1. Giiolam Rasool K. Shaikh, J.--This is an appeal against the judgment of the learned Additional Sessions Judge, Sukkttr con victing the appellants for an offence under section 302/34, P. P. C. and sentencing appellant Abdul Wahid to death while sentencing the remaining three to transportation for life. This case has also come up for confirmation of the death sentence under section 374, Cr. P.
2. C.
3. The incident had taken place on 27-7-69 at morning prayer time in the common courtyard of the house of, deceased Bhaji and others while the first report was lodged by Haji brother of the deceased at 8-30 a.rn. at Khanpur Police Station situated at a distance of about 2 miles and it was recorded by Mr. Nabijlux Head Constable.
4. The parties lived in the same village and are Mehars by caste. Bhaji deceased was brother of Haji complainant and cousin of Allahwarayo and Pathan while Usman is caste-fellow of both the parties. So far the appellants are concerned they are related inter se. Appellants Abdul Wahid and Sharbat are brothers inter se while appellants Kaimdin and Sanaullah are their cousins.
5. About 5 years before this incident Haji complainant and his cousin Kaloo were tried for the murder of Misri brother of Abdul Wahid and Sharbat appellants and they were sentenced to 3 year's R. I.
6. The appellants were dissatisfied with this sentence and, therefore, they started demanding compensation but the complainant party refused on account of their conviction. So the appellants threatened to kill one of their men. The com plainant and Kaloo were released from jail after serving out the sentence about 12 months before this incident. The compensa tion which was sought was in the form of three women, and also expenses to be incurred on those marriages. However, it appears that one woman by name Mst. Mehran sister of the complainant was married to Khan Muhammad brother of appel lant Abdul Wahid and Sharbat. Although this marriage was denied by the complainant but it was admitted by some other Witnesses. It appears that the appellants were not still satisfied with this marriage and they insisted that two more women be given to them in marriage.
7. On 27-7-69 at morning prayer time Haji complainant, Bhaji deceased and Allahwarayo witness were sleeping in the common courtyard of their houses when suddenly the appellants appeared and inflicted injuries upon Bhaji. Appellants Abdul Wahid and Kaimdin had hatchets while Sanaullah and Sharbat were armed with guns in order to scare the inmates and others as well to meet any eventuality in case there was any resistence. When the deceased was attacked he raised cries and, therefore, Haji'and Allahwarayo woke up and they found the appellants inflicting injuries with hatchets. Then all the four appellants escaped. While they were going out of the house they were seen by Pathan and Usman who were living closeby and were attracted by the cries.
8. Bhaji died instantaneously. The complainant went to the police station and lodged the first information report which was recorded by Nabi Bux Head Constable. The copy of the first report was sent to Mr. Muhammad Ghous S. H. O. and he repaired to the scene of offence. The dead body of Bhaji was lying on the cot and there was blood on the ground. The blood-stained earth was secured and sealed in presence of mashirs. There was blood on the pillow and cot. Mashirnama Exh. 16 was prepared. After preparing the inquest report Exh. 17 the dead body was sent to the hospital through Wahidbux Constable, After recording the statement of Allahwarayo search was made for the appellants but they were not available in the village. On 28th the statements of Pathan and Usman were recorded. On 30th appellant Wahid appeared at the Police Station and he was found wearing washed blood-stained shirt which was secured. The appellant was arrested and he led the Police to his own house and produced a hatchet having some blood on the handle.
9. It was sealed and Mashirnama Exh. 20 was prepared. The S. H. O. then went to house of Kaimdin appellant and arrested him. He also produced a hatchet and Mashirnama Exh. 21 was prepared. On 31st July 1969, both these appellants were sent to the Civil Judge and 1st Class Magistrate, Mirpur Mathelo and their confessions were recorded. Their confessions read as under :-- Abdul Wahid t "No Sir, no body or the Police has given me any threat, promise or inducement. I am making this confession with my own free-will. About four days back at dawn time, I, Qaimuddin, Sanaullah, Sharbat started together from house and went to the well of Ali Nawaz. I and Qaimuddin went inside the house of deceased Bajhi and Sharbat and Snauliah stood out. Deceased Bajhi was sleeping inside his house on a cot. I had a hatchet in my hand with which I gave two blows to Bajhi after which I and Qaimuddin came out and ran away along with Sharbat and Sanaullah. Sharbat and Sanaullah went to an unknown place on a lorry and we both went and hid in jungle. Yesterday, at about noon time I surrendered myself at the Police Station and also produced the hatchet used in the crime. I have killed Bajhi because four-five years ago Haji, brother of Bajhi had killed my brother Misri and I have avenged that murder."
