' S. A. NUSRAT, J.-Appellant Leemon son of Imam Bux has come up in this appeal against conviction and sentence passed against him under section 302, P. P. C., for the murder of Mst. Gori, wife of Haji Safar, by Sessions Judge, Dadu, as per judgment dated 12th July, 1975, awarding him imprisonment for life and fine of Rs. 2,000 or in default further rigorous imprisonment for two years.
2. The incident took place on 12th January, 1974 at breakfast time. The deceased was the daughter of Mst Banki from her first husband and was living with the complainant Saeed Khan, the second husband of Mst. Banki, The deceased was married to Haji Safar, maternal uncle of the appellant, about 3/4 years prior to the incident and had no issue from the said wedlock. It is alleged that Haji Safar had become insane and, therefore, the complainant had brought the deceased to his house labout 4/5 months prior to the incident. Thereafter the deceased had filed suit before the Family Judge, Sehwan, for dissolution of marriage and she continued to reside with the complainant, at village Tehni, Taluka Sehwan. On the day of the incident, at the relevant time, the deceased was siting with her mother, Mst. Banki, in the courtyard of their house, while the complainant alongwith P. W. Ali Khan were standing outside at the goat pen. Upon hearing shrieks of Mst. Banki, the complainant and P. W. Ali Khan entered the house and saw the appellant striking hatchet blows to the deceased. They could not capture the appellant as they were threatened by him and he succeeded in running away with his blood-stained hatchet. /last. Banki, on enquiry, told the complainant and P. W. Ali Khan that the appellant had entered the house by scaling the compound wall and had reprimanded the deceased for her filing suit for dissolution of marriage against his uncle, and thereafter, he had started assault on the deceased with his hatchet. The complainant and Ali Khan then went and saw the deceased who was bleeding from her injuries and was already dead. Thereafter the complainant went to inform P. W. Amb, his head-man,about the murder of Mst. Gori. P. W. Amb allegedly accompanied the complainant to the scene of offence and found Mst. Gori lying murdered. He advised the complainant to lodge report with the Police and accordingly he went to Police Post, Jhangara of Sehwan Police Station, which is situated' at a distance of 4 miles from the scene of offence leaving P. W. Ali Khan and Mst. Banki beside the deceased. He reached the Police Post at 1 a.m. And reported the matter which was entered by H. C.
Wall Muhammad in Station Diary, as No. 154 book was not maintained there. P. W. Wall Muhammad despatched copy of the report to Sehwan Police Station for incorporating it in 154 Book and repaired to the scene of offence. He inspected the scene of incident in the presence of mashirs Ameer Bux and Yakoob. He found the dead body of the deceased lying on the ground in the courtyard of the complainant. He secured blood-stained earth and sealed it. Thereafter he held inquest on the deceased in the presence of the same mashirs. Soon thereafter the S. H.
0., Sehwan, Abdul Kakim, arrived and carried on further investigation. P. W. Abdul Hakim, having received copy of the report, lodged by the complainant, had formally incorporated it in 154 Book of the Police Station, Sehwan, which is F. I. R. (Exh. 46) in this case. He recorded statements of P. Ws.
Mst. Banki and Ali Khan. The appellant was produced before him on 13-1-1974 by one Qadir Buksh and was allegedly in possession of a hatchet. A blood-stained hatchet and shalwar and left foot slipper of the appellant, also found blood-stained, were secured by the S. H.
0. The arrest, recovery of hatchet, blood-stained shalwar and slipper, were witnessed by mashirs Qadir Buksh and Imam Bux as per mashirnamas Exbs. 14, 15 and 16 respectively. The appellant was produced on 14-1-1974 before the Mukhtiarkar & F. C. M. Sehwan, who recorded his: confession. The statements of P. Ws. Mst. Banki, Ali Khan and Qadir Bux were also recorded under section 164, Cr. P.
C. On 14-1-1974. Statement of P. W. Amb was recorded by the police on 21-4-1974. The alleged blood-stained shalwar, slipper and hatchet were sent to the chemical analyser through S. P., Dadu.
The appellant was thereafter challaned in the Sessions Court, Dadu.
