1. ' MUKHTAR AHMED JUNEJO, J.--- Appellant Abdul Khalique was tried in Court of the Sessions Judge, Tharparkar at Mirpurkhas in Sessions Case No,148 of 1981 for the offence punishable under section 302 of P.P.C. At conclusion of his trial the appellant was convicted for the said offence and was awarded death penalty. The appellant was also ordered to pay Rs,25,000 as compensation to heirs of deceased Mst. Haleema and Mst. Naseema. The appellant has challenged his conviction and sentence and the case is before us for confirmation of the death sentence under section 374, Cr.P.C.
2. ' According to the prosecution on 11-11-1981 at about 11-15 a.m. appellant Abdul Khalique gave hatchet blows to his wife Mst. Naseema in front of his Quarter No,3 of Police Lines, Mirpurkhas, in presence of witnesses Furqan Shah, Usman, Allah Jurio and Muhammad Anwar. Subsequently the appellant threw the hatchet on the ground and rushed to Quarter No,5 where he gave hatchet blows to Mst. Haleema wife of his brother Mushtaq Ahmed. On being challenged, the appellant threw the hatchet which he had picked up from quarter of Mushtaq Ahmed and tried to escape but he was caught and detained at the Quarter Guard of the Police Lines. After the incident complainant Mushtaq Ahmed arrived at his quarter at 12-00 noon as he had gone to Umerkot. He was informed of both the incidents by H.C. Musafar Khan. On hearing about the incident, Mushtaq Ahmed saw that his wife Haleema was lying unconscious with hatchet injuries on her person and she was bleeding. She was shifted to the Civil Hospital, Mirpurkhas. On returning to the Police Lines Mushtaq Ahmed found Mst. Naseema lying dead with hatchet injuries over her person. Such F.I.R. was lodged by Mushtaq Ahmed at 12-30 p.m. According to the F.I.R. the appellant had caused injuries to his wife and wife of the complainant due to domestic quarrels.
3. ' S.I.P. Haji Khan registered the case and took over the investigation. He prepared Mashirnama of injuries and inquest report in respect of dead body of Mst. Naseema. He inspected the Wardat and arrested the appellant. Mst. Haleema died due to the injuries after admission in the hospital and Mashirnama of injuries and inquest report about her body were prepared. S.I.P. secured blood- stained clothes from person of the appellant at the time of his arrest On completion of investigation the appellant was challaned.
4. ' At his trial the appellant pleaded not guilty to the charge Exh.2 containing the prosecution allegations.
5. ' Prosecution examined complainant Mushtaq Ahmed Exh.21 and P.Ws. Muhammad Sidik Exh.20, Furqan Shah Exh.22, Usman Exh.23, Allah Juno Exh.24, Muhammad Anwar Exh.25, Haji Abdullah Exh.26, Hussain Din Exh.27, Rasool Bux Exh.28 and Jamshed Ali Exh.32.
6. ' In his statement Exh.34 the appellant denied having murdered his wife Mst. Naseema and his brother's wife Mst. Haleema by giving them hatchet blows. He denied blood-stained trousers and blood-stained shirt were recovered from his person by police. Appellant added that on the day of incident he was coming from the police ground alongwith his infant son, when A.S.I. Abdur Rehman met him near his quarter and told him that he was called by Munshi of Police Lines. He added that he was on his way to the Police Lines and near Quarter Guard he was talking with some constables when S.I.P. Haji Khan arrested him.
7. ' The appellant did not wish to examine himself on oath to disprove the charge and did not lead any evidence in defence. At end of the trial he was convicted and sentenced as mentioned above.