10. Qaimtiddin : "No Sir, no one including police has given me any induce ment, threat or promise. I am making this confession with my own free-will. About four days back, at dawn-midnight time, I, Abdul Wahid, Sanaullah, Sharbat went together to the house of Bajhi at the well of Ali Nawaz. Sharbat and Sanaullah stood outside in the lane and I and Abdul Wahid went inside the house of Bajhi. Bajhi was asleep on a cot. I had a hatchet in my hand. I stood at a distance of about 3/4 paces from the cot of Bajhi and Abdul Wahid struck two blows with his hatchet to Bajhi. After this I and Abdul Wahid went and hid in the jungle. Sharbat and Sanaullah went to an unknown place on a lorry. Yesterday the Police came and arrested me from my house. Abdul Wahid went to police by himself. Abdul Wahid is my cousin whose compensation was due from Bajhi, therefore, I had gone along with Abdul Wahid. T had taken out the hatchet from husk (Kati) in my house and had produced it before the police."
11. The appellant had been allowed two hours for reflection by the learned Magistrate and thereafter their confessions were recorded. After recording the confessions the appellants were remanded to judicial custody. The learned Magistrate also appended the necessary certificates.
12. On 4th August 1969, Sharbat appellant was arrested by S. H. O., Mirpur Mathelo and later he was taken into custody by Mr. Ghousbux. The appellant took the police to his house and produced his licenced gun, mashlrnama Exit. 22 was prepared. On 10th August appellant Sanaullah surrendered himself at the Police Station and he was arrested. On 13th August 1969, the interim challan was sent and on 28th August 1969, the final challan was sent. The blood-stained articles were sent to the Chemical Analyser who detected human blood on the hatchet produced by appellant Abdul Wahid as well as on the earth. No blood was detected on the hatchet produced by appellant Qaimuddin.
13. The appellants proclaimed their innocence and denied having killed Bajhi. It was admitted that Misri was murdered but it was pleaded that a compromise had been effected. It was further pleaded that Badal, Pandhi and Pirbux had committed the murder but they were let off by the Police by accepting Rs. 3,000 as illegal gratification and instead they were falsely implicated. The appellants Abdul Wahid and Qaimuddin also retracted from their confessions and stated that they had been maltreated by the police and, therefore, they were forced to make the confessions. One of the appellants, namely, Sanaullah, pleaded that he was a teacher and on the day of the incident he had gone to Khandhkot to make purchases and stayed in one inn and in those days he was on vacation and was living in Bakhshapur. Haji Muhammad Ismail who was running the inn was examined to establish the presence of Sanaullah on that night in that inn. He also pro duced a register containing the entry Exh. 41 showing that the appellant had come there on 26th July 1969, at 8-30. Here it may be stated that it was not shown whether it was morning or evening although according to the witness the appellant had come in the evening and stayed for the night there. So according to him it was 8-30 p.m. . None of the entries in the entire register show morning or evening but only time in figures is noted against all the entries.
14. The prosecution examined Mr. Mian Abdul Halim Sadiq, Civil Judge and 1st Class Magistrate who had recorded the con fessions, Haji complainat, Allahwarayo, Usman, Pathan, Ibrahim ntashir, Din Muhammad Maxhir, Muhammad Moosa tapedar, Nabibux, Head Constable and Mr. Ghousbux, S. H.
15. O. while the evidence of Dr. Ghulam Rasul recorded in the committal proceedings was brought on record.
16. The fact that Bajhi was murdered has not been disputed. Apart from the ocular testimony it is borne out by the medical evidence, The medical officer had found the following injuries upon his person : "(1) An open incised wound about 8"x 3"x neck deep over the left side neck starting from the middle of the lower lip going towards the middle portion of the left clavicle.
(2) An incised wound about 31" x 1V x bone deep over the right prominence of the cheek.
(3) An incised wound about Txl'x hone deep over the lateral 1/3 of the left clavical.
(4) A superficial incised wound about 3/4" x 1/4' x skin deep angular in shape over the left prominence of the cheek."
17. According to the medical officer the injuries were ante-mortem and were caused by hatchet. The death was due to shock and haemorrhage as a result of the injuries. He was further of the opinion that the death must have been instantaneous and injury No. 1 was sufficient in the ordinary course of nature to cause death. The stomach was found empty.
18. In order to consider the complicity of the appellants in this crime we would like to summarise the evidence. Taking up the ocular testimony there are two witnesses. The first witness is Haji. He is brother of the deceased and they lived together in the same house. The house of Allahwarayo was also situated within the same enclosure, with a common courtyard. Haji stated that he as well as Bajhi and Allahwarayo were sleeping in the courtyard when at morning prayer time he heard some noise and found the appellants proceeding straight to the cot of Bajhi. Appellant Abdul Wahid and Kaim had hatchets while Sanaullah and Sharbat had guns. Abdul Wahid and Kaim gave hatchet blows to Bajhi. Allahwarayo also got up on the cries. After inflicting the injuries the appellants took to heels and while they were still inside the witnesses Usman and Pathan arrived and they were challenged by the appellant, who then made good their escape. Bajhi was found dead. Pathan and Usman were informed about the incident and the names of the appellants were disclosed to them.
