1. ' MUNAWAR ALI KHAN, J.-The appellant Ishaque and co-accused Dino, both Mirbahars by caste, were tried for the murder of Mst. Azizan, daughter of Allah Rakhio and sister of the appellant's wife.
2. By his judgment dated 46=8-1984, the learned Sessions Judge, Thatta convicted the appellant under section 302, P. P. C. And awarded him death penalty and sentence of fine of Rs, 5,000 or in default R. I. For two years. However, co-accused Dino was acquitted. By the learned trial Judge by the same judgment. The appellant has preferred appeal from his conviction and sentence. The learned Sessions Judge has also referred the case to this Court for confirmation of the death sentence. This judgment will dispose of both the appeals and the reference.
3. As disclosed in the F. I. R. Lodged by complainant, Loung on 14-4-1981 at 9 a.m., the prosecution case is that Allah Rakhio, father-in-law of the complainant had promised to give his daughter, Mst.
4. Azizan in marriage to Rajib, his relative. All the necessary arrangements were made for their marriage which was scheduled to take place on 15th of the lunar month. However, the appellant who is also son-in-law of Allah Rakhio had pressed the latter to get Mst. Azizan married with co- accused Dino, the appellant's maternal uncle. On his refusal to accede to such demand both the appellant and co-accused get annoyed declaring their intention to kill Mst. Azizan. The complainant party took up the matter with Uris father of the appellant Ishaque and Hassan, brother of co-accused Dino, who assured them that the accused would not misbehave. Thus, the complainant party went a head with the projected marriage of Mst. Azizan with Rajib. The complainant and his brother Saleh who is also married with Allah Rakhio's daughter had brought their families to their father-in-law's house for participating in the said marriage one day prior to the murder of the deceased. On the day of occurrence at about 7-30 a.m. The deceased Mst.
5. Azizan took a pitcher and went to fetch water from the nearby canal. After a short while she raised cries whereupon her brother Muhammad, besides complainant Loung and Saleh rushed to the Vardat. They saw appellant Ishaque dealing hatchet blows to Mst. Azizan who fell down and expired at the spot. The co accused Dino who was also present at the Vardat was found to be instigating the appellant to finish the deceased. Both the accused then fled away.
6. ' Leaving Saleh and Muhammad at the Vardat ,ro keep watch over the dead body, the complainant Loung went to the police out post Pir Patho, seven miles away from the place of occurrence and lodged F. I. R. With the police. A. S. I. Muhammad Aslam who was In charge of the police outpost made the necessary entries in the Roznamcha and sent a copy thereof to the Police Station Ghora Bari for incorporation in the book maintained under section 154, Cr. P. C. He then proceeded to 'the Vardat, where he prepared inquest report (Exh. 19) of the dead body of Mst. Azizan. He despatched the dead body to the Medical Officer, Ver for post-mortem examination. P. C. Pir Muhammad took the dead body to the hospital. The A. S. I. Took into his custody the empty jar lying at the Vardat in presence of Mashirs Jabli and Khamiso. He also secured blood-stained earth from there and sealed it in presence of the same Mashirs. He drew up Mashirnama of Vardat (Exh. 20). He made enquiries from Saleh, Muhammad, Allah Rakhio, Murid, Uris and Hassan. On the same day he arrested appellant Ishaque from his village and secured blo 'd-stained shirt from his person in presence of the aforesaid Mashirs under Mashirnama (Exh. 21). In presence of same Mashirs the appellant led the A. S. I. To Jar tries on the east of his house and procured blood-stained hatchet from the bushes and produced the same before the police. The A. S. I. Took the hatchet into his custody and sealed it under Mashirnama (Exh. 22). Thereafter, he arrested co-accused Dino. He then handed over the case papers to the S. H. O. Fateh Ali Shah who sent sealed parcels of blood- stained shirt, hatchet and earth to the Chemical Examiner for his opinion. The Chemical Report received from the Expert is positive. The S. H. O. After completing the remaining investigation, challaned the accused in Court of law.
