TUFAIL ALI A. REHMAN, C. J.-In June, 1970 the deceased Rasool Bux son of moula Dad Brohi used to live in Jacobabad with prosecution witness Jamal Khatoon who claims to have been his wife. She is the daughter of the first appellant in this case who is also named Rasool Bux and is the son of Karim Bux Brobi and was at one time, admittedly, married to the second appellant Muhammad A.I who is a nephew of the appellant Rasool Bux. According to herself, however, she had been divorced by the appellant Muhammad A.I and thereafter lived with one Muhammad Karim whom she treated as her father and who gave her hand in marriage with her own consent to the deceased.
The case of the appellant Muhammad A.I as is reflected in his judicial confession to which he has substantially adhered during the trial, however, was that about a year before the incident be and Jamal Khatoon, intending to go for Haj, had started from Quetta alongwith their children and were going to the house of his uncle Rasool Bux (that is to say the first appellant) when upon the way a party of six persons which included the deceased Rasool Bux attacked them and kidnapped his wife and children as they also deprived them of their valuables. Thereafter he went on searching for his wife and eventually about 5 or 6 days before the incident out of which this appeal arises he learnt that his wife was living at Jacoba--bad with the deceased with whom she was on terms of criminal intimacy. On this contradiction between the cases of the prosecution and the defence I shall in due course revert but let it suffice at the moment to say that admit--tedly the lady was at one time the wife of Muhammad A.I and that at the time of the murder she was living with the deceased Rasool Bux at Jacoba--bad. On the 21st June, 1970 at about 6-30 in the morning the deceased was seen by a prosecution witness Bibrak near the cattle piri in Jacobabad carry--ing a hatchet and followed by four or five persons who eventually over-took him and gave him a number of hatchet injuries as a result of which he fell and died on the spot. At that time the First Informant Allah Bux was also present having come to the cattle piri in order to buy milk from one Sheroo ; this Allah Bux was at that time the driver of the Jeep used by the Superintendent of Police, Jacobabad.
After the killing the culprits separated and two of them ran towards the town while the other two returned towards the old cattle piri side from which they had come. Allah Bux and one Behram then chased the culprits who had run towards the cattle piri and shouted to them to stop but instead of doing so they threatened Allah Bax and Behram and these two persons were not then able to overtake them. However, on the way Allah Bux managed to get hold of a jeep and drove in it towards the police headquarter from where he brought with himself four other constables, namely, Muhammad Khan, Mir Muhammad, Rasool Bux and Ghous Bux of whom Mir Muhammad has been examined as a witness at the trial. In the meantime Behram had continued following the culprits and when Allah Bux with his party of, police constables reached near the bungalow of the Sessions Judge he saw the culprits with Behram in close chase. They were accordingly able to overtake them and apprehended them. They secured their hatchets and took them to the police station where Allah Bux lodged a First Information Report at 7-30 a. m. Which was recorded by the S. H. O.
Namely, Abdul Ghani.
2. By this time of course the persons apprehended had been asked their names and they gave them as Rasool Bux son of Karim and Muhammad A.I son of Haji Shafi Muhammad Brohi and they are the two appellants before us. The S. H. O. Secured the hatchets which had already been taken possession of by the police party as he also secured a shirt from the person of each of the two appellants and of these matters a mashirnama was prepared. In due course all these articles were sera for Chemical Examination and have been found to be stained with human, blood. The S. H. O.
