ALI MUHAMMAD BALOCH, J.- Appellants, Ghulam Muhammad, Pir Bux and Siddiq were facing charge of having killed Mst. Noor Khatoon and on conclusion of their trial in the Court of 1st Addl. Sessions Judge, Kandkot, they were found guilty of having caused murder of Mst. Noor Khatoon. They were convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs. 10,000/- each. In case of default in payment of fine they had to suffer imprisonment for 6 months more. They were also sentenced to pay a sum of Rs. 3.0,000/- each as compensation to the heirs of deceased Noor Khatoon and in case of failure on their part to pay this compensation, they were to suffer R.I. For one year more. In addition to these sentences, they were also convicted and sentenced to R.I. For one month, for the offence punishable under Section 323 read with Section 34 P.P.C. This judgment was passed on 4.4.1994. All the convicted accused have jointly filed this Appeal challenging the judgment, and sentence passed by the 1st Addl. Sessions Judge. Kandkot.
2. The prosecution story of the case is that Punhal Nandwani was a hari, cultivating the land of Phalai Khan Choolani in Kandkot, District Jacobabad. He had married with Mst. Noor Khatoon, about 8-9 days prior to her death, due to this incident, which happened on 28.7.1985. Noor Khatoon had been declared 'kari' by his brother Chakar on the suspicion that she had illicit connections with one Kumber Jafri about 8-9 months prior to her death. As was customary, in the locality, Mst. Noor Khatoon on being declared as 'kari', approached their Sardar Noor Muhammad Khan Bijarani, .For protection. According to the custom of the area, Mst. Noor Khatoon was under the protection of the Sardar and was given in marriage by him to Punhal, who had paid a sum of Rs. 25,000/- to Sardar Noor Muhammad for this marriage.
3. After such marriage, Mst. Noor Khatoon was living with Punhal as his wife. On 28.7.1.985 Punhal and his wife Mst. Noor Khatoon, as usual, went to their lands for the purpose of plantation of paddy crop. P.Ws. Ali Bux and Junto were also in company of Punhal and Noor Khatoon who were working in the same field, for paddy plantation.
4. At about 10.00 a.m. Appellant Pir Bux armed with a gun and appellants Ghulam Muhammad and Siddiq armed with hatchets reached at the place where Punhal. Noor Khatoon and P.Ws. Ali Bux and Junto were working. Appellant Ghulam Muhammad (also called Gulloo) after uttering the words that Noor Khatoon had to be killed as she was declared 'kari'. Gave a hatchet blow on the neck of Noor Khatoon. Appellant Pir Bux fired from his gun hitting Noor Khatoon on the head.
Appellant Siddiq gave hatchet blows to Noor Khatoon and P.W. Ali Bux. P.W. Jumoon also received injuries at the hands of the accused. The accused thereafter ran away from the place of incident.
Mst. Noor Khatoon died on the spot, while P.Ws. Ali Bux and Jumoon received injuries on their person. Punhal. Leaving Ali Bux and Jumoon at the site where dead-body of Noor Khatoon was lying, went to the police station and lodged his report.
5. The Police arrested the there appellants as well as co-accused Daim and Qaiser. Who were nominated in the FIR, but during the investigation Daim and Qaiser were let of. The police challaned the three appellants Ghulam Muhammad (alias Gulloo), Pir Bux and Siddiq, to stand their trial, for the murder of Mst. Khatoon, and causing injuries to P.Ws. Ali Bux and Jumoon.
6. In the trial Court, evidence of the Medical Officer Dr. Amanullah Khoso and P.Ws. Ali Bux and Jumoon was recorded. In addition, the evidence of P.Ws. Punhal, P.C. Manthar, S.I.P. Shaukat Ali Abbasi, Tapedar Muhammad Shaif, and S.I.P. Illahi Bux, S.I.P. Palio Khan and S.I.P. Pir Bux Shahani was also recorded.
7. The trial Court framed the following points for determination in the judgment for the purpose of assessing the evidence of the prosecution witnesses:- "Point No. 1. Whether Mst. Noor Khatoon was killed?
Point No. 2. Whether P.Ws. Junto and Ali Nawaz received the injuries.
