' MUHAMMAD RACIQ TARAR, J.-Karam Rasool, Shaikh Rasool and Ghulam Rasul were tried by the learned Sessions Judge Carnbellpur under section 302/34, P. P. C. On three counts and under section 307/.34, P. P. C. On the allegations that on the night between 11th and 12th August 1972 in the area of village Bela, Police Station Pind Sultani, District Campbellpur, they committed the murders of Muhammad Yar, Mst. Sahib Nur and Mst. Nazar Jan and made murderous assault on Muhammad Yusuf P, W. By judgment, dated 9th February 1974, Ghulam Rasul was acquitted on the benefit of doubt while Karam Rasul and Sheikh Rasul appellants were convicted under section 302/34, P. P. C. On two counts and sentenced to death on each count. They were also convicted under section 307/34, P. P. C. And sentenced to seven years' rigorous imprisonment each. The sentence of imprisonment was to take effect only in the event of their death sentence being not confirmed. The convicts have filed separate appeals to challenge their conviction and sentence and the case is also before us on reference for confirmation of the death sentence awarded to them. The appeals and the reference are being taken up together and disposed of by this judgment.
2. Karam Rasul and Sheikh Rasul appellants are real brothers and Ghulam Rasul acquitted accused is their consanguine brother. Ma. Bakht Bibi, mother of fist. Nazar Jan deceased and Yusuf P. W. Is the sister of the appellants. The appellants are sons of Hidayat who was a first cousin of Muhammad Yar deceased. Mst. Bakht Bibi was married to Hidayat (since dead) who was the nephew of Muhammad Yar deceased. Mst. Nazar Jan deceased was the wife of Abdul Khaliq son of Karam Rasul appellant. Yusuf P. W. Is married to Mst. Ilom Jan, daughter of Karam Rasul appellant.
Mst. Sahib Nur deceased was the wife of Muhammad Yar deceased. Lal Khan P. W. Is tire brother of Muhammad Yar deceased and Mst. Zaibun Nisa P. W. Is the latter's maternal grand-daughter.
3. The brief facts of the prosecution case are that Hidayat, father of Mst. Nazar Jan and Yusuf P. W., died when they were minors. Karam Rasul took them to their house in village Dakhner and they were brought up by him. About four or five days before the occurrence which took place on the night between 11th and 12th August 1972, Mst. Nazar Jan deceased complained to Libas Khan P. W.
That Karam Rasul appellant had committed rape on her. Libas Khan P. W. Called Rehmat Gul, Pesh Imam of the village mosque, and Wilayat P. Ws. And in their presence Mst. Nazar Jan deceased re- affirmed that Karam Rasul appellant had raped her. Rehmat Gul, Pesh Imam, declared that Karam Rasul would not be permitted to serve as a waterman for the mosque till the matter was finally decided in accordance with Shariat. Thereafter, Karam Rasul appellant was not seen in village Dakhner. A day before the occurrence, Mst. Nazar Jan and Yusuf P. W. Came to the house of Muhammad Yar deceased in village Bela. Mst. Nazar Jan deceased informed him that Karam Rasul appellant had committed rape on her in the forest. The prosecution story goes that on the night between 11th and 12th August 1972 Lal Khan complainant, Muhammad Yar deceased, Mst. Sahib Nur deceased, Mst. Zaib-un-Nisa P. W., Muhammad Yusuf P. W. And Mst. Nazar Jan deceased were sleeping in the courtyard of the house of Muhammad Yar deceased. A hurricane lantern was burning there. At midnight the P. Ws. Woke up on hearing alarm and saw the appellants giving injuries to the deceased persons. Karam Rasul appellant had a chhuri while Sheikh Rasul appellant and Ghulam Rasul (acquitted accused) were armed with hatchets. Ghulam Rasul gave a hatchet blow to Yar Muhammad deceased on his head as a result of which he fell down from the cot.
Sheikh Rasul appellant gave hatchet blows on the head and face of Mst. Sahib Nur deceased and Karam Rasul slaughtered Mst. Nazar Jan deceased with his churl. Sheikh Rasul appellant also gave a hatchet blow to Yusuf P. W. Which landed on his arm. On the alarm raised by the P. Ws.