8. Hence this appeal and the confirmation case, which are being disposed of under this judgment.
9. ' Mr. Noor Nabi Memon learned counsel for the appellant pointed out that eye-witnesses Furqan Shah and Usman had not supported the prosecution, while Allah Jurio and Muhammad Anwar were not named in the F.I.R: and the complainant was declared hostile. It was next argued that motive for the two murders, alleged in the F.I.R., had not been established on record. In respect of recovery of blood-stained clothes, learned counsel attacked the report of the chemical examiner on the ground that clothes in question were sent to him on 10-12-1981 and he had received the same on 17-12-1981 and the report Exh.33A was issued on 25-3-1982. Learned counsel tried to highlight infirmities and contradictions in the evidence and took objection to the way the trial was held because three times the advocate appointed on Government expenses on behalf of the appellant in the trial Court, was changed and on certain dates the appellant was not produced in the trial Court and thus there was no assistance to the advocate for the appellant. In support learned counsel cited the cases of:-
(i) Kamber Ali Shah v. State PLD 1959 Kar. 460,
(ii) Gul Mir v. State PLD 1980 SC 185,
(iii) Abdul Majid v. State PLD 1976 Lah. 1476,
(iv) Khadim v. The Crown PLD 1954 Lah. 69,
(v) Khalil v. State PLD 1956 Lah. 840,
(vi) Mamoon and another v. State PLD 1962 Kar. 800,
(vii) Gul v. State PLD 1977 Kar. 1019,
(viii) Ashiq Hussain v. State 1989 P Cr. L J 154,
(ix) Kunnummal Muhammad and another v. State of Kerala AIR 1963 Kerala 54,
(x) Muhammad Yameen and others v. The State 1987 P Cr. L J 1576,
(xi) Gul v. State PLD 1977 Kar.
10. 1019.
11. ' Mr. Abdul Latif Ansari, learned AA.-G., for State supported the conviction and the sentence. In respect of manner of holding the trial, learned AA.-G. was of the view that the appellant was given more than fair trial, inasmuch as the advocates appointed to defend him, were granted a number of adjournments at their request. It was added that seven of the prosecution witnesses were examined on 2-2-1988 in presence of appellant's counsel, who did not move for adjournment and proceeded with the case. In respect of the grievance that the Advocates appointed to defend the appellant had no access to him, learned AA.-G. argued that none of the advocates appointed to defend the appellant complained to the trial Court orally or in writing about any difficulty in contacting the appellant. On merits learned AA.-G., argued that the eye-witnesses were residents of Police Lines, where the incident had taken place and hence no person from outside the Police Lines was examined as an eye-witness. It was next argued that P.Ws. Allah Jurio and Anwar were not named in the F.I.R., which was lodged by complainant Mushtaque Ahmed who was not an eye- witness. Lastly it was argued that the ocular evidence was not rebutted.
12. ' In respect of the grievance that proper legal assistance was not provided to the appellant during his trial, we are not convinced by arguments of learned counsel for the appellant. The trial Court took quick steps in ordering appointment of an Advocate to represent the pauper appellant on Government expenses when such request was made by the appellant on 14-11-1982. On 27-11-1982 the trial Court appointed Mr. Deedar Balouch Advocate to represent the appellant. The Court adjourned the case at request of the defence counsel on 13-12-1982, on 20-2-1983 and on 27-3- 1983. On 27-4-1983 Mr. Deedar Balouch, Advocate withdrew from the case as defence counsel and on the same date Mr. Waqar Ahmed, Advocate was appointed in his place to represent the appellant. On 5-7-1983 six prosecution witnesses were present but the case was adjourned as the appellant was not produced from the jail, and his counsel applied for adjournment on 5-7-1983, 16- 8-1983, 13-9-1983, 13-10-1983 and 23-11-1983, the appellant was not produced from the jail and hence the prosecution witnesses went unexamined. Again on 2-9-1984 Mr. Waqar Ahmed, Advocate, withdrew from the case and in his place Mr. Riaz Rajput, Advocate was appointed to defend the appellant. On 3-10-1984 and on 11-11-1984 four prosecution witnesses were present but the case was adjourned at request of the defence counsel. On 4-4-1985 the trial Court appointed Mr. Khair Muhammad, Advocate, to defend the appellant. On 3-3 1987 two prosecution witnesses were present but the case was adjourned at request of the defence counsel. On 