' G. M. SHAH, J.-The appellants are brothers inter se. They were tried for the murder of Ali Murad deceased by the learned Additional Sessions Judge, Sanghar, who by the judgment dated 1st April, 1976, convicte1/44 both of them, of offences under section 302/34, P. P. C. And sentenced each of them to death. They have assailed the judgment by filing the appeal. There is also a reference under section 374, Cr. P. C. For confirmation of the death sentence. This judgment will dispose of both, the appeal, as well as, the reference.
2. According to the prosecution, about the month before the day of occurrence, the radio of Ali Murad deceased was stolen. He suspected both the appellants, who were also living in the same village, Kamman Thahim. He asked for the return of his radio. The appellants refused, saying that it was not with them. The deceased complained and brought the matter before the elders. The appellants thereby felt aggrieved and were harbouring grudge against him. They were challenging him that they would see him.
3. On 30-8-1974, at about 2 a.m. Deceased Ali Murad was sleeping on the cot in the verandah of his house, where his son Mohammad Murad was also sleeping. On the barking of the dog, Mohammad Murad got up. He saw the appellants armed with hatchets coming towards the cot of his father. He raised cries which attracted P. Ws. Dodo and Moheb. Before they could do anything, the appellants gave hatchets blows to Ali Murad deceased and killed him, in spite of the entreaties of the three witnesses not to kill him. The appellants threatened the witnesses and after killing the deceased, they went away. In the meantime, on bearing the cries, Gul Hassan complainant, cousin of Ali Murad deceased also reached there. It was a moonlit night. As he was entering the house of the deceased, he saw both the appellants running away from the house carrying the bloodstained hatchet in their hands. He went inside the house and found Ali Murad deceased, lying unconscious on the cot, with injuries on his person and bleeding. On inquiries P. Ws. Mohammad Murad, Dodo and Moheb gave him the facts that the appellant had caused hatchet injuries to the deceased. Gul Hassan then repaired to the Police Out Post Beran', seven miles away, and Lodged the F. I. R. Exh.
9. Police accompanied him and reached the rardat at 7-30 a.m. The deceased was found injured, who was rushed to the hospital but succumbed to the injuries on the way.
4. After registering the case, Inayat Khan A. S. I. P., P. W. 7 had reached the vardat and recorded statements of witnesses Dodo, Mohammad Murad and Moheb. Search for the appellants was commenced; but they were reported to have absconded from the village. On information received by the S. H. 0 , he went to the village of Palio Thahim on 31-8-1974 and contacted Tahir, uncle of the appellants, in whose house the appellants were stated to be hiding. The appellant Gul Kadan was arrested first at 11 a.m. And a blood-stained hatchet was secured from Him and it was sealed. He was wearing Khaki blood-stained shirt, which was also secured and sealed under the Mashirnama Exh.
22. Thereafter, at 11.30 a.m. Shahan was arrested, who produced blood-stained hatchet, which was also secured under Mashirnama Exh!).
23. The blood-stained articles were subsequently sent to the Chemical Analyser and as per report Exh. 6, both, the hatchets and the Khaki shirt were found stained with human blood. After completing the usual investigation, the case was challenged in the Court.
5. The death of All Murad deceased is not disputed. Autopsy on the dead body was performed by Dr. Mohammad Ismail, who, on external examination found the following injuries:-
(1) Contused wound 2r x ' x skull deep on the right side parietal Lazion.
(2) Contused wound 2i. Xi. x skull deep on the left side frontal region.
(3) Contused wound x bone deep on the left parietal region (depressed fracture of the parietal bone).
(4) Swelling x 2' on the left side of the face.
' The above injuries were antimortem and appeared to have been caused by blunt weapon like back side of the hatchet or a lathi. Injury No, 3 was individually sufficient to cause death in the ordinary course of nature. Coupled with injury No, 3, injuries Nos. 1 and 2 were collectively sufficient to cause death.
