SAJJAD ALI SHAH, J.-Appellant named-above has filed this appeal against the judgment dated 31st January, 1982 of learned Sessions Judge, Thatta, whereby appellant has been convicted for offence under section 302, P. P. C. And sentenced to death. There is also reference before us for confirmation of death sentence and we propose to dispose of both appeal sad reference by this one judgment. After hearing the learned counsel for each side on 17th November, 1982 by a short order we dismissed the appeal with modification that sentence is reduced from death to life imprisonment and in consequence rejected the reference for reasons to be recorded later, which follow now.
2. Shortly stated prosecution case is that deceased Mst. Saran aged about 15 years at the time of occurrence was daughter of sister of appellant. Father of deceased, appellant and other relatives with their families lived in their houses with common hedge situate in village Haji Jumo Tehbo, Deh Ratool Taluka Shahbunder. It is alleged that appellant had evil eye on his own young niece namely Mst. Saran deceased and on the night preceding the incident appellant went near the cot of deceased on which she was asleep and touched her upon which she woke up, resented the indecent attempt, ran to her mother and complained. Mother advised her to keep quiet to avoid scandal and unpleasantness in the family. On the following fateful day i.e. 4th November, 1979 at about 11-00 a. m. Appellant came armed with hatchet and inflicted two hatchet injuries on Mst.
Saran on her neck and in the result she became injured and died instantaneously. Incident was seen by Mst. Mariam, Mst. Bacha) and Ismail, sister, mother and uncles respectively of deceased, who were present in the house. They attempted to catch the appellant, .Who threatened with hatchet and managed to escape with weapon. P. W. Ismail went and informed Mouledino father of deceased in his field. Both came back to the scene of offence, where complainant Mouledino verified the facts from other witnesses and his wife Mst. Bachal also apprised him about the complaint made to her on previous night by the deceased in respect of appellant as stated above.
Complainant then sent P. W. Ismail to Nekmard Khalifa Haji Ghulam Hussain to inform him and fetch him and since some delay occurred complainant himself repaired to the Police Post Chochar Jamali, where he lodged report on the same day at 4-30 p. m. Distance between Police post and scene of offence is stated to be SJ6 miles. The report was formally incorporated in 154, Cr. P. C.
Register at Police Station, Ladioon at 5-45 p. m. On the same day.
3. A. S. I. Muhammad Yousif, who was incharge of Police Post Choohar Jamali, entered report in station diary and sent it to the police station for formal registration. He came to the scene of offence with complainant and noted injuries on the dead body and secured blood--stained earth.
He prepared Mashirnama of scene of offence and inquest report and sent the dead body to the hospital for autopsy. He recorded statements of witnesses and thereafter investigation was taken over from him by S. H. O. Khalilur Rehman of Police Station Ladioon, who had arrived at the spot. S. H. O. Made efforts to arrest the appellant and in that context made inquiries from the Manthar depot-holder of coal and recorded statement of Umar, who produced hatchet of appellant which was left by the appellant at that place. S. H. O. Secured the hatchet under Mashirnama but he did not seal it as it was not stained with blood.
On 6th November, 1979 S. H. O. Arrested appellant and also recorded statement of Gamoon and Hussain before whom appellant had made extra-judicial confession. On 8th November, 1979 appellant made judicial confession before Mukhtiarkar and F. C. M. After completion of investigation challan was presented in the Court.
4. Before the trial Court prosecution has examined 15 witnesses in support of its case. P. W. 4 Ismail.
P. W. 5 Mst. Mariam and P W. 6 Mst. Bachal have been examined as eye-witnesses of the occurrence. P. W. 3 Mouledino complainant has been examined as corroborating witness. He was informed by Ismail and came to the spot and confirmed the details of incident from eye-witnesses.
P. W. I Muhammad Juman Tapedar prepared and produced sketch of wardat Exh. 7-A. P. W. 2 Mr. Rehmatullah Mukhtiarkar and F. C. M. Recorded and produced judicial confession of appellant Exh.
