' QAISER AHMED HAMIDI, J.-- Harsan son of Pooniyo, Kolhi has been sentenced to death for the offence under section 302, P.P.C., for the murder of Muhammad Ali alias Muhammad Bhai, by Mr. Agha Rafiq Ahmad Khan, Vth Additional Sessions Judge, Hyderabad (Sind), vide judgment dated 10th October, 1987. An appeal has been filed by him against the said judgment regarding his conviction and sentence. There is also a murder reference before us for the confirmation of his death sentence. We will dispose of, both the appeal as well as the murder reference, by this judgment.
2. This regrettable episode is a sequel to an ordinary occurrence. Deceased Muhammad Ali had taken lease of land from Noorullah and Sadruddin. Appellant Harsan Kolhi worked as 'Hari' while P.W. Veeho Kolhi worked as paid employee of deceased Muhammad Ali on this land. It is the case of the prosecution that on 5-5-1984, deceased Muhammad Ali had gone to his leased land along with Gulzar Ali and Shamshad Ali, who are adjoining Zamindars. Deceased Muhammad All was giving instructions to his servant Veeho Kolhi, when at about 1 p.m. Appellant, armed with a hatchet emerged there and demanded money from him. Deceased Muhammad Ali asked the appellant to come to his factory for settlement of accounts, as according to him, he has already taken his dues.
This infuriated the appellant, who started abusing deceased Muhammad Ali, who objected to it. It is alleged that thereafter appellant showered hatchet blows upon Muhammad Ali, who died on the spot. The appellant then went away towards his house. The incident was witnessed by Veeho Kolhi, Gulzar Ali and Shamshad Ali. Gulzar Ali rushed to the clinic of Dr. Qasim Ali, brother of deceased Muhammad Ali and apprised him of the incident. Dr. Qasim Ali went to the scene of occurrence and found the dead body of his brother Muhammad All lying in a pool of blood. He then proceeded to Hatri Police Station and lodged the F.I.R. Ghulam Rasool Jatoi S.H.O. Recorded the F.I.R. At 2 p.m.
And then proceeded to the scene of incident. He then inspected the Wardat in presence of Mashirs Muhammad Ameen and Qurban Ali. The dead body of Muhammad Ali was then dispatched to Medical Officer L.M.C. Hospital, Hyderabad for post-mortem examination. The Police Officer then arrested appellant Harsan from the garden of Alam Khan Almani. On the same day the statements of Veeho Kolhi, Sahamshad Ali and Gulzar Ali were recorded. On the next day the appellant while in custody led the Investigating Officer and Mashirs Muhammad Ameen and Durban Ali to the garden of Alam Khan Almani and produced the blood-stained hatchet which was lying concealed under the leaves of banana. The hatchet was sealed on the spot and was sent to Chemical Examiner, Karachi for report. On 12-5-1984, 164, Cr.P.C. Statements of P.Ws. Veeho, Gulzar All and Shamshad All were recorded by a 1st Class Magistrate. After completing the investigation the appellant was sent up.
3. The appellant met the charge by a denial professing innocence.
4. At the trial, the prosecution led the evidence consisting of:-
(a) The ocular testimony of Shamshad Ali (P.W.2), Gulzar Ali (P.W.3) and Veeho Kolhi (P.W.4).
(b) The recovery of blood-stained hatchet at the instance of the appellant which was found to be stained with human blood by the Chemical Examiner.
(c) The motive which was to the effect that the appellant had demanded his dues from deceased Muhammad Ali, which resulted into an altercation culminating into this incident.
5. On the assessm ent of the evidence, the learned trial Judge considered the above evidence as reliable and consequently convicted the appellant.
6. The question that deceased Muhammad Ali died an unnatural death is hardly open to any controversy. Besides the ocular testimony which we will discuss at the proper time, there is evidence of Dr. Muhammad Siddik (P.W.5), who has conducted the autopsy on the dead body of Muhammad Ali and on external examination found the following injuries on his person:- "(1) An oblique incised wound 13 c.m. x 1/2 c.m. x bone deep on the left cheek and on the left temporal region, starting from the middle of the left cheek and running backward to the left mastoid region cutting the muscle of left cheek, left mandible, and the left temporal bones alongwith left ear at its middle. The brain matter was coming out of it.
(2) An incised wound 5 c.m. x 1/2 c.m..Muscle deep below the angle of left mandible cutting the muscles and the lower last part of the lobule of the kft ear.
(3) An oblique incised wound 8 c.Ni. x 1 c.m. x scalp deep on the 'occipital region on left side, one end of his wound was meeting the outer part of injury No,2.