19. He also described the motive for this murderous assault. He stated that he and Kaloo were challaned in the murder case and they were sentenced to undergo R. I. for 3 years. They were released after .serving out the sentences in the year 1967. The appellants demanded compensation from him and Bajhi but they declined as the compensation was too large to be managed. He further stated that Bajhi was his younger brother and the main earning member of the family. In the cross-examination he admitted that he had not stated either in his police statement or in the committal proceedings that he had disclosed the names of the appellants to Usman and Pathan, nor they had disclosed their names to him. He further stated that the appellant wanted compensation in the form of 3 women and expenses for the marriage but they could not comply with their demand. In the examination-in-chief he had stated that he was awake when he had heard the noise but in the first report to which he was confronted he had stated that he woke up on the noise. He further stated in the cross-examination that the police had arrested Pandhi, Badal and Pirbux as suspects in this case. With regard to the arrest of the appellants he stated that appellants Abdul Wahid and Kaimdin were arrested by the Police on the day of the incident. He denied that after the release from jail they had paid any compensation to the appellants. He also denied that Mst. Mchran daughter of his brother Loung was married to Khan Muhammad brother of the appellant Abdul Wahid. FIc also denied that Khan Muhammad had any wife by name of Mst.
20. Mchran. Kandhkot was 40 miles, from liis village.
21. The other witness Allahwatayo stated that at morning prayer time he was giving fodder to his cattle when he hoard the cries from the house of the complainant and on going there he found Sanaullah and Sharbat appellants having guns while appellants Abdul Wahid and Kaimdin had hatchets. Flis house was situated at a distance of about 15/16 paces from the house of the com - plainant within the same courtyard. He further stated that the appellants with hatchets gave blows to Bajhi but on account of fear they stood aside. They raised cries which attracted Usman and Pathan and they had seen the appellants running away. Bajhi was found dead. He also talked of the motive as stated by Haji. In the'cross-examination he was confronted with his state ments recorded in the police as well as committal proceedings wherein he had not stated that he was giving fodder to the cattle but he had said that he woke up on the cries of the complainant. He could not say what compensation was demanded by the appellants. According to him the house of Usman was at a distance of 20/25 paces while the house of Pathan was at a distance of 40/50 paces. He admitted that Mst. Meltran daughter of Loung was married to Khan Muhammad brother of appellant Abdul Wahid, but he could not say how much time before the incident she was married.
22. Then there is the evidence of Usman and Pathan, who were attracted by the cries. Usman stated that he was sleeping in his house which was situated near the house of the complainant and on hearing the cries coming from the house of the complainant he rushed there. Pathan also arrived.
23. They saw the present appellants coming out of the house. Appellant Sharbat and Sanaullah had guns while appellants Abdul Wahid and Kaim (Vol. V had hatchets. They made no efforts to capture the appellants as they were threatened. They found Bajhi lying dead. In cross- examination he stated that other persons arrived after the appel lants had escaped. They had seen the appellants while they were at the side of Bajhi near the cot. He had admitted in the committal proceedings that about 2 years prior to this incident the marriage of one Mchran and Khano had taken place.
24. Pathan had stated that his house was situated at a distance of 20/25 paces from the house of the complainant. On hearing the cries he went there. On the way Usman joined him. On going there they found appellants Abdul Wahid and Kairn giving hatchet blows to Bajhi who was sleeping on the cot. Haji and Allahwarayo were raising cries. On going inside the house he saw the appellants at a distance of 8/10 paces. He was challenged by Sharbat and Sanaullah appellants. They had declared that they/bad avenged the murder of Misri. Thereafter they ran away. Bajhi was found dead. They were informed that Abdul Wahid and Kaim appellants had given blows to Bajhi while appellants Sharbat and Sanaullah stood there. In cross-examination, however, he stated that it was not true that they had seen the appellants giving blows to the deceased. He further stated that the house of Usman was nearer than his house to the house the complainant but he overtook Usman as he was fast in running and was ahead of Usman. However, they reached the house of the complainant together. He denied that the complainant had paid any compensation for the murder of Misri to the appel lants. The appellants had demanded compensation but the complainant party refused to pay. He could not say when Mst. Mchran was given in marriage to Khano by the complainant party. According to him it was not true that the marriage of Mst. Mchran was performed after the complainant and Kaloo were released from jail. He had not attended the marriage. He had omitted to mention in his statement recorded under section 164, Cr. P. C. whether -any of the appellants had a gun. He further stated that there were 5/7 cots lying in the courtyard of the house of the complainant while some other cots were at a little distance.