3. The defence of the appellant is one of complete denial. According. To him, he was falsely implicated by the complainant in the offence because: he had not obliged the complainant by giving desired evidence against Passe- and others in a case of the murder of one Sehar, cousin of the complainant. According to him the complainant was interested in securing conviction of Passo and others but he had given facts as were within his knowledge. The deceased Passo and others were acquitted in the said case and thereupon the complainant had allegedly threatened him of revenge and as a result of the said enmity he had been falsely implicated him for committing the murder of Mst. Gori. The appellant produced certified copy of his deposition which was recorded in murder case, State v. Passo and others (Exh. 53). No other evidence was led by the appellant.
4. The motive for committing the murder was stated to be that deceased Gori had filed a suit for dissolution of marriage against her husband Haji Safar, who is maternal uncle of the appellant which fact had annoyed the latter.
5. The murder of Mst. Gori was duly and sufficiently proved as having been committed on the fateful day. According to the medical officer, Dr. Habib Ahmed Siddiqui, on external examination of the dead body of the .Deceased following injuries were found on her person:-
(1) Incised wound 6" x 4" cutting the vertebrae and blood vessels and spinal cord starting from the right side and back of the neck, only skin on the left side was intact.
(2) Incised wound 7' x el` x cutting the vertebrae, blood vessels and spinal cord about 1/2` above the first wound. Bones of the right cheek were also cut.
(3) Incised would 4' x 2 x brain deep (2') right occipital region.
(4) Incised wound 1" xx muscles deep on upper part of right arm laterally.
' In the opinion of the Medical Officer the above-mentioned injuries were anti-mortem and caused by a sharp-cutting weapon like hatchet. According to him, the death of the deceased was instantaneous and the period that elapsed between the death and post-mortem was about 24 hours. Injuries Nos. 1 to 3 were individually sufficient, in ordinary course of nature, to cause death of the deceased.
' In cross-examination by the defence counsel Dr. Habib Ahmad Siddiqui stated that injuries 1 and 2 could have been caused to the deceased either when she was sitting or when she was in a lying position. No further question was asked from the doctor and, therefore, his evidence remained unshaken.
6. Mr. Agha Ghulam Ali, learned counsel for the appellant, contended that P. Ws. Saeed Khan and Ali Khan have stated that the face of the assailant was muffled and accordingly the identity of the culprit was not established. As regards the testimony of P. W. Mst. Banki is concerned, it was stated that she had given a go-by to the prosecution case and was declared hostile. Accordingly her testimony too is of no value to the prosecution. The learned counsel further pointed out certain minor discrepancies in the evidence of the first two prosecution witnesses. He also relied upon the fact that the judicial confession of the appellant had been discarded by the prosecution itself and further the learned Sessions Judge had also excluded the evidence regarding the alleged recoveries of the hatchet, bloodstained "shalwar" and left slipper of the appellant. He also feebly contended that the delay in filing of the F. I. R. Had not been sufficiently proved.
7. The ocular evidence is furnished by complainant Saeed Khan and P. Ws. All Khan and Mst. Banki.
The complainant stated that the deceased was his step-daughter and was married to Haji Safar about 3/4 years before the incident. As Haji Safar had become insane, the deceased had come to reside with him since about 3/4 months prior to the incident. According to him the incident had taken place at about 9 or 10 a.m. On that occasion he was standing alongwith P. W. Ali Khan at the sheep pen at a distance of about 10/15 paces from his house. Upon hearing shrieks from inside the house they rushed inside and saw the appellant giving hatchet blows to Mst. Gori with its sharp side. Both of them attempted to capture the appellant but had to keep themselves away because they were threatened by the appellant with death. Thereafter the appellant made good his escape through the gate of the house. The complainant and P. W. Ali Khan then went and saw the deceased who was lying injured and dead. According to him, when he and P. W. Ali Khan entered the house, they found that Mst. Banki was raising cries and after the appellant had left the scene of offence, she told him and P. W. Ali Khan that the appellant had entered the house by scaling the northern wall of the house and immediately upon his arrival had reprimanded the deceased regarding her filing of suit for dissolution of marriage against her husband Haji Safar and thereafter he commenced assault on the deceased with hatchet. The complainant stated that he noticed some scratches on the northern compound wall of the house. He went to inform P. W. Amb, his head man, about the offence after leaving Mst. Banki and P. W. Ali Khan beside the dead body of Mst. Gori. Thereafter he had taken P. W. Amb, who lived about I miles away, to the place of incident.