10. P. W. 7 Umer had produced hatchet left by the appellant and P. W. 5 Gamoon deposed about extra-judicial confession of the appellant and also identified the hatchet which was with appellant at that time. This witness had identified the hatchet during investigation in a test before a Magistrate. P W. 9 Hassan also has deposed about extra-judicial confession of appellant and identified the hatchet in the test before the Magistrate. P. W. 10 Ghulam Hyder is Mashir, who has attested inquest report Exh. 25, Mashirnamas of wardat Exh. 24, recovery of hatchet Exh. 26 and recovery of clothes of deceased Exh.
27. P. W. 11 Moula Bux constable is corpse-bearer. P. W. 12 Mehar has deposed that after incident appellant came to him and took job and gave his name as Allah Dino and after some days police came and arrested him and then he came to know about his real identity. This witness attested Mashirnama of arrest Exh.
30. P. W. 13 Muhammad Yousif and P. W. 14 Khalilur Rehman are Police officers, who have investigated the case as stated above. Trial Court examined S. H. O. Syed Jaffar Raza as Court witness and he deposed that Doctor Hafeezul Haque, who con--ducted post-mortem examination on the dead body was serving Pakistan Navy on a ship in high seas and was not available. P. W. 15 is Muhammad Khan, Compounder, who identified handwriting and signature of the doctor and produced post-mortem notes Exh. 43 according to which death had occurred in result of two incised wounds found on the neck of deceased caused by sharp-edged weapon such as hatchet.
5. During trial proceedings appellant in his statement recorded under section 342, Cr. P. C. Took up defence of denial simpliciter of prosecution allegations. He denied having made extra-judicial and judicial confessions. He further stated that complainant Mouledino wanted for his son the hand of daughter of his (appellant's) brother Pirdino but he opposed the proposal so he was falsely implicated in the case and after the incident betrothal ceremony took place. Appellant further declined to produce any evidence in defence.
6. Prosecution has produced satisfactory evidence, which is incontro--vertible and conclusive to prove the case against appellant beyond doubt. There is ocular testimony of three witnesses, who are not only natural wit--nesses but are very closely related to the appellant. Presence of these witnesses at the time of incident cannot be called in question for the reasons that they are inmates of the house and incident took place during broad daylight at 11 a. m. Houses of appellant, complainant and other relatives are situate in common enclosure. Eye-witness Ismail had explained his pre--sence in the house at the relevant time by stating that he had come to take his meal which was being served to him by Mst. Bachal mother of deceased girl. Deceased Mst. Saran and her sister Mst. Mariam were present in the house knitting. Ismail was the first person to go after incident to inform the complainant in the field. In cross-examination the witness has further stated that during the days of incident he used to live in village Shah Yakik, which was at a distance of 8/9 miles but he had come to village Jumo Khan in connection with distribution of crop of his land. He had come to village Jumo Khan about 15 days prior to the incident. There is nothing in the cross- examination of this witness to cast doubt on his claim of being present at the spot and having seen the incident. Similarly other two eye-witnesses are mother and sister of deceased, whose presence cannot be doubted as they are inmates of the house. Another important factor is that these witnesses are very near relations of appellant and have no motivation to falsely implicate him on a murder charge. Eye-witness Ismail is brother of complainant and cousin of appellant. Sister of this witness is married to Achar, brother of appellant. Eye-witness Mst. Bachal, who is mother of deceased girl is real sister of appellant and eye-witness Mariam is sister of deceased and daughter of complainant and Mst. Bachal. Apart from these matrimonial relations even otherwise complainant and appellant are cousins. Not only this but both parties lived together in the houses with common enclosure. These eye-witnesses have fully supported the prosecution case without any reservation. Complainant also has sup--ported the prosecution case as corroborating witness.
