NAZIM HUSSAIN SIDDIQUI, J.- This appeal is directed against the judgment dated 17-1-1994 of learned Addl. Sessions Judge Kandiaro, whereby appellants Kamal, Nizam, both sons of Allah Dino Sahito, and Jinsar son of Kamal Sahito, were convicted under Section 302(b) r/w Section 34, PPC and were sentenced to death as Tazir. They have also been directed to pay compensation of Rs.30,000/- each to the legal heirs of deceased Abdul Alim and Moulvi Abdul Rashid, under Section 544-A, Cr.P.C, or in default thereof to under R.1, for six months. Learned trial Judge has also made a Reference under Section 374, Cr.P.C, for confirmation of death penalty of the above named appellants. By this judgment both appeal, and Reference are being disposed of."
2. The occurrence took place on 5-4-1991 at 8.00 a.m. In the harap land of appellant Kamal, situated in Deh Chackak within the jurisdiction of P.S. Kandiaro, District Naushero Feroz. Scene of occurrence was 8.00 K.M. Awa\ from Police Station Kandiaro. DIR was lodged by complainant Abdul Latif son of Ghulam Nabi Sahito, at said P.S. At 9.00 a.m. It was recorded by Pehlwan Khan Chachar SHO under Sections 302/34 and 504, PPC.
3. The motive, as set up in the FIR, is that Mst. Manzooran. Who is a daughter of appellant Kamal and wife of deceased Abdul Rashid, was detained by her father and was not permitted to visit her husband, who was pressurising the former to send her him.
4. The prosecution case, in brief, is that the complainant and two deceased Abdul Alim and Moulvi Abdu! Rashid were real brothers inter se and used to reside in the same house. Deceased Abdul Alim was a lecturer in Habib College, Nawabshah, while deceased Abdul Rashid served as an Arabic teacher in Middle School Fazul Sahito. About 13/14 months prior to the incident, deceased Abdul Rashid married said Manzooran and in exchange his sister was married to Habibullah, who is a brother of appellant Kamal. It is alleged that abQut 15 months prior to occurrence appellant Kamal took away his daughter from the house of the deceased alongwith her dowry articles.
Deceased Moulvi Abdul Rashid repeatedly approached Kamal for sending her back to his house, but with no result. Thereafter, said deceased sent applications to various authorities for restoration of her custody to him. It is averred in the FIR that finally on 4-4-1991 a compromise was arrived ai between the parties before Wadero Jan Muhammad Dodho. It was reduced into writing and was signed by Kr. Ntal Din, deceased Abdul Rashid and others.
5. On the day of incident the complainant and his above-named two deceased brothers were standing in their garden near their village. At about 7.30 a.m. Appellant Kamal came to them and asked them to come to his harap land for further discussion about said dispute. According to the FIR thereafter, the complainant and two deceased followed appellant Kamal to his land. At about 8.00 a.m. They reached Hina cultivation on harap land and saw appellants Kamal, Nizam and Jinsar standing there. Of them, Kamal and Nizam were armed with Janjoors and- Jinsar had a hatchet in his hand. They challenged the complainant party and told them that they insulted and harassed them by moving applications to various authorities and also by demanding the custody of Mst. Manzooran.
6. It is also alleged that the appellants thereafter started giving Janjoor and hatchet blows from sharp stick to the above-named deceased persons. The complainant and the deceased raised cries, which attracted P.Ws. Ghulam Nabi, the father of the deceased, Mohakam Din son of Rahim Dino and Suhhan Ali son of Shah Muhammad. Both the deceased had sustained injures on their hands and faces and expired on the spot. The appellants decamped from them-with their weapons. It is said that the appellants had support of Waderas namely. Muhammad Khan Dodho, and Mir Faiz Muhammad Dodho.