7. ' Dr. Bashir Ahmed (P. W. 7) who was Medical Officer incharge of Government Dispensary. Ver on the relevant day conducted the post mortem examination of the dead body of Mst. Azizan. He discovered following surface injuries on her person :
(1) Incised wound 9.5 c.Ms. x 2 c.Ms. x cutting the scalp, Skull bone meninges and brain matter over left front parietal region obliquely.
(2) Incised wound 5.5 c. Ms. x 1.5 c. Ms. x cutting the scalp, skull, meninges and brain matter over left temporo occipital region.
(3) Incised wound 6.5 c.Ms. x 1.5 c.Ms. x cutting the scalp, skull bone, and brain matter over left occipital region. The wound was continuous with Injury No, 2 and the brain matter which was stained with blood was projecting out of the wound.
(4) Incised wound 5 c.Ms. x 1.5 c.Ms. x 3 c.Ms. Cutting the muscles and lying vessels over left side of the neck 2 c.Ms. Below left ear obliquely.
(5) Incised wound 4 c. Ms. x C.M. X scalp deep over right occipital region.
8. ' The doctor was of the opinion that the death of the deceased was due to shock and heamorrhage resulting from the injuries found on her person. He further opined that all the injuries were ante mortem and were caused with sharp cutting weapon such as hatchet. According to the doctor all the injuries were individually as well as collectively sufficient to cause death in normal course. Thus, from the medical evidence it is established that the deceased Mst. Azizan died of the injuries found on her person. This fact has not been contested even by the accused.
9. ' The crucial point to be determined is whether the appellant had inflicted the fatal injuries to the deceased. To prove his coinplicity with the deceased's murder, the prosecution have sought to build their case on: ocular evidence, recovery of blood-stained articles, evidence of motive and judicial confession.
10. ' As for the judicial confession, it would appear that it did not find favour with the trial Court. The reasons given for exclusion of the judicial confession from consideration are reflected in the trial Court's observations which are reproduced as under :- "The confession is nothing but the reproduction of statement of accused before police which shows that Magistrate played as a tool in the hands of the police and he did not care to discharge his duties honestly and judicially but for the best reasons known to him he simply copied out the statement of the accused and did not perform the legal requirements of recording the judicial confession."
11. ' Apart from above, it was also noticed by the learned trial Judge that the Magistrate who had recorded the confession admitted in his cross-examination that the confession does not disclose that he made it clear to the accused that he would not be remanded to police custody regardless of whether he confessed to his guilt or not. The learned trial Judge also found that the Magistrate had not disclosed his identity to the accused nor had he appended the necessary certificate showing that the confession was true and voluntary.
12. ' Support of the observations made by the trial Court as reproduced above,' the learned counsel for the appellant cited the case of Ghulam Hussain v. The State (1). In which the basis for conviction of the accused
(1) PLD 1974 Kar. 91 ' was his retracted judicial confession. The accused in his statement under section 342, Cr. P. C.
13. However stated that the judicial confession was nothing but a reproduction word by word of his statement made to police. It was held : "After all if a Court comes to believe that a subsequent judicial confession is almost a verbatim reproduction of earlier confessional statement made to the police, the Court would be very reluctant to act on the judicial confession."
14. ' We have also examined the judicial confession in the light of the above criticism which, in our opinion is not without substance. We would like to add that some very important links in respect of the incident, are missing from the confession. It is silent as to presence of eye-witnesses at the time of occurrence. It also does not show if blood-stained shirt and hatchet were secured from the appellant. Accordingly we are satisfied that the judicial confession has been rightly discarded.
15. ' After ruling the judicial confession out of consideration the other evidence worthy of attention is the ocular evidence. The complainant Loung (P. W. 1) Muhammad (P. W. 2) and Saleh Muhammad (P. W. 3) claim to be eye-witnesses of the occurrence. According to them they were sitting in the house of Allah Rakhio at the time of occurrence when Mst. Azizan went to fetch water from the nearby Naseerwah. They have been consistent in stating that after a short while from her departure they heard cries of Mst. Azizan whereupon they rushed towards cries and saw that appellant Ishaque was giving hatchet blows to her and co-accused Dino was instigating him not to spare the deceased. After the accused decamped they found Mst. Azizan having died of the injuries she had received. According to them Saleh and Muhammad stayed back at the dead body and Loung went to lodge report with police.