15-7-1987 four prosecution witnesses were present but they were not examined due to absence of defence counsel. On 26 8-1987 three witnesses were present but the case was adjourned at request of the defence counsel. Ultimately on 2-2-1988 the case proceeded in presence of the appellant and his counsel, when seven witnesses were examined. The case further proceeded on 7-4-1988 in presence of Advocate for the pauper accused/appellant. In the circumstances it cannot be said that the accused was not given fair trial. In the case of Khadim PLD 1954 Lah. 69 it was held that section 340 of Cr.P.C. gives to an accused person the right to a reasonable opportunity to defend himself by counsel and as per High Court Rules and Orders, Volume III, every person charged with committing an offence punishable with death should have legal assistance at his trial. In the cited case exception was taken to the fact that the committing Magistrate did not formally communicate to the Sessions Court that the accused was not represented by counsel before him and was not in a position to engage his own counsel for defence at the trial, and the Sessions Judge finding that it was necessary to appoint counsel at Government expenses for the prisoner, nominated a counsel merely to stand and watch the trial without giving the counsel an opportunity to study the necessary documents and think over the case. Such omissions make a farce of the rule which entitles a prisoner charged with a capital offence to free legal assistance, as further held. In the case of Kunnummal Muhammad and another AIR 1963 Ker. 54 a note of warning was laid down against the practice of some of the Sessions Judges appointing raw and inexperienced juniors to defend the accused in capital cases and it was held that if inexperienced Advocates alone are available to defend such unfortunate accused, the Court has a primary duty to come to the aid of the accused by putting timely and useful questions and warning the Advocates from treading on dangerous grounds. Disapproval in the cited ease was expressed about the trial Court having freerly made use of the defects resulting from the inexperience of the advocate to build up the case, against the accused.
13. ' In the instant case the trial Court took quick step in appointing an advocate for the pauper accused on 27-11-1982 when the accused/appellant moved for such facility on 14-11-1982.
14. Obviously the Court had no control on the Advocate appointed on 27-11-1982 to make him continue in the case when the latter withdrew from the case on 27-4-1983. On the same date another advocate was appointed to defend the appellant but he too withdrew on 2-9-1984. A third advocate was appointed the same day to defend the appellant but he withdrew on 3-4-1985.
15. Lastly a fourth advocate was appointed to defend the appellant. Besides this, the trial Court gave a lot of latitude to the appellant's counsel. Adjournments were freely allowed to the applicant's counsel even on dates the witnesses were waiting to be examined. In the circumstances we are clear that reasonable opportunity to be defended by a counsel at his trial, was extended to the appellant in terms of section 340 of Cr.P.C. The two eases cited have no application to this case. In the instant case each of the advocates appointed by the trial Court to defend the appellant, was not for the purpose of merely standing and watching the trial, but for participating in the case on behalf of the appellant. Each of such advocates was given full opportunity to study the necessary documents and think over the case and cross-examine the prosecution witnesses. Such facilities were not extended in the case of Khadim. There is nothing on record to show if any of the advocates appointed to defend the appellant, was raw and inexperienced. Hence the case of Kunnummal has no application. The trial Court took care to see that all copies were supplied to the advocate appointed to defend the appellant. In the circumstances the contention that the appellant was not provided ample opportunity to defend himself with aid of legal expert is devoid of any substance.
16. ' Ocular evidence in the case came from P.Ws. Furqan Shah Exh.22, Usman Exh.23, Allah Jurio Exh.24 and Muhammad Anwar Exh.25. They are residing in the quarters of Police Lines, Mirpur Khas. They deposed that at the time of the incident they were in their respective quarters where they heard cries coming from the quarter of complainant Mushtaq Ahmed, who is Head Constable in police.
