1. ' QURBAN SAD1Q IKRAM, J.-- Sajjad Hussain (28) was convicted under section 302, P.P.C. For the murder of Muhammad Siddique (40/45) by the learned Sessions Judge, Rahim Yar Khan vide judgment, dated 30-10-1983. He was sentenced to death and a fine of Rs, 3,000 (Rs, three thousand only) or in default one year's R.r. He has come up in appeal to this Court through Jail against his conviction and sentence.
2. ' The appellant having been sentenced to death, the proceedings are also before us for confirmation of sentence. Both these matters will be disposed of together by this judgment.
2. The occurrence in this case allegedly took place at about 12 mid-night in between the night of 27th and 28th September, 1982 in the courtyard of the house of Muhammad Ali complainant in village Muhammad All Mangsi, about 3 kilometers from Police Station, Abadpur, district Rahim Yar Khan, where the F.I.R. Exh.P .K . Was recorded at 1-30 a.m. On 28-9-1982 on the statement of Muhammad Ali P.W.8.
3. ' It was alleged in the F.I.R. By Muhammad Ali P.W.8 that he wanted to marry his daughter Mst.
4. Nasim Mai with Abdul Khaliq, a son of Nazar Hussain. In exchange, Nazar Hussain wanted to marry his daughter Mst. Shamim Mai to Muhammad Siddique deceased, brother of the complainant.
5. However, Sajjad Hussain, a brother of Nazar Hussain, did not approve the proposed marriage of Shamim Mai with Muhammad Siddique deceased. As a result of this, about 5/6 months before the occurrence, Sajjad Hussain accused took away Mst. Shamim Mai from the village to Rahim Yar Khan so that her Nikah could not be performed as desired by her father Nazar Hussain. The matter was referred to Jam Munir Ahmad who got Mst. Shamim Mai restored to her father Nazar Hussain.
6. Soon thereafter Mst. Nasim Mai was given in the Nikah of Abdul Khaliq and in return Mst. Shamim Mai was given in Nikah of Muhammad Siddique deceased. However, Rukhsati in both these cases did not take place, which was fixed for 5-10-1982.
7. ' In between the night of 27th/28th September, 1982, Muhammad Siddique was sleeping in his courtyard. Muhammad Ali complainant who lived with his brother in the same courtyard was sleeping nearby. At about 12-00 mid-night, Muhammad Ali got up on the alarm of his brother Muhammad Siddique. The lamp was burning and it was moonlit night also. Muhammad Ali saw Sajjad Hussain accused inflicting hatchet blows to Muhammad Siddique deceased who was lying on the cot. The alarm also attracted Muhammad Din another brother of the deceased and Rab Nawaz, a Khalazad of the deceased to the place of occurrence. They also saw Sajjad Hussain inflicting hatchet blows to Muhammad Siddique. They could not apprehend the accused on account of fear. The accused left the place of occurrence with his hatchet leaving his shoe at the spot. Muhammad Siddique died as a result cf the injuries.
8. ' It was alleged in the F.I.R. That as the Nikah of Mst. Shamim Mai, niece of Sajjad Hussain accused had been performed with Muhammad Siddique deceased against his wishes, he committed the present murder. After the occurrence Khair Muhammad etc. Neighbors and Jam Mir Ahmad, Chairman, came to the spot. Leaving them at the place of occurrence, Muhammad Ali went to Police Station along with Jam Khair Muhammad and lodged the F.I.R. Which was recorded by S.I.
9. Manzoor Ahmad P.W.10.
3. The Police undertook investigation after registration of the case. The cot P.4, mat P.5 (both blood- stained) on which the deceased was lying, were taken in possession vide memo. Exh.P.G. The pair of shoe Exh.P.6/1-2 belonging to the accused Sajjad Hussain which he had left at the place of occurrence, was taken in possession vide memo. Exh.P.H. The accused was arrested on 1-10-1982.
10. He was on Police remand when on 3-10-1982 he led to the recovery of blood-stained hatchet P.7, blood-stained shirt P.8 and blood-stained Chadar P.9 from his house which were taken in possession vide memo. Exh.P.J. The recovery memos. Exhs. P.G., P.H. And P.J. Were prepared by S.I.