He came to the spot immediately afar the incident. These witnesses obviously have no reason whatsoever to falsely implicate appellant, who is so closely related to them. There is no room for probable mistaken identity as incident took place at 11 in the morning. The version of all the eye- witnesses is unani--mous and without any discrepancies on material particulars so far the facts of the incident are concerned. It is stated by the eye-witnesses that deceased and Mst. Mariam were knitting at the relevant time. Perhaps the witnesses referred to knitting in the sense of stitching of embroidery. It is mentioned in Mashirnama of scene of offence that near the dead body was found lying one frame of stitching fixed silken shirt of green and blue colour. Blood was found at the place where injuries are alleged to have been given to the unfortunate girl. Post-mortem report Exh. 43 on the record shows that contents of stomach were semi-digested food which fact confirms the time of incident at 11 a. m. As asserted by eye-witnesses. Whatever little delay is there in filing F. I. R. Is well accounted for and explained by the complainant that first he sent P. W. Ismail to inform and bring nekmard Khalifa Ghulam Hussain and he waited for him but since it was getting late he went to the police post but on the way met Ghulam Hussain and others and then went with them to the police post. A. S. I. Muhammad Yousif has confirmed this fact that Ghulam Hussain accom--panied complainant to the police post. Appellant has suggested his opposi--tion to a marriage proposal, which if true, may amount to a difference of opinion but not go to such enmity as to falsely implicate such a near rela--tion on a capital charge. It is also not possible that eye-witnesses and complainant would allow the real culprit to escape and substitute maternal uncle of deceased because he opposed a marriage proposal. We are of the view that eye-witnesses and complainant have given truthful evidence and are fully worthy of reliance.
7. Next piece of evidence is about recovery of hatchet which is crime weapon. This hatchet at the time of recovery was not stained with blood. Secondly, it was not secured directly from appellant but was produced by P. W. Umar. In the circumstances it does not have much incriminating value to connect it with commission of crime but this circumstance stands proved that appellant had left it under the cot and on being asked by P. W. Umar to take it away appellant replied that he would take it later on. This shows post incident conduct and guilty mind that he wanted to get rid of the hatchet. There is nothing in the cross-examination of P. W. Umar to indicate that he has falsely deposed against the appellant. This witness has no motivation against the appellant and no enmity has been suggested against him. Appellant himself in his judicial confession has admitted that he left the hatchet with P. W. Umar and further stated that he drank water and cleansed the hatchet with earth, which explains the fact why it was found not stained with blood.
8. So far extra-judicial confession is concerned prosecution has examined P. W. 8 Gamoon and P.
W. 9 Hassan. According to Gamoon appellant met him on the day of incident at about 12 noon or 1 p. m. And was going with hatchet in an abnormal manner so he asked him and appel--lant replied that he had murdered daughter of his sister. P. W. Hassan has deposed that he saw appellant with hatchet walking fast and to his query replied that he had killed a woman. Both these witnesses denied to be Nekmard of appellant. There is nothing adverse in their evidence to suggest that they have given false evidence. Appellant in his judicial con--fession has admitted having met both these witnesses and disclosed to them the fact that he had committed murder there is further confirmation in the confession that appellant met both these witnesses before he went to the coal depot and met P. W'. Umar and left the hatchet. For the reasons stated above, we place full reliance on the evidence of these two witnesses on the point of extra-judicial confession. We do not attach importance to the identification of hatchet by the witnesses in a test before the magistrate because we consider that this exercise was not really necessary as hatchet at the time of recovery was not found to be stained with blood and secondly even these witnesses have not stated before the trial Court that hatchet was stained with blood when it was being carried by the appellant.
9. There is still one other circumstance, which stands proved. After the incident appellant went to P.
W. 12 Mehar and sought job of a labourer by giving fictitious name as Allah Dino. He worked as labourer with this witness for 3/4 days till he was arrested by police. P. W. 7 Umar has deposed that appellant had his own coal depot at a distance of 1.1 miles from his depot. Now, when appellant had his own coal depot why did he have to take a job as labourer under a fictitious name. This shows guilty conduct of appellant after the incident. Secondly, appellants has admitted in his judicial confession about taking such job with P. W. Mehar and further admitted factum of arrest from the village of Mehar.