7. The investigation was conducted by Pehlwan Khan Chachar, SHO. He visited the scene of offence in presence of mushirs Nawab Din and Imamuddin and prepared necessary mushimamas. At the scene of offence, the dead bodies of the deceased were lying. He recorded the statements of P.Ws.
Ghulam Nabi Subhan and Muhakam Din. He searched the appellants and came to know that they were in the wheat crop of Zafar Sahito. He went there and arrested them in presence of mushirs. He secured the blood-stained Janjoars from appellants Kamal and Nizam and sealed them separately in presence of mushirs. He interrogated appellant Jinsar, who is alleged to have voluntarily produced a blood-stained hatchet from the wheat crop of Zafal Ali Sahito, which was lying under a small tree. He secured it and sealed it on the spot. From the pocket of deceased Abdul Rashid, he secured one stamp paper (compromise deed). On 6-4-1991, he recorded statement of said Mst. Manzooran. He sent the blood-stained earth and the crime weapons to Chemical Examiner and produced the chemical report in his evidence. On 13-4-1991. He recorded statement of Jan Muhammad, who had written said stamp paper. On completion of investigation, he submitted charge-sheet against the appellants before the concerned Court.
8. Necessary charge under Sections 302/34 and 504, PPC was framed against the appellants to which they pleaded not guilty and claimed to be tried.
9. At trial, the prosecution examined complainant Abdul Latif, P.Ws. Subhan Ali, Muhakim Din, Dr. Mazhar Ali. Mushir Nawabuddin, P.C. Manzoor Ali. Tapedar Ghulam Muhammad and Pehlwan Khan.
SHO.
9-A. The appellants in their statements recorded under Section 342. Cr.P.C, denied the prosecution's allegations and claimed to be innocent. They examined themselves on oath. They examined Mst. Manzooran as defence witness.
10. Dr. Mazhar Ali on 5-4-1991 at about 11.40 a.m. Conducted the autopsy on the dead-body of Abdul Alim and found the following injuries on his person: Cl) Incised wound 6 c.m. x 3 c.m. x bone deep on the partial region left side (fracturing the partial bone-and the brain matter was out).
(2) Incised wound 6 c.m. x 4 c.m. x bone deep on the occipital region left side, (fracturing occipital bone and brain was out).
(3) Incised wound 5 c.m. x 3 c.m. x bone steep, curved in shape on mastoid region, behind the left ear cutting the small portion of Pinna of left ear (fracturing mastoid bone and brain matter was out).
(4) Incised wound 5 c.m x 2 c.m. x muscle deep, curve in shape from left eye brow lateral to the outer can thus of left eye.
On internal examination, he found the following damages: "There was a fracture of partial, occipital and mastoid bone. The brain was ruptured while other all organs were normal. The small intestine contained semi digested food while large intestine contained matter. Stomach contained gestic juices."
11. He opined that the cause of death was shock and haemorrhage as result of above injuries. He stated that all the injuries collectively caused the death of the deceased. He also opined that injuries Nos. 1, 2 and 3 were individually sufficient for causing death. He stated that injuries were caused by sharp cutting weapon such as hatchet and janjoor. He also stated that probable time between injuries and death was within a few minutes and between death and post-mortem it was about 4 hours.
12. At about 12.30 a.m. Said doctor conducted the autopsy on the dead- body of deceased Abdul Rashid and found the following injuries on his person:
(1) Incised curve type of wound 8 c.m. x 4 c.m. x bone deep on occipital region from left to right side (fracturing the occipital bone and brain matter was out).
(2) Incised wound 3 c.m. x 1 c.m. On occipital region on left side.
(3) Contused swelling 10 c.m. x 6 c.m. On occipital region behind the left ear fracturing the occipital and mastoid bone.
(4) Incised crash type of wound on the left eye and check 6 c.m. x 3 c.m. Bone deep, damaging the left eye and fracturing the maxillary bone.
On internal examination, he found the following damages: "There was fracture of occipital, mastoid and maxillary bone. The brain was ruptured while all other organs were normal. The stomach contained gastric juices, small intestine contained semi digested food while large intestine contained faecal material."
