1. This is an appeal on behalf of Laung Khaskhelli who was tried and convicted by the Additional Sessions Judge, Sanghar under section 302, P. P. C. And sentenced to imprisonment of life and also to pay fine of Rs, 2,000 in default to undergo R. I. For one year more. The fine if realized be paid to heirs of deceased.
2. Briefly stated the facts of the prosecution case are that on 28th May, 1975 A. K. K. (hereinafter referred to as complainant) and his father-in-law Murad were returning from their fields to their village when at about 6-00 p, m. They reached near "11000 Bridge on Tando Adam Canal Branch" they saw Laung Khaskhelli sister's son of complainant with hatchet and deceased Yousuf brother of A. K. K. With bundle of grass going towards the village. It is further alleged that when they reached at the distance of 2 Acres, behind deceased Yousuf, they saw that Laung was giving hatchet blows to Yousuf, who fell down with the bundle of grass. On cries can-le Khamiso who was standing in his lands. They tried to capture the accused but he threw dead body of Yousuf in adjoining canal and ran away. Complainant Murad and Khamiso took out the dead body of Yousuf from Tando Adam Branch (Canal). A. K. K. Went and informed his Nekmurd Arab and others. Arab came and saw the dead body and made enquiries from Murad and Khamiso. He directed A. K. K. To lodge report, who went at Police Station, Tando Adam where his report was registered on 29th May, 1975 at 2.15 a. m.
3. (night).
4. The motive as disclosed in F. I. R. Is that accused Laung (hereinafter referred to as appellant) had illicit relations with Mst. Fatima wife of deceased Yousuf. He committed murder because he felt that after the death of her husband the appellant will have free access to her.
5. S. I. P. Umeruddin after recording F. I. R. Proceeded to wardat from where he secured blood-stained earth, dry grass and prepared such mashirnama. He sent dead body of Yousuf to Medical Officer for postmortem and recorded statement of witnesses Murad, Khamiso, Arab, Ahmed. Sodho and Mst. Khatoon. On same day i,e,, 29th May, 1975 the S. H.O. Secured trouses from appellant having marks like blood, and then appellant voluntarily produced blood-stained hatchet. The case was challaned.
6. The appellant in his statement before trial Court denied all allegations and stated. That prosecution witnesses are deposing falsely against him as there was matrimonial dispute with A. K.
7. K. And that Mst. Fatima was remarried to Warayo brother of deceased. He has further mentioned in his statement that he had gone to attend marriage of Soomar his brother-in-law near Kang Pat Ji Mori where he was arrested.
8. Appellant has examined Allah Rakhio Khaskelli Exh. 27 in his defence, At the trial prosecution examined complainant A. K. K. Exh. 4, Murad Exh. 6 and Khamiso Exh. 7 as eye-witnesses. The prosecution also examined Arab Exh. 8 who was informed about the incident and came at wardat and made enquiries from the witnesses. Mashir Imam Bux Exh. 12 in whose presence appellant was arrested, the trouser was secured and bloodstained hatchet was produced. The prosecution also examined Mashir Allah Bachyo Exh. 9, S. I. P. Haji Sarwar Khan Exh. 15 who produced Chemical Examiner's report, P.C. Ghulam Nabi, corpse-bearer Exh. 18, Muhammad Hussain Tapedar Exh. 19 and S. I. P. Umeruddin Exh. 17 who investigated the case. The statement of Dr. Zulfiqar Shah recorded before committal Court was brought on record as Exh. 22 and post- mortem notes as Exh. 23.
9. Before I proceed to examine the evidence of witnesses, it is necessary to state that appellant and witnesses including deceased are closely related to the extent that deceased Yousuf and complainant A. A. K. Are maternal-uncle of appellant Laung. P. W. Murad is father-in-law and maternal-uncle of complainant, P. W. Khamiso is cousin so Mashirs Imam Bux and P. W. Arab are also related to complainant as well as to appellant. There is no recorded enmity between the parties.
10. On behalf of appellant Mr. Muhammad Ali Shaikh the learned counsel has raised the following contentions :-
(I) That the ocular evidence is not reliable and sufficient for sustaining the conviction inasmuch as there is admitted enmity between the parties and all the alleged eye-witnesses are interested persons.,
(2) That recovery of weapon cannot be relied upon as mashirs are also interested.
(3) That there is no independent corroboration.
11. Mr. Murtaza Hussain the learned counsel appearing on behalf of the State contended that witnesses have fully supported and there is sufficient corroboration to ocular testimony. He has further submitted that there is no enmity between the appellant and witnesses, therefore, no reason to discard the evidence. He has fully supported the judgment of conviction.
12. The evidence of the three eye-witnesses A. K. K. Murad and Khamis is categorical and definite. They have stated that they saw appellant giving hatchet blows to deceased and within their sight body of deceased Yousuf was thrown in the canal from where they took out and then A:K.K. Went and brought Arab. All the three eye-witnesses are unanimous that at the time of incident deceased was carrying bundle of grass. They have also stated that appellant Laung had illicit relations with Mst. Fatim wife of deceased Yousuf and he wanted to marry her therefore, murder of Yousuf was committed. It is also in evidence that Laung/appellant I sister's son of deceased. They have further deposed that no other persons witnessed the incident. They have been cross-examined at length but thei testimony could not be shaken nor any previous enmity has been proved.
13. Dr. Zulfiqar Ali Shah Exh. 22 found the following injuries on the person of deceased Yousuf "(1) Amputation of left hand at palm.