Then went to the scene and apart from making a mashirnama thereof as well as an inquest report, he sent the dead body to the hospital for post-mortem examination and examined the persons whom I have already named as having witnessed the crime and those who gave chase in the jeep with Allah Bux. On the next day that is to say the 22nd of June 1970 the appellant Muhammad A.I was sent to the Civil Judge and First Class Magistrate, Jacobabad, who recorded his confession. A charge-sheet was finally submitted against the appellants and two others, namely Muhammad Hussain and Ghous Bux who were shown as absconders. Subsequently, however. Muhammad Hussain wax arrested but Ghous Bux has remained an absconder throughout. After his arrest Muhammad Hussain was put to an identification test by Bibrak and Behram and he alongwith the two appellants were finally committed to the Court of Sessions, Jacobabad where the learned Additional Sessions Judge; tried them and, while he acquitted Muhammad Hussain, he convicted Rasool Bux and Muhammad A.I under section 302 of the Pakistan Penal Code read with section 34 of the same Code and sentenced them to death as also to a fine of Rs. 2,000 cacti and in default of payment of fine rigorous imprisonment for one year. Against these convictions and sentences the appellants have appeal and the case is also before us for confirmation of the death sentence.
3. The first and most important piece of evidence against the appellants is that of the eye- witnesses Allah Bux and Dibrak. There also should have been the evidence of Behram but the evidence discloses that Behram had joined the army in the meantime and despite enquiries at the Rawalpindi military headquarters he could not be served because he was posted some--where near the front line in Kashmir. Satisfactory evidence of this was brought on the record by means of the deposition of Muhammad Hayat a constable in the City Police, Jacobabad who has also produced the various documents like the summons and the endorsements which show that he is posted at the front and was not, therefore, available as a witness. His non---examination, therefore, is satisfactorily explained and no occasion arises for drawing an adverse inference from that circumstance this sloes not of course meats that we can take any notice of the evidence that might otherwise have been available and the case against the appellants must therefore depend upon such evidence as there is.
4. Before I proceed with an assessm ent of the only two eye-witnesses who have been produced namely Allah Bux and Bibrak, it would be con--venient to take note of the argument of learned counsel for the appellant that there not only must have been but that the evidence discloses that there actually were other persons who have witnessed the crime and who neverthe--less have not been examined as witnesses. The scene was near a cattle piri and doubtless other witnesses might have seen the occurrence and indeed pro--secution witness Bibrak, who as I will show has done all he could to help the accused expressly one Govind who was present. Now it unfortunately is a growing tendency that persons who witness crimes of this character particularly in certain districts of Sind are most reluctant to figure as witnesses because all too often their giving evidence has led to subsequent serious consequences to themselves or to their relations. The evidence of the S. H. O.
Who could not have reached the scene earlier than 8 a. m. That is to say about an hour and a half after the actual occurrence shows that he examined only those persons whom I have already named and of these it is to be remembered that only Allah Bux, Dibrak and Behram were eye.
Witnesses. In view of this tendency of which I think I must take indeed judicial notice as has been done in several cases before, I do not think it right to reject the evidence of the two witnesses who have been examined out of hand merely because others were not produced and examined. In saying that must not be understood to mean that the Court may not or should not draw the inference that the non-examination of an available witness shows not if he had been examined his evidence would have been un-favourable to the prosecution. Indeed regard being had to the tendency which I bad already taken notice of the probability is that if unwilling witnesses were summoned they would have denied all knowledge of the crime. In such cases, therefore, I think it should be the duty of the Court to assess the quality of the witnesses who have been examined and if satisfied beyond reasonable doubt that that testimony can be believed then to be effect to it. I am by no means attempting to lay down any rigid rule and cases will no doubt arise where the permissible inference might well reflect upon the credibility of the evidence which is produced.
Each case must necessarily depend upon its own facts, all that t am stressing is that the primary duty of the Court is to consider the evidence that has actually been led and if, in the language of section 3 of the Evidence Act, "after considering the matters before it the Court either believes the fact to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists" to hold that particular fact proved. In criminal cases of course this would mean that all reasonable doubt must be eliminated before the fact in question can be said to be proved.