17. Furgan Shah Exh.22 who is Traffic Constable at Mirpur Khas claimed to have seen Mst. Haleema lying injured in quarter of the complainant her husband, and Mst. Naseem lying dead in quarter of appellant Abdul Khaliq her husband. In his evidence, Furqan Shah tried to help the appellant by saying that he had not seen the appellant or any person giving injuries to Mst. Haleema or causing death of Mst. Naseema. However, in his statement under section 164, Cr.P.C. Exh.22-A, Furqan Shah stated that on hearing cries in his quarter he came out and saw appellant Abdul Khaliq giving hatchet blows to his wife. That on being challenged the appellant entered quarter of his brother, picked up a hatchet, with which he gave blows to his brother's wife. Furqan Shah added in his statement under section 164, Cr.P.C. that when the appellant came out of his brother's quarter, he was caught and detained at quarter guard of the police lines. It is worthy to note that statement under section 164, Cr.P.C. of Furqan Shah was recorded in presence of the appellant who cross- examined him. Furqan Shah was confronted with his statement Exh.22-A recorded under section 164, Cr.P.C., which he found to be same, correct and bearing his signature. In his cross-examination Furon Shah obliged the appellant by agreeing with his counsel that his statement Exh.22-A was written by the S.H.O. who had not read over the same to him. Evidence of Furon Shah cannot be brushed aside simply because he has retracted from his statement under section 164, Cr.P.C.
18. ' P.Ws. Usman Exh.23, Allah Julio Exh.24 and Muhammad Anwar Exh.25 supported the prosecution and deposed that they saw the appellant giving hatchet blows to his wife Mst. Naseem over her head. Said witnesses produced their statements recorded by the Mukhtiarkar and F.C.M. Mirpur Khas under section 164, Cr.P.C. as Exh.23-A, Exh.24-A and Exh.25-A respectively. Said witnesses further stated that later on, the appellant ran towards quarter of his brother where he picked up a hatchet and gave hatchet blow on neck of his brother's wife Mst. Haleema. Said witness supported the fact that the appellant was caught at the spot. They were subjected to cross-examination by the counsel appointed to defend the appellant. P.W. Usman denied if his statement Exh.23-A under section 164, Cr.P.C. was recorded by the S.H.O. He was firm in saying that said statement was recorded by Mukhtiarkar and F.C.M. himself. P.W. Allah Julio Exh.24 said in cross-examination that he was living with his family in his quarter which was adjacent to quarter of the appellant. He also stated that his quarter had no compound wall but compound of the appellant's quarter where his wife died, was surrounded by walls like other quarters. Since the eye-witnesses physically went to quarter of the appellant on hearing cries, it is immaterial if compound of his quarter is not visible from outside as stated by Allah Julio Exh.24. P.W. Muhammad Anwar Exh.25 stated in cross- examination that his quarter was separated from quarter of the appellant by one quarter.
19. Statements Exh.23-A, Exh.24-A and Exh.25-A of P.Ws. Usman, Allah Julio and Muhammad Anwar respectively were recorded under section 164, Cr.P.C. in presence of the appellant who was given chance to cross-examine them. They did not retract from their statements. They stated in cross- examination that their statements were recorded by the Mukhtiarkar and F.C.M. Mirpurkhas. The ocular evidence as discussed, does not raise any shadow of doubt about the two murders having been committed by the appellant.
20. ' Evidence about recovery of blood-stained clothes from person of the appellant, has not been properly brought on record. Investigating Officer Haji Khan Muhammad S.I.P. who secured the blood-stained clothes from person of the appellant under Mashirnama Exh.27-D expired, as per evidence of P.C. Rasool Bux Exh.28 and his affidavit Exh.28-C. Signature of the S.I.P. on the Mashirnama Exh.27-D was proved by P.C. Jamshed Ali Shah Exh.32 but he did not depose if the blood-stained clothes were sent to the Chemical Examiner. Mashirnama Exh.27-D about recovery of blood-stained clothes from person of the appellant, was supported by P.W. Hussain Din Exh.27 who acted as Mashir. He too did not say if those clothes were sent to the Chemical Examiner.
