' SAJJAD ALI SHAH, J.---It appears that appellant named above, filed petition for leave to appeal from jail and also engaged counsel, who filed petition for the same purpose and leave was granted by this Court vide order dated 17-3-1993 after hearing the counsel. Resultantly jail appeal got merged into regular appeal and clarification is made as both appeals have been listed together as is apparent from the title.
2. It is the case of the prosecution that appellant had murdered his wife Mst. Naseem by causing her Chhuri blows. Incident took place on 12-11-1981 at 6 p.m. In the field of All Khan Behrani in Deh 336 which is 10 miles away from P.S. Kot Ghulam Muhammad in District Tharparkar. Incident was seen by eye-witnesses who came from nearby village on hearing cries and apprehended the appellant at the spot. Mst. Naseem died at the spot and was removed to the hospital. Complainant Fateh Khan son of Ganhwar Khan (brother of deceased) and husband of sister of appellant repaired to the police station where F.I.R. Was lodged on the same day at 8-30 p.m. It is mentioned in F.I.R. That marriage of appellant with deceased took place 2-1/2 years ago and in exchange sister of appellant was married to the complainant. It is stated in F.I.R. That deceased complained to her brother/complainant about maltreatment at the hands of the appellant and on that account wanted to go with complainant and appellant agreed to leave her later at the house of her uncles. It is also mentioned in F.I.R. That at the time of incident appellant was seen sitting on the chest of deceased who was lying on the ground and he was giving her Chhuri blows.
3. After registration of F.I.R., A.S.I. Khalilur Rehman came to the scene of offence and took into custody appellant, who had been detained there by witnesses and secured blood-stained Chhuri.
Blood-stained clothes of appellant were also recovered vide separate Mashirnama. Judicial confession of appellant was recorded on 16-11-1981 before Mukhtiarkar and First Class Magistrate. In the trial Court prosecution examined 11 witnesses in support of its case including three eye- witnesses. Report of Chemical Examiner Exh.44/B on the record shows positive finding in respect of earth, clothes and Chhuri. In 342, Cr.P.C. Statement appellant admitted marriages in exchange and resiled from judicial confession in which he had admitted to have killed his wife with Chhuri blows on way to village Ali Khan Behrani as there was quarrel between them and she wanted to go to her father's house. Appellant further claimed that his father and brother were arrested and detained by S.H.O. He denied prosecution allegations and declined to give any evidence in defence. Trial Court ruled out of consideration judicial confession on the ground that there was no note on it to the effect that the same was read over and explained to the appellant, who was not conversant with Urdu language in which confession was written by the Magistrate and further DPP Incharge of prosecution also did not rely upon it. Trial Court also discarded report of Chemical Examiner on the ground that sealed parcels were sent to the laboratory after delay of 3 months and 9 days and I.O.
Has failed to explain delay. Finally trial Court convicted appellant for offence under section 302, P.P.C. And sentenced him to death and to pay compensation of Rs,25,000 to the legal representatives of the deceased. High Court has dismissed the appeal and has confirmed the sentence of death.
4. It appears from the perusal of the impugned judgment of the High Court that in that forum conviction of appellant under section 302, P.P.C. Was not challenged but learned counsel appearing for him mainly directed his efforts for reduction of sentence from death to imprisonment for life but failed to convince the Court for such interference. Learned counsel for the appellant before us submitted that even otherwise High Court was supposed to evaluate the whole evidence brought on the record for the purpose of confirmation or not of death sentence as contemplated under section 374, Cr.P.C. And there, he is very much correct. It is further submitted by him that High Court while dismissing the appeal has reversed the finding of the trial Court in respect of report of Chemical Examiner and has accepted the same on the ground that delay simplicity in sending the sealed parcels to the laboratory for test purposes is of no consequence unless foul play is suggested and dishonest investigation is imputed to the Investigating Officer and in that connection evidence of Mashirs was reappraised by the High Court. In such circumstances we allowed learned counsel for the appellant to raise contentions with regard to the appreciation of evidence and reassessed evidence in the light of such contentions notwithstanding the fact that in the High Court conviction was not challenged and arguments were confined to the reduction of sentence. Even otherwise in order to do complete justice it is necessary to do so and leave has also been granted by this Court to re-evaluate the evidence in the light of contentions raised on bah of the appellant and to find out whether scope of appraisement of evidence would be narrowed down in the light of observation of the High Court that before it hearing was confined to reduction of sentence and not on merits.