11. Manzoor Ahmad P.W.10 in the presence of Ghaus Bakhsh P.W.6 and Khawand Bakhsh given up P.W.
12. The hatchet P.7, Kurta P.8 and Chadar P.9 were found to be stained with human blood vide the report of the Chemical Examiner P.L. And that of Serologist P.M.
13. ' After necessary formalities at the spot, the dead body of Muhammad Siddique was sent for post- mortem examination which was conducted by P.W.4 Dr. Abid Hussain Shah on 28-9-1982 at 9-00 a.m. He found the following injuries on the dead body:-
(1) An incised wound of about 4" x 1" x cutting the chin bone (mandible) reaching the neck.
(2) An incised wound of about 5" x 1/4x bone deep just above the injury No,1.
(3) Incised wound of about 1 1/2x 1 1/2" x muscle deep just below the right ear.
(4) An incised wound of about 3" x 1 1/2" x bone deep cutting partially the cervical vertebra on the right side of neck just below injury No,3.
(5) An incised wound of about 3" x 4" x muscle deep on right upper arm.
(6) An incised wound of about 14" x 1/4" x skin deep on right forearm.
(7) An incised wound of about 3" x 14" x bone deep on the back of right hand.
14. ' On dissection, the larynx was found cut through and through. The blood vessels on the right side of neck had also been cut. In the opinion of the Medical Officer, the death was caused by injuries to chin which cut through and through upto the larynx and injury on the neck which reached the cervical vertebral column cutting the big vessles on the right side of the neck. The injuries had been caused by sharp-edged weapon and were sufficient to cause death in the ordinary course of nature. The time between injuries and death was within half an hour and between death and post- mortem was about 9-10 hours. The accused was challenged after investigation of the case.
4. The prosecution, during the trial, examined ten witnesses in all. Muhammad Din P.W.7, a real brother of the deceased, Muhammad All P.W.8, a real brother of the deceased, and Rab Nawaz P.W.9, Khalazad of the deceased, were cited and examined as eye-witnesses. The medical evidence was furnished by Dr. Abid Pussain Shah P.W.4. The recoveries from the spot as well as at the instance of the accused were witnessed by Ghaus Bakhsh P.W.6 as given in detail above. Jam Mir Ahmad was examined to prove motive in the instant case. The investigation in this case was done by Syed Manzoor Ahmed Shah P.W.10. The evidence of rest of the witnesses was of formal nature.
15. ' The accused Sajjad Hussain when examined under section 342, Cr.P.C. Denied the charge and pleaded innocence. He denied the recoveries of hatchet P.7, Kurta P.8 and Chadar P.9. He disowned pair of shoe P.6/1-2. However, he admitted that Mst. Shamim was married to Muhammad Siddique deceased and that the Rukhsati had to take place. He, however, added that he was not annoyed on account of that marriage. He did not produce any evidence in defence.
16. ' The learned trial Judge placed reliance on the evidence of eye-witnesses, motive, recovery of shoe (Khussa) P.6/1-2 and recovery of hatchet P.7 and clothes P.8 and P.9 and convicted the accused as stated above.
5. We have personally gone through the record of this case minutely and have also heard the learned counsel appearing at State expenses on behalf of the appellant and also the learned Assistant Advocate-General. It was contended by the learned counsel for the appellant that it was a blind murder and the eye-witnesses were not present at the spot; that even if the witnesses were present at the spot, they were not able to identify the assailant; that the accused had no motive to murder Muhammad Siddique deceased; that the lamp was not taken in possession during investigation; that the shoe Exh.P.6/1-2 did not belong to the accused and this evidence was fabricated by the Police and finally that the recovery of blood-stained hatchet P.7 along with clothes P.8 and P.9 have not been proved by the prosecution. The learned Assistant Advocate- General controverted the contentions of learned counsel for the appellant.
17. It is correct that the three eye-witnesses are closely related to Muhammad Siddique deceased but they had no enmity whatsoever to falsely implicate Sajjad Hussain appellant. Even no suggestion was made to the witnesses to indicate that they had any cause to falsely implicate the appellant.
18. Muhammad Ali P.W.8 and his brother Muhammad Siddique deceased resided in one and the same house and had common courtyard. He was sleeping close to Muhammad Siddique deceased. He was, therefore, a natural witness who must have got up on hearing the alarm at the time when Sajjad Hussain was inflicting injuries with hatchet on the person of Muhammad Siddique. Even if no lamp was burning at the time of occurrence then also he could have, in the moonlight identified Sajjad Hussain accused who was also related and previously known to him. Muhammad Din P.W.7 was also a brother of the deceased. His house was only 18 Karams from the cot of the deceased.
