mst. Razia is not disputed. It is further established from the evidence of the eye-witnesses Ghulam Kadir first informant (P. W. 3) Muharam (P. W. 4) and Ali Hyder (P. W. 5) that both the appellants had attacked deceased Ali Nawaz and had inflicted hatchet blows on his person and had killed him. P. Ws. 6, 7 and 8 Ali Hyder, Mohammad Laik and Gul Hassan are on the point of the murder of Mst. Razia. In their evidence, they have not fully supported the case of the prosecution; but the fact remains that she was killed by means of hatchets. The Medical evidence, coupled with the statement of the appellants Abdul Rehman's, at the trial shows, that Mst. Razia had died of an unnatural death, which was caused due to the hatchet injuries.
10. The question for consideration before us are, whether appellant Abdul Rehman's alone had killed both the deceased, as is stated by him, and if so, whether his act of killing both the deceased amounted to murder or there is any substance in his plea of grave and sudden provocation. We have carefully examined the entire evidence in this case and have considered the arguments of the learned counsel Mr. Mohammad Hayat Junejo on behalf of the appellants and Mr. Niaz Ahmad for the State, on several hearings, viz. 27th February, 1980, 2nd March, 1980, 3March, 1980, 4th March, 1980, 5th March, 1980, September, 1980. We are of the opinion that appellant Abdul Rehman's Sep alone has committed the alleged offences and there is no force in the argument of Mr. Junejo that appellant Abdul Rehman's had committed the two murders, because of grave and sudden provocation. We have no such evidence on the record.
11. According to the eye-witness account given by the first informant Ghulam Kadir, Muharam and Ali Hyder about the murder of Ali Nawaz, P. Ws. Ghulam Kadir and Muharam were together returning home after making purchases from Naudero Town. They met deceased Ali Nawaz and Ali Hyder (P. W. 5) on the main road going to Rato Dero. When the deceased Ali Nawaz reached near the 'Karkhana" (factory) of Nanik Ram, the two appellants armed with hatchets alongwith their father, acquitted accused, who was unarmed, suddenly appeared and challenged the deceased Ali Nawaz. They, at the instigation of their father, caused the deceased hatchet blows and killed him at the spot. While discussing the evidence, the learned trial Judge has observed that "in this part of the country, there are instances, where the complainant party has tried to enrope as many members of the family of the accused, as possible." The learned Judge was further of the view, that "in the present case, possibility of false involvement of acquitted accused Abdul Majid cannot be lost sight of. He is an old man, being father of the remaining two accused, and at this age, a person is not expected to be so provocative or emotional or sentimental, so as to go to the extent of committing the two murders to avenge vendetta, feeling that his daughter-in-law had or has illicit relations with some one." The learned Judge, after considering the merits of the case reached the conclusion that there was no evidence against the acquitted accused Abdul Majid, except the version of the first informant Ghulam Kadir, and witnesses Muharam and Ali Hyder. In short, the learned Judge did not believe the evidence of these three eye-witnesses against the acquitted accused. While considering the case against the two appellants. We have, therefore, to have an independent corroboration of a high quality and convincing evidence to accept the version of these witnesses.
12. The evidence on the point of motive is that the appellants had doubts about the illicit relations between Ali Nawaz and Mst. Razia. The appellants are residing in village Garhi Khuda Bux, at ard distance of about two miles from Naudero, where the deceased Ali Nawaz had his house. No period is mentioned since when the two appellants were harbouring such doubts of illicit intimacy between the two deceased. Since the motive is equally alleged in the same words, against the two appellants, as well as, their father, we find the facts explain the motive to be more effective against Abdul Rehman's alone, who is the husband of Mst. Razia. The appraisal of the evidence of these three eye witnesses show that the case of Ranjho, who is the elder brother of the appellant Abdul Rehman's, falls in the same category, as of the case of their father, Abdul Majid, whom the learned Trial Judge had acquitted, as there was a possibility of his false involvement.
13. According to Dr. Mohammad Amin, the deceased Ali Nawaz had suffered two incised wounds, which appeared to have been inflicted in succession. The first injury was followed by the second, which was repeated at the same spot. Injury No. 2 was more forceful and was below the Injury No. 1.
It is more probable that both the injuries on Ali Nawaz were caused by one and the same person at the same time. When two different persons cause the injuries, the location, direction, incision and part of the body would not be the same. We are, therefore more inclined to believe that deceased Ali Nawaz had received the hatchet injuries at the hands of one person only and that is appellant Abdul Rehman's.
