SALAHUDDIN MIRZA, J.--- The applicant was tried under section 302/324/504, P.P.C. And was convicted and sentenced to death by Additional Sessions Judge Sanghar in Sessions Case No.172/89 vide his judgment dated 17-3-1991. The F.I.R. Of the case was recorded by Haji Ali Bux as Crime No.102/89 of Police Station Sanghar which was recorded on .12-11-1989 at 1945 hours.
According to Haji Ali Bux, he resided in village Choti Ariyoon alongwith his mother-in-law Mst.
Hajiani Lai and his brothers-in-law Allah Bux and Allah Nawaz whereas one Juman Kerio (who is the appellant before us), who was also caste-fellow of the complainant also resided in an adjacent house. About two or three times the mother-in-law of the complainant had complained to him that whenever she went to Sanghar to meet her brother Haji Suleman, appellant Muhammad Juman objected and demanded of her not to visit her brother. The appellant also accused plaintiffs mother-in-law of being of bad character. In the evening on the day of occurrence at about 1800 hours the complainant was in his house when he heard cries coming from the house of Jatfer Kerio who lived nearby. On hearing the cries the complainant rushed to the house of said Jaffer. At the wine time, Qaim, Jaffer and Mst. Meehan widow of Muhammad Alam were also seen running towards the house of Jaffer: The complainant saw the appellant Muhammad Juman was armed with hatchet and was giving hatchet blows to complainant's mother-in-law Mst. Hajiani Lal who fell down on account of the injuries suffered by her. The complainant also heard the appellant saying that he had prohibited Mst. Hajiani Lal from going to visit her brother at Sanghar but she had not complied with his order and therefore he would not spare her. On seeing and hearing this the complainant raised cries and `Hakals' and at that moment Mst. Meehan tried to rescue Mst. Hajiani Lai whereupon appellant Juman gave hatchet blows to Mst. Meehan as well and she was also injured. By that time the complainant, with the help of Qaim and Jaffer, succeeded in over- powering appellant Muhammad Juman and snatched the hatchet from his hands but the hatchet, in the process of being snatched, caused some injuries on the head of appellant Muhammad Juman. After overpowering appellant Muhammad Juman, the complainant saw that Mst. Hajiani Lai had succumbed to her injuries and Mst. Meehan had received sharp side hatchet injuries on her right shoulder and was bleeding. At that stage complainant's brother-in-law Allah Bux also reached the place and saw that was happening and was also told of what had already taken place. The complainant then went to police post where his statement was recorded in the station diary within 15 minutes which was later on incorporated in the F.I.R. At Police Station Sanghar within one hour and forty-five minutes of the occurrence. The police then arrested the appellant alongwith his hatchet and after necessary investigation challaned him in the Court of Additional Sessions Judge Sanghar.
2. In support of its case the prosecution examined as many as four eye--witnesses who are P.W.1 Haji Ali Bux, P.W.2 Qaim, P.W.11 Allah Bux and P.W.13 Mst. Meehan. There is also the evidence of the recovery of hatchet. In addition, there is also a judicial confession of the appellant which was recorded by P.W.9 Wahid Bux Mukhtiarkar Sanghar. In his 342, Cr.P.C. Statement the appellant denied that he had committed the crime. As for the confession, he stated that it was `false'. As to the question as to why the P.Ws. Deposed against him, he stated that it was due to enmity but he did not explain what the enmity was. In the memo of appeal it is stated that the appellant was physically unfit to commit the offence. However, neither any suggestion to that effect was put to any prosecution witness in his cross-examination nor any positive evidence in support of this claim was brought on record by the appellant. It was also stated in the memo of appeal that `a head constable of P.P. Choti Ariyoon was interested in falsely implicating the appellant in this case.
However, nothing to this effect was said by the appellant in his 342, Cr.P.C. Statement nor any suggestion to that effect was put to any of the prosecution witnesses nor the name of the said head constable was disclosed even in the memo of appeal, late stage that it was for making any assertion to that effect.
3. So far as the eye-witnesses are concerned, the first is the complainant himself (P.W.1 Haji Ali Bux) who is son-in-law of deceased Mst. Hajiani Lal. His evidence is to the effect that when, attracted by the cries coming from the southern side of the house of Jaffer, he rushed to the place, he saw appellant Juman giving hatchet blows to Mst. Hajiani Lai from the sharp side of the hatchet and he also heard the appellant rebuking Mst. Hajiani Lai for disobeying his direction not to go to Sanghar and threatening her with death. The complainant further stated that when Mst. Meehan tried to intervene and save Mst. Hajiani Lai, the appellant gave hatchet blows to her as well due to which she was injured on her right arm. He further stated that Mst. Meehan had reached the place before him and it was after she had reached the place that he, Allah. Bux and Qaim reached there. The complainant further stated that they all (i.e. He himself alongwith Allah Bux and Qaim) caught hold of appellant Juman. The complainant further stated that he then went to P.P. Choti Ariyoon and lodged his report which was recorded in station diary, a copy of which he produced as Exh.5. A perusal of this report (Exh.5) would indicate that it was recorded at 1800 hours whereas the occurrence is of 1745 hours; that is to say, it was recorded within fifteen minutes of the occurrence.
