1. ' ABDUL RAZZAK A. THAHIM, J.-- Appellant Roshan was tried on a charge under section 302/34, P.P.C.
2. By the Sessions Judge, Sukkur who by a Judgment, dated 7th February, 1984 found him guilty for the murder of Mst. Hoor Khatoon, and sentenced him to death and also directed him to pay fine of Rs,3,000 in default of such payment to suffer R.I. For one year in case death sentence is not confirmed. Aggrieved by the judgment appellant has filed an appeal. There is also a reference made under section 376, Cr.P.C. For confirmation of the death sentence. This judgment will dispose of both the criminal appeals as well as the confirmation case together.
3. ' The prosecution case as disclosed in the F.I.R. Briefly stated is that on 7-11-1979 Gul Muhammad went to meet his sister Mst. Hoor Khatoon at Sultanpur and at that time appellant Roshan who is her brother-in-law was present, who demanded money from Mst. Hoor Khatoon an which she replied that she had no money and he should get money from his brother. The appellant abused her and took out a hatchet and caused her injuries on arm-neck due to which she died. On cries Hakim, Jumo and other persons of village came and saw Roshan giving injuries to Mst. Hoor Khatoon. Gul Muhammad went and informed his father Moula Bux at Pano Akil who on getting this information went and lodged report at Police Station Pano Akil at 16-30 p.m.
4. ' A.S.I.P. Abdul Ghafoor of P.S. Pano Akil after registering the case started investigation and visited the scene of occurrence where he found dead body of Mst. Hoor Khatoon in the house of appellant Roshan. The Mashirnama of Wardat was prepared. The blood was secured and sealed. The dead body was sent for post-mortem examination to the Medical Officer. On the same day A.S.I.P.
5. Recorded the statement of witnesses Hakim Ali, Jumo and Gul Muhammad. On 9-11-1979 appellant was arrested at Sangi Railway Crossing. The blood-stained shirt was secured from his person and he also produced blood-stained hatchet. The articles were sealed in presence of Mashirs and were sent to Chemical Examiner. On 10-11-1979 prosecution witnesses Gul Muhammad, Jumo and Hakim were produced before Honorary Magistrate, who recorded their 164, Cr.P.C. Statements in presence of appellant.
6. ' On completion the investigation, the case was sent up in the Court which has resulted in the conviction as stated above.
7. ' In support of the case prosecution has examined in all 11 witnesses. P.W.3 Jumoo alias Jamaluddin, P.W.6 Hakim, P.W.7 Gul Muhammad have been examined as eye-witnesses. P.W.5 Moula Bux is complainant, P.W.1 Dr. Yar Muhammad conducted post-mortem of deceased Mst. Hoor Khatoon, P.W.2 Muhammad Ismail, corpse bearer, P.W.8 Shah Muhammad, Tapedar, P.W.9 Abdul Ghafoor, I.O., P.W.11 Shah Muhammad Magistrate who recorded 164, Cr.P.C. Statement of witnesses.
8. ' The evidence of prosecution consists of ocular testimony, motive, recovery of hatchet and blood- stained shirt from appellant and Medical Evidence.
9. ' Complainant Moula Bux Exh.16 is father of deceased. He has stated that his son Gul Muhammad came and informed him that at Pano Akil Roshan had killed Mst. Floor Khatoon. He has disowned the contents of F.I.R. He is maternal uncle of appellant. Both Mashirs, Ghulam Muhammad Exh.10 and Khan Muhammad Exh.28 have not supported the case on the point of recovery of blood- stained shirt and hatchet from appellant. They have been declared hostile.
10. ' Dr. Yar Muhammad Exh.5, Medical Officer conducted post-mortem on the body of deceased Mst.
11. Hoor Khatoon and found following injuries. He has produced post-mortem report Exh.6.
12. ' On external examination the Medical Officer found following injuries: -
(1) Incised wound 4" x 2" one deep on right fore-arm with fracture of right dadious and ulna.
(2) Two incised wounds each 10" x 3" x cutting right caroter vessels on right side of neck, at the back of neck, with fracture of fifth spine and spinal cord was cut.
(3) Incised wound 4 x 2" x muscle deep on left side of neck.
13. ' From the external examination, the Medical Officer of the opinion that. The death of the deceased was due to shock and haemorrhage, as a result of injuries which were ante-mortem in nature and appeared to have been caused by sharp cutting weapon, like hatchet. The probable time between death and post-mortem it was about 8 hours.
14. ' Muhammad Ismail Exh.7 is corpse bearer. His evidence is of formal nature. Shah Muhammad Exh.22, is Tapedar. He prepared sketch of Wardat and produced it as Exh.23. Haji Shah Muhammad Exh.31 Honorary Magistrate, recorded 164, Cr.P.C. Statement of P.W. Jumo, Hakim and Gul Muhammad on 10-11-1979. Abdul Ghafoor Exh.24 is Investigating Officer.
