ALI NAWAZ BUDHANI, J----The appellant Nawaz Ali son of Manthar Leghari was sentenced to death under section 302, P. P. C. By the learned Additional Sessions Judge, Hyderabad on 14th January, 1982. This is an appeal against said judgment and also reference made by the trial Court for confirming the sentence.
2. The facts which give rise to the instant appeal emanate from the F. I. R. Filed by one Wali Muhammad on 10th December, 1977 at Police Station, Hala at about 9-3 p. m. It is necessary to reproduce the transla--tion of the F. I. R. As registered at the Police Station, Hala :- "Complaint is that I have got my hotel at village Saeed Khan Leghari. Today I was available at my hotel. Master Dheeran son of Mirir and Zamir Hussain on pf Ghulam Shabir Leghari and other persons were sitting at the hotel. At about 7-30 p. m. My "Masat Yar Muhammad son of Soonharo Leghari was coming from the street of the village and when he reached in front of the hotel of Hussain Bux Leghari, Nawaz Ali son of Manthar Leghari gave him hatchet blow with sharp side from behind over his head. He also gave 2nd hatchet with blunt side which hit Yar Muhammad over his chest. We raised "hakals" and I, Master Dheeran and Zamir Hussain went running there. After seeing us coming accused went away alongwith hatchet. We saw that Yar Muhammad had an injury of sharp side of hatchet on the back side of his head and was bleeding and he had also injury of the blunt side of hatchet over his chest and was lying on the ground and was unconscious. I have brought the injured Yar Muhammad at police station for the purpose of lodging F. I. R."
3. A. S. I. Ali Bux registered the F. I. R. At 9-30 a. m. And took up the investigation of the case. He prepared Mashirnama of injuries and sent the injured to the hospital for medical examination at Hala. The Mashir--nama of injuries is at Exh. 11-A. On the next day he sent the injured Yar Muhammad to Civil Hospital, Hyderabad for further treatment. The injured Yar Muhammad was unconscious. In the hospital the clothes of inured were secured and were sealed against Mashirnama Exh. 11-B. On the next day morning namely 11th December, 1977 the ---Sarzamin--- was inspected. The Mashirnama of ---Sarzamin--- is at Exh. 11-C. The blood-stained earth was secured and scaled at the wardat. A Sindhi cap was produced by Zamir Hussain P. W. Belonging to the injured which had fallen due to the impact of blow, and the same was secured and sealed as indicated in Mashirnama Exh. 11-D. The Investigating Officer further found that there was electricity bulb in the shops of Ali Muhammad and Wali Muhammad and in the otak Umedali. He made inquiries from P. Ws. Dur Muhammad, Master Deehran, Zamir Hussain and Jaffar. He also recorded statements of shopkeepers Hussain Bux, Hyder and Ghulam Muhammad. On 12th December, 1977 P.
W. Manthar who is Zamindar of the appellant produced, at wardat, the appellant alongwith the hatchet. The hatchet was blood-stained and was secured and sealed as against Mashirnama Exh.
I I-E. On 13th December, 1977 the Investigating Officer handed over the papers to S. H. O. On 22nd December, 1977 he got the statements of Zamir Hussain, Master Deehran, Manthar, Allah Warayo and Muhammad Murid recorded under section,164, Cr. P. C. Before Mukhtiarkar, Hala. He sent the blood-stained articles to the Chemical Examiner whose report is positive and is at Exh. 14-A.
Subsequently the appellant/accused was challaned.
4. The injured was referred to the Medical Officer, Hala. He found two injuries on the person of injured Yar Muhammad and they are as follows :- (i)Incised wound 3 --" x 6" x fracture of bone "D" on the right fronto and criteter.
(ii)Abrasion I" x 1/3" on the right side of chest anteriorly.
The injured was examined at 9-15 p. m. The first injury was caused by sharp-cutting weapon such as sharp side of the hatchet and second by blunt weapon such as lathi or back side of the hatchet.
The injured was referred to Civil Hospital, Hyderabad on 11th December, 1977 and was received at the hospital at 12-40 p. m. He expired in the ward of the hospital at 12-30 a. m. On 12th December, 1977.Post-mortem was held by Dr. Muhammad Siddique from 9 a. m. To 11 a. m. On 12th December, 1977. On external examination he found the following injuries :- (i)A stitched wound about 5" in length on the right pripto occipi--tal region oblique in direction.
(ii) Abrasion 1--" x 4" on the front of the chest right side just 2" below the right nipple (brownish in colour).
The injury No. 2 was caused by blunt weapon such as lathi or back side of the hatchet and the first injury since it was stitched, its nature could not be known. The death was caused due to shock and haemorrhage due to the head injury which was sufficient in ordinary course of nature to cause death.
5. The prosecution relied on the testimony of P. W. Wali Muhammad Exh. 6, P. W. Master Deehran Exh. 7, P. W. Zamir Hussain Exh. 8, P. W. Manthar Exh. 9, Dr. Lal Muhammad Exh.
10. P. W. Murid Mashir Exh. 11, P. W. Haji Ibrahim, Tapedar Exh. 12, Investigating Officer Ali Bux Exh. 14 and lastly Dr. Muhammad Siddique Exh.
15. The appellant in his statement recorded under section 342, Cr. P. C.
Stated that he is falsely implicated and he examined D. Ws. Gohar Rehman and Sain Bux.
6. The arguments of Mr. Muhammad Hayat Junejo, counsel for the appellant and the arguments of the counsel for the State were heard at length. There are four pieces of evidence against the appellant. Firstly there is ocular testimony of witnesses Wali Muhammad, Master Deehran Khan and Zamir Hussain. The second piece of evidence is extra-judicial confession made by appellant before P. W. Manthar, thirdly the produc--tion of blood-stained hatchet by the appellant through P. W.
