' MUHAMMAD MAZHAR ALI, J.--- This is a reference under section 374 of the Code of Criminal Procedure by the Sessions Judge, Larkana for confirmation of the sentence of death passed on the convict prisoner Faiz Muhammad son of Allah Rakhio under section 302, P.P.C. With fine of Rs,1,00,000, and in case of default in payment of fine to undergo R.I. For five years more. Besides, in exercise of the powers vested in him under section 544-A, Cr.P.C. The learned Sessions Judge has further directed that the convict shall also pay Rs,2 lacs as compensation to the heirs of the deceased Ali Akhar Shah. There is also an appeal from his conviction and sentence by the said convict-prisoner.
2. Both the reference and the appeal have been heard together and they are being disposed of by this single judgment. The short order was passed on 31-11990.
3. The prosecution case may briefly be stated as follows. Miran Shah son of Syed Subhan Shah lodged his F.I.R. On 19th March, 1981 at 20-00 hours at Police Station Naudero, District Larkana, which reads as under:-- "Complainant reported that he is resident of village Garhi Khudabux and are three brothers inter se namely complainant, Ali AKbar Shah and Muhammad Hassan Shah. They reside jointly in one house. Complainant is bailiff in Civil Court Larkana, that after his duty in Court at Larkana, he returned to his house in village Garhi Khudabux. That on that day (i,e, on 19-3-1981 when case was reported) after attending his duty he had come back to his house. He found his brother-in-law (husband of his sister) Talib Ali Shah resident of village Paru had also come. That complainant and Talib Ali Shah both went out of their house to new Masjid for offering Maghreb prayer. That at about 18-30 hours when they reached near new Masjid on the northern side, they saw Ali Akbar Shah sitting on the Decca. (raised platform meant for sitting purpose). At that time they saw Faiz Muhammad alias Allahoo son of Rakhial Lighari resident of village Garhi Khudabux duly armed with a hatchet and after reaching there, he raised alarm and gave hatchet blows (with sharp side) to complainant's brother Syed Ali Akhar Shah, who cried out and fell down. In the meantime Muhammad Panah son of Moulabux Dayo and other village men arrived. They also saw accused giving hatchet blows to Syed Ali Akhar Shah. They all gave Hakals to accused to spare him from killing. On the Hakals, accused alongwith his hatchet went to his house. After the accused had gone, they went near Syed Ali Akbar Shah and saw Ali Akhar Shah had hatchet injuries on left side on his head, he had injuries on back of right hand and on shoulder of his left arm caused with, hatchet with sharp side. Syed Ali Akhar Shah was bleeding from his injuries. Syed Akhar Shah fell unconscious due to injuries. Complainant informed facts to Oshaque Khan Bhutto Nekmard of the village. He advised to lodge report with police. Complainant then carried his injured brother Syed Ali Akhar Shah to Police Station Naudero to lodge report. Complainant further reported that about 20 days back in the morning time accused was standing near their house; on which Syed Akhar Shah had forbade him from standing near their house; over this their brother and accused Faiz Muhammad had exchanged harsh words, and therefore, accused finding an opportunity had inflicted him hatchet injuries and was injured."
