ALI NAWAZ BUDHANI, J.---This is an appeal directed against the judgment and sentence recorded by the IInd Additional Sessions Judge, Hyderabad on 28-4-1982 whereby he has sentenced the appellate Moula Bux under section 302, P. P. C. To death with a fine of Rs. 5,000 and in default to undergo R. I. For one year. By the same judgment the learned Trial Judge had convicted the appellant for offence under section 307, P. P. C. And sentenced R. I. For seven years together with a fine of Rs. 1,000 and in default to undergo R. I. For one year more.
2. The facts which give rise to the instant appeal are briefly narrated in the F. I. R. Which was lodged on 21-6-1973 at 10.15 a. m. At Police Station Husri. The F. I. R. Is as under :- ---The report is that I am hari of Yousuf Khan Talpur. Myself and Khan Muhammad son of Wali Muhammad are harts on his leased land in Liyar Jagir where we have constructed our houses too.
Moula Bux son of Hamir also resides in a house adjacent to our house. Moula Bux and Khan Muhammad are the sons of my maternal-uncle and are real cousins Inter see. About 2 years ago Khan Muhammad got his sister Mst. Rani betrothed with Moula Bux. Yet the marriage was not solemnised. Since last one month Moula Bux had been demanding the hand of Mst. Rani from Khan Muhammad but Khan Muhammad was giving hopes and did not give the hand of Mst. Rani as such Moula Bux became annoyed with the above act. In the house of Khan Muhammad, his mother lost. Mullan, two unmarried sisters namely Mst. Rani and Mst. Bezo and his wife Mst: Mani reside. Last night as usual I was present in my house and as usual after taking meals went to the Otaq of Yousuf Khan Talpur and slept there. At about mid-night time Mst. Mani came running crying and told me that Moula Bux has murdered her hus--band Khan Muhammad by giving him 'pistol shots and has also inflicted hatchet injuries to his fianc--e Mst. Rani and her sister Mst. Bezo, and has also given hatchet injuries to my mother-in-law namely Mst. Mullan and that I have come to you. On such narration of facts I accom--panied her to the house of Khan Muhammad where Moti and Mangho Kolhi and Mitho by caste Brohi had already arrived who informed me, that they had come running to the house of Khan Muhammad on hearing cries; but on seeing us Moula Bux ran away from the house of Khan Muhammad. We tried to chase him but he ran away towards western side.
I then saw that Khan Muhammad was lying murdered on the cot having a pistol shot injury on his bead and an empty cartridge of 12 bore was lying under the cot at pillow side. I saw Mst. Mullan who was also lying murdered on the cot having a hatchet injury on her right side of vest. The hatchet was lying stuck in the wound in the waist. I also saw Mst. Rani and Mst. Bezo, who were lying on the ground having hatchet injuries on their legs and arms, which were bleeding. I and the above witnesses also made enquiries from them who narrated the same facts as narrated by Mst. Mani.
Then I after leaving Mirho Brobi, Madio Kolhi for the protection of the dead bodies and injured, tried to inform the Kamdar Jammo Panwar who could not meet me as such I started from there and after having informed the incident to Yousuf Talpur and Dost Ali Brohi at Hyderabad, came to P. S. On foot anti report that accused Moula Bux because of not getting the hand of Mst. Rani has intentionally killed Khan Muhammad and his mother Mst. Mullan and got injured Mst. Rani and Mst.
Bezo by giving them hatchet blows are lying at the Vardat. The justice be done.---
3. It transpires that deceased Khan Muhammad was the cousin-- brother of the appellant Moula Bux. The deceased Mst. Mullan was mother of Khan Muhammad whereas the deceased Mst. Rani was the sister of Khan Muhammad so also the prosecution witness Mst. Bezo. Mst. Mani is the wife of the deceased Khan Muhammad. The complainant Muhammad Siddik is maternal-uncle of the deceased Khan Muhammad.
4. The S. H. O. Police Station Husri one Taj Muhammad (P. W, 10) recorded the F. I. R. On 21-6-1973 at 10.15 a.m. He proceeded to Vardat which was situated in the house of deceased Khan Muhammad in the lands of Yousuf Talpur village Liyar Jagir. The three dead bodies of Khan Muhammad Mst.
Mullan and Mst. Rani were lying in the house. He noted that Khan Muhammad had sustained a fire- arm injury on his head with the result his brain matter had come out whereas other two deceased had various hatchet injuries on their persons. He prepared the necessary Mashirnamas Exhs. 9-A and 9-B and Inquest Reports of the dead bodies. He noted the injuries on the person of Mst. Bezo who was referred to L. M. C., Hyderabad. At the wardat he examined P. Ws. Mst. Mani, Mitho, Dost Ali Madavo, Moti and Mangho Kolies. On 27-6-1973 he got the statements under sec--tion 164, Cr. P. C.