25. Then there is the evidence of the remaining witnesses. Ibrahitn is the mas/iir of the scene of offence. He had found the dead body lying on the cot and there was blood. Masltiniatna Exit. 16 was prepared. In the cross-examination he denied that he was related to the complainant although he admitted it in the committal proceedings.
26. Din Muhammad is the tnashir for the arrest of appellant Abdul Wahid. He stated that the police had secured the shirt from the person of the appellant and it appeared washed although there were some very faint spots of blood. Mashirnama Exit. 18 was prepared. The appellant then took them to his own house and produced a hatchet from the fence. There was some blood on the handle of the hatchet. Mashirnama Exh. 20 was prepared. The hatchet Article B was shown to him in Court and he stated that it was the same which was produced by the appellant. .Kaimdin appellant was also arrested on the same day and he produced a hatchet from his house from the heap of chaffs but no blood was found on it. Mashirnama Exh. 21 was prepared. After 4/5 days he saw a gun borne on the licence of appellant Sharbat lying at the Police Station and mashirnama Exh. 22 was prepared. In the cross-examination he stated that he could not say who had produced the gun and the licence. He denied having stated in the committal proceedings that he had not seen blood on the blade of the hatchet and the police said that there was blood on it.
27. He also denied that the police had maltreated the appellants Kaimdin and Abdul Wahid in order to compel them to produce the hatchets, although he had admitted this fact in the committal proceedings and he was confronted with that statement. His village was situated at a distance of about 2} miles from the Police Station, although he stated in the committal proceedings that his village was situated at a distance of 4/5 miles. He further admitted that he had acted as mashir in two or three cases prior to this incident. In the committal proceedings he had stated that he had acted as mashir in 5/10 cases.
28. Nabibux is the Head Constable who recorded the first report. There is nothing else material in his evidence.
29. Then there is the evidence of Mr. Ghousbux S. H. O. who had held tly entire investigation. With regard to his evidence it is suffice to mention that according to him one washed blood stained shirt was secured from the person of appellant Abdul Wahid who was arrested on 30th July 1969, and he also produced hatchet having blood on the handle from his house. The hatchet was sealed. Kaimdin was also arrested on the same day and he too produced a hatchet but there was no blood. On 31st July 1969, he had forwarded the appellants Abdul Wahid and Kaimdin to the Civil Judge and 1st Class Magistrate, Mirpur Mathelo for getting their confessions recorded. On 2-8-1969 he got the statements of Allahwarayo, Usman and Pathan recorded under section 164, Cr. P. C. He further stated that appellant Sharbat was arrested by another S. H. O. on 4-8-69. He interrogated him and he produced his licenced gun from his house. On 10th August 1969, appellant Sanaullah surrendered himself at the Police Station and he was arrested. In the cross-examination he denied that he had either arrested appellant Kaimdin and Abdul Wahid on the day of the incident or he had maltreated them. He stated that the appellants were not available in their houses on that day. lie also denied having arrested Pandhi, Badal and Pirbux as suspects. Abdul Wahid appellant was arrested at about 2 p.m. He denied having sent for any female member of the appellants at the Police Station.
30. Front the resume of the evidence it is clear that the witnesses who had actually witnessed the murderous assault on the deceased are Haji and Allahwaraya. According to their evidence appellants Abdul Wahid and Kaimdin inflicted injuries by hatchets while the other two armed with guns waited there. All the four had gone together to perpetrate the crime. Their evidence was supported by the evidence of Pathan and Osman who were attracted by the cries and had seen all the four appellants in the courtyard where the victim was killed and then they were found leaving the house. On account of threats and fear they could not muster up courage to capture any of the appellants.
31. The evidence of the aforesaid witnesses was accepted by the learned Additional Sessions Judge. It was pertinently observed by the Supreme Court in the case of Allahditta v. The State (1) "one principle is that an appellate Court should always give a full measure of weight to the opinion formed by a Judge of the lirst instance regarding the character and the credibility of a witness who has been examined at length before him in relation to the facts." Apart from this principle we have carefully examined the entire evidence and we fully confirm the view taken by him. The learned counsel for the appellant did not succeed in persuading us to hold a contrary view. He mainly relied upon the relationship of the witnesses and certain discrepancies. By now it is fully settled that mere relationship is no ground to hold that the evidence is of partisan character or it should be rejected. It is not shown that the witnesses were on terms of serious enmity with the appellant in order to cast cloud on their testimony. On the contrary the appellants#nursed a grouse against the com plainant party on account of the previous murder and their demand for compensation was not fully met with. In order to meet this it was urged by the learned counsel that the appellants had already obtained the compensation in the form of the marriage of the niece of the deceased with the brother of Abdul Wahid and Sharbat appellants a year or two before this incident and therefore, that chapter was closed long ago. May it be so, but this on the contrary recoils against the appellants as by the previous settlement the complainant party had no ill-will or malice against the appellants in order to falsely implicate them. Even the learned counsel could not point out any motive for false implication. Indeed, the absence of the proof of any such notice may not be sufficient to hold that what the witnesses have slated is true but all the same it is one of the factors to be taken into consideration to Judge the varacity of a witness. In other words it depends upon the circumstances of each case which provide the guideline to assess the evidence.