Manthar and lastly the motive.
7. We shall deal with the ocular testimony in the first instance. Complainant Wali Muhammad is related to the deceased Yar Muhammad who was his `Masat'. Appellant Nawaz Ali resided in the same village. On the date of the incident Wali Muhammad was sitting in his hotel along--with Deehran Khan and Zamir Hussain. It was about 7-30 p. m. On the date of the incident namely 10th December, 1977 when they found Yar Muhammad coming from village side going towards his house. When the deceased Yar Muhammad arrived in front of hotel of Hussain Bux Leghari appellant Nawaz Ali approached him from the back, and gave him hatchet blows on his head and chest. The three witnesses rushed to the scene of offence and on seeing them the appellant ran away with his hatchet in his hand. The deceased Yar Muhammad had fallen on the ground and became unconscious. Thereafter the injured was taken in a 'Tonga' to the Police Station, Hala which is at a distance of 7 miles. The injured was first examined by the Medical Officer, Hala and initial treatment was given to him. On the next day the injured was sent to Civil Hospital at Hyderabad. On the next day i.e. On 12th December, 1977 at about 12-40 a. m. He died.
3. Master Deehran Khan Exh. 7 supports the complainant Wali Muhammad and his evidence is same as that of Wali Muhammad and he says that they had all rushed to the spot and on seeing them the appellant/ accused took to heels. The `Topi' of the deceased had fallen down on the around and P. W. Zamir Hussain had taken up that 'Topi'. P. W. Zamir Hussain also supports the evidence of other two witnesses Wali Muhammad and Master Deehran Khan in all the particulars.
All these three witnesses have further deposed that they had heard that the appellant had suspicion on the deceased of his having illicit relationship with his 'Bbarjai' Mst. Amirzadi.
9. The testimony of Mashir of wardat by name Murid Exh. 11 is important. Wardat was situated in front of hotel of one Hussain Bux Leghari and the same is about 85/86 feet from the hotel of Wali Muhammad complainant. The shop of Ali Muhammad was at a distance of 5/6 paces from wardat. There was an electric bulb at the shop of P. W. Ali Muhammad and the ---Otak--- of Umed Ali. The light of electric bulbs reached the wardat and it was visible from the hotel of Wali Muhammad. There is a door of the shop of one Hyder at a distance of 6 paces away from the wardat towards the South-East corner having electric bulb in the light of which one could easily reach the wardat. . Exh. I 1-C Mashirnama of wardat and the evidence of Mashir Murid is significant, so far as street lights and the visibility is concerned.
10. The ocular testimony of aforesaid three witnesses as well as the testimony of Mashir Murid is criticised and attacked by the learned counsel for the appellant. The complainant Wali Muhammad is 'masat' of the deceased while Deebran Khan and Zamir Hussain are both not related to the deceased. Learned counsel has argued that the incident took place at 7-30 p. m. On 10-12-1977 i.e. In the month of December and at the relevant time it was sufficiently dark. Sun had set at least one hour before the time of the incident. Therefore, it is not possible for the three eye- witnesses, who were sitting at the hotel of Wali Muhammad at a distance of about 85/86 feets from the wardat, to see clearly the assailant. The evidence of Mashir of wardat Murid shows that electric bulbs were affixed in the shop of Ali Muhammad which is at a distance of 6 paces from the wardat and in the ---Otak--- of Umed Ali at a short distance. It is clearly mentioned that the light of the electric bulbs could reach the wardat and the witnesses who had rushed to the wardat could, in the light of electric bulbs, easily see and identify the appellant: The arguments of the learned counsel hence have no force in view of the existence of electric lights, evidenced by the Mashir. The incident has been taken place in a village and there can be no mistake as to the identity of the assailant. Besides after the sunset not much of the time had elapsed and there still would be twilight which would facilitate the identity of the assailant. The main circumstance in this respect appears to be that the witnesses had rushed to the wardat and on seeing them the assailant had taken to heels. The witnesses must have travelled for a considerable distance so that the electric light facilitated them to identify the assailant. The two witnesses Deehran Khan and Zamir Hussain are independent witnesses and are not related to the deceased. We have given considerable thought to this aspect of the case and have come to the conclusion that the assailant was identified in the electric light and that the eye-witnesses are truthful in their testimony.
11. Now we advert to the evidence of P. W. Manthar before whom appellant happened to have confessed and had produced the blood-stained hatchet. P. W. Manthar at Exh. 9 testifies that the appellant was his ---hari---. He avers that he (Manthar) is the resident of the same village in which the incident took place and immediately after the incident he had come to the wardat and learnt from the people about the incident.On 12-12-1977 at 9 a. m. While be was sitting in his the case of Mukhtiar v. State. In this case capital sentence was reduced to life imprisonment because the motive was weak. The second aspect of the case is that family honour had enraged the appellant to commit the crime, as the honour of Bharjai, was believed to be at stake. In cases of family honour touching the females of the family, the sentences were reduced from capital punishment to the lesser one. We are referred to 1974 SCMR 485. The accused was a young man aged about 25 years at the time of incident. We are of the opinion that the lesser punishment would meet the ends of justice. We, therefore, maintain conviction under section 302, P. P. C. And reduce sentence to life imprisonment. The Reference made for the confirmation of the death sentence is hereby rejected.
18. The benefit available to the appellant under section 382-B, Cr. P. C. Be also given to the appellant after verifying the period as under-trial prisoner.