5. Now so far as the evidence of Allah Bux is concerned the reason he, gives for being present at the scene is a natural one, namely, that he wanted to buy milk. There is no question but that he lived at Jacobabad at that particular time and it would be in the ordinary course of events that such a person as he was might well go in the morning to buy milk for his house. Nowhere in the cross- examination has anything been asked from the witnesses which, even remotely has any bearing upon the likelihood of his presence. Substantially all that he was asked was whether he gave the description of the accused persons in the First Information Report and as to why he did not name the other two who bad escaped. Regard being had to the fact that he had actually brought the culprits whom he had chased and apprehended it would have been obviously futile for him to give any description. I can see no reason therefore for doubting the testimony of Allah Bux. The testimony is indeed fortified by the circumstances, which independently also are strong evidence against the appellants, namely, that he gave chase to them, apprehended them and brought them with blood-stained clothes and blood. Stained weapons to the police station. These facts can hardly be doubted. Even if the witnesses had any previous enmity with the appellants, which is not suggested, it seems to me improbable in the extreme that a case could have been concocted in this fashion and two persons brought to the police station so soon after the murder. Such a hypothesis would also involve the complicity of at least the four other constables and this makes an improbable assumption entirely incredible.
6. Much the same can be said of the witness Bibrak but in his case there are some peculiarities and some of them are such that if his present version were to be accepted they- would cast doubt upon the testimony of Allah Bux also. In his examination-in-chief he gave substantially the same story which Allah Bux gave except in two important particulars. As to the identity of the culprits be said that he could only be sure of Muhammad A.I. Now if indeed he had identified only Muhammad A.I because, as he says, his face alone out of all the four was unmuffled, he might perhaps be giving an honest version. But in the very sentence that he says this he adds that his inability to identify the others is because the matter was old. Now it is true that in the Court of Sessions he was giving evidence nearly two years after the occurrence but at-least he could have said that although he was not now able to identify the other appellant two persons were indeed chased and caught. As to the acquitted accused Muhammad Hussain also he made an admission which rendered his subsequent identification useless as he said that he had been told by the police to pick out "the man with green shirt". We are not now concerned with the case of Muhammad Hussain and I say no more about this except that immediately after he made this admission the A.
P. P. In charge of the case asked for and obtained permission to cross--examine him. He was therefore confronted with his statement recorded under section 164 of the Criminal Procedure Code in which he had supported the prosecution case against the two appellants in full. I have, therefore come to the conclusion that in refusing to support the case against the appellant Rasool Bux the witness is motivated by some consideration, Nevertheless the fact remains that his evidence is not available so far Rasool Bux is concerned. In this view, however, of the credibility of the witness I think reliance can nevertheless safely be placed upon his deposition so far as his identification of Muhammad A.I is concerned. For the same reason I am unable to give credit to his statement that the First Informant Allah Bux did not come to the scene untill after the incident had taken place and that, therefore, he did not see any of the culprits. I should also have been disinclined to believe him when he said that Behram did not go along--with Allah Bux but since Behram is not a witness at all, any 'finding upon that question is unnecessary.
7. There is then the strong circumstance that the two appellants were immediately caught and produced before the S. H. O. Where their blood stained clothes were taken possession of, though, it is to be remembered that they were not actually seized from the appellants by the S. H. O. But by the police party which had chased them. However so far as the shirt of each of them is concerned it was recovered by the S. H. O. Himself and upon these matters we have both his evidence and that of the mashirs. Nothing in the evidence of any of these witnesses casts any doubt upon their veracity and the only suggestion that was made was that the masher Loung was a friend of the S. H. O. This was denied by the S. H. O. But admitted by the witness himself. I do not see anything necessarily contradictory between the two statements; the expression "friend" can be applied to various degrees of amicable relationship and what might seem to justify the use of the word to one person may not so seem to another. But even assuming that they were friends that would take away from the credibility of the seizure only if there is any reason to believe that the S. H. O. Himself had any motive falsely to implicate the appellants or that, for any reason, his evidence was dishonest. I cannot read the cross-examination of the S. H. O. As even suggesting any such motive or dishonesty. It is true of course that it was put to him in the cross-examination that the entire story was concocted and that the appellants were arrested not at the police station but from Abad.