4. The F.I.R. (Exh.7) was recorded by P.W.8 Muhammad Nawaz Lund, S.H.O. He then prepared Mashirnama of injuries (Exh.l8) of Ali Akbar Shah injured. Who was taken to police station by the complainant in the presence of Mashirs Ghulam Sarwar Shah and Ghulam Haider Shah. He was then unconscious. He referred the injured to Chandka Medical College and Hospital, Larkana for treatment and report. He then proceeded to the place of the incident which was shown to him by the informant. Ile prepared Mashirnama of Wardat (Exh.1) in the presence of the above named Mashirs. He also prepared Mashirnama of seizure of one blood-stained Sindhi cap and one torn bloodstained silken shirt of the injured (Exh.20) in the presence of Mashirs Sahib son of Budhoo and Ghulam Haider Shah. He then examined P.Ws. Talib, Muhammad Pannah and Oshaque Ali under section 161, Cr.P.C. On 20th March, 1981 at 7-45 a.m. He arrested the accused Faiz Muhammad son of Rakhial Leghari from the Otak of Oshaque Ali Khan Bhutto, village Garhi Khudabux Bhutto and prepared Mashirnama of arrest and seizure of blood-stained clothes of the accused (Exh.21) in presence of Mashirs Sahib son of Bhudoo and Ghulam Haider Shah. The accused Faiz Muhammad then led the S.H.O. And the Mashirs to his house for production of hatchet used by him in the commission of the crime. The S.H.O. Prepared a Mashirnama of recovery of hatchet (Exh.22), on 20th March, 1981 at 8-15 a.m. In the presence of the said Mashirs. The blade and handle of the hatchet were blood-stained. On the same day i,e, 20th March, 1981 he received an intimation from Dr. Mohan Lal, R.M.O. Chandka Medical College, Larkana (Exh.28) to the effect that the injured Ali Akhar Shah had died in the hospital at 6 a.m. He then got recorded under section 164, Cr.P.C. The statements of P.Ws. Talib Hussain and Muhammad Pannah by Mukhtarkar and F.C.M., Ratodero on 23rd March, 1981. In the meanwhile the inquest report (Exh.30) was prepared by Muhammad Azecm, A.S.I. Police Station Town, Larkana on 20th March, 1981 at 8 a.m. In the presence of Mashirs Amanullah and Sarwar Shah. The S.H.O. Sent the blood-stained earth, hatchet and clothes to the Chemical Analyser through the S.D.P.0.-H, Ratodero, Larkana. For examination and report. He produced such report as Exh.29.
5. The prosecution case is based on ocular testimony, evidence of motive, recoveries of blood- stained hatchet and clothes and medical evidence.
6. The accused has denied all the allegations and claimed to he innocent.
' He has stated that the P.Ws. Were inimical to him. He has not examined any witness in his defence.
7. The medical evidence shows that the deceased Ali Akhar Shah died on account of shock and haemorrhage due to hatchet injuries over head. The deceased as per medical report had sustained the following external and internal injuries on his persbn and all of them were ante- mortem. The injury No,2 was individually sufficient to cause death in the ordinary course of nature:- -
(1) Incised wound 4" x 1/2" x bone deep at right hand on dorsal side.
(2) Incised wound 6" x 2" x 2" at left fronto temporal region.
(3) Incised wound 3" x 1/4" x 1/2" at left deltoid region.
8. On internal examination of the dead body following damages were found:-- "Fracture of left frontal and parietal hones, Hacmotoma under left frontal bones. All other organs were found healthy. The stomach was found empty."
9. P.W.7 Dr. Mohan Lal, Medical Officer, Chandka Medical College, Larkana, who conducted post- mortem examination on the body of deceased Ali Akbar Shah, has been examined and he has supported the prosecution case. Mr. Muhammad Hayat Junejo, learned counsel for the appellant has also not challenged the killing of the deceased.
10. The solitary point which now falls for determination is whether the offence was committed by the appellant or by someone else?
11. To substantiate this point the prosecution led the evidence of eyewitnesses P.W.1 Meeran Shah, complainant, P.W.2 Talib All Shah and P.W.3 Muhammad Pannah, who was declared hostile and hence his section 164, Cr.P.C. Statement (Exh.11) was brought on record, evidence of recoveries of bloodstained clothes (Exh.21) and blood-stained hatchet (Exh.22) of the appellant. P.W.6 Ghulam Haider Shah is Mashir for both the recoveries, evidence of motive, medical evidence and the report of the Chemical Analyzer (Exh.20).