15. ' Defence of appellant before the trial Court is his statement under section 342, Cr.P.C. Is denial simplicitor. He has stated that he do not know why witnesses are deposing against him. He has not examined any witness in his defence.
16. ' Mr. Shaikh Ayaz, learned counsel for the appellant has raised the following contentions:
(i) Eye-witnesses Hakim and Jummo did not support therefore conviction cannot be based on the solitary evidence of Gul Muhammad.
(ii) The Mashirs of recoveries did not support, therefore, no reliance could be placed on the evidence of Police Officer. He referred to the cases reported in 1983 P Cr. L J 471, 1982 P Cr. L J 1069 and 1975 P Cr. L J 1096.
(iii) The statements of witnesses recorded under section 164, Cr.P.C. Cannot be considered as substantive evidence as conditions laid down under section 265-J, Cr.P.C. Have not been complied with. He has referred to a case reported in PLD 1982 Kar.
975. He has challenged the evidence of hostile witnesses and cited 1983 P Cr. L J 710 and 1982 P Cr. L J 720 and stated that evidence of hostile witnesses cannot be considered against the appellant. He has also submitted that death sentence cannot be awarded in this case and has referred to the case reported in PLD 1977 Kar. 108, 1977 P Cr. L J 957, 1976 P Cr. L J 1067, PLJ 1979 469, PLD 1973 SC 469 and 1983 P Cr. L J 2195.
17. ' Mr. Syed Zawar Hussain Shah, the learned Assistant Advocate-General, submitted that prosecution has proved the case beyond reasonable doubt and evidence of the hostile witnesses could be used against the appellant. He has referred to cases reported in 1972 SCM R 597 and 1973"P Cr. L J 334. He contended that P.W. Gul Muhammad is Marot (Cousin) of the appellat and he has no reason to implicate appellant when there is no empty between them. However, he states that in the circumstances of this case the death sentence be converted to imprisonment of life.
18. ' We first propose to deal with the evidence of three eye-witnesses. Hakim and Jummo have not supported the case and have been declared hostile. Their statements under section 164, Cr.P.C.
19. Were brought on the record under section 265-J of the Code of Criminal Procedure. These statements could be treated as substantive pieces of evidence provided such statements were recorded in the presence of the accused and accused is given notice and an opportunity of cross- examination. Admittedly, the accused was not represented, therefore, right of cross-examination had not effectively exercised by him. Moreover, the accused had no notice of these statements. In these circumstances in our view statements under section 164, Cr.P.C. Of Jummo and Hakim could not be treated as substantive piece of evidence. This point has been fully discussed in a case of Abdul Hakim and other v. The State reported in PLD 1982 Kar. 975 therefore no reliance can be placed on the evidence of Hakim and Jummo to the extent of murder of Mst. Hoor Khatoon.
20. ' P.W.7 Gul Muhammad Exh.20 has stated that deceased Mst. Hoor Khatoon was his sister. On the day of incident at Biphari or Triphari time, she was sitting in her house when appellant came and demanded some money from Mst. Hoor Khatoon. She told him to get from his own brother. On this appellant took up a hatchet and gave injuries to deceased. He raised cries on which Jummo, Hakim and others came and saw appellant. He has also, stated that on that day his father had gone to Pano Akil. He went there and informed him who went and lodged the report. He has produced his 164, Cr.P.C. Statement as Exh.21.
21. The other piece of evidence against the appellant is that of recovery of blood-stained shirt and hatchet. Both Private Mashirs namely Ghulam Kadir Exh.10 and Khan Muhammad Exh.28 have not supported the prosecution and they were declared hostile. There is solitary word of Investigating Officer. It is not safe to rely on this piece of evidence.
22. Taking all the circumstances of the case with careful consideration we are firmly of the view that the eye-witness Gul Muhammad is truthful witness of the incident. This witness is real Marot (Cousin) of the appellant. There is no enmity between the appellant and Gul Muhammad nor any enmity has been suggested. On this point we refer to a case of Mehmand v. The State reported in 1982 SCMR 122 where conviction on the evidence of natural eye-witness without corroboration was maintained. The observations at para. 21 of the judgment are as under:- "Even, if the evidence relating to recovery of gun and two live cartridges from the appellant is kept out of consideration the rest of the evidence is sufficient in bringing home the guilt of the appellant."
23. ' The ocular evidence furnished by Gul Muhammad also receives corroboration from medical evidence. The incident admittedly took .Place at 3-00 p.m. And post-mortem was performed on the same night at 11-00 p.m. The probable time between death and post-mortem is given as (Eight) 8 hours and it is confirmed that she died due to hatchet injuries. The doctor has not been cross- examined therefore, the medical evidence has remained unchallenged. Complainant Moula Bux Exh.16 has stated that his daughter, Mst. Hoor Khatoon was married to Ali Gul in village Sultan Pur.