It was also suggested that the female folk of the appellants had been brought to the police station and that a good beating had been given to the appellant Muhammad A.I. Now there is not, excepting these suggestions which were denied, an iota of evidence which establishes this or even lays the slightest foundation for inferring that this indeed did happen. There was an injury upon the appellant Muhammad A.I on the middle finger and thumb of his left hand and certainly he sustained these injuries before his confession was recorded. In relation to the con--fession I will deal with these injuries subsequently. But considering them, as I am now doing, for the purpose of seeing whether there is anything to substantiate the suggestion made in the cross-examination of the S. H. O. That a false case was concocted and that the evidence with regard to arrest and se using of the blood-stained articles is false, it is to be noted the S. H. O. Himself in preparing mashirnama of the arrest of Muhammad A.I and the articles that were seized from him mentions these injuries in that document and his own evidence discloses that be sent the appellant to doctor for medical examination. Surely this was hardly the conduct of a H police officer who was giving a beating to the appellant and who was con--cocting the case against him. I have no hesitation therefore whatever in accepting the evidence that the two were caught not indeed immediately upon the scene after having committed the crime but immediately thereafter and as a result of a chase. These circumstances I think are conclusive corroboration of the ocular testimony.
8. There is finally against the appellant Muhammad A.I the evidence of his judicial confession which was recorded upon the 22nd June, 1970 by the Joint Civil Judge and First Class Magistrate.
Jacobabad Mr. Muhammad Nawaz before whom he was produced at 11-30 a.m. He was arrested of course the earlier day and there was therefore no question of such delay as would vitiate the confession.
This confession is a fairly detailed one and reads thus: "About one year ago I alongwith my wife and children got ready for Haj. I started from Quetta and got down from train at Nawabshah, from there started to the house of my uncle Rasool Bus, when we were going ahead of Gapchani bungalow by about two miles to meet him. We started from Gapchani bungalow on-foot towards the house of my uncle, at about 4-00 p.m., the deceased Rasool Bug, Muhammad Hussain, Guhram, Peero,. Gul Muhammad and Yusuf Khan attacked us.
After giving beating, they tied me. The above--mentioned persons caught my wife and my daughter and they took Rs. 5,000 which I had in my pocket. At that time, my wife and children were wearing golden ornaments about 5 tolas in weight and silver ornaments about 70 tolas. The abovementioned persons escaped with my wife, my daughter Imam Khatoon, the ornaments and Rs. 5,000. Thereafter I continued the search of my wife, my daughter and above persons. About 5 or 6 days ago, I came to know that my wife and daughter are in possession of Rasool Bux and they are living at Jacobabad and my wife is Kari with deceased. Hence thereafter I consulted with uncle Rasool Bux and took Muhammad Hussain and Gbous Bux into confidence and decided to kill Kari and Karo. On 20th June, 1970 we all four came to Jacobabad from Quetta. We ail except Ghous Bux had hatchets. In the night we stayed at Jacobabad Railway Station. Yesterday in the morning we all four came to old cattle market and waited for Rasool Bux, con--cealing our presence, as he used to come by that way. I and my uncle Rasool Bux stood on one side of the road while the other two stood on the other side of the road. Then deceased Rasool Bux was seen coming and when he reached near us and on seeing me, he tried to kill me and attacked me with hatchet which had hit me on my left hand. During this time my other companions surrounded deceased, as the handle of his hatchet was broken. Then we all gave hatchet blows to him, who died at the spot. When we were preparing to leave the scene of offence, one police man came there who caught me and my uncle Rasool Bux while Muhammad Hussain and Ghous Bux succeeded in running away from there.
The policeman brought us to police station."
It will be observed that it is a confession which fully implicates himself as also the appellant Rasool Bux. The only question upon which it is in divergence with any part of the prosecution testimony is the previous history of his relations with Mst. Jamal Khatoon. That witness herself says that she had been divorced by the appellant and subsequently was married to the deceased while the appellant's confession is to the effect that she was kidnapp--ed alongwith his children by a party of persons which included the deceased and who also robbed him of money and ornaments. The essential facts, therefore, even upon this question, namely, that she was at least at one time his wife and was at the time of the incident, living with the deceased, either as his wife or his mistress.