16. ' The learned counsel for the appellant launched a severe attack on the evidence of the above eye-witnesses contending that their evidence is completely unreliable. He submitted that apart from the fact that they are chance witnesses, their evidence does not inspire confidence for the additional reason of being interested and discrepant. He further submitted that it has already been disbelieved by the trial Court in respect of co-accused Dino. Therefore, according to him, it cannot be acted upon for convicting the appellant in absence of reliable corroborative evidence which is not forthcoming. It goes without saying that all the three eyewitnesses are not only related inter se but are also closely related to the deceased Mst. Azizan. The complainant Loung and his brother Saleh are admittedly married with sisters of the deceased and Muhammad is the latter's brother.
17. However, it is a settled law that mere relationship of witness with the victim of the crime is no ground to discredit his B testimony. In this connection the contention of the learned counsel for the appellant was that it is the prosecution's own case that ever since Allah Rakhio refused to give the deceased in marriage to co-accused Dino, as was demanded by the appellant, the relations between the parties were far from satisfactory and both the appellant and the co-accused had even declared their 'intention to take the life of the deceased. In view of such animosity between the parties, the learned counsel urged, no implicit reliance can be placed on the uncorroborated word of the above eye witnesses. In support of his view point, the learned counsel placed reliance on following three authorities :
(1) Mangio v. The State 1976 P Cr. L J 243.
(2) Lashkari and 4 others v. The State PLD 1981 Kar.
18. 1.
(3) Muhammad Azam and another v. The State PLD 1983 SC 193.
19. ' In the first case of Mangio, D. B. Of this Court took the view that if eye-witnesses are closely related to the deceased, the testimony of such witnesses cannot be explicitly relied upon without independent corroboration ' In the second case of Lashkari, it was held by D. B. Of this Court : "It would thus be seen that three eye-witnesses are deeply interested and inimical to the appellants Lashkari, Guloo and Murad Ali. The rule in regard to corroboration of the evidence of the interested and inimical witnesses, although a rule of prudence has virtually ripened into a rule of law. The Supreme Court has, on numerous occasions stated the rule and cautioned against acceptance of such testimony without corroboration for the reason that false implication is not very rate in this country."
20. ' In the third case of Muhammad Azam, two eye-witnesses were closely related to the deceased and were inimical towards the accused. The third witness was evidently stock witness. It was held : "As such before it can be relied upon, the testimony of these three witnesses would require independent corroboration which is not forthcoming from the record of this case."
21. The rule laid down in the above cases is so prominent, that it need not be re-emphasized. But the factual position obtaining in the instant case being different, the strict application of the said rule is not attracted. / In the case in hand the eye-witnesses are not only related to the deceased C but are equally closely related to the accused. Like P. Ws. Loung and Saleh, the appellant is also married with daughter of Allah Rakhio. Therefore, P. W. Muhammad is appellant's brother-in-law and other two eye-witnesses are husbands of his wife's sisters. The witnesses with such;2 close ties with the accused cannot be expected to involve him in falsely murder charge entailing death penalty. Conversely it is quite possible that the witnesses bearing such close relationship with the accused would spare no effort to save him even from a true charge and if need be, would go to the extent of even perjuring themselves for his sake. Thus, when close relatives figure as witnesses against the aroused, their evidence cannot be lightly dismissed unless motive of exceptional nature is attributed to them for false implication of the accused. The question is whether the motive attributed to the eye-witnesses is so strong that they would not hesitate even to send the accused to gallows.