' On internal examination it was founds- ' (I) Skull Haematoma under the meningles.
(il) Depressed fracture of left parietal bone of skull.
' The doctor was of the opinion that the cause of death was shock and haemorrhage, as a result of the above-noted injuries, which were the result of the three blows given to the deceased.
6. The case of the appellants was of denial. They led no defence. It was pleaded by them that P. Ws.
Gul Hassan, complainant and Moheb had committed the murder of the deceased, as they suspected him to be on illicit connections with Moheb's wife. Mst. Bachal. About the witnesses, as to why they were deposing against thorn, it was stated that they were related to the deceased and were interested.
7. We have heard, at length Mr. Mohammad Hayat Junejo, learned counsel for the appellants and Mr. Sabir Hussain Rehmani for A -G. For the State.
8. Prosecution case primarily rests on the ocular testimony of Dodo, and Mohammad Murad. The first is the father-in-law, and the second is the son of the deceased. Dodo resided in the same compound; whereas Mohammad Murad lived in the same house with the deceased. At about 2 a.m., after midnight, Mohammad Murad and his father, deceased All Murad, were sleeping in the house, on separate cots, only two paces apart. Muhammad Murad got up on hearing their dog barking. It was a moonlit night. He saw both the appellants armed with hatchets, approaching the cot, when they were paces away from the cot, where his father, the deceased was sleeping. He raised cries, which attracted P. Ws. Dodo and Moheb. They came one after another. They saw appellants giving hatchet blows from the blunt side to the deceased, despite their entreaties not to kill the deceased.
9. Ocular testimony gets strong corroboration from the evidence of complainant Gut Hasav, who is cousin of the deceased and resided only one acre away. When he reached, he saw on the moon- light the appellants, running away with blood-stained hatchets from the house of the deceased.
On entering the house, he found, the deceased unconscious, lying injured on the cot, bleeding. P.
Ws. Muhammad Murad, Dodo and Moheb wore present, who narrated the incident to him, stating that the appellants had inflicted the hatchet injuries to the deceased.
10. In the F. I. R., lodged by Gul Hassan, names of the two eye-witnesses, Dodo and Mohammad Murad, were mentioned. The version of the witnesses is so natural and consistent that there is no reason to doubt their word. They had no enmity with the appellants. The deceased on the other band had a grievance against the appellants, when they wore suspected by him to have stolen his radio, which they refused to return. Furthermore, there appears no reason, whatsoever, why these three witnesses should falsely implicate the appellants. It may be pointed out that the appellants had not alleged any enmity with any of the three witnesses in their statements.
11. Next piece of evidence against the appellants is of recovery of blood-stained hatchets. Appellant Gul Kadan was arres'ed on the next day of the occurrence I. e.
31.8-1974 at 11 a.m. He was produced before the Police by his maternal uncle Tahir from his house.
He was wearing the 'Khaki shirt' on his person. After his arrest, he volunteered to produce the hatchet, which was secured at his pointation. Both the articles were stained with human blood.
Appellant Shahan was also produced by Tahir and be was arrested half an hour after the arrest of Gul Kadan. On his pointation blood-stained hatchet was secured. Both the appellants had taken shelter and were hiding in the house of Tahir, where the A. S. I. P. Inayat Khan, in presence of the Mashirs, had arrested them At first, Tahir denied any knowledge of any of the appellants being present in his house; but later on, produced them and they were arrested. Mehro is the Mashir, in whose presence, the shirt and the hatchets were recovered. He lived only one acre away from the house of the deceased. He was admittedly related to the deceased. His father was maternal uncle of the father of the deceased. From the cross-examination, as well as the statements of the appellants, nothing has been brought on the record to suggest hostility with Mehro. We have, therefore, no reason to doubt his version, in respect of the recovery of the blood- stained articles from the appellants.
12. The presence of the two eye-witnesses Dodo and Muhmamad Murad has teen criticised by Mr. Mohammad Hayat Junejo, on the ground that when the wife of the deceased All Murad was away.