Point No. 3. Whether on 28.7.1985 at about 10.00 a.m. In the lands of Phalai Khan situated in deh Ghalo Taluka Kandhkot accused Ghulam 'Muhammad, Pir Bux and Siddique being and with gun and hatchets, in furtherence of their common intention, intentionally caused death of Mst. Noor Khatoon by firing at her with gun and also caused hatchet injuries to deceased and so also to P.Ws.
Ali Bux and Jumo, as alleged by the prosecution?"
8. The appellants in their statements under Section 342 Cr.P.C., however, denied the allegations of the prosecution in toto. They neither examined themselves on oath to disprove the allegations against them, nor they produced any evidence in defence. In answer to the question as to whether they had caused death of Mst. Noor Khatoon by firing and causing hatchet injuries to her and also causing injuries to P.W. Ali Bux and Junto, they simply stated that such allegations were false.
Appellant Ghulam Muhammad also denied to have produced the hatchet after his arrest and they stated that the witnesses, who had deposed against them were interested and hostile, and therefore, they could not be believed.
9. The trial Judge having assessed the evidence in detail, believed the ocular evidence of P.Ws.
Punhal, Ali Bux and Jumo and convicted the appellants as described above.
10. The appellants have challenged the findings of the trial Judge by this appeal on many grounds.
First aid foremost contention of the learned counsel for the appellants was that ocular testimony did not inspire confidence to hold that the said witnesses had actually witnessed the incident or had seen the appellants causing the death of Mst. Noor Khatoon. The second argument of the learned counsel for the appellants was that the appellants were near relations of the deceased and were interested in complainant Punhal, the husband of the deceased. Therefore, their oral version required independent corroboration, which was not available in this case, hence the conviction recorded by the trial Judge was against the principles of law, requiring safe dispensation of justice.
11. More precisely the contention of the learned counsel for the appellants for disbelieving the ocular testimony can be summarised under the following points:-
(i) P.Ws. Ali Bux and Jumo are cousins of complainant Punhal and, therefore, they are interested witnesses;
(ii) Injuries on the person of P.Ws. Ali bux and Jumo are simple and insignificant, and could be self- suffered and, therefore, the contention that they were not present at the time of incident has some weight, and therefore, benefit of doubt be extended to the appellants;
(iii) The statement of P.W. Punhal should not be believed as he had exaggerated in the FIR by giving the names of co-accused Qaiser and Daim, who, during the investigation, were found innocent by the police and let of and P.Ws. Ali Bux and Jumo in their 164 Cr.P.C, statements had exonerated the co-accused Daim and Qaiser and had testified that Punhal was wrong, in giving their names as culprits in the FIR. "
(iv) That ocular evidence of Punhal, Ali Bux and Junto requires independent corroboration from some other source, which is absolutely lacking in the present case. The learned counsel has further contended that the medical evidence does not corroborate the ocular evidence qua. The accused and he has relied on the case of Muhammad Iqbal vs. Abid Hussain, reported in 1994 S.C.M.R. 1928 and State vs. Muhammad Sharif, reported in 1995 S.C.M.R. 635.
12. Learned Advocate appearing for A.G., however, supported the judgment and sentence passed by the trial Court and he argued that the ocular evidence of P.Ws. Punhal, Ali Bux and JUMo stand corroborated by medical evidence, in addition tp the fact that P.WS. Ali Bux and Junto had themselves received injuries which are proved from the medical evidence and hence their evidence should be relied upon even otherwise.
13. After giving considerable thought to the arguments of the learned counsel and having scrutinized the evidence, I have come to the conclusion that P.W. Punhal, the husband of late Noor Khatoon had exaggerated in his FIR by including the names of P.W. Daim and Qaiser, but even if his testimony is not relied upon, there appears no reason to discard the evidence of the remaining to witnesses Ali Bux and Jumo, who had received injuries during the incident, which have been proved by medical evidence. There appears no reason for disbelieving the evidence of injured P.Ws. Jumo and Ali Bux. The contention that the injuries on the person of Ali Bux and Jumo were self-suffered does not appeal to be. Correct in view of the location of the injuries on the person of Jumo, The injury on the person of Jumo is at the parietal region of his head and measure 3 cm X 1 cm, caused with had and blunt substance, while the injuries on the person of P.W. Ali Bux are described as under:-
(i) Abraided bruise 3 cm x 1 cm on forearms.