22. As stated above the appellant and co-accused Dino were annoyed on Allah Rakhio's refusal to give the hand of his deceased daughter Mst. Azizan in marriage to co-accused Dino. They had even vowed to exterminate the said deceased girl. If this was the motive, it was obviously the motive for the accused to avenge the insult and humiliation they had suffered in the wake of Allah Rakhio's refusal. It was certainly not the motive for witnesses to have falsely implicated the accused and that too in the murder case. Assuming for the sake of argument that due to Allah Rakhio's attitude, the relations between the parties had become tense. But mere tension in the parties' relations was enough to spur the witnesses to involve their closest relative in the murder charge.1 Accordingly we are convinced that the witnesses had no such reason to take extreme step of falsely implicating the accused, their close relative in the murder case. The alternative argument of the learned counsel for the appellant that the appellant has become the victim of the suspicion of the witnesses is equally unconvincing. We are unable to believe that the appellant being husband of the deceased's sister would be involved by the witnesses merely under suspicion. After all such involvement of the appellant was a question of life and death for him. As Allah Rakhio would not like to see his daughter turn widow by getting the appellant, her husband, hanged, so also the witnesses, one of whom is son and other two are sons-in-law of Allah Rakhio, would be unwilling to be party to enactment of such tragedy.
23. ' The next point to be considered is whether presence of the above eye-witnesses at the time of occurrence was beyond any reproach. The contention of the learned counsel for the appellant was that since they do not belong to the locality where the incidant occurred, their presence was doubtful. The learned counsel also stated that their evidence with regard to their presence at the Vardat, is discrepant and contradictory and, therefore, no definite conclusion could be reached on such ' evidence. The Ivlasuirnama of Vardat shows the location of the Vardat, being the bank of Naseer Wah, in Tapo Khan, Taluka Ghora Bari. According to the sketch prepared by the Tapedar, Hyder Ali (P. W. 9) the house from where the complainant Loung and other eye-witnesses were attracted was only 250 paces away from the Vardat. Thus, if the complainant and other eye- witnesses were available in the said house their presence at the Vardat at the time of the occurrence could not be doubted. So far P. W. Muhammad is concerned, he being son of Allah Rakhio and brother of deceased, Mst. Azizan was admittedly living in the aforementioned house.
24. We have, therefore, no doubt that he must have been) attracted on cries of the deceased and his presence at the Vardat at the time G of occurrence looks rather natural.
25. ' The complainant Loung as per his own admission resides 1 miles away from the village of Allah Rakhio. Similarly P. W. Saleh who is brother of complainant was working as Beldar or Seepage drain near Ver Village in the days of the incident. Since both the complainant Loung and his brother Saleh were not residents of Allah Rakhio's village, the learned counsel for the appellant thought that their position was not better than that of chance witnesses. We are not impressed by his argument.
26. We do not subscribe to the view that merely because they did not belong to the locality where the murder had taken place, their evidence must be rejected on that ground. There is no universal rule that the evidence of a chance witness should always be viewed with mistrust and rejected as unworthy of credit. In our opinion it depends upon facts and circumstances of each individual case. If the Court is convinced that the presence of a chance witness at Vardat was satisfactorily explained, it would not be justified to dismiss his evidence as incredible.
27. ' In the instant case the evidence of complainant Loung shows that he and his brother Saleh had brought their families to Allah Rakhio's house to attend the ceremony of fixation of the date of the deceased's marriage with Rajib. It further shows that after the ceremony was over they were detained by Allah Rakhio (their father-in-law) for participating in the marriage which was to take place 10-15 days after the said ceremony, According to him the deceased's murder took place on the next day of the date-fixation ceremony. This is how the complainant and his brother Saleh happened to be present at the time of the occurrence. The learned counsel for the appellant, however, pointed out that as disclosed in the F. I. R. The complainant's earlier version he and his brother Saleh had come to Allah Rakhio's house for participating in the marriage and not for fixing the date of the marriage and as such in view of the inconsistency between two versions as to the purpose of their visit to Allah Rakhio's house, it was doubtful that he and his brother were present at the time of occurrence. In order to appreciate the learned counsel's argument it would be advantageous to reproduce the language in which the complainant has expressed the purpose of his visit to Allah Rakhio's house in the F. I. R. It reads as under :- "On the fifteen Sindhi date, Mst. Azizan was got to be married with Rajab and the date was fixed and clothes and ornaments were ready for the marriage. I and my brother Saleh were also came at the house of our father-in-law with our families for this marriage."