21. Although report of the Chemical Examiner Exh.33-A was produced by the D.P.P. under his statement Exh.33 but there is no evidence if the said report is in respect of the clothes secured from the appellant. Since such an important link in the recovery evidence is missing, there is no proof if the recovered clothes were stained with human blood. Cases cited on behalf of the appellant viz. Muhammad Yameen and others' case 1987 P Cr. L J 1576 and Gul's case PLD 1977 Kar. 1019 and PLD 1977 Kar. 1019 have no application because in this case original report was produced.
22. ' The ocular evidence is corroborated by the medical evidence of Doctor Muhammad Siddik Exh.20, who produced P.M. report Exh.20-A in C respect of Mst. Naseem and P.M. report Exh.20-B in respect of Mst. Haleema. The doctor found 5 incised wounds on the dead body of Mst. Naseem and 3 incised wounds and one contusion on the dead body of Mst. Haleema. He gave opinion that cause of death was shock and haemorrhage as a result of the injuries which were ante-mortem.
23. ' Complainant Mushtaque Ahmed Exh.21, did not implicate the appellant, who is his real brother.
24. However, he did not deny the incident during the course of which his wife Mst. Haleema and his brother's wife Mst. Naseem were killed, in his absence, as he had gone to Umer Kot for police training. On his return to his quarter, he found his wife Mst. Haleema lying injured whereas he saw Mst. Naseem wife of his brother lying dead. He produced his F.I.R. Exh.21-A and stated that the same contained his signature, but its contents were not read over to him by police, which recorded the same. Since complainant Mushtaque Ahmed did not support the prosecution, he was declared hostile and was cross-examined by the public prosecutor. He denied having been informed by Furqan Shah and Usman that the appellant had caused hatchet injuries to the two ladies. Not a single question was put to the complainant during his cross-examination by defence. It was not put to the complainant in his cross-examination if contents of the F.I.R. implicating the appellant, were incorrect.
25. ' It is correct that names of eye-witnesses Allah Julio and Muhammad Anwar are not mentioned in the F.I.R. In his respect reliance was placed on the case of Mamoon and another PLD 1%2 Kar. 800, where evidence of eye witnesses not mentioned in the F.I.R., was ruled out of consideration. In cited case the F.I.R. was lodged by a person who was himself an eye-witness. In the instant case the F.I.R. is lodged by Mushtaque Ahmed, who is not an eye witness. Reliance was also placed on the case of Khalil v. State PLD 1956 Lah. 840 where the view taken was, that the Court may be inclined to consider the statement of a witness, whose name does not appear in the F.I.R., as truthful, but the safer course is to keep his statement out of consideration. In said case the complainant was not an eye-witness although on receiving information of the incident he went to the Wardat and saw dead body of the deceased. As against said authorities it was observed in the case of Shahbaz and another v. Crown PLD 1953 Lah. 566 that where the witnesses are not named in the F.I.R. it does not necessarily follow that they had not seen the occurrence as sometimes false witnesses are named in the reports and sometimes true witnesses are either not noticed or forgotten by makers of the reports. It was also held in said case that presence of witnesses' names in the F.I.R. is no more proof of their veracity than the absence of their names in the report is proof of their mendacity. In this way the Karachi case is distinguishable while one Lahore case of 1953 goes against the appellant and the other Lahore case of 1956 tilts in his favour. F.I.R. was lodged, by complainant Mushtaq Ahmed on his return from Umer Kot and after having seen his wife in injured condition and after having seen dead body of his brother's wife. In the circumstances omission to give names of Allah Julio and Muhammad Anwar in the F.I.R. as witnesses, is understandable. Hence evidence of said witnesses cannot be ignored if they were left out from the F.I.R.