Muhammad Amin got attracted to the spot and saw the occurrence. After the occurrence, appellants and the acquitted accused fled away from the spot with their weapon. Muhammad Yar, Mst. Sahib Nur and Mst. Nazar Jan died at the spot. It is alleged that the appellants and the acquitted accused were annoyed over the disclosure made by Mst. Nazar Jan deceased about the rape committed on her by Karam Rasul appellant and on that account they committed these murders. After the occurrence, Lal Khan P. W. Went to Police Post Jand where he reported the occurrence to Mian Muhammad Head Constable at 4 a. m. Vide Exh. P. A.
4. After recording the statement (Exh. PA), Mian Muhammad, Head Constable (P. W. 16) sent it to the Police Station Pind Sultani for the registration of the case where formal F.
1. R. (Exh. 'PA/1) was drawn up on its basis at 7=30 a.m. Then he reached the spot and prepared the injury statement (Exh. PN) and inquest report (Exh. PN/1) of the dead body of Mst. Sahib Nur deceased. He secured ear-ring (Exh. P/1) from the left cheek of the dead body of Mst. Sahib Nur vide memo Ex. PB. He prepared the injury statement (Exh. PO) and inquest report (Exh. PO/1 of the dead body of Mst. Nazar Jan deceased. He also prepared injury statement (Ex. PQ) and he inquest- report (Exh. PQ/ of the dead body of Muhammad Yar eceased. He also prepared the injury statement (Exh. PR) of Muhammad Yusuf P. W. He despatched the dead bodies to the mortuary for post-mortem examination under the escort to Faiz Muhammad Foot Constable and sent Muhammad Yusuf P. W. For medical examination. On the same day, Ghulam Ahmad, Sub- Inspector, took over the investigation from Mian Muhammad, Head Constable. He inspected the spot and took some bloodstained earth from near the dead body of Mst. Nazar Jan deceased and made it into a sealed parcel vide memo Exh. PE. He also secured blood-stained earth from near the dead body of Sahib Nur deceased and made it into a sealed parcel vide memo. Exh. P E. He also took some blood-stained earth from near the dead body of Muhammad Yar deceased and made it into a sealed parcel vide memo Exh. PD. He took lantern (Exh. P. 2) into his possession vide memo Exh. PC. On 15th August 1972 Abdur Razzaq, A. S. I., arrested the appellants and the acquitted accused. On 19th August 1972 Karam Rasul appellant, while in custody, led the police and the recovery witnesses to his residential Kotha and from there got recovered blood-stained chhuri (Exh. P. 33) from an earthen bin which was made into a sealed parcel vide memo Exh. PM. On the same day Sheikh Rasul appellant while in custody led to the recovery of blood-stained hatchet (Exh. P. 32) from his residential Kotha which was made into a sealed parcel wide memo Exh. PL.
After the investigation, the appellant and the acquitted accused were challaned.
5. On the 13th of August 1972 at 7-30 a. m. Dr. Mohammad Rafiq, Medical Officer, Civil Hospital, Pindigheb, conducted the autopsy on the dead body of Muhammad Yar deceased and found an incised wound on the left parietal region of the head, measuring about 3r ta 11" x brain cut deep.
The bore underlying was fractured and cut into pieces. The skull was 'fractured and cut.
Membranes and brain were also cat. In the opinion of the doctor, death was due to shock and haemorrhage due to injury referred to above which was sufficient to cause death in the ordinary course of nature. The time between injury and death was immediate and that between death and post-mortem from 30 to 36 hours.
' On the same day the same doctor conducted the autopsy on the dead body of difst. Nazar Jan deceased and found the following injuries on her person:-
(1) An incised wound on the front of the neck measuring about 7" x 3' x all structure underlying cut down. Only some part of skin was attached with head on the back. The wound was crescent shaped. Moggots were present in the wound.
(2) An incised wound on the upper extreme of the front of the right upper arm, measuring about 211'.
Under the injury on neck, 1st, 2nd and 3rd vertebrae were fractured and cut. Cesophagus was cut.
Hyoid bone was cut. In the opinion of the doctor, the death was due to shock and haemorrhage due to injury No, 1 which was sufficient to cause death in the ordinary course of nature. Both the injuries were caused by sharp-edged weapon. Probable time between injury and death was immediate and that between death and pest-mortem about 36 hours.