24. On the day of incident his son Gul Muhammad came at Pano Akil and informed him that appellant had killed Mst. Hoor Khatoon by giving injuries. He then went to Police Station, Pano Akil and lodged the report. This witness has tried to give obliging statement. He has stated that his son Gul Muhammad had not given other details of murder of Mst. Hoor Khatoon and F.I.R. Was not read over to him. Moula Bux admittedly, is maternal uncle of the appellant. He has corroborated the version given by his son to the extent that appellant killed his sister Mst. Hoor Khatoon. This witness has no reason to falsely implicate his own sister's son when there is no ill-will between the parties.
25. Even though he is not an eye-witness, he has stated that his son did not accompany to the. Police Station in spite of that all material facts do appear in the F.I.R. These facts although could not be used as evidence against the appellant, but circumstances could not be ignored.
26. As regards motive there is nothing on record to contradict the same. The plea that' motive was trivial or that the alleged motive would not have made the appellant to launch murderous assault is of no consequences as on many occasions very heinous and atrocious crime is committed on very trivial matters.
27. ' The next important admitted circumstances against the appellant is that place of occurrence is in his house. Mashir Ghulam Kadir Exh.10 has admitted that Wardat was in the house of appellant Roshan where dead body of Mst. Hoor Khatoon was lying with injuries. This has been corroborated by P.W. Hakim Exh.18. This fact has not been denied by the appellant.
28. The presence of eye-witness Gul Muhammad at the place of Wardat has been admitted P.W.
29. Jummo alias Jamaluddin Exh.8, P.W. Hakim Exh.18 had also stated that Gul Muhammad came there. These witnesses have been declared hostile but they have mentioned these facts in their examination-in-chief. In case of Zarid Khan v. Gulsher and other reported in 1972 SCMR 597, it has been observed by the Supreme Court, although witness turned hostile, the trial Court can take into consideration part of his evidence and should not ignore the entire testimony of the hostile witness.
30. ' The other most important circumstances against the appellant is that Mst. Hoor Khatoon was murdered in his house and nobody from appellant side went and lodged report about her murder.
31. Not only this but on the perusal of the post-mortem report we have observed that the dead body was brought and identified in the mortuany by Ali Gul husband of Mst. Hoor Khatoon and Jiandal her father-in-law and father of appellant Roshan. In spite of that none of them went and lodged any report relating to the murder of Mst. Hoor Khatoon nor they have made any application to any authorities that Roshan their family member had falsely been implicated in the murder of Mst. Hoor Khatoon.
32. The appellant Roshan is closely related to deceased as well as to eye-witnesses Gul Muhammad and complainant Moula Bux. There is no enmity between them. A single person has been named as accused in this case and it is well-known that substitution is a matter of rare occurrence and Gul Muhammad had no reason to falsely involve the appellant involved the appellant in such a serious case in place of the real culprit. On this point we refer cases of Muhammad Afzal v. The State reported in 1982 SCMR 223 and Laung Khan v. The State, reported in 1984 PCr.LJ 1478 and the case of Allah Ditta v. The State reported in 1982 PCr.LJ 875.
33. ' It has been held from time to time by Supreme Court that when presence of witness is proved beyond doubt, it would result in a grave miscarriage of justice to insist upon independent corroboration. On this point reference could made to case of Roshan v. The State reported in PLD 1977 SC 557, Shahabuddin v. The State reported in PLD 1964 SC 177. Lastly we refer to a case of Muhammad Raza v. Khan Muhammad and others reported in 1984 SCMR 1588, where Supreme Court held that conviction could be based on testimony of two reliable witnesses and medical evidence. The observations are as under:- "We have given our anxious consideration to the above noted contentions to the testimony of these two witnesses but not persuaded to agree with the learned counsel for the accused/appellant that they are unreliable and that the appellants conviction cannot be based on other uncorroborated testimony. Although they are related to the deceased yet they had no direct hostility with Sher Bahadur, appellant, which can be said to have induced them to exonerate the real culprit and attribute the fatal shot to him."
34. In the present case ocular account of prosecution of Gul Muhammad affords full confidence and also stand corroborated by medical evidence, motive and material circumstances. The F.I.R. Of this case was lodged immediately after the incident and undisputedly the Wardat is in the house of the appellant and the presence of this eye-witness has been admitted by the witnesses. Gul Muhammad has no motive to implicate falsely his own cousin. We accordingly maintained the conviction.
35. ' As regards the sentence the learned counsel for the appellant has cited so many authorities and submitted that when there is a single witness the sentence of imprisonment for life has been awarded. In this case there is no background for previous enmity between the parties. They are close relatives. On this point we refer to the case of Sher Ali v. The State, reported in 1980 SCMR 291 where in these circumstances death sentence was not confirmed and accused was sentenced to imprisonment for life. We are, therefore, of the view that in the present case instead of extreme penalty of death, lesser punishment of imprisonment for life will meet the ends of justice. The result is that with above modification the appeal is dismissed. The reference made by the Sessions Judge, Sukkur under section 376, P.P.C. For confirmation of death sentence is rejected. The appellant shall be given benefit of section 382-B, Cr.P.C. The Jail Authorities are directed to compute the period which he has remained in custody as under-trial prison.