(ii) Abraided bruise 3 cm x 5 cm at the right parietal region of skull.
These injuries are also certified to be the result of had and blunt substance. It is understandable that sometimes witnesses suffer injuries by connivance, to implicate their enemies but it is also well-known that such injuries are caused always on that part of the body which is safe and does not endanger any vita! Part of the body. The abraided bruises on the heads of P.Ws. Ali Bux and Jumo do not appear to be self- suffered and appear to be the result of enemy hands due to their location on head. These injuries could very well result into fracture of the skull bone if they were executed with more force or from a different angle. Such risk of getting skull bone fractured could not have been taken by the witnesses for the sake of proving their presence at the place of incident in order to implicate the accused falsely. In order to judge, whether P.Ws. Ali Bux and Jumo could implicate the present appellants falsely, there has to be some forceful reason as ordinarily it is difficult to let the real culprit go scot-free and implicate an enemy in his place. It requires strong reasons for such false implication specially when the witnesses are going to the extent of suffering injuries on their person. Even otherwise I do not find from the cross-examination of the Medical Officer that the defence had taken the stand that such injuries on the persons of the witnesses, were self-suffered or could be self- suffered. The Medical Officer had received injured P.Ws. Ali Bux and Jumo on the date of incident i.e. 28.7.1985 when he examined them and noted their injuries.
According to the Doctor P.W. Amanullah, the injuries on the person of P.Ws. Ali Bux and Jumo appeared to be fresh. I also find from the record that there had been no delay in lodging of the FIR nor there is such suggestion from the defence. Naturally, for the sake of cooking up a false story of the prosecution and causing ''self-suffered" injuries on the person of witnesses, it required time. But the present. FIR was recorded within one hour's time from the incident, while the distance between the place of incident and the police station was about 6 kilometers. Under these circumstances, the theory advanced by the learned defence counsel for disbelieving the ocular version of P.Ws. Ali Bux and Jumo cannot be entertained. Rather, the reason for accepting the evidence of P.Ws. Ali Bux and Jumo is fortified by. The presence of injuries on the vital part of their person.
14. The contention of defence is that the evidence of P.W. Punhal, the husband of deceased Noor Khatoon, requires independent corroboration as he is an interested witness by virtue of his relationship with the deceased. But the interest of the witnesses based on mere relationship should not be accepted as a rule not to rely on evidence of such a witness. To me some hostility or circumstances suggesting reasons on his part, to implicate the accused falsely, must be present to discard his evidence. The appellants in this case have no hostility or very strong reason to be falsely implicated by P.W. Punlial. At least, the defence has not advanced such a- case before the trial Court in their cross-examination of the witnesses. On the other had, the fact is that, the appellants belong to backward area of this Province where murdering of women levelled as 'kari' is always treated as vindication of the family honour. This aspect of the case shows a very strong motive on the part of the appellants to kill Mst. Noor Khatoon, as she had been declared 'kari' and she had therefore, sought the protection of her Sardar. This custom is well-known in the area of District Jacobabad to which the parties belong. The subsequent marriage of Noor Khatoon by the Sardar with Punhal, on payment of money, is also well- known custom prevailing in the area. While debunking such prevailing custom in respect of the women levelled inchaste, the fact cannot be denied that the same is prevalent in the parts of the Provinces of Sindh and Baluchistan. The eradication of such black customs should be taken in had by the activists of the human rights volunteers.
15. The above discussion disposes of the first three points raised by the learned counsel for the appellants.
16. As regards the corroboration of medical evidence qua the accused as indicated in the cases cited by the learned counsel for the appellants, there is no dispute on the principle laid down in the reported cases. Facts and circumstances of each case are to 'be evaluated and considered, and appraised for relying on the evidence of the witnesses including the medical reports.