12. We propose to proceed first to examine evidence of eye-witnesses with a view to ascertain if it is worthy of reliance. P.W.1 Meeran Shah, complainant and P.W.2 Talib All Shah arc admittedly brother and brother-in-law (sister's husband), respectively, of the deceased. Both these witnesses have fully supported the prosecution version. According to them, they were going to the mosque near the house of the complainant for Maghrib prayer, when they reached near the mosque on its northern side they saw the appellant who was armed with hatchet, after challenging him gave sharp-sided hatchet blows to All Akhar Shah deceased, who was sitting on the dice by the side of the mosque. The accused then went away with hatchet to his house. They also stated that P.W.
Muhammad Pannah Daya also witnessed the incident. Both of them then went to Ali Akbar Shah and found him lying injured with hatchet injuries and was unconscious. P.W.3 Muhammad Pannah, a co-villager did not at the trial support the prosecution case and was declared a hostile witness and permitted to be cross-examined by Investigating Officer D.P.P. The section 164, Cr.P.C.
Statement of P.W. Muhammad Pannah has been brought on record. During his cross-examination to In charge D.P.P. He denied all the statements recorded under section 164, Cr.P.C. And ultimately stated that the statement given by him in the Court was correct, whereas the contents of section 164, Cr.P.C. Statement were false. He, however, admitted that it was correct that he (appellant Faiz Muhammad) was present in the Court of Mukhtiarkar and F.C.M., Ratodero, when his section 164, Cr.P.C. Statement was recorded. He also admitted that it hears his left thumb-impression. A perusal of section 164, Cr.P.C. Statement of P.W. Pannah further manifestly shows that the appellant was given a chance to cross-examine the deponent Muhammad Pannah but he declined to cross- examine him by saying that he would be cross-examined through his Advocate in the Court.
13. Mr. Muhammad Hayat Junejo, learned counsel for the appellant has fairly conceded that if the evidence of the two alleged eye-witnesses, namely, P.W. Meeran Shah and P.W. Talib All Shah is held to he reliable then there would be escape from recording a finding that the deceased was done to death by the hatchet blows caused to him by the appellant. Mr. Muhammad Hayat Junejo, however, contended that the alleged two eve-witnesses, namely, P.W.1 Miran Shah and P.W.2 Talib Ali Shah were not reliable on account of being close relatives of the deceased inasmuch as P.W.1 was his real brother whereas P.W.2 was his brother-in-law (sister's husband). Mr. Muhammad Hayat Junejo has also criticised the credibility of the said two witnesses by referring us to the inconsistency in their evidence with regard to the time when they came out of their house for offering Maghrib prayer. In this regard he drew our attention to the statement made by P.W.1 during his cross-examination that sunset prayer Aazan was not made till the time of incident; whereas P.7:2 in reply to the question in the cross-examination stated; 'we proceeded from house about 2-3 minutes after hearing Aazan'. He further submitted that in reply to yet another question in cross- examination P.W.1 stated that there was 10-15 minutes time left for sunset prayers at the time of the incident.
14. We are not impressed by the arguments of the learned counsel for the appellant. In so far as the presence of these two witnesses at the scene of offence at the time of commission of offence is.
Concerned it was also admitted by P.W.3 Muhammad Pannah in his statement before the Court.