28. ' On comparing the above statement contained in the F. I. R. With complainant's statement in Court, we do not see any inconsistency between the two statements. It is an admitted position that the F.
29. I. R. Was lodged after the date for the marriage of the deceased had been fixed. Therefore, if the complainant stated in the F. I. R. Which followed the date-fixation ceremony that ' the date was fixed and clothes and ornaments were ready and he and his brother had come alongwith their families to their father-in-law's house for this marriage", he would not be held to have said anything in conflict of his statement in Court.
30. Apart from above it could not be overlooked that the F. I. R. Was lodged with utmost promptitude. If the complainant were not available at the Vardat at the time of the occurrence, we would have seen the lodging of the F. I. R. Delayed. Therefore, the speed shown in lodging of the F. I. R. Tends to confirm the presence of the complainant at the time of occurrence. Unless he was readily available at the Vardat the F. I. R. Could not be lodged so swiftly.
31. ' The learned counsel for the appellant drew our attention to some contradictions appearing in the evidence of the eyd-witnesses arguing that their evidence therefore, does not provide safe basis for conviction of the appellant. For appreciating the efficacy of his argument, we think it necessary to examine the alleged contradictions. It was pointed out to us, that according to Loung the date of the deceased's marriage was fixed for 15th of the lunar month but unlike him, his brother Weft has given the date to be 20th of the lunar month. Again Loung was required by his father-in-law to stay on until the date of the marriage whereas Saleh was told to stay for only two days, although both are unanimous that the marriage was to take place within 8-10 days' time. Muhammad gives entirely different story stating that Loung and Saleh were detained only for one night. Apart from above Muhammad and Saleh are also at variance on timing of date-fixation ceremony. According to Saleh it took place at 9 p.m. Whereas Muhammad has stated that it was .Held during the day.
32. Furthermore, the evidence of the complainant shows that the appellant's wife had attended the function of date-fixation but according to Muhammad she was not present in the said function. We have given our best thought to the above discrepancies and their possible effect. In our opinion they are not so vital as to create any doubt the credibility of the said witness. In fact they look natural and are bound to occur particularly when the recording of the evidence in Court was withheld for quite some time. It would be noticed that the incident occurred on 14-4-1981 whereas the statements of all the three eye-witnesses/ were recorded after lapse of nearly three years, on 5-1-1984. Human memory is always short. It was quite natural that they might have forgotten certain particulars during intervening period. After all they were not expected to relate all the details connected with the incident with scientific precision. We are, therefore, of the view that the above inconsistencies are of no consequence and can easily be ignored. We have no doubt in our mind that the aforesaid three eye-witnesses were present at the Vardat and had witnessed the occurrence. Their evidence can be safely relied upon. Although we do not think that the ocular evidence discussed above is in the need of any corroboration, yet despite the said evidence the co-accused Dino was acquitted by the trial Court. Therefore, as a precautionary measure, if any corroboration is needed to reinforce the ocular evidence it is provided by recovery of blood- stained shirt and hatchet from the' appellant. For proving these recoveries, the prosecution have examined] Mashir Jabli (P. W. 6) and A. S. I. Muhammad Aslam (P. W. 10). According to them the appellant was arrested from his house and bloodstained shirt was secured from his person. It is also in their evidence that the appellant led the police to Jar trees near his house and from the said trees took out blood-stained hatchet, and produced the same before the police. Their evidence also shows that the blood-stained shirt and hatchet which the A. S. I. Took into his custody were properly sealed at the time of recovery. The Mashirnamas Exh. 21 and Exh. 22 authenticating L the said recoveries corroborate the evidence of the Mashir and the A. S. I. It further appears from the evidence of S. H.
0. Fateh All Shah (P. W. 8) that the above articles were later sent to the Chemical Examiner whose report (Exh. 29) discloses that the said articles were stained with human blood.