32. The circumstances in the present case do not present any inherent improbability in what the witnesses have deposed. The murder was committed in the courtyard common to the houses of the complainant and Allahwarayo. This fact has not been disputed. This spot evidently being the scene of murder. Haji and Allahwarayo are the natural witnesses. Furthermore the incident having taken place at morning prayer time their presence at that time cannot at all be doubted. So it is but natural that they must have seen what had happened before their eyes. This is a sufficient guarantee to establish the truth of their claim. Equally the arrival of Patehn and Usman is not open to any exception. They both reached the spot simultaneously and found the appellants escaping after inflicting the injuries. The house of Usman was adjacent to the house of the deceased while the house of Pathan was situated hardly at a distance of 20 or 25 paces.
33. Thus they too are natural witnesses and lived within a distance from where the cries were audible and, therefore, they could be attracted by the cries and reach the spot before the assailants could successfully make good their escape. It may be noted that the hedge round the scene of offence was only 3 or 3J feet high and, was fully open to view to a. person who was still outside. Pathan is of course cousin of the deceased but no relationship of any kind exists between Usman and the deceased except that they were caste-fellows but Usman is also caste- fellow of the appellants.
34. He had no hostility for the appellants nor had any fancy for the prosecution. In the cross- examination, his evidence was not assailed on any ground. No suggestion of any possible interest or motive was made. Surely, the unimpeachable evidence of Usman serves to provide the necessary corroboration to the evidence of the relation witnesses, if at all any corrobora tion is needed and fully confirms the account of incident related by them, although in our view, looking to the place, time and the absence of motive for false implication no corroboration is required. It is not to be imagined that the real culprits were spared and instead the appellants were substituted.
35. The learned counsel not having been able to discern any infirmity in the evidence of Usman proceeded to assume that he could not possibly reach the scene of crime before the escape of the culprits. The basis of this was the distance as revealed by the evidence of Muhammad Musa tapedar according to whom the house of Usman point G is at a distance of 165 feet from point A which was the spot where the deceased was killed. It is obvious that the learned counsel lent himself into error in his estimation of the distance. He thought that the distance given by the tapedar was from house to house. This is not so. The distance was measured from spot marked A where the murderous assault was made on the deceased and this was located in the courtyard of his house. Usman affirmed that his house was adjacent and when he rushed to the scene of offence on hearing the cries he found the appellants leaving. In view of this positive evidence, to hint at bare possibility, unsupported by any evidence or circumstance, has no more value than a mere conjecture or surmise which calls for no serious consideration.
36. So far the other three witnesses, Haji, Allahwarayo and Pathan are concerned, some discrepancies were pointed out. Haji had stated in his evidence that he was awake when he heard some noise and looked to that side while he had stated in the F. I. R. that he woke up on the noise. Similarly, Allahwarayo stated in evidence that he was giving fodder to the cattle when he heard the cries while he had stated in the committal proceed ings that he woke up on the cries. We attach no importance to these discrepancies as they were sleeping at a short distance from the deceased in the same courtyard and, therefore, they must have got up when the deceased was being belaboured. He was given four hatchet blows. So it is immaterial at what point of time they saw the appellants who were intimately known and there was enough visibility. It was, further brought out that Haji did not claim in his statements recorded by the Police and during the committal proceedings that they had communicated to each other the names of the appellants. Suffice to say, that it was unnecessary to do so as all the four witnesses had actually seen and recognised the appellants, and, therefore, the individual confirmation in respect of the identity of the appellants did not depend upon any such communication. It was further shown that Usman had denied that his niece was married to the brother of the two of the appellants. He had foolishly done so and we are unable to subscribe to the view that on this account, his evidence should be rejected. It depends upon the circumstances of each case as to what extent the evidence of a witness who makes some statement which is not true, is tainted. So far Pathan is concerned, exception was taken to his claim in the examination-in-chief that he had seen appellants Abdul Wahid and Kaimdin giving hatchet blow to Bajhi deceased as the other witness Usman who had reached the spot simultaneously had simply seen the appellants leaving the house. There seems to be some confusion in recording his evidence as the very first line of cross-examination shows that he stated that it was not true that they had seen the appellants giving hatchet blows to the deceased. Whatever be the case nothing turns upon this. He lived at a distance of 296 feet from the scene of offence and, therefore, his arrival before the appellants left, cannot be said to be improbable or doubtful.