26. ' Rest of the authorities cited on behalf of the appellant do not help him. In the case of Gul PLD 1977 Kar. 1019 the ocular evidence was not corroborated by any circumstantial evidence and the blood stains on clothes and hatchet secured from the possession of the accused were not found to be of human origin and the accused was given benefit of doubt. In the cited case there was enmity between the parties as 7/8 years prior, father of the main accused was murdered by the deceased and the ocular evidence was in conflict with the medical evidence. In the case of Ashiq Hussain 1989 P Cr. L J 154 the ocular evidence was not shaken by defence and it was natural and trustworthy and presence of the eye-witnesses at the Wardat was undoubted and no enmity was suggested against the complainant and the ocular evidence was supported by the circumstantial evidence and the medical report, to the effect that the deceased had died as a result of the injuries given to him by the accused with a dagger and in the circumstances conviction under section 302, .P.P.C. was maintained; but as the prosecution had failed to substantiate motive, the sentence of death was altered to imprisonment for life.
27. ' There is no hard and fast rule that the ocular evidence in all cases should be corroborated by some independent evidence. In the absence of serious enmity between the parties it is inconceivable that the witnesses would involve the appellant without any reason, as held in the case of Aurangzeb v. State 1978 SCMR 255. Corroboration of ocular evidence is required only when the eye-witnesses are interested. In the case of Nazir Ahmed and others v. State PLD 1962 SC 269 it was held that there cannot be an inflexible rule that the statement of an interested witness can never be accepted without corroboration. In the same case it was also held that an "interested witness" means a witness who has a motive for falsely implicating an accused person. It was further held that there may be an interested witness whom the Court regards as incapable of falsely implicating an innocent person. As regards the motive for the offence, it was observed in the case of State v. Rab Nawaz and another PLD 1974 SC 87 as follows:-- ... in criminal cases motive more often than not, remains shrouded in uncertainty. To the complainant, it is generally a matter of speculation, for it is a fact within the special knowledge of the accused. Even motiveless crime is not unknown. Therefore, the mere fact that the prosecution case as to motive has been disbelieved by the Courts below is no reason for disbelieving direct evidence on the main incident, which has to be judged on its own merits, and if such evidence is creditworthy, it can form a valid basis for conviction, obscurity of motive notwithstanding."
28. In light of the case-law discussed above, there is no difficulty in holding that the prosecution evidence, as discussed above, proves beyond reasonable doubt the point about the appellant having committed murder of his wife as well as of his brother's wife. We, therefore, maintain conviction of the appellant for the offence punishable under section 302, P.P.C.
29. ' On the point of sentence, learned counsel for the appellant cited certain authorities. In the case of Kamber Ali Shah PLD 1959 Kar. 460 sentence of the accused was altered from death to imprisonment for life on the ground that the motive for committing the offence had not been established by the prosecution and the accused had faced trial on a murder charge for nearly four years. In case of Gui Mir PLD 1980 SC 185 the sentence of death was reduced to one of life imprisonment on the ground that motive for the offence was shrouded in mystery. In the case of Abdul Majid PLD 1976 Lah. 1476 the sentence of death was altered to that of life imprisonment as a matter of abundant caution in safe administration of criminal justice, because the circumstances under which occurrence took place and what led accused to take life of his wife was not known, and possibility that the accused got provoked on suspecting the deceased of leading wayward life and killed her on that account, cannot be ruled out. In the instant case the eye-witnesses saw the appellant killing his wife Mst. Naseem and then killing his brother's wife Mst. Haleema. It is only in the F.I.R. that the evidence about motive has come, but complainant Mushtaque Ahmad during his evidence was reticent about the motive. In the circumstances we are of the view that there are extenuating circumstances for not confirming death penalty awarded to the appellant. Act of the appellant in murdering his own wife as well as wife of his brother, cannot be expected in the normal circumstances. In our view the interests of justice would be fully met, if the death penalty is converted into imprisonment for life.
30. ' Consequently while maintaining conviction of the appellant we alter his sentence from death to imprisonment for life. With this modification, the appeal stands dismissed, and the reference made under section 374 of Cr.P.C. stands rejected.
31. Sentence reduced.