(2) Incised wovnd 4" x 3 x muscle deep on the right side of neck. Vessels cut.
(3) Incised wound 4"x 3' into muscles deep on the left mandible.
(4) Incised wound 3" x l' on the left wrist.
(5) Incised wound 4" x 1" into bone deep on the left occipital parietal region.
(6) Incised wound 6" x 2" cutting right little finger.
(7) Incised wound 2" x i" into scalp deep on the right ring finger.
(8) Incised wound 2" x 1" into scalp deep on middle right finger."
14. P. W. Arab Exh. 8 has supported the case and stated that complainant came to his house and informed that Laung has murdered Yousuf and he went to wardat and made enquiries from eye- witnesses Murad and Khamiso. He directed A.A.K. To lodge report. Appellant has not suggested any enmity with this witness. Mashir Allah Bachayo Exh. 9 has stated that dry grass and blood-stained earth was secured from wardat. Mashir Imam Bux Exh. 12 deposed that in his presence appellant was arrested and then he voluntarily produced blood-stained hatchet. He has fully supported mashirnama. The report of Chemical Examiner Exh. 16, shows that human blood was found on the hatchet and earth.
15. Summing up the ocular evidence I am of the view that this evidence is true. The evidence of eye- witnesses is also corroborated by the evidence of Arab. The medical report also supports the ocular testimony in toto and even to the extent that clothes of deceased were scared with mud which indicated that dead body was thrown in water. According to eyewitnesses the deceased was carrying grass at the time of his murder. According to mashirnama and evidence of mashir and S.H.O. The dry grass was found at the wardat. Therefore, the evidence of eye-witnesses is convincing. They are natural and true eye-witnesses.
16. Coming to the evidence of recovery of hatchet. The weapon was recovered on the same day and immediately after the arrest of appellant. The Mashir Imam Bux and S. I. P. Umeruddin have fully supported the recovery. Moreover, the report of chemical examiner is in positive.
17. On the point of motive complainant who is maternal uncle of appellant has stated that Laung had illicit relations with Mst. Fatima wife of deceased and he murdered deceased so that he marry with his wife or enjoy freely. The other witnesses have corroborated his version. In my view no maternal- uncle will falsely accuse his sister's son and disgress the D family honour. Therefore, I have no hesitation in accepting the evidence of witnesses that appellant had intimacy with his maternal- uncle's wife (aunty) and wanted to do way with deceased.
18. Apart altogether from the above position there seems to be no enmity between the parties. I do not consider few suggestions about dispute over matrimonial affairs sufficient to hold that there was enmity for which appellant has been involved falsely by his own near relations in a murder case.
19. In regard to the contentions of Mr. Muhammad Ali Shaikh the learned counsel for the appellant that evidence of witnesses who are closely related to deceased be ignored and discarded, I am of the view that their evidence can be taken into consideration and on this point I refer the following cases where convictions have been maintained and reliable evidence of closely related eye- witnesses have been believed. In a case Muhammad v. The State it has been held by the Honourable Judges that : "No doubt both the eye-witnesses are related to the deceased. Mr. Alam P. W. 1 being the real brother and Muhammad Amin P. W. 2, being a distant relative. But they are both natural witnesses.
20. The incident has taken place in front of the shop of Mir Alam P. W. While Muhammad Amin who lives in the same village had gone to enquire about the health of the mother of Amir Alam P. W.
21. Which is not improbable.
22. It was day time incident there was no possibility of mistake in identification of the assaillant.
23. Muhammad assaillant is the only person named as accused in this case and as is well-known1 substitution is a matter of rare occurrence.
24. Having gone through the statements of the two eye-witnesses we feel they are consistent and there is no serious contradiction in their testimony, in the absence of any motive on their part to involve the appellant falsely in this case. We feel that in the circumstances of the case, their testimony could be relied upon even without any corroboration."
25. Honourable Judges of Supreme Court in a case Muhammad Afzal v. The State have observed that where single person has been named as the accused it is well-known that sustitution is a matter of rare occurrence and that when there is no enmity between the eye-witnesses and the appellant there is no reason to falsely involve the appellant in such a serious case in place of the real culprit and 1982 SCM R 1028 it has been held "conviction could be based on the evidence of one truthful witness closely related to the accused at well as the deceased.
26. High Courts have also maintained the conviction in the identical cases reported in 1982 P Cr. L J 159, where evidence of brother of appellant and a nephew was accepted and held that conviction could be based on the bare testimony of the eye-witnesses and also I refer cases, Gaza v. The State Muhammad Bux v. The State and Muhammad Latif v. The State where testimony of witness related to complainant and deceased was accepted.
27. In the present case the ocular account affords full confidence and also stands corroborated by medical evidence recovery of blood-stained hatchet and motive.
28. In view of the above discussion, I feel that the evidence brought on the record by the prosecution is sufficient to establish the guilt of the appellant beyond reasonable doubt. I accordingly maintain the conviction and sentence recorded under section 302, P.P.C. By the learned Additional Sessions Judge, Sanghar. In the result this appeal is dismissed.
29. The appellant who is on bail shall be taken into custody to serve out the sentence.
30. Appellant has remained in custody as under-trial prisoner and also after conviction till he was granted bail by this Court by order, dated 29th December, 1980, therefore, I direct that the Superintendent Jail shall compute the period that the appellant had remained in custody as he is given benefit as provided under section 382-B, Cr. P C. 1982 SCM R 122 1982 SCM R 223 1982 P Cr. L J 179 1982 P Cr. L J 443 1982 B Cr. L J 862