19. Similarly, Rab Nawaz P.W., a Khalazad of the deceased resided only 16 Karams away from the cot of Siddique deceased. These two witnesses were, therefore, also natural witnesses and must have reached the spot immediately on hearing the alarm. These two witnesses had no enmity whatsoever with Sajjad Hussain accused. During cross-examination it was suggested to Muhammad Ali P.W.8 that Rab Nawaz P.W. Suspected Muhammad Siddique deceased of having illicit relations with his wife and that in fact Rab Nawaz P.W. Murdered Muhammad Siddique deceased. This suggestion was denied by Muhammad Ali P.W. However, when Rab Nawaz P.W.
20. Appeared as witness during the trial, this suggestion was not put to him. On the other hand, it was suggested to him that he had not seen the occurrence and that he had reached the spot after the assailant had fled away. It was pointed out by the learned counsel for the appellant that according to Muhammad Din P.W., Rab Nawaz P.W. Arrived just after his arrival at the spot but according to Muhammad Ali P.W., Rab Nawaz was the first to reach the place of occurrence. Rab Nawaz P.W. On the other hand, stated that he and Muhammad Din P.W. Reached the spot simultaneously. The learned counsel argued that this was a material discrepancy and as such the three eye-witnesses should not be believed. We are not impressed by this argument. The said disparity in the statements of the three witnesses was not material and does not affect the merits of the case. On a perusal of the evidence of these three witnesses, we are satisfied that they were present at the spot and saw Sajjad Hussain accused inflicting injuries to Muhammad Siddique deceased. They had nc enmity to falsely implicate Sajjad Hussain accused in the instant case which was registered at Police Station within hours of the occurrence. There is nothing in the evidence to show that the deceased had any other enemy who may have committed his murder.
21. ' The evidence of motive is furnished by Muhammad Din P.W.7, Muhammad Ali P.W.8 and Jam Mir Ahmad P.W.11. It was stated by Jam Mir Ahmad P.W.11 that he was Sardar of Jhabal tribe. About 5/6 months before the present occurrence, Sajjad Hussain accused took away Mst. Shamim to Rahim Yar Khan because he did not like her to be married to Muhammad Siddique deceased. He was approached by Nazar Hussain father of Mst. Shamim for her return. He prevailed upon Sajjad Hussain accused whereafter she was restored to her father and given in Nikah of Muhammad Siddique deceased. He is a respectable person and had no enmity with the accused to falsely depose against him. The evidence of this witness fully corroborate Muhammad Din P.W.7 and Muhammad Ali P.W.8 on point of motive.
22. 5 The eye-witness account is further corroborated by the recovery of Khussa P.6/1-2 belonging to the accused which he had abandoned at the spot while running away after the occurrence.
23. Similarly, the recovery of blood-stained hatchet P.7, blood-stained Kurta P.8 and blood-stained Chadar P.9 at the instance of the accused also provide corroboration to the ocular account in this case. These recoveries were witnessed by Ghaus Bakhsh P.W.6 who was an independent witness.
24. The deceased C was no doubt the son of his cousin, but this witness had no enmity with the accused. He was a resident of the locality and thus a natural witness of the recoveries. Sajjad Hussain accused was also a son of his cousin. There is nothing on the record to disbelieve this witness. The incriminating recoveries at the instance of accused were found to be stained with human blood.
25. 6 In view of the above, we find no merit in this appeal which is accordingly dismissed.
26. ' We have also examined this case to consider the quantum of sentence awarded by the trial Court to Sajjad Hussain appellant. We have not been able to find any mitigating circumstance for lesser punishment. The accused had no right to object to the marriage of Mst. Shamim Mai, a daughter of his brother to Muhammad Siddique deceased. He went armed to the courtyard of Muhammad Siddique deceased. He inflicted many fatal blows on the person of the deceased and committed his intentional murder. In this view of the matter, we maintain the conviction and sentence of Sajjad Hussain appellant. The sentence of death is confirmed.
27. ' The appellant be informed of the result of this appeal in jail.