(4) An oblique incised wound 13 c.m. x 2 c.m. x bone deep on the occipital region on left side and the left parietal region, cutting the occipital bone and the left parietal bone on posterior aspect.
The brain matter was coming out.
(5) An oblique incised wound 13 c.m. x 2 c.m. x bone deep on the right parietal temporal region with cutting of the right parietal and right temporal bones.
(6) An oblique incised wound 12 c.m. x 5 c.m. x bone deep on the right side of the neck upper most part cutting all the muscles of neck on fight side, main blood vessels i,e, right external carotid artery and jugular vein, of the neck on right side and also cutting the cervical column at the middle of the body of the second cervical vertebrae through and through alongwith the spinal cord."
7. On external as well as internal examination of the dead body of Muhammad Ali, the Medical Officer is of the view that the cause of his death was shock and hemorrhage as a result of above injuries which were ante-mortem in nature and appeared to have been caused by sharp cutting weapon like hatchet. Injuries Nos. 1, 4, 5 and 6 were individually sufficient to cause death in ordinary course of nature. The appellant has also not disputed this position.
8. We have had the benefit of a very detailed arguments on both the sides. Mr. Aftab Ahmad Akhund, learned counsel for the appellant has contended that the F.I.R. In this case was lodged after preliminary investigation was made by S.H.O. Hatri Police Station, and therefore, no evidentiary value can be attached to it. He has in particular invited our attention to an admission made by complainant. Dr. Qasim All (P.W.1) in this behalf. There are certain other facts and circumstances which indicate that the F.I.R. Could not have been lodged at 2 p.m. Within one hour of the incident.
Admittedly the incident took place at about 1 p.m. The clinic of Dr. Qasim Ali (P.W.1), who is complainant in this case is about 2-1/2 miles away from the scene of incident. There is nothing on record to show as to how and in what conveyance Gulzar Ali (P.W.3) had gone to the clinic of Dr. Qasim Ali. The complainant himself admits that Gulzar All had reached to him at about 1-30 p.m.
Admittedly Dr. Qasim All first went to the Wardat and from there proceeded to Hatri Police Station which is again situated at a distance of six miles from the place of incident. Having regard to the above circumstances, it was not possible for complainant Dr. Qasim All to have lodged F.I.R. At 2 p.m. The dead body of deceased Muhammad All had again reached to L.M.C. Hospital, Hyderabad at 3 p.m., which was again not possible. These circumstances, therefore, lend support to the admission made by Dr. Qasim All (P.W.1), when he states that the police first visited the scene of incident and thereafter recorded his F.I.R. He is an educated person and the possibility of mistake cannot be attributed to him.
9. The learned counsel for the appellant has relied upon the cases reported as Anwar v. The State 1975 P Cr. L J 750 and Muhammad Haneef v. The State PLD 1977 Lah. 1253, in an attempt to show that the sanctity attached to F.I.R. Has vanished. However, we are of the view that the F.I.R. Recorded after preliminary investigation is an irregularity which would not be sufficient to discard the case of prosecution as false. We are fortified in our view by the cases reported as Aziz 11 Ahmad v. The State 1974 P Cr. L J Note 105 at page 66, Kareem Bux v. The State B 1976 P Cr. L J 911 and Nazir Ahmad and another v. The State 1976 P Cr. L J 993. In the last case a Division Bench observed as follows:- "It makes no difference if the F.I.R. Had been recorded on the spot, because although it is not an approved practice, F.I.R. Not being a substantive piece of evidence, the recording of the same on the spot does not mean that the entire case of the prosecution should be thrown aside."
10. The case of the prosecution mainly hinges upon the direct testimony consisting of Shamshad All (P.W.2), Gulzar All (P.W.3) and Veeho Kolhi (P.W.4), who claim to have witnessed the incident. Mr. Aftab Ahmad Akhund, learned counsel for the appellant has assailed the evidence of these witnesses labeling them to be interested. The testimony of witnesses, however, who are natural wintesses of an incident and whom one would expect to have seen should not be doubted only because they happen to be caste-fellows of deceased person or connected with him in any manner. The evidence of such witnesses cannot be discarded merely on this ground. The mechanical rejection of such evidence and computerized treatment given to such witnesses would lead to failure of justice. As observed in Nazir and others v. The State reported in PLD 1962 SC 269, they `interested witness' is one who has a motive for falsely implicating an accused person. None of the above witnesses had obviously any motive for falsely implicating the appellant. Veeho Kolhi (P.W.4) is in fact a caste-fellow of the appellant. He was an employee of deceased Muhammad All and was busy with his work on the fields when this unfortunate incident took place. He was standing at a distance of 10 or 15 paces from deceased Muhammad Ali when the appellant , emerged there with a hatchet and after exchange of hot words caused him hatchet1 injuries. No enmity is alleged by the appellant against this witness. We have, ,D therefore, no hesitation in accepting his evidence when he states that the appellant was responsible for this brutal murder.