Are not different in the two versions and even among the prosecution witnesses it is only after all Jamal Khatoon herself who gives this version which might of course well be true and could equally well be the result of her understandable anxiety to conceal her illicit relations with Rasool Bux. The appellant Muhammad A.I himself both in his state--ments before the Committing Magistrate and in the Court of Sessions sub--stantially admitted the facts stated in this confession. The only divergence that he made was that he alone was concerned in the crime and this is an allegation which appears to me to be belied by the medical evidence. That evidence shows that the deceased had as many as fourteen wounds (the doctor mentioned 11 items but since one of these comprises of two wounds and another of three wounds the total number is really fourteen). These were spread over various parts of the body including the face, the chest, the stomach, the buttocks, the back, the hand, the skull and the shoulder. This could hardly have been the work of one person and very probably was that of three or four. Not only does the appellant admits the fact which he has stated in the confession except to the extent that I have indicated but he also says that the confession was in the main voluntary but nevertheless allege that the police had tutored him to give a confession and on that account he had implicated others in his confession also. He is very clear in his state--ment that to the extent that the confession admits that he himself killed the deceased Rasool it was entirely voluntary. I can see no reason, therefore, for holding that the confession was either not voluntary or not true and I would rely upon it as against Muhammad A.I.
9. So far as the effect of this confession against the other appellant Rasool Bux is concerned I think it is available for use under section 30 of the Evidence Act. It is to be remembered that appellant Muhammad A.I's allegation that he alone was concerned is not in the confession itself but in his own statement. So far as the confession goes it implicates the maker thoroughly as it does the appellant Rasool Bux. Rasool Bux himself in his statements has completely denied the prosecution case but makes no attempt to explain the circumstance of his arrest and indeed denies them; it is his case that he was arrested at village Abad and that the blood-stained hatchets and the shirt was foisted upon him. As to why the witnesses are giving evidence against him before the Magistrate he asserted that there was enmity on the trade of goats with the complainant and the P. Ws. Who are interested to the complainant but he refrained from giving any details. In the Court oil Sessions he merely said that the witnesses are friends of the deceased and are interested Inter se. As I have already shown there is nothing in the record of this case which would make this credible. Even if the confession of the appellant Muhammad A.I was not to be used against the appellant Rasool Bux the evidence I think demonstrates his guilt beyond any reasonable doubt.
10. In regard to the question of sentence, however, I think what is stated in the confession of the appellant Muhammad A.I as well as his own statements must be taken into account. The case that Mst. Jamal Khatoon had been divorced by Muhammad A.I is after all deposed to by herself alone and may well be for the purpose of covering up her own misconduct. There is no other testimony upon the previous history of the relations between the parties. It is also to be remembered that one of the appellants is her own father and it is difficult to believe that a father would murder his own daughter unless motivated by some very strong motive indeed. The pro--secution have not stated any other motive and it would be therefore safer, I think, for the purposes of assessing the sentence to accept the case put forward by Muhammad A.I in his confession and his statements. There is at least a doubt upon the fact and it would be proper to give the benefit of that doubt to the appellants. In our society and particularly in the light of the notions of morality which prevail in the community to which the parties belong there can hardly be graver provocation to a person than that his wife should live with somebody else is sin. Among this class of persons a father would feel equally provoked. There is of course no question her of sudden provocation which could reduce the crime to one under section 304 but I am persuaded that the extreme sentence is not called for in this case. I would, therefore, maintain the convictions of both the appellants bus reduce their sentence from death to imprisonment for life; the sentence of fine which the learned Judge has imposed is not I think mandatory in law and I see no circumstance in this case which justifies it and I would, therefore, set aside the sentence of fine also.