The suggestion made to P.W.1 that he was not present at the scene of occurrence was categorically repelled by him as incorrect. Likewise P.W.2 has categorically denied the suggestion that he and P.W.1 were not at the scene of occurrence. None of the inconsistencies to which the learned counsel for the appellant has drawn our attention is material so as to affect the relevant part of the prosecution case or to hold that the statement of either of the said two eye-witnesses (P.Ws. 1 and 2) is not credible. Such contradictions or variations could reasonably he expected on account of the long lapse, of time between the occurrence and the recording of their evidence in Court. It is worthy to note here that there is not an iota of suggestion to either of the said two eye- witnesses that they had any reason whatsoever to falsely implicate the appellant to the exclusion of the real culprit. Moreover, the evidence of these two eye-witnesses further receives corroboration from the section 164, Cr.P.C. Statement made by the hostile witness P.W.3 Muhammad Pannah. His statement under section 164, Cr.P.C. Was duly recorded by a Magistrate of the first class and hence we do not find any good reason why it should not be treated as evidence in the case for all purposes as envisaged by section 165-J, Cr.P.C. It was undisputedly made in presence of the accused appellant who had notice of it and was also given an opportunity of cross-examining him, but he declined to do so by stating that he (P.W.3) would be cross-examined by his advocate before the trial Court. P.W.3 Muhammad Pannah is an independent witness. He was a neighbor of the deceased as well as of the appellant above named. His statement under section 164, Cr.P.C. Was recorded on 28th March, 1981, i,e, within 10 days of the occurrence. It reads as follows:-- "I on solemn affirmation state that about 10 days back I was sitting at the shop of Ali Nawaz in village Garhi Khudabux. At that time Ali Akbar Shah was sitting on a Dekka (raised plat form meant for sitting purpose) of Masjid Sharif. At that time Fair. Muhammad son of Rakhial Leghari came from his house. He with his hatchet gave blows to Syed Ali AKbar Shah, who fell down. At that time Talib ALi Shah and Miran Shah were coming for prayers. I and they joined in giving Hakals to him (Faizu).
Accused after giving blows went away. Ali Akbar Shah fell down and went unconscious. Miran Shah went to Oshaque Ali Khan, who came. He advised Miran Shah to remove Ali Akhar Shah to Police Station and advised him to report the matter to police. Ali Akhar Shah then succumbed to injuries in Larkana Hospital. About a month back Faizu had stood near door of house of Sved Ali Akhar Shah. Ali Akbar Shah had forbidden him (Faizu) from standing there. For this accused had committed his murder. I do not know beyond this much."
It is manifestly evident from the above piece of independent evidence that both the P.W.1 Mecran Shah and P.W.2 Talib Ali Shah were present at the scene of offence and had witnessed the appellant giving blows to the deceased Ali Akbar Shah. Besides, it also amply corroborates in all relevant aspects the statements of the abovesaid two eye-witnesses. It also lends support to,the prosecution case with regard to motive. The evidence of P.Ws. 1 and 2 is, therefore, in our opinion, confidence inspiring and can safely be relied upon for reaching the conclusion and holding that it was the appellant who deliberately and intentionally caused the murder of Ali Akhar Shah. We arc further of the view that the ocular evidence by itself is sufficient to warrant conviction of the appellant under section 302, P.P.C. However, additionally, we find, that the occular evidence also receives corroboration from the evidence of P.W.6 Ghulam llyder Shah, Mashir of the recovery of the blood-stained clothes and hatchet of the appellant from his house at his instance. No doubt the blood stains on hatchet, as per report of Chemical Analyser, had disintegrated but the shirt and Angosha of the appellant were found stained with human blood. The version of the ahovenamed Mashir is supported by that of P.W.8 Muhammad Nawaz S.H.O., the Investigating Officer, whose evidence was not assailed before us by the learned counsel for the appellant.
15. Lastly, the prosecution case is also supported by the motive which is clearly indicated by the ocular evidence on record to the effect that about 20 days prior to the incident the deceased had forbade the appellant to stand near his house which resulted in exchange of harsh words between them. Hence the appellant murdered deceased Ali Akbar Shah. However, in the instant case, as already observed, in the presence of the direct evidence of the act of the deceased, the question of motive was not of material significance.
16. Consequently, we find that the prosecution has proved its case against the appellant for an offence under section 302, P.P.C. Having caused an intentional murder of deceased Ali Akhar Shah beyond reasonable doubt and he was rightly convicted for that offence by the learned trial Court.
17. In the result, reference is accepted and the appeal of the appellant is dismissed.