' Z. A. CHANNA , J.-The two appellants were tried alongwith acquitted accused Soomar in respect of an offence under section 302 read with section 34 for the murder of Ghulam Thaheem and both of them were sentenced for the said offence to imprisonment for life by the learned Sessions Judge, Sanghar. At the time of admitting this appeal notice was ordered to issue to the appellants to show cause why the sentence awarded to them be not enhanced. By our short order, dated 26-9-1977, we had rejected their appeal and enhanced their sentence from imprisonment for life to death. We now proceed to give our reasons in support of that order.
2. The facts of the case, shortly stated, are that not only the appellants and acquitted accused Soomar are related inter se but further they are also related to the complainant party. Appellant Rasool Bux is the son of Kauro, appellant Hussain Bux is Kauro's son-in-law while acquitted accused Soomar is married to Kauro's sister. The two appellants reside in village Daim Thaheem while first informant Allah Warayo resides on his lands about a block away from the said village. The murder of Ghulam Thaheem, who was the son of first informant Allah Warayo, is said to have occurred on 26-11-1972, at about 11-30 a.m., at a short distance from Kaman Thaheem village which is 10 miles away from Tando Adam Police Station. A day prior to Ohulam's murder there was an exchange of hot words between the deceased and Kauro, who resides in Kaman Village, as Kauro forbade the deceased from visiting Kaman Village on the ground that the latter was a bad charactered person while the deceased insisted on visiting the said village on the plea that his cousins and father-in- law resided there.
3. On the day of the incident, about 11-30 a.m., first informant Allah Warayo was en his land, when the appellants, who are said to have been armed with hatchets, and acquitted accused Soomar turned up and attempted to encircle Allah Warayo, whereupon, fearing for his life, he ran towards- Kaman village, but was pursued by the appellants and Soomar. When he neared Kaman village, the deceased came running to rescue his father when, it is stated, at the instigation of Soomar, the two appellants gave blows with the sharp and blunt sides of their hatchets to the deceased who fell down and died on the spot. On the commotion and cries of Allah Warayo, Mehro, Gohram and Ghulam Qadir came running from their houses in Kaman village and are said to have apprehended appellant Rasool Bux on the spot alongwith his blood-stained hatchet, while appellant Hussain and Soomar managed to make good their escape. Leaving Mehro, Gohram and Ghulam Qadir with the deceased and captured appellant Rasool Bux, Allah Warayo repaired to Tando Adam Police Station where he lodged his report the same day at 13-45 hours, which was recorded by A. S. I. Ahmed Khan.
4. The A. S. I. Accompanied first informant Allah Warayo to the vardar where appellant Rasool Bux and the blood-stained hatchet said to have been secured from him were produced before the A. S. I. By Ghulam Qadir and Mehro in the presence of mashirs Lal Mohammad and Dildar. The A. S. I. Also secured the clothes of appellant Rasool Bux which were found to _ be blood-stained. Thereafter, the A. S. I. Recorded the statements of P. Ws. Mehro, Ghulam Qadir and Gohram.
5. On 26-11-1972, Additional S. H.
0. Shamimur Rehman arrested appellant Hussain Bux and in the presence of Mashirs, Lal Mohammad and Mahmood, secured the shirt and Shalwar which he was wearing and which were found to be blood-stained. In the presence of the same Mashirs the Additional S. H.
0. Secured a blood-stained hatchet at the pointation of the appellant from the hedge of his house.
The case was ultimately challaned on 9-12-1972.
6. The autopsy on the deceased revealed the following external injuries:- "(1) Swelling 2' X 1" on the left cheek.
(2) Contused wound x i" on the left side chin.
(3) Incised wound 2i# x r on the left side upper lip.
(4) Contused wound 2' x i" bone deep on the vertex.
(5) Swelling 3" X 2' on the right parietal region."
7. The medical officer has further deposed that on external examination he found fracture of the skull, right parietal and temporal bones, the sagital sutures were separated and there haemorrhage under the scalp and meningies of the brain. In his opinion, all the above injuries were ante-mortem and caused with sharp and blunt sides of a hatchet and that injuries Nos. 4 and 5 were sufficient individually and collectively with other injuries to cause death in the ordinary course of nature.
8. The direct evidence in the case is furnished by the four eye-witnesses, Allahwarayo, Mehro, Ghulam Qadir and Gohram. All 4 of them have deposed to having seen the two appellants giving blows with the sharp and blunt sides of hatchets to the deceased, who fell down and died on the spot. Except first informant Allahwarayo, they have further deposed to having chased appellant Rasool Bux and apprehended him with a blood-stained hatchet near the scene of offence. They have further stated that in the scuffle resulting in their capture of this appellant, they had given, some blows to him. All the 4 eye-witnesses have also testified about the dispute between the deceased and Kauro, the father of appellant Rasool Bux, on the day prior to the incident. We have carefully analysed the evidence of these witnesses and consider them to be witnesses of truth. The evidence of the Tapedar shows that the houses of P. Ws. Gohram, Ghulam Qadir and Mehro are located at a distance of only 200 feet from the scene of offence. As such they are natural witnesses and could not have failed to have heard the cries of the deceased and Allahwarayo and the commotion arising from the assault on the deceased. It may be pointed out that these 3 eye- witnesses are fairly closely related to the appellants. p. W. Mehro is the real uncle of the two appellants while Kauro, the father of appellant Rasool Bux and father-in-law of appellant Hussain Bux, is the real uncle of P. W. Ghulam Qadir. So far as P. W. Gohram is concerned, his sister is married to Kauro. It is evidently because of his close relationship with the appellants that P. W.