33. ' The learned counsel for the appellant assailed the evidence of recoveries as unreliable,for two reasons: firstly that the place of the accused's arrest is doubtful and secondly that the Mashir Jabli apart from being closely related to the deceased does not belong to the locality where recoveries were made. As regards the accused's arrest the learned counsel referred to the evidence of the Magistrate, Ghulam Muhammad (P. W. 5) who recorded the judicial confession and also the judicial confession (Exh. 17), to show that the arrest of the appellant Ishaque was made from Ver village and not from his own village as has been deposed to by the Mashir of the arrest and the A.
34. S. I. Who had made the arrest. We have gone through both the documents. Obviously they do not appear to support the contention of the learned defence counsel. All what the Magistrate has said is: "The time of arrest of the accused is shown as 2-00 on 14-4-1981 from village." The entries with regard to arrest made in the judicial confession are to the following effect : "and the accused to have been arrested at 2-00 p.m. On 14-4-1981 by police Sub-Inspector by police Ver Town." Thus, there is no indication either in the statement of the Magistrate or in the judicial confession that the accused was arrested from Ver village. Even if such entries were available in these documents, no reliance could be placed on them for the simple reason that judicial confession and so also the statement of the Magistrate have been excluded from consideration being worthless. Moreover, such entries could not be given an importance in preference to what the Mashir of arrest and the A.
35. S. I. Who made the arrest have said. Therefore, the argument that the place of the appellant's arrest has not been established is without any force.
36. AS for the Mashir of recoveries, there is no doubt that he resides at a distance of two miles from the place of recoveries. But that is no s reason to discard his evidence. It seems not only the place of recoveries situates in rural area but also the Mashir of recoveries hails from that area. In rural areas distance of two miles is not a big distance and therefore a man coming from such distance can be regarded as the one belong to the locality. Further, argument of the learned counsel for the appellant was that since according to the A. S. I's. Own admission several persons had collected at the Vardat; someone from amongst those persons should have been made as Mashir instead of Jabli who came from a distance of two miles. There is no evidence to show that the persons collected at Vardat lived nearer than Jabli Mashir. It seems even Jabli was from amongst those who had collected at the Vardat. Therefore, no valid objection could be taken to his being called as Mashir.
37. ' Even his relationship with the complainant's party is no ground for) doubting or disbelieving his evidence. He is admittedly brother of complainant and through him he is linked with the appellant.
38. Thus, if he is related to the complainant's party, he is equally related to the accused. As has been pointed out above, the evidence of a relative against the accused is always regarded stronger piece of evidence than the evidence of non-relative witness. Moreover, the above Mashir is not the only witness of the recoveries. The A. S. I. Too has deposed with regard to the recoveries. In the opinion of the learned counsel for the appellant, the evidence of the A. S. I. Is also not worthy of trust because the learned trial Court while rejecting the evidence of judicial confession has made some observations which reflect on the truthful character of the A. S. I. The observations as mentioned above are that : "Magistrate played as a tool in the hands of the police and he did not care to discharge his duties honestly and judicially." In the first place police does not mean necessarily the A. S. I. Who made the recoveries. Again if the Magistrate chose to play as the tool, the police was not to blame for that reason. The question is in what context the learned trial Judge has made the above observations. It seems when he found that judicial confession was word by word reproduction of the appellant's statement before police, the learned Judge made the above observations. But there is no material on record to show that the Magistrate was compelled by the police to adopt the appellant's statement before police as judicial confession. May be he followed that course on his own to facilitate his task of recording judicial confession. In any case we do not find any justification to discredit the testimony of the A. S. I. On account of the above observations of the trial Court. We are accordingly convinced that blood-stained shirt and hatchet were recovered from the accused's possession.
39. ' On the point of recovery of incriminating articles the learned counsel for the appellant has referred to the case reported as Muhammad Naseem v. The State (1), in which the recoveries were attested by the relations of the deceased, although disinterested witnesses from the locality could be produced. The High Court agreed with the trial Court that the recoveries were not reliable.
40. In the instant case the Mashir of recoveries is no doubt related to the deceased but he is equally related to the accused. Therefore, the S above reported case being distinguishable is not applicable in the case under examination.