On his arrival at the place of incident P. W. Amb advised the complainant, to lodge report with Police and accordingly he proceeded to Police Post Jhangara to lodge the F. I. R. In cross- examination an attempt was made to prove that in fact Mst. Gori had not filed any suit as alleged.
In reply be stated having personally taken the deceased to Sehwan for filing suit and one Ghulam Qadir was engaged as Advocate. He could not mention the date of hearing of the suit. In cross- examination, however, he made an obliging statement to the effect that the assailant had his face muffled but immediately he corrected himself and stated that his face was open. He denied the suggestion that he was falsely implicating the appellant because the latter had not given evidence against Passo and others as desired by the complainant. The fact regarding institution of suit by Mst. Gori was sufficiently established by the prosecution which examined P. W. Mukhtar Ahmad, a clerk of Civil Court VII, who produced the original plaint of the suit filed by the deceased against her husband Haji Safar (Exh. 35). This witness further stated that the deceased had appointed Ghulam Qadir as her agent in the said suit. The plaint was presented on 20th December, 1973 and was admitted on the following day. The hearing in the suit was fixed on 8-1-1974 for appearance of Haji Safar to whom notice had been issued by registered post but the envelope (Exh. 37) returned undelivered. It is true that the complainant did attempt to oblige the defence by first stating that the face of the appellant was muffled but as mentioned above, he had immediately corrected himself and stated that his face was open. We have examined the Sindhi version of the deposition of this witness wherein it is recorded that the face of the appellant was open and only a "patta" was round his chin. Accordingly what this witness stated appears to be correct because people do wrap "patta" of their turban round their chin and neck which does not completely cover the face.
The fact that the complainant denied the suggestion that he was falsely implicating the appellant on the contrary clearly fixes the identity of the culprit, being the appellant. It may be mentioned that his testimony in examination-in-chief is forth-right and it was only during the cross- examination that he attempted to create some doubt about the identity of the assailant. It is an admitted position on record that the appellant is related to the complainant. It is, therefore, no wonder that he tried to minimise the effect of his ocular evidence in examination-in-chief.
8. The evidence of P. W. Ali Khan is substantially the same as that of the complainant. His presence at the time of the incident has not been denied even by Mst. Banki who stated that she had raised cries on which the complainant and P. W. Ali Khan had entered the house. Moreover, P. W. Ali Khan himself stated that he had cultivated the land jointly with the complainant in those days.
Accordingly the presence of this witness at the time of commission of the offence is fairly well established. In cross-examination he stated that the assailant had his face muffled upto chin.
However, the defence failed to bring out in cross-examination that this witness made any statement regarding the assailant having his face muffled at any earlier stage either before the Police or in the lower Court or in his 164, Cr. P. C. Statement, and as such it is too obvious that this witness for the first time attempted to oblige the defence due to some influence on him on account of his relationship with the parties. The other minor discrepancies which were brought out in the cross-examination of this witness do not merit any consideration. He corroborated the statement of the complainant with regard to existence of scratches over the compound wall, which according to Mst. Banki, were caused by the assailant while scaling the wall for gaining entrance in the house.
The fact regarding existence of scratches over the northern compound wall of the house of the complainant has also been corroborated by mashirs Amir Bux and H. C. Wali Muhammad. The testimony of this witness is consistent with that of the complainant as to the identity of the appellant and his having caused injuries to the deceased resulting into death on the spot. The fact that the complainant and P. W. Ali Khan made slightly obliging statements is not surprising and does not discredit their testimony. The Supreme Court of Pakistan in Falak Sher and others v. The State (1) while considering somewhat similar facts, where material witnesses had resiled from their previous statements on account of their close relationship with the appellant in that case, observed as under:- "Applying these principles to the case before us, we are satisfied that the Courts below were right in taking the view that the material witnesses had resiled from their previous statements on account of their close relationship with the appellants. With the passage of time the sense of injury and injustice was overcome by the sense of kinship. Even so, the witnesses were not able to deny the time and the place of occurrence, nor were they able to repudiate the prosecution case altogether.