As to the motive behind the commission of the murder, the complainant repeated that the deceased had complained to him that appellant Juman was demanding of her that she should not go to Sanghar and if she went it would not be good for her. In cross-examination he added that the Wardat was about 40 or 50 paces away from his house, that Mst. Meehan was not related to him but was only his caste-fellow. It was denied by him that there was any dispute between Qaim and Jaffer on one hand and appellant Juman on the other over a plot of land. He denied a suggestion that it was he and other prosecution witnesses who had killed Mst. Hajiani Lai and then at the instance of Qaim and Jaffer they had falsely involved the appellant. P.W.2 Qaim is an independent eye-witness inasmuch as he is not related either to the deceased or to other prosecution witnesses although he is nephew P.W.13 Mst. Meehan. He supported the complainant in all relevant details. He denied the suggestion that Mst. Hajiani Lai was killed by complainant Haji Ali Bux and others and the appellant was falsely implicated due to the dispute over plot of land with him. The third eye-witness is Mst. Meehan P.W.13. Her statement in the examination-in-chief is also practically the same as that of the complainant. She further added that she had to be admitted in hospital due to the injuries sustained by her at the hands of the appellant and remained there as an indoor patient for fifteen days. In her cross-examination she admitted a suggestion that when he came out of her house on the cries of Mst. Hajiani Lal she found the accused standing there and nobody else was present there. It is not clear that why this suggestion was put to the witness since it is also the case of the prosecution that Mst. Meehan was the first to reach the Wardat on hearing the cries of Mst. Hajiani Lal, and nobody also was present there and all others reached there subsequently: Besides, this suggestion rather concedes to the truth of the entire prosecution case.
To this witness yet another theory in respect of the death of Mst. Hajiani Lal was put, by way of the suggestion as to whether P.W. Jaffer had caused the hatchet injuries to Mst. Hajiani Lal. She, of course, denied the suggestion but it is clear that the claim of the appellant that Mst. Hajiani Lal had been killed by the prosecution witnesses themselves is, on its very face, a false defence since in the suggestion put to P :W. Haji Ali Bux, Jaffer was not named as the person who had inflicted hatchet injuries upon the person of the deceased and whereas in the suggestion put to P.W.2 Qaim the inflicting of hatchet injuries to the deceased is attributed to Haji Ali Bux and others and Jaffer is again excluded or at least not named. The last eye-- witness is P.W.11 Allah Bux, son of deceased Mst. Hajiani Lal. According to him he was going to the village Bazar when he heard cries and rushed to the place of occurrence and saw that his mother, with hatchet injuries on her body, was already lying dead on the ground and Mst. Meehan had also sustained hatchet injuries and he also saw that appellant Muhammad Juman, armed with hatchet, had been apprehended by Ali Bux, Jaffer and Qaim. This witness is not exactly an eye-witness since he did not himself see the appellant giving hatchet blows either to the deceased or to the injured but he is nearly as good as an eye- witness because he reached the Wardat just as the appellant had been overpowered by other prosecution witnesses. The suggestion put to this witness contains the names of both Ali Bux and Jaffer and he denied the suggestion that actually they had murdered Mst. Hajiani Lal.
4. We find no reason to disbelieve the eye-witnesses. They are natural witnesses of the occurrence.
They are all residents of the same locality. The mere relationship of the witnesses with the deceased does not make them interested witnesses. Even so, Mst. Meehan, who was herself injured by the appellant, is altogether unrelated to the deceased or the other prosecution witnesses and .There can be no ground for even suspecting that she would falsely implicate the appellant. P.W.1 Allah Bux, being son of the deceased and P.W.1 Haji Ali Bux, being son-in-law of the deceased arc too nearly related to the deceased to let go the real murderer: Besides, the Roznamcha report Exh.5 was recorded within fifteen minutes of the incident and we refuse to believe that during this short period the appellant was falsely implicated in the matter.