37. An argument was advanced that in such cases a tendency is noticed that the number of the persons who take part in the crime is exaggerated and some innocent relations are implicated. We are constrained to observe that it cannot be a rule of general application. It depends upon the circumstances of each case. Generalization in criminal cases would very often lead to mis carriage of justice. The so-called tendency must be found on tangible material and cannot be merely hypothetical. Nothing has been pointed to support the tendency. Moreover, immediate corroboration to the evidence of the two eye-witnesses Haji and Allahwarayo is available in the evidence of Usman who is an independent witness. He had immediately gone on the . cries and had seen all the four appellants leaving the house of the deceased.
38. Confirmation can also be sought from the nature of the harm, the time and place of incident and the number of the persons needed and their interest in the commission of the crime. Considering these factors into consideration, it can hardly be said that the number of the persons involved in the present case is in excess of the number which must have participated in the perpetration of the brutal murder. Two of the appellants engaged themselves in the actual assault and the other two armed with guns stood by to meet any eventuality or resistance, if offered. The appellants are closely related to each other and they were expected to join bands.
39. It was also emphasised that there was no substance in the motive put forth by tbe prosecution as the complainant who had committed the murder was available in the house and yet no attempt was made to assault him and there was no ostensible reason to murder an innocent person, consequently the prosecu tion evidence with regard to the main incident was also open to grave doubt. In this connection reliance was placed upon the authority of the Supreme Court in the case of Habibxdlah and others sc The State (1). The headnote reads as under : "In ordinary human conduct where killing takes place by design, it is not without a motive strong or weak. This is not to say that murders are not committed wantonly without any motive whatsoever.
40. Motive less murders do occur owing to mad or reckless acts of in human nature. Sometimes a motive lies mysteriously hidden in the mind of the killer with no means to dig it out on the surface.
41. But it may be stated as a rule of prudence in judging human conduct that where a motive is alleged by the prosecution which is found to be false, it becomes all the more necessary to scrutinise the credentials of the witnesses who by their evidence direct or indirect speak about the guilt of an accused person on the premises of a false motive.
42. Where, therefore, the alleged motive was found to be absent being untrue it was held that the Courts should have been very much on their guard to accept the story of the prosecution of which the motive was an important constituent and which depended for its acceptance on the statement of a single witness who supported that story including the motive.
43. In our view, this authority is clearly distinguishable as in that case not only the motive was found to be false but even the credibility of the witness was found damaged on account of certain other false statements which he had made. Moreover, this authority does not lay down that whenever motive alleged in by the prosecu tion has been found to be untmc it must be nvariably held that the occular testimony is completely lost to the prosecution. It is plain enough that in spite of the failure of the prosecution to prove the motive the integrity of the evidence, depends upon the circumstances of each case. In the present case the objection raised by the learned counsel has been fully answered. The deceased was said to be younger than the complainant and the main earning member of the family. In such cases the revenge is not necessarily confined to the wrongdoer but any one can be made a scape goat. Such instances are not wanting. Moreover, it was pertinently observed in the aforesaid dictum of the Supreme Court that sometimes the motive lies mysteriously hidden in the mind of the killer with no means to dig it out on the surface. Thus it is for the assailant to say why he had committed the outrageous act. So sometimes the prosecution is unable to correctly guess the motive. In this connection it would be also be useful to reproduce the following observation made in the case of Younis and others v. The State (1) : "Motive is a fact which is only within the knowledge of the person doing the act and it is something very difficult even for the victim to guess the motive correctly. Failure to discover the motive for an offence does not signify its non-existence. It may be that the accused had some other motive for the crime which is not ascertainable. If direct evidence of the offence is available it is immaterial that no motive has been proved."
44. Considering the observations of the aforesaid authorities we are not disposed to entertain the objection that the evidence of the witnesses be discounted. In the same context it was urged that as admitted by the complainant in the committal proceedings the other three persons were called as suspects by the police. It seems that this statement is the result of some confusion. The appellants have been implicated in the first report in unmistakable terms and no other person was suspected. Consequently there was no occasion for the police to summon any other person as suspect. Even otherwise, it does not serve to provide the ground to doubt the identity of the appellants with the crime in view of the clear and unimpeachable evidence of the spot witnesses.
45. None of the witnesses entertained any doubt about the participation of the appellants nor any such doubt can be discovered in the circumstances of the present case.