Recorded of P. W. Mst. Mani before Ilnd Extra- Joint Civil Judge and F. C. M., Hyderabad. The appellant Moula Bux was arrested from Ganjo Takar on 18-8-1973 before two Mashirs Manoo and Muhammad vide Mashirnama Exh. 13-A. Mst. Bezo was examined under section 164, Cr. P. C. On 28- 8-1973. On the same day the statements under section 164, Cr. P. C. Were recorded of the witnesses Motho, Madawo and Moti. On 2-9-1973 he submitted the charge-sheet before the Court of Second Extra Joint Civil Judge and F. C. M., Hyderabad.
5. The appellant in his statement under section 342, Cr. P. C. Denied the prosecution allegations levelled against him to have committed the murder's of Mst. Rani, Mst. Mullan and Khan Muhammad. He also denied to have made murderous assaults to Mst. Bezo by causing injuries to her. He claimed false implication on account of suspicion and enmity. He has admitted the factum of his having been engaged with Mst. Rant. According to him he was arrested by the police from Mirpurkhas. He has, however, produced the true copy of a challan against Mst. Bezo who had stabbed hips during the proceedings of this case.
6. The prosecution has-relied upon the evidence of Tapedar Muhammad Aqil IP. W. 1), Complainant Muhammad Siddik (P. W. 2), Allah Jurio (P. W. 3), Muhammad Ismail (P W. 4), Muhammad (P. W. 5), Ahmed Bux (P. W. 6), Mst. Bezo (P. W. 7), Mst. Mani (P. W. 8) and Taj Muhammad, S. H. O. (P. W. 9). The prosecution witnesses Moti, Madavo and Mangho all by caste Kolies were given up by the prosecution vide Exh. 15 on the ground that they were not traceable. However the evidence of P. W.
Madavo recorded in the committal Court was ordered to be brought on record.
7. The appeal was argued by Mr. Azizullah K. Shaikh, Advocate for the appellant and Mr. Suhail Muzaffar, Advocate on behalf of the State. It may be noted that Mr. Azizullah K. Shaikh frankly stated that it is a triple murder case as such dark case for the defence, hence he would make sub-- missions with regard to the reduction of the sentence only and for which he produced the law and rulings. But we propose to examine the evidence on record and then proceed to the proposition with regard to the reduction of the sentence.
8. The complainant has averred that the deceased was son of his maternal-uncle and so also the appellant Moula Bux. The deceased had two sisters by name Mst. Bezo and Mst. Rant. Mst. Mani was the wife of the deceased Khan Muhammad. The engagement had taken place of the appellant and Mst. Rant but the appellant was demanding for an early marriage. However, the early marriage could not be given effect to. The houses of the appellant and the deceased Khan Muhammad were on the land of Nawab Yousuf Talpur in Deh Liyar and were divided by only common hedge. The complainant has further averred that on the night of the incident he was sleeping in his house when Mst. Mani the wife of the deceased came hurriedly to him at about 11 or 12 o'clock night and informed him that the appellant Moula Bux has killed Khan Muhammad with a country-made pistol and was giving hatchet injuries to Mst. Rant, Mst. Bezo and Mst. Mullan. She however stated that she had slipped from the venue to inform him He accordingly rushed to the house of. Khan Muhammad and saw that P. W. Mitho was standing inside the house and some Kolhies including Moti were standing outside the house. He saw Mst. Rant, Me. Mu11an and Khan Muhammad lying dead while Mst. Bezo was injured. The deceased Khan Muhammad had fife-arm injury while the remaining deceased and the injured Bezo had hatchet injuries on their persons. The hatchet was stuck in the person of deceased Whist. Mullan and the same could not be extracted by the appellant. Lot of blood was under the dead bodies and the injured. He accordingly went to Police Station where he filed the F. I. R. Exh. 8-A.
9. Thus we see that the witnesses who were attracted to the scene of offence ate the time of incident were Moti, Mangho by caste Kolhies and one Nitho. Among the survivors were Mst. Mani and Mst. Bezo. Mst. Bezo was examined and her evidence appears at Exh.
17. She has actually seen and identified the appellant Moula Bux at the time of incident. The deceased Mst. Mullan was the mother of Mst. Bezo while the deceased Khan Muhammad was her brother. Mould Bux the appellant was his cousin. She describes the incident and says that she, her sister Mst. Rant, her mother Mst. Mullan, her brother Khan Muhammad, and his wife Mst. Mani slept in the same house.
The deceased Mst. Rant and Mst. Mullan were sleeping on the same cot while she was sleeping on the other cot in the courtyard. The deceased Khan Muhammad and her wife Mst. Mani were sleeping on the different cots under the shade. Suddenly at mid-night time she woke up on fire- arm shot. She saw the appellant Moula Bux firing from his country made pistol which had hit Khan Muhammad. After firing the shot he kept the country-made pistol in the folds of his loincloth and used hatchet and injured Mst. Rant. Mst. Bezo rushed to save her sister whereupon the appellant inflicted hatchet injuries, on her hands and elbow. At that time Mst. Mullan also rushed to rescue but she was injured to death. The hatchet of the appellant was stuck in the injury caused to Mst.
Mullan her mother. The appellant could not extract the hatchet from the person of Mst. Mullan. Mst.