13. According to' the doctor, the cause of death was shock and haemorrhage as result of above injuries. He opined that injuries Nos. 1 and 2 were individually sufficient to cause death. He also opined that injuries Nos. 1 and 2 were caused by sharp cutting weapon such as hatchet and janjoor, while injury No. 3 was caused by hard and blunt substance like back side of hatchet and janjoor. He stated that probable time between injuries and death was within a few minutes and between death and post-mortem it was about 5 hours. He stated that inadvertently he had mentioned in the post-mortem report that injury No. 3 was caused by sharp cutting weapon. In cross-examination he denied the suggestion that his opinion was based upon inquest reports.
14. The seat of injures, their nature, age and factum of death are not disputed. In fact, medical reports as a whole were not challenged, though some questions were put up regarding small intestine and digested food.
15. The case of the prosecution rests upon:
(A) MOTIVE
(B) OCULAR ACCOUNT
(C) RECOVERY
16. Mr. Abdul Qadir Halepota, learned counsel for the appellants contends that motive as set up is not established. He also argued that testimony of eyewitnesses is not worth relying and there is no independent corroboration to their version. It is also urged by learned counsel that recovery of crime weapons were also not proved.
17. On the other hand Mr. Habib Ahmed, learned AAG supports the judgment and contends that prosecution has proved its case beyond any shadow of doubt.
18. In order to appreciate the above contentions, it would be advantageous to have a short resume of the relevant prosecution evidence.
19. Complainant Abdul Latif, in his examination-in-chief, has given the facts of the prosecution case, as mentioned earlier. In cross-examination, he stated that P.W. Suhhan Ali is his cousin, while P.W. Muhakim Din is hisphophat. P.W. Ghulam Nabi is his father. Mushir Nawabuddin is the son of his uncle. Mushir Imam Din is also his uncle. Dr. Zafar is Nek Mard of the village. All the co- villagers are Sahito by cast except one Syed Hassan Shah. The appellants are his co- villagers Nek Mard Jan Muhammad DoSho, who had made faisala, resides at about b'hoy or 3 K.M. From their village. Place of incident was about 3 areeb away from the garden of the complainant party. The land between said garden and scene of offence washing uncultivated. There was a water course adjacent to the scene of offence. There was a metal road from his village to Kandiraro. At the time of incident, the deceased were fasting and each of them had sustained for injuries. He admitted that deceased Abdul Rashid was challenged in a murder case of Abdul Hameed Qadiani, but was acquitted by the Court. He specifically denied that deceased Rashid had enmity with Qadianis. Habibullah, the brother of appellant Kama! Was residing with them (complainant party). He deposed that P.Ws, had seen the appellants causing injuries to the deceased from a distance of 20 paces. He vehemently denied that the P.Ws, had not witnessed the incident. He deposed that from the place of incident he went to the metal road, stayed there for about 5 minutes, then. Boarded a wagon for Kandiaro. About 15 minutes time was consumed for reaching Kandiaro and he reached P.S. At 9.00 a.m. Where he remained for about half an hour. He deposed that Police reached the scene of offence at about 10.0 a.m. And remained therefor about half-an-hour.
20. The evidence of P.Ws. Suhhan Ali and Muqaddam is also on the same lines. P.W. Suhhan Ali in his Examination-in-chief has given the facts as narrated above. In cross, he admitted that complainant is his cousin. He deposed that appellants were his phosphates. According to him, 10 to 15 persons of the village had reached the scene of offence after the occurrence.
21. P.W. Muhakim Din in his examination-in-chief depose that appellants were his 'Masat'. According to him. On the day of incident he and P.W. Subhan Ali left the village and were going to the land.