' On the same day, the same doctor conducted the post-mortem examination on the dead body of Mst. Sahib Nur deceased and found the following injuries on it :-
(1) An incised wound on the left side of the face measuring about 4' x 1' x jaw and tongue cut deep.
(2) An incised wound on the left side of the neck near left mandible, measuring about 4" x 2" x mandible cut and underlying structure cut down.
(3) An incised wound on the left side of the neck, near the left ear, and also cutting the pinna of left ear, measuring about 3' x 2' x cut of as of skull and occipitalarea of skull. On this side, the underlying structure and brain was cut. The brain was out of the injury.
' In the opinion of the doctor, death was due to shock and haemorrhage due to the injuries referred to above. Injuries Nos. 2 and 3 were sufficient to cause death in the ordinary course of nature.
Probable time between injuries and death was immediate and that between death and post- northern was about 40 hours.
' On 12th August 1972 at 11-15 p. m. The same doctor examined Muhammad Yusuf P. W. And found the following injuries on his person :-
(1) An incised wound on the front of the upper extreme of the right upper arm, measuring about 3" x 2' x up to bone deep. On examining by the finger the bone underlying was found cut and fractured.
Some pieces of bones drawn were out of the injury. Lympch and granulation tissue were present on the edges of the injury. There was cut corresponding to the injury on the shirt.
(2) The pinna of the right ear was swollen and tender. There was scarred abrasion mark on the front of the center of the pinna measuring about 1/6. x 1/4".
(3) A scarred abrasion mark on the middle of the front of the left forearm, measuring about 1" x 1/1fe".
' Injury No, 1 was grievous and Nos. 2 and 3 were simple. Injury No, I was caused by a sharp-edged weapon and the remaining with blunt weapon within the duration of 30 hours.
6. To support its case, the prosecution examined seventeen witnesses in all, its main stay being the ocular testimony of Lal Khan, Muhammad Yuauf, Mst. Zaib-un-Nisa and Muhammad Amin P. Ws.
The prosecution also relied on the motive and the recovery of blood-stained weapons at the instance of the appellants.
7. The appellants pleaded not guilty to the charge. They admitted their relationship inter seas also with the deceased persons but denied all other allegations. Karam Rasul appellant contended that "Muhammad Yar deceased did not command good reputation. He sold 5-6 females in Sind and his house was being used as brothel". Sheikh Rasul appellant alleged that he had strained relations with Lal Khan complainant, therefore, he had falsely implicated him. No evidence was led in defence.
8. The learned trial Judge accepted the ocular account furnished by the eye-witnesses. He also believed the 'motive and the evidence relating to the recovery of blood-stained weapons at the instance of the appellants, and on the basis of this evidence found them guilty under section 302/ 34, P. P. C. On two counts for committing the murders of Mst. Sahib Nur and Mst. Nazar Jan deceased and under section 307/34, P. P. C. For making murderous assault on Muhammad Yusuf P.
W.
9. The learned counsel for the appellants contended that the occurrence took place on a dark night, therefore, the identification of the assailants was not possible. He further contended that all the eyewitnesses are closely related to the deceased persons, therefore, it will be unsafe to place reliance on their testimony. He assailed the evidence relating to the recovery of blood-stained weapons at the instance of the appellants and contended that the prosecution version that a lantern was burning at the spot was a mere concoction.