11. Shamshad Ali (P.W.2) and Gulzar Ali (P.W.3) claim to have gone to the leased land of deceased Muhammad All with him and were present near the spot when this incident took place. The evidence of these two witnesses is criticised by the learned counsel for appellant on two-fold grounds, firstly that they are chance witnesses and had no reason to be present at the scene of occurrence, and secondly that their evidence being contradictory should not be relied upon. The fact that both these witnesses are caste-fellows of deceased l Muhammad Ali is not disputed. The record, however, shows that the lands surrounding the Wardat are mostly owned by persons belonging to Khoja community. Both these witnesses also owned land near the place of occurrence and they had accompanied deceased Muhammad Ali to give rounds to their lands also. In judging the worth of such evidence due regard should also be had to the importance of the points on which the witnesses contradict one another, or their ownselves. Unless the contradictions are on material points and either throw considerable doubt about the witnesses having observed the facts deposed to at all or indicate that they are making a deliberate attempt to misstate them, no serious notice should be taken of them. The discrepancies in the statements of F these two witnesses referred to by the learned counsel for the appellant are minor in nature, and in no way show that they are set up witnesses.
12. The case set up by the appellant in his cross-examination to Gulzar Ali (P.W.3) again leads to the conclusion that the appellant and no one else was the author of this crime. The following extract of the cross-examination to Gulzar Ali (P.W.3) is self-explanatory:- "It is not a fact that deceased Muhammad Ali sustained hurt in the village of accused on the back side of the house of accused. It is not a fact that accused saw deceased Muhammad Ali with his wife in objectionable position and, therefore, gave hatchet blows to deceased out of Ghairat."
13. The following suggestion made in cross-examination to Veeho (P.W.4) is again relevant:- "It is not a fact that when accused Harsan demanded money deceased Muhammad (Ali) abused him on his mother and sister on which accused lost temper and gave hatchet blows."
14. Besides the above ocular testimony there is recovery of blood-stained hatchet at the instance of appellant. Muhammad Ameen (P.W.7), who is Mashir of recovery and Ghulam Rasool S.H.O.
(P.W.8) who has made the recovery, have testified to this effect. The Mashir of recovery is an independent person and nothing has been elicited in his cross-examination to detract the value of his testimony. The only fact that the recovery was made on the following day of the arrest of appellant is by itself not sufficient to suspect the words of the Mashir. It appears that feeling the prick of conscience, the appellant was obviously actuated by an extreme sense of regret of having murdered his Zamindar on a trifling matter, and, therefore, produced the hatchet which was found to be stained with human blood by the Chemical Examiner vide (Exh.13/B).
15. It may be noted that the incident took place in broad daylight and only one person viz. The appellant was implicated by all the eye-witnesses. The appellant has virtually admitted the killing by suggesting such question to Gulzar Ali (P.W.3) and Veeho Kolhi (P.W.4). There was no reason for the complainant and other witnesses examined on behalf of prosecution to have screened the real culprit by implicating an innocent person. The plea of sudden and grave provocation raised on behalf of appellant appears to be absurd on the face of it. It is beyond imagination that an old person of about 65 years of age would select an open place under scorching sun to meet with the wife of appellant. Veeho (P.W.4), who is a Kolhi like the appellant would not have figured as witness for the prosecution in such a situation. In fact, the appellant himself realized this difficulty and raised an alternate plea of the abuses given to him by deceased Muhammad Ali, which suggestion was also denied by Veeho Kolhi (P.W.4). We have, therefore, no hesitation to hold the appellant guilty for the offence under section 302, P.P.C.
16. This brings us to the most important part of Mr. Aftab Ahmad Akhund's argument, namely that the evidence on record justified a lesser punishment. He strenuously argued that the incident took place all of a sudden without any premeditation, which by itself was a mitigating circumstance entitling the appellant to lesser penalty. Brutality with which the murder of an innocent person was committed, is a circumstance disentitling the appellant to any leniency. The appellant has shown no mercy upon an old and helpless person. He continued to shower hatchet blows upon him even after he had fallen down. He, therefore, deserves the normal penalty of death which was rightly awarded to him by the learned Additional Sessions Judge, Hyderabad.
17. In view of the above conclusions, we maintain the conviction and sentence awarded to appellant and confirm the death sentence awarded to him. The appeal is dismissed and the reference is accepted. .