46. The next piece of evidence against the appellants Abdul Wahid and Kaimdin is their judicial confession already reproduced. Abdul Wahid appellant admitted having inflicted the injuries while the other appellant although admitted having gone there but denied having given any blow. In view of the clear ocular testimony we are not disposed to accept his denial. Even otherwise, he is equally guilty by virtue of the provisions of section 34, P. P. C. for sharing the common intention. So far the probative value of the confession is concerned, it has been established by the evidence of Mr. Mian Abdul Halim Sadiq, Civil Judge and F. C. Magistrate who had recorded the confession that sufficient time was allowed for reflection and all the necessary precautions were taken as well as due warning was administered to ensure the genuineness of the confession. After the confession the appellants were remanded to judicial custody. Nothing was spelled out in the cross- examination to doubt the integrity of the learned Magistrate. The learned counsel, however, attacked the confession on the ground of delay. It was urged that although it was admitted by the complainant that the appellants were arrested on the day of incident but they were produced before the Magistrate on the 5th day. This objection was also raised in the trial Court and it was overruled on the ground of mistake. We also share the same view. It is not possible to read the evidence subject to all the admissions which may be due to confusion or lapse of memory, in disregard to the other material on record. It is, the overall effect of the entire evidence which is of vital importance. Stray admission here and there is incosequential. Examining the merits it may be noted that the trial had taken place more than a year after the incident and, therefore, he was not expected to correctly recall the details of the investigation conducted by the Police officer specially when he had received a terrible shock on account of the murder of his brother who was an earning member of the family. The Investigat ing Officer had no reason to suppress the arrest if it was, made earlier. There is no allegation that he was in any manner interested in the prosecution or had any grouse against the appel lants. Even the appellants themselves in their confession confirmed the date of arrest as shown by the Investigating Officer. We are, therefore, not prepared to subscribe to the. view of the learned counsel that the appellants were in custody since the day of the incident. It was further urged that confession of Qaitnuddin was not in confirmity with the prosecution evidence inasmuch as he did not admit having given any blow to the deceased. Even this does not hit the confession in its entirety. Any portion which can be found to be false can be rejected and the rest can be accepted.
47. Another piece of evidence against appellant Abdul Wahid is the recovery of blood-stained hatchet at his instance from his house. It was lying concealed in the heap of chaffs. This recovery has been established by the evidence of Din Muhammad mashir and Mr. Ghousbux S. H. O. corroborated by the mashir- natm Exh.
20. The Chemical Analyser had found human blood vide his report Exh. 27.
48. The recovery was attacked on the ground of maltreatment. It was stated by Din Muhammad mashir in the committal proceedings that the appellants were maltreated and then they produced the hatchets. May it be so, but it does not affect the recovery. So far the blood on the hatchet is concerned, it was further urged that Din Muhammad mashir had stated in the committal proceedings that he did not notice blood on the blade of the hatchet. There is no incon sistency in the evidence given at the trial as the blood was noticed on the handle of the hatchet. However, the Chemical z\nalyser found the blood on the inner side of the neck of the hatchet. It seems that the hatchet was washed but some blood I remained inside. Even the mashirnama Exh. 20 shows that there was blood on the handle and inside the hatchet but unfortunately neither the Assistant Public Prosecutor nor the trial Court cared to question the mashir and the Investigating Olhcer with regard to the presence of the blood at that spot and the statement in the mashirnama cannot be treated to be substantive evidence. Despite this the discovery of human blood by the Chemical Analyser cannot be ignored and it can be used as circumstantial evidence against the appellant. He cared to offer no explana tion. His case is of bare denial which cannot be accepted. It is perfectly legitimate to draw an inference that this was the crime weapon otherwise it could neither have been concealed nor produced. It is not possible to imagine that the hatchet was foisted or the blood was subsequently transferred to it. Had it been so, the shirt of the appellant and the hatchet produced by the other appellant Kaimdin on the same day would not have escaped the same treatment. Lastly, it was urged that Din Muhammad was a stock witness as he had acted as mashir in a number of cases. Even this circumstance is not sufficient to persuade us to reject the recovery of the hatchet. Apart from what has been said before, we may say that he is zamindar and a respectable person and, therefore, his selection does not present any unusual feature or affect his integrity. It is also noteworthy that the appellant had surrendered himself at the police station Khanpur and on that day Din Muhammad was also available at Khanpur.
49. This brings us to the plea of alibi taken up by appellant Sanaullah. He claimed that he was a teacher and was posted at Buxapur in those days. It was further claimed that he was on vacation and had gone to Kandhkote on the evening of 26th July to make purchases and passed that night in the inn maintained by defence witness Haji Muhammad Ismail and on the morning of 27th after saying prayer set out for Buxapur. It may be noted here that the deceased was murdered on 27th at the time of morning prayer. Kandhkote is situated about 16 miles from Buxapur and about 60 or 70 miles from the scene of offence. The defence witness supported him and produced the register maintained by him in respect of the persons who had stayed there and either their signatures or their thumb-impressions were taken. The entry showing the stay of the appellant is Exh. 41.