10. We have gone through the entire evidence with the help of the learned counsel for the appellants and the State. Libas Khan (P. W. 7), Wilayat (P. W. 8), Zaib-un-Nisa (P. W. 13) and Muhammad Yusuf (P. W. 14) supported the motive. Libas Khan P. W. Stated that four or five days before the occurrence Mst. Nazar Jan deceased, Yusuf P. W. And Nawab Khan came to his house and Mst. Nazar Jan told him that Karam Rasul appellant had committed rape on her whereupon he called Rahmat Gul, Pech Imam of the village mosque (not producA) and Wilayat P. W. And in their presence Mst. Nazar Jan reiterated that Karam Rasul appellant had committed rape on her. He further stated that Rahmat Gul, Pesh Imam, declared that Karam Rasul appellant would not be allowed to continue as Waterman for the mosque till the matter was decided in accordance with Shariat. Libas Khan P. W. Further deposed that after that he did not see Karam Rasul appellant in the village. The statement of Wilayat (P. W. 8) is also to the same effect. Both these P. Ws. Were cross-examined but nothing useful to the defence could be elicited from their statements. No ill will, grouse or enmity with the appellants was even suggested to them. Mst. Zaib-un-Nisa (P. W. 13) deposed that east. Nazar Jan bad told her about the rape committed upon her by Karam Rasul appellant when she came to the house of Muhammad Yar deceased. Muhammad Yusuf P. W., brother of Mct. Nazar Jan deceased, also stated that Nazar Jan deceased had disclosed that Karam Rasul appellant had committed rape on her in the forest. In view of this overwhelming evidence, it is clearly established that Mst. Nazar Jan deceased had charged Karam Rasul appellant for committing rape on her. Libas Khan and Wilayat Khan P. Ws. Further stated that after the disclosure of the incident of rape, they did not see Karam Rasul appellant in the village. Thus, there is sufficient evidence to support the learned counsel for the State that Karam Rasul appellant having felt insulted over the disclosure, had disappeared from the village and Mst. Nazar Jan deceased and Yusuf P. W. Had shifted to the house of Muhammad Yar deceased apprehending danger to their lives. The motive is, therefore, amply established against Karam Rasul appellant.
11. Lal complainant, Mst. Zaib-un-Nisa and Muhammad Yusuf P. Ws. Are related to the deceased persons but they have also very close relationship with the appellants. The appellants are the sons of the first-cousin of Muhammad Yar deceased and Lal P. W. Muhammad Yusuf P. W. Is the son of the sister of the appellants. He is also married to tee daughter of Karam Rasul appellant, and after the death of his father he was brought up by him (Karam Rasul appellant). Mst. Zaib-un-Nisa P. W.
Is maternal grand-daughter of Muhammad Yar deceased. There is no material on the record to suggest that they had any motive to falsely implicate the appellants in a heinous crime like murder. After going through their statements we find that they have given a consistent account of the occurrence and corroborated each other in all material particulars. Muhammad Amin P. W.
Also supported the prosecution version He is not related to the parties. The house of his father Sher Muhammad is adjacent to the house of Muhammad Yar deceased; therefore, he is a natural witness of the occurrence. He too had no axe of his own to grind against the appellants. The learned counsel for the appellants contended that the statement of Lal complainant that on the night of occurrence he was sleeping in the house of Muhammad Yar deceased was false as his presence in the house of occurrence on the fateful night was improbable and unnatural. In cross- examination Lal complainant stated that on the night of occurrence his wife had gone to the house of her mother at village Chapri and since he had no issue and nothing valuable to look after at his house, therefore, he had slept in the house of his brother Muhammad Yar deceased. Mst. Zaib-un- Nisa (P. W, 0) in her statement before the Committing Magistrate with which she was duly confronted had admitted that on the night of occurrence Mst. Rani was sleeping in the house of her husband Lal complainant and had come to the spot after the occurrence when other people had collected. We feel that the presence of Lal complainant in the house of occurrence has not been satisfactorily explained. However, this fact cannot come to the rescue of the appellants because of the evidence of this witness be excluded from consideration even then there remains sufficient evidence of reliable character on the file to support the conviction of the appellants.
12. The learned counsel for the appellants next contended that the occurrence had taken place on a dark night and the P. Ws. Were not in a position to correctly identify the assailants of the deceased persons. He contended that the prosecution version that a lantern was burning at the time of occurrence was a mere concoction and to support his contention he referred to the evidence of the Investigating Officer and the recovery memo Exh, P. C. Through which the lentern was taken into possession. According to this memo., figure "252" was embossed on the lantern whereas lantern (Exh. P. 2) produced in the trial Court was found embossed with figure "203". This discrepancy is no doubt there but in view of affirmative evidence of a reliable character that a lantern was burning at the time of occurrence, it can be ignored. Keeping in view the nature of the attack, the number of the victims and the position of the eye-witnesses at the time of occurrence, the identification of the assailants was possible even in the absence of a burning lantern. The appellant must have taken quite some time for killing three persons and causing injuries to Yusuf P.