5. It is submitted by the learned counsel for the appellant that in this case three eye-witnesses who have been examined are closely related to the deceased, hence they are interested and their evidence can be accepted only when there is independent corroboration which is lacking in this case as trial Court excluded from consideration circumstantial evidence of recovery of incriminating articles for valid reasons and High Court was not right in reversing that finding. Three eye-witnesses examined by the prosecution are P.W3 Fateh Khan, who is brother of deceased, P.W.4 Ali Khan and P.W.5 Jiand Khan, who are brothers inter se and uncles of deceased. No doubt that these three witnesses are near relatives of the deceased but there is nothing adverse in their cross-examination to show that they are not natural eyewitnesses. It appears that incident took place on the way in the field of All Khan Behrani and eye-witnesses were present in the village which was at a very short distance of one block (16 acres) as is mentioned by complainant in his cross-examination, from which cries could be heard and it is the case of the prosecution that they were attracted to the spot on the cries of the deceased. This fact of short distance is not disputed and challenged in the cross-examination of the eye-witnesses because there are no suggestions that they were at longer distance and could not hear cries and come to the spot at the time of incident. These three eye-witnesses claimed to have reached the spot and saw appellant in the process of giving Chhuri blows to his wife. These eyewitnesses have no reason to falsely implicate the appellant who is related to them. Complainant is brother of deceased and is also husband of sister of appellant. P.Ws. Ali Khan and Jiand Khan are uncles of deceased and complainant and in such way they became related to the appellant because his sister is married to their nephew.
6. Evidence of P.W.6 Imam Bux is of corroborative nature and he has deposed that he was in the Otak in village All Khan and on cries of deceased he reached Wardat and saw Mst. Naseem lying dead and appellant Moula Bux was present there armed with Chhuri. Appellant threatened the witness not to come near but was apprehended. Later police came to the spot and arrested appellant. This witness is nephew of All Khan and claimed that he was Hari and Kamdar of Raees Ghulam Mohammad. In cross-examination he has made some gratuitous concessions in favour of appellant by saying that appellant was not arrested nor taken in custody nor Chhuri was recovered from his possession in his presence. Even if total reliance is not to be placed upon this witness, part of his testimony is acceptable to the extent that he came to the spot and saw Mst. Naseem lying dead 'and appellant present there with Chhuri and threatened witnesses not to come near.
7. On the point of recovery of Chhuri from appellant by police at the spot, P.W.7 Muhammad Khan was examined but he did not support the prosecution case and was declared hostile and cross- examined. In such circumstances co-Mashir P.W.8 Allah Bux son of Kadir Bux was summoned on the request of prosecution and examined in the trial Court where he has supported the prosecution case. His evidence is assailed on the ground that he stated that Chhuri was lying at the Wardat and it was stained with blood. This controversy whether Chhuri was recovered from appellant or was lying at the Wardat looses significance in the light of the fact that this witness was examined after seven years. Incident took place on 12-11-1981 and deposition of this witness was recorded on 11-5-1988. In the trial Court Chhuri was shown to this witness and he had admitted it to be the same which was recovered from the place of occurrence. On this point no further questions were asked from this witness in the cross-examination.
8. Learned counsel for the appellant submitted before us that on the question of delay in sending the sealed parcels, Investigating Officer A.S.I. Khalilur Rehman stated before the trial Court that after completing investigation he handed over papers to S.H.O. On 26-11-1981 and had nothing to do with sending of parcels which was done by the S.H.O. Since S.H.O. Did not carry investigation any further, his name was not mentioned in the challan of witnesses as such no steps were taken to examine him in the Court. In such circumstances questions with regard to the delay in sending the sealed parcels to the laboratory could not be put and record in this respect is silent. For this lapse, in all fairness benefit should not be given to the prosecution but to the accused. Reliance by the High Court on the case of Safdar Abbas and others v. The State PLD 1987 SC 602 is misplaced for the reason that facts of the reported case are entirely different from the facts of the present case. It is held in the reported case that in the absence of attesting witnesses to the recoveries, Investigating officer can be relied upon if there is no allegation against him of dishonest investigation. In the instant case questions are to be asked with regard to the delay in sending sealed parcels to the Laboratories which was not done by investigating officer who has been examined in the Court but by S.H.O. Who is not examined in the circumstances and for the reasons stated above. We are, therefore, of considered opinion that in this case reliance should not be placed upon positive report of Chemical Examiner as was rightly done by the trial Court.