It is also significant that at time of making the first information report, and at the time of appearing before the committing Magistrate, these witnesses did not have any motive to falsely implicate the appellants in this crime."
9. This brings us to the testimony of P. W. Mst. Banki, the mother of the deceased. She was declared hostile and was allowed to be cross-examined. Her statement recorded under section 164, Cr. P. C.
Was brought on record and she was confronted with certain statements made therein by her. {{FOOT NOTE}}
(1) PLD 1975 SC 179 {{FOOT NOTE}} Although she denied having identified the appellant and making other incriminating statements but admitted certain facts. She stated that a culprit had scaled over the northern compound wall of the house and he had given two hatchet blows to the deceased. She further stated that she raised cries on which complainant Saeed Khan and Ali Khan entered the house. She confirmed having waited on the dead body of the deceased who died of hatchet blows. She also confirmed that the deceased had filed suit for dissolution of her marriage against Haji Safar in the Court at Sehwan, and that she was murdered before the date of hearing in the said suit. She also stated that the assailant had left through the door of the house. She admitted that the appellant was her maternal cousin. When confronted with her 164, Cr. P. C. Statement at first, she said that she might have stated before the Mukhtiarkar and F. C. M., Sehwen that while she and deceased Go were sitting in the house appellant Leemon scaled over the northern wall but then volunteered to say that she did not remember to have said so as it is matter of many days. The evidence of P. W. Mst.
Banki cannot be altogethe ignored merely because of the fact that she was declared hostile. In Kalo and 2 others v. The State (0, a learned Division Bench of this Court held as under :- "When dealing with a hostile witness it is open to the Court to act on such particulars in the evidence of a hostile witness as may be considered to be true in relation to the circumstances of the case. It would be wrong to assume that the evidence of a hostile witness has to be discredited wholly. There may be a case when a witness may be trying to exculpate one out of several accused for some personal reasons and Ali the same giving true evidence regarding the rest. In such cast it cannot be said that the entire evidence of a hostile witness should be left out of consideration."
' After considering case-law on the subject their Lordships observed at page 343 as follows:- "In the light of the above principles, the testimony of a hostile witness cannot be left out of consideration and the evidence has to be considered like the evidence of any other witness, but with a caution for the simple reason that the witness has spoken in different tones. When a person speaks in different voices, it is for the Court to decide in what voice he speaks the truth. In such case the determining test is corroboration from independent source and conformity with the remaining evidence."
' A close examination of the testimony of P. W. Mst. Banki gives a clear impression that she was won over by the defence and as such she attempted to oblige the defence. Admittedly she is maternal cousin of the accused. Complainant Saeed Khan and P. W. Ali Khan have proved that she told them that the appellant had scaled over northern wall of the compound, entered the house and had commenced assault on deceased after reprimanding her of filing suit against his maternal uncle.
The prosecution confronted her with her statement made to the complainant, Saeed Khan, and P.
W. All Khan regarding appellant entering the house after scaling over the wall and telling the deceased of having filed suit against her husband. She practically admitted most of the details of the incident, with the exception of confirming identity of the assailant, and this, she presumably did for the reason mentioned hereinabove. The incident had taken place during day time and {{FOOT NOTE}}
(1) 1973 P Cr. L J 334 {{FOOT NOTE}} there can be no question of mistaken identity. The appellant was named in the F. I. R. As the person who committed the offence, and P. Ws. Ali Khan and Mst. Banki were stated to have witnessed the same. The complainant and P. W. Ali Khan had no reason to falsely implicate the appellant and are natural witnesses. Their testimony is also corroborated by the medical evidence as well as motive.
10. As regard the objection regarding alleged delay in filing the F. I. R., although P. W. Amb made some obliging statement in favour of the defence, he admitted that the complainant had gone to inform him about the murder of Mst. Cori and that he had advised the complainant to lodge complaint. He thus corroborated the testimony of the complainant. According to the complainant and P. W. Ali Khan the incident had taken place at about 9 or 10 a.m. And the complaint was lodged at about 1 a.m. At the police post which was at a distance of 4 miles from the scene of offence.
Thus short delay in lodging the complaint is sufficiently explained.
11. We have closely considered the entire evidence and hold that th appellant has been rightly convicted and sentenced. We accordingly maintain the conviction and sentence passed against him and dismiss the appeal.