5. We then have the judicial confession of the appellant in which he stated that he was sitting in his house when deceased Mst. Hajiani Lal came to him, that her step-sons Habibullah and Muhammad Alam had earlier complained to him that their mother was of bad character and people used to taunt them on that account and they had asked him to advise their mother to behave properly and therefore, when Mst. Hajiani Lal came to her house on that day he reprimanded her but she was annoyed and abused him and gave him `Bhujjo' whereupon he was annoyed and struck her with the hatchet, P.W.9 Wahid Bux, Mukhtiarkar Sanghar, had recorded his confession and it is clear from his evidence that he had observed all the necessary formalities before recording the same. There is a delay ,of two days in the recording of confession (since occurrence took place in the evening of 12th November 1989. And the confession was recorded on 15th November, 1989) but under the circumstances of the case this delay does not appear very material especially in view of the fact that learned counsel for the appellant could not satisfy us that 1.3th and 14th November, 1989 were working days. Also no question to explain this delay was asked from Investigating Officer. It may also be noted that in the confession, the appellant did not say a word about also having injured Mst. Meehan. This shows that the appellant had recorded his confession out of his own free will and no undue pressure was put on him to that end. Otherwise, the appellant would have also been made to confess and this would have been less injurious to his interest that he had also inflicted hatchet injury to Mst. Meehan. We are, therefore, satisfied that the appellant had made the confession out of his own freewill.
6. P.W.3 Ibrahim is the person who had acted as Mashir in respect of the injuries sustained by Mst.
Meehan in respect of which Mashirnama Exh.8 was signed by him, and he was also Mashir of the securing of blood-stained earth from the Wardat vide Mashirnama Exh.9 and of inquest report Exh.10 and of the injuries on the person of the appellant vide Mashirnama Exh.11 and he also acted as the Mashir of the recovery of blood-stained hatchet from the possession of the appellant vide Mashirnama Exh.12. He is almost the very next door neighbour as only two houses intervene between his house and the place of occurrence. There is some contradiction between what the witness stated in the Court and what is written in the Mashirnama inasmuch as the witness stated that the hatchet was recovered from the hands of appellant Muhammad Juman but it was categorically mentioned in the Mashiranama that it was produced by P.W. Jaffer who had, in turn, disclosed that it was secured from appellant Juman. It appears to us that when the appellant was apprehended on the spot it is unlikely that hatchet should have been allowed to remain in his possession. It must have been taken away from him and thus what is written in Mashirnama appears to be the truth. However, on account of this discrepancy, we would not believe the evidence as to the recovery of hatchet.
7. After giving due consideration to the deposition of the eye-witnesses and the confession of the appellant, we are of the view that no exception can be taken to the findings of the learned trial Court. There is no reason why the eye--witness account of four witnesses, as well as judicial confession of the appellant, should be disbelieved. The appellant had come forward with a very unrealistic defence that Mst. Hajiani Lal was killed either by the complainant or by Jaffer (who was not examined by the prosecution and was given up even though he was cited in the challan as a witness). As we have already noted above, the circumstances of the case make it beyond the scope of probability; that it could have been a case of substitution of an innocent person. As would appear from the cross-examination of the prosecution witnesses, it was the case of the defence itself that Choti Ariyoon village was fairly populated village. Thus; the offence having been committed in the village itself, the appellant could have examined at least one or two witnesses in his defence in support of his claim that the deceased was not killed by him but by the complainant or by Jaffer or by both and there is no explanation as to why the appellant could not produce even a single witness on the point.
8. The prosecution has also relied upon the evidence of the existence of motive for the commission of the offence which is that- the appellant demanded of the deceased not to go to Sanghar to meet her brother because he suspected that she utilized such an opportunity for immoral purposes. The complainant has stated so in his evidence and even the appellant conceded to it in his judicial confession. It was argued by the learned counsel for the appellant that the appellant was not closely related to the deceased and therefore, it was none of his business to take any offence on the conduct of the appellant and therefore, the existence of this motive is highly improbable. We do not find ourselves in agreement with the contention of the learned counsel for the appellant. In fact, the very fact that the appellant was not closely related to the deceased shows that he should not have taken offence in this manner and therefore, this circumstance goes against him. As per his confession, step-sons of the deceased had complained to him about the immoral activities of the deceased. The existence of motive is thus sufficiently proved.
9. We are satisfied that the prosecution had proved its case beyond all doubt. We would therefore, uphold the conviction of the appellant. As for the sentence, no mitigating circumstances have been shown to us for this act of wanton cruelty in which the appellant killed a woman and injured another by causing hatchet injuries. It is evident from the evidence of P.W.4 Dr. Atta Muhammad of Civil Hospital Sanghar, who had conducted the post-mortem examination of the deceased, that the deceased had received three very serious injuries on the head and neck all of which were individually sufficient to cause death in ordinary course of nature and brain matter was `oozing out' as noted by the doctor in the post-mortem report. P.W.5 Dr. Muhammad Aslam Arain had examined injured Mst. Meehan and it is apparent from his evidence that she had also received muscle deep injury on her right shoulder although this injury was found to be simple. We are, therefore, of the view that in the circumstances the appellant was rightly sentenced to death.
10. In view of what has been stated above we uphold the conviction and sentence of the appellant and confirm the sentence of death awarded to him. Consequently, Criminal Appeal No.94 of 1991 stands dismissed.
N.H.Q./M-1645/K