14. Ocular evidence, so far as, the murder of Mst. Razia is concerned, consists of Mohammad Laik (P.
W. 7) and Gul Hassan (P. W. 9), corroborated by Ali Hyder (P. W. 6). It is important to note that Ali Hyder the father of deceased Mst. Razia. The eye-witness Gul Hassan is his cousin and another eye-witness Laik is their nephew. The appellants are closely related to these three witnesses, namely Ali Hyder, Mohammad Laik and Gul Hassan. Acquitted accused Abdul Majid is the cousin of Ali Hyder, who is father of Mst. Razia deceased. Prom their statements, we find that the eye- witnesses. Mohammad Laik and Gul Hassan have not supported the case against the appellants and have changed their original version, as was stated by them in their 164, Cr. P. C. Statement. This is understandable because of their close blood relationship. The corroborative evidence of Ali Hyder becomes in-admissible, as he had received all the details of the facts from Mohammad Laik, who does not support the prosecution version. According to Ali Hyder, his nephew Mohammad Laik, had informed him at about 8 p. m. That when he (Laik) and Gul Hassan were sitting in his house, adjoining the house of the appellants, he (Laik) heard cries coming from the house of the appellants. They went there and saw that the two appellants and their father, the acquitted accused, were all armed with hatchets, and were saying that they had already killed deceased Ali Nawaz and would now kill Mst. Razia. The appellants had seen these two witnesses and had threatened them not to come near or they would murder them, as well. Thereafter, the appellants and their father had killed the deceased Razia with hatchets, as they suspected that she had illicit relations with deceased Ali Nawaz. On the other hand, the version of P. W. Mohammad Laik is that the appellants are his neighbours and live in the adjoining house. He and his uncle Gul Hassan were sitting is their house when they heard the cries coming from the house of the appellants. They rushed there and saw appellant Abdul Rehman's only, causing hatchet injuries to his were Mst.
Razia. They did not intervene, as they had no concern. Thereafter, he went and informed Ali Hyder and brought him to the vardat. Almost same, is the version of second eye-witness Gul Hassan. Both these eye-witnesses were declared hostile by the learned prosecution, as they had more or less, aligned with the plea taken up ins appellant Abdul Rehman's, and did not implicate Ranjho and their father, the acquitted accused. As a result or the appraisal of the testimony of the eyewitnesses, there is no trustworthy and reliable ocular evidence against appellant Ranjho. If the eye-witness account is excluded from consideration the only piece of evidence left against Ranjho is of the recovery of the hatchet and clothes, which were found by the chemical examiner to be stained with human blood. It is true that these articles hear stains of human blood, but it does not by itself, prove the offence I murder against the appellant Ranjho. The recoveries do furnish Corroborative evidence, but first, there should be reliable substantive evidence of murder, if needs any corroboration, the recoveries of this nature would provide it. Therefore, we are of the view that the testimony of Moth sets of the eye-witnesses against appellant Ranjho is tainted and cannot be accepted without corroboration, which is wanting in the case against him.
15. So far the case against appellant Abdul Rehman's is concerned, it is distinguishable. His own statement in the trial Court is of an admission of the alleged killing of both the deceased, which fact is supported by both the sets of five eye-witnesses corroborated by Ali. Hyder, father of Mst.
Razia. The ocular testimony is also supported by the evidence of both the Medical Officers. From the ocular testimony, the motive has been satisfactorily established that the appellant was doubting his were Mst. Razia, for having illicit relations with deceased Ali Nawaz, which explains the whole background of the occurrence. Finally, the production of the blood-stained hatchet by him from his house, which place, no one else knew, except the appellant Abdul Rehman's himself. The police has also secured blood-stained shirt and loin cloth from his person at the time of his arrest.
The blood on the hatchet and the clothes was certified by the chemical examiner to be of human origin which serves to support the other evidence against the appellant. In view of the admission of the appellant of having killed both the deceased, it is needless to discuss the evidence of recovery which we find reliable and trustworthy.
16. It thus remains only to be considered, whether the act of the appellant amounted to grave and sudden provocation. After giving our careful consideration to this question, we are of the view that there is no unimpeachable evidence to substantiate the plea of grave and sudden provocation. In his statement, the appellant has claimed to have followed the deceased Ali Nawaz, after killing his were Mst. Razia, which does not appeal to reason, nor it is in the context of events that are described by the eye-witnesses. According to Ghulam Kadir, and Muharam, the deceased Ali Nawaz was seen coming with P. W. Ali Hyder on the main Road in Naudero Town, where he was killed near the `Karkhana' of Nanik Ram. This would not be the conduct of a `Karo' if he is chased by the husband of the Kari that he would be moving about, in the town so carelessly and unconcerned, knowing that he might, be murdered next. Secondly, it is not possible for a `Kayo' to visit `Karl' during the day time, either, when other people like witnesses Mohammad Laik, and Gul Hassan and so many other neighbours in the village were present around there at that time, precluded possibility of any misdemeanour to provide grave and sudden provocation. There is no evidence that deceased Ali Nawaz was present in the house of the appellants with Mst. Razia in objectionable state of affairs, except the bare word of the appellant Abdul Rehman's. Even the tampered testimony of P. W. Mohammad Laik and Gul Hassan does not mention of this fact that they had seen the deceased Ali Nawaz inside the house of the appellant Abdul Rehman's with deceased Razia in objectionable state of affairs. A mere allegation or a disclosure of doubt of moral laxity, without any evidence coming on the record in support of it, would not constitute grave and sudden provocation. If such pleas, without any evidence, are accepted, it would give a licence to illiterate husbands to kill their innocent wives on a mere doubt to absence of any evidence, we are not inclined to accept the plea of sudden and grave provocation advanced by the appellant for killing the two deceased.
17. For the foregoing reasons, we find the case against the appellant Ranjho, has not proved beyond reasonable doubt. Giving him the benefit of doubt, we accept his appeal and acquit him.
He shall be set at liberty forthwith if not required in any other case. So far the appeal of Abdul Rehman's is concerned, we find no merit in it, which is hereby dismissed.