9. Even after excluding report of Chemical Examiner, there is still sufficient evidence of incriminating nature to connect appellant with commission of crime. Three eye-witnesses have no enmity to implicate appellant falsely in this case. Appellant is related to the eye-witnesses and he has not alleged enmity against them generally or specifically. Evidence of P. W.6 Imam Bux stands in good stead by way of corroboration to the extent that he came to the spot and saw Mst. Naseem lying dead and appellant present there with Chhuri and threatened witnesses not to come near him.
Version of the eye-witnesses gets corroboration from medical evidence of P.W.11 Dr. Ghanshamdas, who conducted post-mortem examination on the dead body and deposed that deceased sustained 20 incised wounds which were caused by sharp-edged weapon such as Chhuri and injuries were 16 hours old at the time of examination. Post-mortem took place on 13-11-1981 at 8-45 p.m. And incident took place on 12-11-1981 at 6 p.m. Assertion with regard to the age of injuries coincides with time of occurrence. Most important circumstance which stands out prominently against the appellant and lends tremendous support to the case of the prosecution by way of corroboration is that appellant was apprehended at the spot by witnesses and was taken in custody by Investigating Officer, who came to the spot after registration of F.I.R. It is on this point that reliance can be placed on the evidence of P.W.8 co-Mashir Allah Bux and also P.W.9, A.S.I.
Khalilur Rehman, who investigated the case. No doubt it is duty of the prosecution to prove the case against accused beyond doubt and burden does not shift to him to disprove any allegation levelled by the prosecution. In a case in which accused is arrested at the spot and he wants to falsify this assertion, then there should be some material like plea of alibi on the record to create doubt with regard to the credibility of the assertion. Appellant has taken various defence pleas which he has been changing from time to time.
10. In order to falsify the claim of the prosecution that appellant was arrested at the spot, defence plea was taken that murder was committed by Jiand and his brother, who are uncles of the deceased at dawn time of 13-11-1981 and time was shown wrongly in F.I.R. As 6 p.m. Instead of 6 a.m.
To gain time to falsely substitute appellant. There is no material available on the record in support of this assertion which stands completely belied by the doctor, who has given duration of injuries which coincides with time of incident as is mentioned in F.I.R. In 342, Cr.P.C. Statement appellant stated in the trial Court that he was arrested on 13-11-1981 and his arrest was shown falsely on previous date. He further stated that he was not present at the spot with deceased who had left the house at night time and she was murdered by her maternal uncles Jiand Khan and Ali Khan due to `Ghairat' at about dawn time. The report was registered by anti-dating the date and hour of incident. When we enquired from the learned counsel for the appellant as to where was the appellant when incident took place as claimed by the prosecution, he replied that the appellant was in his house and somebody came and informed him that his wife was murdered, so he went to the spot and was arrested. When further enquired as to who that person was, who informed and why he was not examined as defence witness, learned counsel replied that appellant did not remember the name of that person. Needless to say that appellant declined to examine any witness in defence.
11. We do not find any iota of truth in the plea of the appellant that his wife was murdered by her uncles on account of Ghairat and they have falsely substituted him. Prosecution has proved its case to the hilt beyond shadow of doubt. Appellant has brutally murdered his wife by causing her as many as 20 incised wounds on different parts of the body. Incident took place not in the house of the appellant but in the field on the way and weapon used was a Chhuri which had blade 9" long as per sketch (page 112 of High Court paper book) described by the I.O. In his deposition as butcher's kinfe "kati". He took her out on the pretext that he was taking her to the house of her uncles and on the way inflicted on her injuries with Chhuri. In the process she fell down and he sat on her chest and inflicted blows repeatedly which were as many as twenty. This shows that manner of killing was brutal, cruel and ruthless. No extenuating circumstances exist on the record to warrant or justify reduction of sentence.
12. For facts and reasons aforementioned, we dismiss the appeal.