41. ' Another case on the same point relied upon by the learned counsel is of Mangio which has been referred to in the earlier part of this judgment. In that case the recovery of the crime weapon was not witnessed by respectable inhabitants of the locality and, therefore, the recovery was excluded from consideration. The authority laid down in the said case is also not attracted in the instant case because as has been held above the Mashir Jabli in whose presence the recoveries were made' cannot be regarded as a person not belonging to the locality. Moreover, This respectability is not in dispute. He is also related to the accused and! For that reason his evidence has greater force.
42. As stated above -the chemical report lends support to the evidence of the recoveries inasmuch as that the article recovered from the accused U were stained with human blood. However, in the eyes of the learned counsel for the appellant the said report is devoid of any evidentiary value. His objection is based on the ground that the blood-stained articles in question were sent to the chemical examiner after a great deal of delay and, therefore, whatever value the report carried had disappeared on that account. In this connection he placed reliance on the unreported judgment in the case of Faiz Muhammad and another v. The State (Criminal Appeal No, 111 of 1984) of this Court, decided on 26-3-1985 in which the unexplained delay of one month and eleven days in sending parcels to the Ballistic Expert was held as not free from doubt. In the said case the Investigating Officer was however confronted with the delay, but he was unable to explain as to why the delay had occurred in sending the articles to the expert. The delay in sending the sealed parcels for the expert's opinion came up for consideration of the Supreme Court in the case of Sikandar and 2 others v. The State (2), wherein it was held :- "As in the case of Noor Alam PLD 1978 SC 137, the evidence in the present case is that the articles found stained with blood were secured under a proper Mashirnama and properly sealed and there was not even a suggestion of any tampering. The Investigating Officer was also not cross- examined as to the delay in sending the parcels to the Chemical Examiner. The High Court was, therefore, not in error in relying on the recoveries as corroboration of the ocular evidence.'
43. ' In another case of Mabarak v. The State (3), the honourable Supreme Court observed as follows :- "Mere delay in sending the crime empty and the weapon for comparison to the Ballistic Expert cannot by itself imply that the recovery is doubtful. This inference can follow only after examining all the attendant circumstances, such as whether any
(1) 1981 P Cr. L J 1292 (2) PLD 1981 SC 477
(3) 1982 SCM R 531 ' doubt existed about the recovery of crime empty from the spot; whether any suspicion arose that it had been substituted, etc."
44. It is clear from the above authorities that when no question has been put to the Investigating Officer affording him an opportunity to explain the delay, the delay has no fatal effect. In the instant case, no v question was asked from the Investigating Officer about the delay. Therefore, we are of the view that the exception taken by the learned counsel for the appellant as to evidentiary value of the chemical report has no substance.
45. ' The last objection of the learned counsel for the appellant was with regard to motive. He contended that since the prosecution have not been able to prove motive set up by them, their evidence in this regard would react on the entire case. The motive as mentioned, in the F. I. R. Is that Allah Rakhio, father-in-law of the complainant had promised to give his daughter deceased Mst.
46. Azizan in marriage to Rajib. But the appellant Ishaque who is also married with Allah Rakhio's daughter and co-accused Dino, the appellant's maternal-uncle wanted the said Allah Rakhio to get the deceased married with co-accused Dino. As he refused to accede to their demand, they got annoyed and declared that they would kill the deceased. However, when the matter was brought to the notice of the appellant's father and co-accused Dino's brother, they assured the complainant's side that nothing of the kind would happen. It would appear from the evidence of the complainant Loung that he struck to his earlier version as contained in the F. I. R. With regard to the motive. So far Muhammad is concerned he too has supported the complainant inasmuch as that deceased Mst. Azizan was promised to be given in marriage to Rajib. He has further stated that Ishaque had demanded her hand for his maternal-uncle Dino and on Allah Rakhio's refusal to accede to such demand, both Ishaque and Dino got annoyed and declared their intention to kill Mst. Azizan. Of course according to Saleh, the third eye-witness, the appellant and co-accused Dino had demanded the hand of Mst. Azizan for Sajan son of Saindino and not for co-accused Dino.