17. I am also clear in my mind that the evidence of P.Ws. Ali Bux and Junto is to be considered with care and caution: As regards the gun shot injury caused by accused Pir Bux on the person of deceased Noor Khatoon, all the witnesses have unequivocally implicated accused Pir Bux for having caused that injury. The medical evidence shows that such injury was placed on the parietal region of deceased Noor Khatoon and underlying bone was fractured and that, in ordinary course, it was sufficient for causing death of Noor Khatoon. Under these circumstances, the evidence of witnesses Punhal, Ali Bux and Jumo stands corroborated by the medical evidence. I have already stated that I am inclined to accept the evidence of Ali Bux and Jumo on the ground that they themselves had received the injuries on their parietal region, which could not be self-suffered.
Therefore, I have no hesitation to accept the ocular version of P.Ws. Ali Bux and Junto as regards causing of the injury with gun by accused Pir Bux which resulted in death of Noor Khatoon.
18. As regards hatchet injury on the neck of deceased Noor Khatoon all the P.Ws, are unanimous that the same was caused by accused Ghulam Muhammad alias Gulloo. The medical evidence is in consonance with the ocular version as it shows three injuries on the person of Mst. Noor Khatoon, caused by a sharp cutting weapon. These three injuries are described in the evidence of P.W.
Amanullah, the Medical Officer, as under:-
(1) One incised wound measuring 12 cm x 6 cm x muscle deep present on the right (side) neck;
(2) One incised wound measuring 7 cm x 3 cm x bone deep present on the right upper arm;
(3) One incised wound 3 cm x 1 cm x muscle deep present on right elbow joint.
The Medical Officer has' also stated that out of the above three injuries the injury mentioned at Sr.
No. 1 i.e. On the neck, individually was also sufficient to cause death of Noor Khatoon in ordinarily course. Therefore, there is no doubt from the above evidence that Ghulam Muhammad alias Gulloo is also responsible for the death of Noor Khatoon. I, therefore, do not find anything wrong with the findings of the trial Court in respect of the accused Pir Bux and Ghulam Muhammad holding them liable for murder of Noor Khatoon and consequently uphold their conviction.
19. As regards the third accused by name Siddique, the role assigned to him was of general nature and there is little variance in the statements of P.Ws. Punhal has stated that accused Siddique gave hatchet blows to P.Ws. Ali Bux and deceased Moor Khatoon. P.W. Ali Bux stated that accused Siddique gave hatchet injuries to himself and deceased Noor Khatoon. P.W. Junto, however, stated that the accused Siddique gave hatchet blow on the arm of Mst. Noor Khatoon and on the head of P.W. Ali Bux.
20. The three accused Ghulam Muhammad, Pir Bux and Siddique had- appeared at the scene of offence duly armed with the lethal weapons when Mst. Noor Khatoon was working in the field in the morning. The appellants had come 'there duly prepared, with the intention of causing death of Noor Khatoon for which they had a very strong motive. Therefore, even if the blow caused by accused Siddique did not prove to be fatal, but his implication under Section 34 P.P.C, cannot be ruled out and he is vicariously liable for the death of Noor Khatoon. Therefore, the conviction in case of appellant Siddique also does not appear to be suffering from any illegality.
21. As regards the sentence, I find although there was uncalled for hostility in the minds of the appellants to kill Noor Khatoon but the vindication of the family honour in the shape of killing a ' kari' i.e. Inchaste woman, is aged-old custom in the areas of upper Sindh, adjoining Baluchistan Province. The persons living there must be motivated by such custom to kill the woman levelled as inchaste and in their view they do some heroic job towards vindication of the honour of their families. Under such circumstances, due to their illiteracy and unawareness of the civilized behaviour, I am inclined to take a lenient view, considering the length of pendency of this litigation.
The incident had taken place in the year 1985 and by now about 12 years are spent in litigation and the appellants had faced the ordeal of murder charge against them for such a long time.
Therefore, I feel that the sentence of R.I. For 15 years will serve the interest of justice against the appellants. I, therefore, alter the sentence from life imprisonment to R.I. For 15 years to each of the appellants. However, maintain the sentence of payment of fine as ordered by the trial Court. Benefit of Section 382-B Cr.P.C, shall also be available to the appellants.
22. With the above alteration in the sentence, this appeal is dismissed.