W. Hatchet is a weapon which . Can be successfully wielded only when the assailant is quite close to his victim. The appellants were previously known to the P. Ws. And it is in the statement of Mst.
Zaib-un-Nisa that they had not muffled their faces. We, therefore, do not find any force in the argument of the learned counsel that the P. Ws. Were not in a position to correctly identify the assailants due to darkness.
13. The learned counsel for the appellants next contended that Muhammad Yar deceased was inimically disposed towards Karam Rasul appellant, therefore, his relatives had falsely implicated the appellants in this case. He further argued that Muhammad Yar deceL'sed was a person of questionable character and since his house had the reputation of a brotrel, therefore, the residents of the village were after his life. To support his argument he had drawn our attention to the statements of Gulab Khan (P. W. 6), Lal (P. W. 12) and Mst. Zaib-un-Nisa (P. W. 13). Lal complainant admitted that he and Muhammad Yar deceased did not participate in the marriages of Mst. Nazar Jan and Yusuf P. W. Gulab Khan (P. W. 6), brother of Muhammad Yar deceased, also stated likewise.
He mere fact that Muhammad Yar deceased and Lal had not attended those marriages is not sufficient to hold that Muhammad Yar deceased or Lal were inimical to the appellants. Lal (P. W. 12) denied the suggestion that Muhammad Yar deceased had sold seven or eight women in the Province of Sind. He, however, admitted the Mst, Sahib Nur deceased, wife of Muhammad Yar deceased, was previously married to one Sher Zaman and Muhammad Yar had abducted her. He also admitted that later on Muhammad Yar married his daughter Mst. Khatun with Sher Zaman and in return obtained divorce for Mst. Sahib Nur and then contracted marriage with her. He also admitted that Muhammad Yar deceased then obtained divorce for his daughter Mst. Khatun from Sher Zaman. He denied the suggestion that Muhammad Yar deceased had sold MSt. Khatun in Sind but admitted that see was residing there. Mst. Zaib-un-Nisa stated in cross-examination that Nawab Khan was her fin her and Mst. Khatun was her mother. She further stated that she did not remember having stated before the Committing Magistrate that in fact she was the daughter of Sher Zaman. She was confronted with her statement before the Committing Magistrate where it was so recorded. She denied the suggestion that confusion about her paternity had arisen because of adultery in the family. The admissions made by Lal and Mst. Zaib-unNisa P. Ws. Do not show that Muhammad Yar deceased was engaged in the sale of women or his house had the reputation of a brothel. If it be assumed that he was a bad character, in that case too there can be no reason to believe that the eye-witnesses who are also closoly related to the appellants and have absolutely no enmity with them would substitute them instead of the real culprits.
Muhammad Yar deceased was the maternal grandfather of Mst. Zaib-un-Nisa P. W. It is in evidence that during the days of occurrence her parents were rending in Sind. Her presence in the house of Muhammad Yar deceased is quite natural. Muhammad Yusuf P W. Had injuries on his person and his presence at the spot also cannot be doubted. Muhammad Amin P. W. Being the neighbored of Muhammad Yar deceased is also a natural witness of the occurrence. They have given a consistent account of the entire occurrence and corroborated each other in all material particulars, Their evidence inspires confidence and can be safely relied upon.
14. The next piece of evidence relied upon by the prosecution is the recovery of weapons at the instance of the appellants. To support the recoveries, the prosecution examined Abdur Rahman (P.
W. 9) and the Investigating Officer. Their statements are discrepant as to the order of recoveries.
Abdur Rahman P. W. Made inconsistent statements at the trial and before the Committing Court.
Moreover, he admitted that he appeared as a recovery witness in four other murder cases. We, therefore, do not place reliance on these recoveries.
15. For all the foregoing reasons, we are of the view that the prosecution had brought home the charge to the` appellants beyond a reasonable doubt and they were rightly convicted. There is no mitigating circumstance on the file to withhold the normal penalty provided for the offence of murder. We, therefore, dismiss their appeals and confirm the death sentences on both counts.
Their sentence under section 307/34, P. P. C. Is also maintained)