50. The plea was rejected by the learned Additional Sessions Judge as he found it to be an afterthought for the reasons stated by him. We are also not impressed by this plea and the evidence of the defence witness. It was a belated version at the (rial in the Sessions Court. At no earlier stage this plea was taken. In the committal proceedings the case was of bare denial. Even in that statement he had shown his place of residence as Dano village which is the same village where the murder had | been committed. It was in the Sessions Court that he proceeded to show his residence in Buxapur village. He further stated that he was a school teacher posted at Buxapur and had gone to Kandhkote to make purchases. In the first place no evidence was produced that he was school teacher at Buxapur. Secondly according to his showing he was on vacation. He was, therefore, not expected to stay at Buxapur. His native place was elsewhere at a distance of about 60 miles. Thirdly it is inconceivable that he would go to Kandhkote in the evening to make purchases. There was also a bus service between Kandhkote and Buxapur and, therefore, he could not be expected to pass night there. Apart from this another important feature of the entry is that it purports to bear the signature of the appellant but we have compared this signature with his signatures on the vakalatnama and his statements and it is clear to the naked eye that the signatures do not tally and the signature in the register had beer forged. Evidently an unsuccessful attempt was made to product the precise signature. It has been further found that althougl the time of arrival was shown at 8-30 but neither it was showi whether it was morning or evening nor the time of the departun was noted. The same is the position with regard to all othe entries. To meet this reliance was placed upon the evidence o the defence witness who said it was evening time when the appellant had arrived and he left in the morning after saying prayer. It is not possible to believe that without showing the precise time he was able to recall the details after more than one year, specially when according to the entries in the register 12 persons occupied the inn on that day and several persons used to stay there from time to time. No particular reason has been disclosed to remember the details. No regular account for the recovery of rent seems to have been maintained as none has been produced. Similarly no counterfoil book has been produced. We are, therefore, of the view that these entries had been fabricated in order to support the false plea of alibi.
51. In the circumstances the conclusion is irresistible that the appellants arc guilty of the offence and they were rightly con victed. We, therefore, maintain the conviction of the appellants for offence under section 302/34, P. P. C. As regards the sentence, it was urged by the learned counsel for the appellants, not without force, that no justification could be found in award ing death sentence to Abdul Wahid when the other appellant Kaimuddin who, according to the prosecution evidence had also joiued in the actual assault, was sentenced to transportation for life. He, therefore, sought the removal of unjust disparity. We are also of the view that on the basis of the evidence the case of one could not be differentiated from the other and it being a case of premeditated and cold- blooded murder both should have been sentenced to death. The learned Additional Sessions Judge proceeded to draw the distinction on the basis of the fatal blow having been dealt by the condemned appellant but in our view this distinction is fanciful. It is a case of joint attack deliberately launched to kill the victim outright and so it is immaterial whether one or the other servered the neck.
52. Similar situation had arisen in the case of Shaheb Ali v. The State (1). it was a case of premeditated cold-blooded murder committed by three brothers on a pathway in open day light in order to take revenge. They were sentenced to death by the trial Court but in the High Court sentence of two was commuted to transportation for life and death sentence passed against one was confirmed. The condemned accused filed an appeal in the Supreme Court. Their Lordships did not approve of the distinction drawn by the High Court. It was observed as under :-- "Their guilt, according to the evidence aud facts of the prosecution case, is absolutely at par without any difference in kind or in degree. When several persons act together in furtherance of their common intention, the act of one is the act of every one of them, and it does not matter if one has taken a leading or a more prominent part in the perpetration of the crime."
53. After further discussion, their Lordships were of the view that the result achieved was an unwarranted and unfair distinction in the sentence of the appellant which was bound to induce a feeling in him that he had been made a scape goat to atone with his life not only for his own sin but also that of his brothers for having killed the deceased. In the end it was observed as under "Speaking frankly, I have been put to a considerable strain in making up my mind in this case. The question that has taxed my mind is ; shall I uphold the sentence of the appellant or shall I scale it down to that of the co-accused ? If 1 uphold it, do I not approve of the mistake of the High Court in creating an adverse distinction in the case of the appellant from that of the others, although in point of fact no such distinction exists? If 1 alter the sentence, shall I not be com mitting the same mistake which has been committed by the High Court in withholding the normal pehalty of death for what has been found .to be wanton and heartless murder.
54. In this wavered state of mind, I have thought it better to err in favour of the condemned appellant rather than against him, and for the additional reason that he has now been under the agony of a death sentence for a little less than two years. It is also obvious that in the commission of this crime, lie has not acted singly on his own, but has acted under the active influence and with the collaboration of his other two brothers, one of whom is elder and the other younger to him, and both of whom have got away in this crime with a lesser punishmeut."
55. Finally the death sentence was altered to transportation for life. With due respect, we follow the same rule. The State had not filed any appeal nor any notice for enhancement of sentence was issued when this appeal was admitted for regular hearing. We do not consider it proper to do so at this stage. We, there for, alter the sentence of death passed against Abdul Wahid appellant to transportation for life and maintain the sentence of transportation passed against the remaining three appellants. With this modification the appeal is dismissed and the reference is rejected. .