Gohram, in his evidence in Court, has tried to give obliging evidence in favour of appellant Hussain Bux and implicated appellant Rasool Bux only, though in his 164 statement, with which he was confronted, he has implicated both the appellants and stated that both the appellants had given hatchet blows to the deceased. Though these 3 witnesses are also related to the first informant, Allahwarayo, no enmity or hostility is shown to exist between these witnesses and the appellants.
They have, therefore, no motive in falsely implicating the appellants. The incident occurred in broad daylight and consequently the question of any error in identification does not arise.
9. So far as appellant Rasool Bux is concerned, as already stated, the 4 eye-witnesses have testified that he was apprehended almost on the spot, together with the blood-stained hatchet which he was carrying. He was produced alongwith his blood-stained hatchet before A. S. I. Ahmed Khan, when the latter arrived at the scene of offence. They are corroborated on this point both by the A. S. I. And Mashir Lal Mohammed.
10. In addition to the above evidence, there is against appellant Rasool Bux the further incriminating evidence that he was found wearing clothes which were blood-stained. His clothes were seized by A. S. I. Ahmed Khan in the presence of Mashir Lal Mohammed. The clothes and the hatchet were sent to the Chemical Examiner whose report is to the effect that human blood was detected on both clothes as well as the hatchet.
11. So far as appellant Hussain Bux is concerned, the ocular testimony finds support from the recovery, at his pointation, of a blood-stained hatchet. Additional S. H. O. Samiur-Rehman has stated that he had arrested this appellant on 27-11-1972 and on interrogation he produced a blood-stained hatchet. The Additional S. H.
0. Is supported on this point by Mashir Lal Mohammed who has further stated that this appellant had produced the hatchet from the hedge of his house. This hatchet too was sent by the Police to the Chemical Examiner to the Government whose report is to the effect that human blood was detected thereon. It may be pointed out that the clothes of this appellant too were sent to the Chemical Examiner, as they were suspected to be stained with blood, but according to the report of the Chemical Examiner no blood was found thereon.
12. It was contended by Mr. M. M. Pirzada, the learned counsel for the appellants, that though independent witnesses were available, they were neither examined nor even made Mashirs. Mr. M.
M. Pirzada based this argument mainly on the admission of the eye-witnesses that there is a mosque in Kamman village where masons were working on the day of the incident. According to the evidence of the Tapedar, this Mosque is 180 feet away from the scene of offence. There is, however, no evidence to show that the masons came to the scene of offence. In fact no such question was put to any of the witnesses. It is well known that outsiders are generally most reluctant to come to the rescue of a victim of assault or even to appear as witnesses for fear of reprisals. This tragedy of general apathy and absence of civic duty to appear as witnesses, particularly in murder cases, was judicially noticed by their Lordships of the Supreme Court in the case of Yaqoob Shah v. State (1). In that case it was observed by Mohammed Gul, J., as follows :- "It is a frequent experience of criminal Courts that many a gruesome tragedy is enacted, with scores of on-lookers around, yet the assassin is allowed to operate without any let or hindrance and is allowed to escape from the scene, with impunity. Not only that, these `independent' on- lookers are not even prepared to say in Court what they have seen and thereby risk animosity of the assassin or his partisans."
13. On a careful appraisal of the entire evidence in the case, especially in view of the evidence of the 3 independent eye-witnesses, coupled with the fact that appellant Rasool Bux was caught on the spot with a blood-stained hatchet and a blood-stained hatchet was recovered from the possession of the other appellant, we are satisfied that the case against both the appellants has been established beyond any reasonable doubt. No extenuating circumstances have been made out in the case. The murder of the deceased was premeditated and brutal.
14. The only reason which the learned Sessions Judge has given for awarding the lesser penalty to the appellants is the fact that out of the 5 hatchet blows given to the deceased, 4 were with the blunt side and one with the sharp side. Hatchet is a deadly weapon, whether blows are given with the sharp or blunt side and our experience shows that death of ten result from hatchet blows given with the back side, of course depending upon the part of the body on which the blows are. Given. In the instant case, it was not the blow given with the sharp side of the hatchet which resulted in the death of the deceased, but according to the medical evidence it was th injuries given with the back side of the hatchet which proved fatal. As already pointed out, the blows were given with such force that the skull, the right parietal and temporal bones of the deceased were fractured and even A the sagital sutures were separated. In the circumstances, we find no forc in the reasoning of the learned Sessions Judge on the basis of which he has awarded the lesser penalty to the two appellants. In two recent judgments, namely Shahzado v. State (2). And Misri Khan v. Kala Khan and 2 others (3), their Lordships of the Supreme Court, on an acquittal appeal, have reversed the acquittal of the accused and sentenced them to death on the ground that there were no extenuating circumstances for the award of lesser sentence.
14. We accordingly, while upholding the conviction of the appellants, substitute the sentence of imprisonment for life awarded to them by the learned Sessions Judge with sentence of death, and dismiss their appeals. {{FOOT NOTE}}
(1) PLD 1976 SC 53 (2) PLD 1977 SC 413
(3) PLD 1977 SC 462 {{FOOT NOTE}}