Mani wife of deceased Khan Muhammad had gone out of the house seeing this havoc and had informed the complainant Muhammad Siddik. P. Ws. Mitho, Moti and Magho Kolhies were attracted towards the scene of offence. When Muhammad Siddik the complainant came to Wardat he was told that Moula Bux has inflicted injuries to the injured and the deceased persons. The eye- witnesses list Mani supports the statement of Mst. Bezo.
10. These witnesses are the most important Witnesses and they are the inmates of the house excepting Muhammad Siddik complainant who is the maternal-uncle of the deceased Khan Muhammad. The incident took place at night time but the identity of the assailant is established by the very near and dear witnesses, such as Mst. Bezo and Ma. Mani. During the time of the delivery of blows there could not be any mistake as to the identity of the assailant. Mst. Bezo had intervened and tried to rescue the victims and in the meantime she had, though it was dark, identified that the assailant was none else but her cousin Moula Bux the next door neighbour. We have given anxious thought to this aspect- of the case as to whether the identity of the assailant could be established by the witnesses and whether the witnesses could be relied upon in this respect. We consider the evidence of Alst. Mani and Mst. Bezo to be reliable and come to the conclusion -that it was none else but the present appellant who had caused the death of the three persons and had caused injury to Mst. Bezo. Remaining witnesses such as P. W. Mitho was given up by the prosecution and the two Kolhies were not available and the evidence of one Madavo recorded in the Committal Court is brought on record.
11. Since the learned counsel for the appellant has only prayed for the reduction of the sentence we now advert to the point whether the sentence could be reduced to that of life imprisonment. It was argued by the learned counsel for the appellant that the case was completed in the year 1.982 by a judgment delivered on 28-4-1982. The incident took place on 21-6-1973 and for more than nine years appellant faced the trial and it was long and tortuous trial as such. In a case reported in PLD 1964 W. P. Kar. 530 the sentence was reduced because three years had passed before the appellant was convicted. Similarly in a case reported in PLD 1960 SC 286 in the case of Fateh Muhammad v. Bago the sentence was reduced to that of life imprisonment as 3J years had elapsed since the commission of the offence. We are also referred to PLD 1961 Lah. 333 wherein the sentence was reduced from death to that of transportation for .The life because for 5 years the trial protracted with regard to one incident. We would rather quote the following passage from this ruling :- "The occurrence took place about 5 years ago and the disposal of the case against the appellants has been delayed for no fault of theirs. Moreover, the appellants had to undergo the worry of three protracted trials for one incident. In view of these circumstances, I consider that the execution of the extreme penalty from one of the appellants is not called for. Consequently, I would decline to confirm the sentence of death imposed on seven of the appellants whose sentence I would reduce to transportation for life each and would dismiss the petition for revision seeking the enhancement of sentence of three of the appellants who had been sentenced to transportation for life by the learned Trial Judge."
12. We are also referred to PLD 1959 W. P. Kar. 460. The following observations were made by their Lordships :- ---The fact that the appellant has faced a trial on a murder charge for nearly four years is a circumstance which, in our opinion, would be mitigating circumstance for considering the question of sentence.---
13. We are also referred to PLD 1.962 Quetta 111. In this case too their Lordships reduced the death sentence of the accused facing trial on a capital charge for more than five years.
14. On the other hand the learned counsel for the State has referred to us the decisions of the Supreme Court reported in 1973 SCMR 162. The relevant portions of the decision is as under :-- ---As regards the sentence, it is true that the incident took place as long as November, 1964, but the mere length of time taken in concluding the trial and in deciding the appeals filed by the appellants would not by itself constitute an extenuating circumstance justifying the imposition of the lesser penalty. The appellants acted in a cruel and cold-blooded manner by allowing themselves to be hired as assassins. They do not deserve any leniency in the matter of punishment. I would, therefore, maintain their sentences, and dismiss both the appeals.---
15. We respectfully submit to this superior authority wherein the delay in the trial was not considered to be the mitigating circumstance. The distingu--ishing feature in the facts dealt by his Lordship Justice Anwarul Haq in the said decision of the Supreme Court is that the appellants were hired assassins who perpetrated the crime in a cold-blooded manner.
16. However there is mitigating circumstance in the present case before us that the crime is committed due to family dispute on the marriage of the; girl betrothed to the appellant. The appellant felt that his respect and honour is injured, and this provoked him resort to the violence. It is essentially was the family dispute in which the refusal to any early marriage infuriatedthe appellant and he seems to have lost the balance of his mind. The facts which surround the present crime suggest that the appellant had actually lost the balance of his mind and we consider this as mitigating circumstance towards the reduction of the sentence. The appellant belongs to a tribe of Brohis who are vulnerable to those impulses which tend to injure their peculiar ideas of respect and honour.
17. After having anxiously considered the relevant law and the; extenuating circumstances of family dispute and-honour we reduce the sentence e of the appellant to that of life, imprisonment.
Excepting for this modification the appeal is dismissed and the sentence under section 307, P. P. C.
Is also maintained.
18. The benefit, however, under section, 382-B, Cr. P C. Be given to the appellant to which he is entitled, verifying the record, the period that he remained in custody as under-trial prisoner.