47. But in the same breath he hastened to add that they had not made such demand in his presence and that he learnt about this demand from Allah Rakhio. Since Allah Rakhio is not examined, the statement of Saleh was merely hearsay which can w safely be ignored. No doubt he is also son-in- law of Allah Rakhio. Since he does not claim personal knowledge about the aforesaid matrimonial dispute his statement which is different from the statements of other two eye-witnesses should not in any way affect the latter's evidence with regard to motive.
48. ' The learned counsel for the appellant attempted to show that the statement of Muhammad in Court on the point of motive is contradictory to his earlier statement under section 164, Cr. P. C. We have perused his both statements but we have not come across any material contradiction worth the same. Similarly no contradiction is noticeable in the Saleh's statement vis-a-vis his statement under section 164, Cr. P. C. After due consideration of the evidence on record, we see no force in the argument of the learned counsel for the appellant that the prosecution have failed to establish motive. Excepting some minor contradictions which are natural and can easily be ignored the evidence of the above witnesses is quite consistent on the point of motive, Therefore, it appears to us that the prosecution case gets further boost from the evidence of motive. At this stage we may examine the case law relied upon by the learned counsel for the appellant on motive. The case of Lashkari referred to in this connection is given in the earlier part of this judgment. In that case following observations have been made : "No doubt in law motive can often be used as corroboration but in cases of this nature motive is just second name of enmity and in relying on such motive which is born of enmity the trying Judge followed a wrong process of appreciation of evidence. This is not one of these where only one side has grievance .
49. Obviously the above authority has no application in the instant case. As has been pointed out earlier, it was the accused's side who had grievance against the complainant party on account of Allah Rakhio's refusal to give hand of his deceased daughter to co-accused Dino and not vice versa. Therefore, motive in this case can be used to corroborate the ocular evidence.
50. ' Another case on the same point relied upon by the learned counsel for the appellant is Mangio which too finds mention in the foregoing paragraphs. In the said case it was held :- "It is not always for the prosecution to set up a motive for the crime. But once it has set up a motive and it fails to establish it, it is the prosecution that suffers. This is the law laid down by the Supreme Court in Hatim Ali's case 1971 SCMR 432."
51. ' The above reported case is also not applicable in the present case because unlike the reported case motive set up by the prosecution in the present case has been proved.
52. ' In the end we may refer to the suggestive questions put to the complainant. The answers given by him to these questions are reproduced as under : "It is incorrect to suggest that Mst. Azizan was on illicit terms with Rajib and on the day of the incident P. W. Muhammad had seen Mst. Azizan with Rajib, as such he murdered him and thereafter just to save Muhammad being close relative of Allah Rakhio this case has been registered against the accused."
53. ' It is clear from the above narration of the complainant's replies that the defence put forth on the accused's behalf is that as Muhammad, the deceased's brother saw the deceased in objectionable position with Rajib, he killed her. This story looks absurd on the face of it. First of all the deceased was to be wedded with Rajib within next 8-10 days time as the date of their marriage had already been fixed. Therefore, they had no reason to indulge in such activity. Even if they committed the illicit act, it was improbable that Muhammad would go to the extreme and would end the life of his sister, knowing fully well that she belonged to Rajib and would marry him in a few days time. Again if he really committed the murder of his sister, he would disappear from the scene rather than be available at the Vardat to look after the dead body until arrival of police. The guilty mind of the murderer being unstable would not allowiz him to hold himself and behave in the manner as if nothing had happened. It is also absurd to believe that in order to save Muhammad, son of Allah Rakhio the substitution would be made of no other person than Allah Rakhio's own son-in-law namely appellant Ishaque. No man in senses would accept such defence as true.
54. The upshot of the above discussion is that appellant Isbaque has committed the murder of the deceased Mst. Azizan. However, the motive attributed to him for committing such heinous crime is weak. Therefore, A we would not confirm the death sentence. Instead the appellant is A sentenced to imprisonment for life. However, the sentence of fine awarded to him will remain unaltered.
55. Subject to modification in the sentence, the appeal is dismissed and reference for confirmation of death sentence stands rejected.