P.W. Ghulam Nabi met them on the way and told them that his three sons namely, Abdul Rashid, Abdul Latif and Abdul Alim had gone to the garden and he was also going there. When they reached at the corner of the garden at about 8.00 a.m. They heard cries of the complainant from the land of appellant Kamal. They went there and witnessed the incident. They were also apprised about the earlier part of the incident by the complainant. He maintained that he had seen the appellants causing injuries to the deceased from a distance of about 15 to 20 paces.
22. Motive as a piece of evidence against the appellants is taken first. It is. Settled proposition of law that though, it is not necessary for prosecution to establish motive in all cases, but once it is alleged it has to be proved as such. Clear proof of motive provides additional support to finding of guilt. However failure to prove motive cannot outweigh the positive evidence as to the crime, nor motive can be taken as a substitute of reliable evidence of the commission of the crime. FIR at length speaks about motive of this crime. The complainant, in his-deposition, has provided all necessary details in that regard. It is significant to make that the complainant testimony, on the point of motive, has gone unchallenged. No quantum was put up to him in that regard. Learned counsel for the appellants contended that compromise deed (Ex.9) was not proved strictly in accordance with law. As neither Nekmard Jan Muhammad.' who persuaded the parties to have settled the dispute, w;ts examined, nor any other witness testified about the execution of said document, It is true that Nekmard Jan Muhammad and Ghulam Nabi were not examined, but the dispute between the parties on said point was known to the witnesses, including the complainant.
It being so. The oral evidence to that effect cannot be ignored, particularly when its validity and credibility was not challenged. Motive is established beyond any shadow of doubt.
23. As regards the ocular testimony, it is noted that the complainant right Kamal V. The State (Nazim Hussain Siddiqui, J) from 7.30 a.m. Till the incident was over, had remained with deceased and his presence at the scene of offence was established without any doubt. Although, his own evidence being a natural witness was sufficient for establishing his presence at the scene of offence and the time of occurrence, yet, there is irrefutable corroborative evidence in this regard.
The incident took place at about 8.00 a.m. And 9.00 a.m., FIR was lodged. Looking to the distance involved and the fact that complainant had to wait and travel in a wagon, the FIR seems to have been lodged promptly. Had he not witnessed the incident, the details as mentioned in FIR, could never be provided. Nothing was extracted from his testimony to show that he was untrustworthy, or had concealed any material fact. In fact, his evidence is clear and unimpeachable. The dead- bodies and blood were found exactly at the same place which he disclosed in the FIR. Just after a few minutes of the incident, he left for police station and during the time he stayed there after the incident nobody had met him. The police reached the scene of offence at about 10.00 a.m. And recorded statements of P.Ws, including the eye-witnesses. This again provides corroboration to his-version that eye-witnesses were present at the scene of offence. The incident had taken place in a broad day light and there was no reason whatsoever to falsely implicate the appellants. We believe him.
24. Evidence of P.Ws. Suhhan and Muhakamdin is also free from doubt and worth relying. They are also natural witnesses and belong to same village. As usual, they were going to the land when they met P.W. Ghulam Nabi. They heard cries and had also seen the incident. Both are closely related to the parties. They had. No special reason to support one party at the cost of other. They had deposed what they had seen. Although, they were cross-examined at length, with the object to get from- them favourable admissions or to discredit them, but none of the purpose was achieved. It is also significant to note that no evidence worth mentioning has been brought on record to indicate their alleged leaning towards the complainant party and animosity towards the appellants. Their evidence was recorded on the spot and inspires confidence. We believe them.
25. Mr. Halepota argued that status of above-named eye-witnesses was not better than that of interested witnesses and it being so they could not be relied upon. In support of above contention, he cited Bagh Ali v. Muhammad Anwar and another (1983 SCM R 1292) and (2) Janib and two others v. The State (1986 P.Cr.L.J. 583). In Bagh Ali's. Case, it was held that if the version of witnesses was inconsistent with material facts and circumstances, the fact that he was not inimical towards the accused would be of no avail. Also, it was observed that if the Court was not satisfied that witness was telling truth, the question of corroboration becomes wholly irrelevant.
