Abdul Kadir Shaikh, J.--The appellant, Muhammad Siddique son of Jalaluddin Sindhoo, aged 26 years, was convicted by the Additional Sessions Judge, Tharparkar at Sanghar, under section 302, P. P. C., and has been sentenced to death. The case is before us for the confirmation of the death sentence and also by way of an appeal from the convict.
2. The prosecution briefly stated is that Mst. Inayat Bibi daughter of Fateh Muhammad was firstly married to the appellant who after some time divorced her and then she was married to deceased Muhammad Hussain with whom she lived for about two years. Subsequently, her mother Barkat Bibi persuaded her to return to the appellant as he is the son of her husband's sister. About one and a half years thereafter, first Martial Law was imposed in the country and the deceased filed a complaint to the Martial Law authorities against his father-in-law Fateh Muhammad for the restoration of his wife. The dispute was settled between them on Fateh Muhammad giving in exchange his second daughter Mst. Shamim Akhtar to the deceased in marriage. The grudge between the appellant and the deceased, however, continued due to the controversy over Mst.
Inayat Bibi which, according to the prosecution, was the motive of his murder in the present case.
3. On the day of the incident, 3rd October 1969, the deceased took his wife and two minor children from the house of his brother Muhammad Anwar, situated in Shahdadpur, to meet his father-in-law who used to live in Chak No. 4, Deh Khadwari. According to the version of his wife at the trial, as soon as they entered the house at about 4-30 p.m., the appellant who was already there gave lathi blows to her husband as a result of which he fell down. On her cries P. W. Bashir Ahmad, a neighbour, who was passing by, came inside the house and he caught hold of the appellant along with his lathi. It may be stated here that Mst. Barkat Bibi, mother-in-law of the deceased, is said to have earlier gone to the house of Muhammad Anwar in Shahdadpur to inquire about the welfare of her daughter Mst.
Shamim Akhtar and on being informed that the deceased had taken his wife and children to the house of his father-in-law, she apprehended danger as the appellant was already in her house and there was a likelihood of a fight between the two. Muhammad Anwar therefore also accompanied Mst. Barkat Bibi on a bus to Chak No. 4 and both these persons reached very shortly after the attack on the deceased. Muhammad Anwar was given the narration of the events and he thereafter left for Mangli Police Station covering a distance of one and a half miles and lodged the first information report at 7 p. m. on the same day.
4. Muhammad Yousuf, Incharge of the Mangli Police Station, after recording the first information report, came to the vardat in the house of Fateh Muhammad where he conducted the usual police investigation, during which he sent the body of the deceased to the Civil Hospital, Sanghar.
5. Dr. Faiz Muhammad, who conducted post-mortem examination, found the following injuries on the person of the deceased :
(1) Lacerated wound 3" x J" x bone deep at left parietal bone and blood was coming from nose, mouth and left ear.
(2) Lacerated wound 2" x x bone deep on the root of left ear.
(3) Small lacerated wound 1" in diameter just above the left eye-brow.
On the internal examination left parietal bone was noticed to have been fractured and the brain memberance was conjested and torn. Brain matter was crushed and the cranial cavity was full of clotted blood. In the opinion of the doctor, the cause of the death was due to intracranial haemorrhage and shock as a result of the injuries. Injury No. 1, in his opinion, was sufficient in the ordinary course of nature to cause death.
6. The lathi secured from the vardat under Mashirnama, Exh. 13, in the presence of Mashir P. W.
Farman Ali was sent for chemical analysis of the blood noticed on it and the report of the Chemical Examiner produced at the trial as Exh. 17, showed that the weapon was stained with human blood.
7. The case of the prosecution at the trial, as will be noticed from above, rested on the ocular testimony of the two, eye witnesses, P. W. Shamim Akhtar, widow of the deceased, and the neighbour, P. W. 4 Bashir Ahmad, who is said to have come into the house on the cries sufficiently in time to see the actual occurrence. The ocular testimony was sought to be supported by circumstantial evidence as to the apprehension of the culprit on the spot with the weapon of offence, namely, the lathi, which was stained with human blood as certified by the Chemical Analyser.
8. As against this, the version of the appellant in defence was that-- "Mst. Inayat was divorced by me as she was taken by Muhammad Hussain. Later on, I snatched that lady from Muhammad Hussain and refused to return to him and therefore, Muhammad Hussain was annoyed with me."