10. Lastly there is judicial confession Exh. 10 made by the appellant, who had resiled from it in his 342, Cr. P. C. Statement before the trial Court. P. W. 2 Mr. Rehmatullah Mukhtiarkar and F. C. M. Was examined during the trial proceedings. He had administered all the necessary warn--ings and adopted the correct procedure. Appellant was arrested on 6-11-1979 and confession was (recorded on 8-I1-1979. S. H. O. Khalilur Rehman, who was examined in the trial Court as P. W. 14 has explained that on 7-I1-79 he bad taken the appellant to the Court of Mukhtiarkar Ladioon, who was leaving for Thatta to attend a meeting with Deputy Commissioner and returned late after office hours. So on the following day appellant was produced again for having his confession recorded. On this point no such question was put to the magistrate when he was being examined. In his statement under section 342, Cr. P. C. Appellant has not alleged any maltreatment or pressure by police for this judicial confession but stated that he appeared before Mukhtiarkar and did not give any confessional statement but his signature was obtained on Exh.
10. This is obviously false because no such question not even in suggestive form was put to the Magistrate when he was in the box.
The confessional statement is a long one in which all relevant details are narrated by appellant which are very much consistent with prosecution case including names of eye-witnesses present at the spot and other witnesses he met subsequently as stated above. The only part, where appellant does not seem to agree is motive as alleged by the prosecution. There also he has admitted that on the night preceding the incident he got up at about 4.00 a. m. To take the grass and saw Mst. Saran and Mst. Mariam sleeping together on a cot and legs of Mst. Mariam were dangling down the cot so he adjusted her to the right place and while he was putting back their pillows, which had fallen down from the cot, in the process deceased Mst. Saran was touched and she woke up and abused him and complained to her mother. In the morn--ing also she abused him and when he came back to the house at 10.00 a. m. To take his meal hence he gave her two hatchet blows on the neck and the rest of the story is same as alleged by the prosecution.
11. On the other hand story of motive as alleged by the prosecution does not sound very convincing.
There are so many questions left unanswered. Why did not Mst. Bachal speak to her brother appellant when deceased awakened her at night and complained to her against the appellant.
Appellant was her brother and she could have spoken to him. Deceased was not in the wrong but appellant was in the wrong hence she could have spoken to him then and there, and reprimanded him for his pervert advances. Mother also did not complain to her husband in the morning. There does not seem any justification to take this matter lightly to avoid a scandal. Appellant would have been worse sufferer in the scandal and not the girl. Secondly, if the appellant bad to make advances then why not Mst. Mariam, who was comparatively older girl then deceased. According to the mother deceased Mst. Saran had become pubert just a few months before the incident, which means she was very young and was just like a child. As against that age of the appellant as shown in his 342, Cr. P. C. Statement is 40 years. Thirdly, nothing had happened as yet and even according to the deceased as disclosed by the mother that appellant had only come to the cot of the deceased with evil design. There was no further overt act. The situation could have been explained away by the appellant as matter of mere misunderstanding. Why commit murder on that account. In these circumstances we consider motive as claimed by the prosecution on weaker side and rather shrouded in mystery. We, therefore, prefer to rely upon judicial confession in its totality including the part of story stated by appellant with regard to repeated abuses from the deceased hurled at the appellant and her insulting behaviour. Request is made for reduction of sentence on this ground and reliance is placed on cases Ayoob v. State (PLD 1974 Kar. 1) Abdul Rehman v. State (PLD 1975 SC 275) and Sher Muhammad v. Muhammad Hayat and others (1979 SCMR 210). We accept the request and dismiss the appeal with modification that conviction is main--tained under section 302. P. P. C. But sentence is reduced from death to life imprisonment and in consequence we reject the reference for confirma--tion of death sentence.