26. In case of Janib, it was observed that if the relationship of the eyewitnesses with the deceased was established, the status of such witness was no better than that of interested witnesses.
27. Both the above cases are not attracted to the circumstances of this case. Ex-Jade, there is no flaw in the testimony of these eye-witnesses. They being natural witnesses have given correct account of the incident. Intrinsic worth of their testimony is beyond doubt. They are neither inimical, nor friend of any of the party.
28. f Next piece of evidence against the appellants is of recovery. The appellants were arrested on the day of incident at about 12.30 noon and bloodstained hatchet and janjoors were recovered from them in presence of mashirs. Said Janjoors and hatchet were signed and sealed on the spot.
Although, a suggestion was given to mushir Nawabuddin that neither recovery was affected in his presence, nor appellants were arrested, but the same was vehemently denied by him. The appellants were arrested only after 4/5 hours of the incident. Mr. Halepota argued that it was unbelievable that they would have possessed those weapons in the same slate. It is true that they could wash those weapons, but the fact is that they did not do so. Both Janjoors and hatchet were sealed on the spot and signatures of mashirs were obtained on those weapons. Also, it cannot be believed that SHO would have stained those weapons with human blood, particularly when there was no such allegation against him. Admittedly, the report of the chemical examiner is in positive and human blood was found on those weapons. The veracity of the Chemical Examiner report was not disputed. In fact, no question was put up in cross-examination when said report was brought on record through the evidence of Investigating Officer.
29. Mr. Halepoto also argued that alleged recovery of crime weapons was made from a place which was accessible to all the persons and it being so recovery itself was extremely doubtful. In support of this contention, he cited Rasool Bux v. The State, 1980 SCM R 225. Above case is not attracted to the circumstances of this case, as the hatchet used in the commission of said offence was produced after the investigation was completed. Here the situation is different. The crime weapons were recovered just after 4/5 hours of the incident.' So recovery is also proved.
30. Mr. A.Q. Halepota also argued that testimony of Mst. Manzoora, the wife of deceased Abdul Rasheed, has completely- shattered the prosecution's version. According to this defence witness on the day of incident she was present in the house of her deceased husband and after his murder she remained therein till her idtlai period was over. She deposed that there was absolutely no dispute between her father and her deceased husband. In cross, she deposed that she had seen dead- body of her husband and it had only one injury on right side of face. The factual position however, is that the deceased had as many as for injuries, in the shape of incised wounds and contused swelling on occipital region on near left eye. She showed her ignorance that as to when and where her husband was killed. She admitted that in exchange of her marriage the sister of her deceased husband was married to her uncle Habibullah. She also admitted that her uncle Habibullah was residing with his in laws. It is significant to note that deliberately she avoided to give the names of accused as they were none else than her father, uncle and brother. In her deposition, she attempted to save them. Her testimony was rightly rejected by the trial Court.
Admittedly, her real uncle Habibullah was residing with the complainant party. This show that he too cid not approve the act of the appellants. Had the charge against the appellants been false, he would have never resided with his in-laws the complainant party.
31. Mr. Halepota also argued that the incident was not witnessed by any body and that it is the case of substitution. Suffice it to say that no foundation was laid by the appellants in support of this plea.
It has no substance. Likewise, the plea that the deceased Rasheed was murdered by Qadiayani has no force, as it is simply a conjecture having no iota of evidence in its support.