On being questioned if he had given lathi blow to Muhammad Hussain he stated :-- "No Sir. The story is not like that. I was not present in the house of Fateh Muhammad when deceased came there. I entered the house subsequently and on seeing deceased I wanted to wish him and shake hand with him, but he abused me and assaulted me with a lathi, whereupon I also picked up the lathi which I see in Court to defend myself and in that defence I gave couple of blows to the deceased."
According to him, he made no attempt to run away and wanted to report his version to the police but was not allowed to do so. He alleged that Mrf. Shamim Bibi,his wife's sister had a grudge against him and he and his wife were not on visiting terms with her.
9. In view of the admission of the appellant as to the participation in the fight, the short question for determination in this case is whether the incident occurred in the manner stated by him or according to what the eye-witnesses P. Ws. Shamim Akhtar and Bashir Ahmad stated at the trial. It is well settled that even if there be a reasonable probability of the defence being true the accused would be entitled to the benefit of doubt.
10. Out of the witnesses examined by the prosecution, Mst. Shamim Akhtar can easily be said to be the most material and crucial. Her presence at the time of the incident in the house of her parents cannot be open to doubt ; in fact it was not even challenged. As her husband was done to death in her presence in the house of her father and the assault was from her sister's husband, she must be in a very difficult position when she entered the witness-box at the trial of the case. Yet her version remained the same from the very initial stage of the investigation. While she must be anxious that the real culprit who took away the life of her husband should be dealt with in accordance with law, at the same time it is not to be forgotten that she is very much related to the appellant and would not have liked that on account of any false statement on her part, her sister Mst. Inayat Bibi should not also lose her husband and become a widow. The narration of events she gave to Muhammad Anwar, her husband's brother which were incorporated in F. I. R. were supported by her in that she stated that while she entered the house of her father in the company of her husband and two children, the appellant challenged her husband and gave lathi blows to him on his head. P. W.
Bashir Ahmad also fully supported this version in that while he was going from his house to a barber for shaving, he happened to pass by the house of Fateh Muhammad and saw the deceased with his wife and children entering the house and soon thereafter he heard the shout 'beware'. He stated that be rushed to the house and saw the appellant giving second blow to the deceased and caught him but yet the assailant gave the third blow. P. W. Bashir Ahmed was not hostile to the appellant so as to falsely implicate him on the grave charge of murder. It was suggested that he had appeared as a witness in certain cases and there were certain applications of neighbours against him but this would not go to show that he had falsely deposed at the trial in the absence of any grudge with the appellant. Nothing in this behalf was suggested in his cross- examination. Being a neighbour it is not unnatural that he was passing by the house where the deceased was done to death. His name was disclosed in the first information report which was lodged without loss of time and in the circumstances it cannot be said that Muhammad Anwar had time enough to introduce his name falsely. In fact Bashir Ahmed did not live in the same village as Muhammad Anwar or his deceased brother, and had no interest to associate himself if the charge against the appellant was false.
11. Another circumstance that supports the case of the prosecution is that only one lathi was secured from vardat and that too from the appellant only. The deceased, therefore, was unarmed and very likely so, because he was taking his wife and children to meet his father-in-law's family. In the circumstances, the defence plea that the deceased had assaulted the appellant with a lathi is falsified by this circumstantial evidence.
12. We have, therefore, no cogent reason to hold that Mst. Shamim Akhtar, the widow of the deceased, and P. W. Bashir Ahmed had falsely supported the prosecution case against the appellant. The learned Additional Sessions Judge who had the advantage of observing the demeanour of the witnesses examined by him has observed that Bashir Ahmad appeared to be quite independent and disintersted witness and there is no reason to disagree with him. Similar were his observations with regard to Mst. Shamim Akhtar. About her it can be safely said that she would not have falsely implicated the appellant realising thereby that her sister would become a widow. She therefore spoke what was truth and stood up for justice. Guilt of the appellant can, therefore, be based on her statement alone. The plea taken by the appellant was perhaps the best that he could do, looking to the weight of the prosecution case and his apprehension in the house of his father-in-law. We are, therefore, of the view that the prosecution case against the appellant rests on the very reliable evidence of two eye-witnesses and the plea was advanced by the appellant only to avoid the consequences of his actions.
13. We, therefore, dismiss this appeal and confirm the sentence of death imposed upon the appellant. .