32. Mr. A.Q. Halepota also argued that sentence awarded to the appellants is very harsh and three persons of the same family have been sentenced to death. Two of them are real brothers and third one is a son of one of those brothers. It is noted that these murders were committed deliberately and after pre-planning. All possible steps were taken to see the deceased killed. The deceased were real brothers inter se. Normal penalty in case of murder is death. Lesser punishment can only be given if there are mitigating circumstances. Law on this point is very clear. Reference can be made to the cases reported as (1) Allah Wasaya v. The State (PLD 1982 S.C. 208) (2) Rasib and another r. The State (1985 SCM R 484) (3) Muhammad Nazir v. The State (1985 SCM R 507) (4) Iqbal @ Bhola and 2 others r. The State (NLR 1994 (Criminal) S.C. 259) (5) Muhammad Iqbal v.
Muhammad Akram and-State (NLR 1996 (Criminal) 439 and (6) Ali Gohar v. State (1996 SCM R 549).
33. In case of Allah Wasaya, the deceased had made an effort to stop accused during his attack on her (deceased sister). Appellant accused after realising that deceased might effectively stop him from killing his wife caused a violent blow to deceased knowing to be likely to result in her death, It was held that the murder was deliberate and absolutely unjustified and call for no reduction in sentence of death. In case of Rasib the accused in a destardedly manner killed deceased, which the hitter was sleeping by inflicting multiple injuries with knife in a cruel 'manner. It was held that no extenuating circumstances were available for awarding lesser sentence and death penalty was justified.
34. In Muhammad Nazir's case, it was observed that deceased was brutally murdered in an unprovoked attack. No mitigating circumstances were found and the death sentence was upheld.
In case of Iqbal @ Bhalu three appellants were sentenced to death under Sections 302/34, PPC and also to imprisonment for life under Sections 307/34, PPC with fine, under the following circumstances, as appearing at Page 260: "The complainant also followed them. The afore stated persons started indiscriminate firing on Eisab Khan and injured him and Sadiq In the bathroom. Eisab Khan was trying to save himself by hiding in the bath room, but the accused continued firing. Thereafter .They dragged Eisab Khan out of the bath room and brought him at Chowk Tirkhanwala where Iqbal brought a Toka from the house of Nazir Dhuddi and gave it to Sadiq. Iqbal and Bhola caught hold of Eisab Khan's legs while Javaid alias Jaidi and Dilawar caught hold of hands and head of Eisab Khan. Sadiq by hitting the Toka severed the head of Eisab Khan from his body, who died. The accused went away firing and carried with them the head of the deceased Eisab Khan. The learned trial Court convicted Iqbal, Muhammad Sadiq, Javaid alias Jaidi and Taj while Dilawar and Nazir were acquitted. In appeal Taj was also acquitted by the High Court."
Death sentence of three appellants was maintained.
35. In the case of Muhammad Iqbal it was observed that death sentence is normal sentence for murder, unless mitigating circumstances exist to justify lesser- sentence. Further, it was held that the deceased had not provided any annoyance and had been killed in cold blood. Death sentence was upheld.
36. In case of Ali Gohar at page 554 about the mitigating circumstances following was observed by the Supreme Court and the death sentence was maintained: "17. This brings us to the question whether there are mitigating circumstances warranting leniency in the matter of sentence. In this regard, point canvassed by learned counsel for the appellants was that the appellants are alleged to have killed the deceased due to the fact that they had been disgraced earlier. Of the previous incidents, the first one had taken place 4-5 days before the murder of Ghulam Khan and the second one occurred two days before his death. Further, the most serious development which had occasioned in the second incident was that Hukam Dad appellant was given fist and kick blows. We do not think that this maltreatment warranted him to take the life of Ghulam Khan and that too after two days. If at all the appellants had to take revenge, they could also given him beating at an appropriate place and time."
37. Coming back to the instant case, it is observed that the two deceased of this case were murdered deliberately. Before killing them a strategy was made and on a pretext they were taken to the place of occurrence from where possibly they could not escape. Attack was launched upon them suddenly, and it was, so severe that both expired on the spot. Under the circumstances, we are of the view that no mitigating circumstances are available for awarding lesser penalty.
36. Accordingly, the appeal is dismissed and the death sentence of all the appellants is confirmed.
The reference is accepted.