P. W. Mohammad Murad, who was aged about 13 years only, must have gone with the mother, rather than stayed at home with the father. About Dodo, the learned counsel stated that when he could get up from sleep on the barking of the dog and reached the place of occurrence, why did not the deceased wake up from sleep, to either resist the assault, or escape. He, therefore, contended that none of the witnesses were present and the murder was an unwitnessed one. We find no force in this argument. Mohammad Murad is admittedly 13 years of age; but his presence at the vardat was natural and be has no reason to falsely implicate the appellants. It may be that Muhammad Murad is the son of the deceased. But apart from this, there is nothing on the record to show that he had any particluar motive to falsely implicate the appellants, instead of real culprit., as is contended by the appellants in their statements. The suggestion that he was away with his mother and was not available at the time of occurrence, is far-fetched and is untenable. He is the inmate of the house and is the son of the deceased. His presence at the place of occurrence was obvious. He is named in the F. I. R. Which was lodged within the shortest possible time. Prudence of course, requires that the evidence of an interested witness should be scrutinised with great care, particularly in cases of capital charges, and conviction should not be based upon such interested evidence, unless the Court can place implicit reliatce thereon. We have carefully scrutinised the evidence of Muhammad Mond from all aspects. About his presence, his relationship with the deceased, as well as the fact, whether he could falsely substitute the appellants in place of the real culprits. We find his evidence direct, consistent, natural and true. There is nothing on the record to discredit his version. About the deceased not getting up on the barking of the dogs, it depends upon, how fast asleep, he was as that time. Each individual has his own reactions to any noise or sound occurring around him. The incident as is granted, obviously took place in the early hours of the morning within a minute or two. By the time even if the deceased had got up, he was accosted and suddenly attacked in such a manner that he was rendered helpless and incapable of resistance or raising alarm. We have, therefore, no hesitation in accepting the ocular version of the eye-witnesses corroborated by the testimony of Oul Hassan. The learned trial fudge, who had observed the demeanour of the witnesses, had observed in his judgment that "the evidence of the prosecution witnesses rings intrinsically true and is not by any means tainted with any element of falsehood."
13. It was further argued that since the house of the deceased was surrounded by other houses of the people living in the village, why no independent witnesses were produced. From the testimony of Mohammad Murad and Dodo, it appears, that nobody from the village bad come to the vardat, either at the time of the occurrence or subsequently, when the police arrived. The incident had taken place at the dead of the night at about 2 a.m. The only person who could immediately respond to the cries, was Dodo, who resided in the same compound, with only a wall between his house and that of the deceased. It is not the number of the witnesses that proves the case, but the quality of the evidence, which convinces the Court to base its judgment upon. We are satisfied with the credibility of the eye-witnesses and the truthfulness of their version. The suggestion advanced in the cross-examination of Dodo that Mohib, Mir Khan and Mehro had murdered the deceased Ali Murad, because the deceased had illicit intimacy with the wife of Mohib, is without any foundation.
There is no evidence available on record, whether the deceased had, at all, any illicit relationship with the the wife of Mohib. The stand taken by the appellants in their statements in the trial Court paints a different picture.
14. The recovery of the blood-stained hatchets and the shirt was made in presence of the Mashir Mehro, who provides strong corroboration to the eye-witnesses account. He admits his distant relationship with the deceased. Mere relationship of a witness cannot render his testimony as partial, unless it is motivated by circumstances of hostility towards the appellants. We have nothing on the record to show that Mashir Mehro had any animus towards appellants, which could compel him to falsely implicate them. Mehro was not shown to have had any such motive to falsely implicate the appellants. The articles were produced before the Investigating Officer Inay at Khan, and no question has teen put to him to suggest, if he had collaborated the witnesses against the appellants.
15. Finally it was argued that the motive was not strong enough to result in the murder of the deceased. The allegation in the instant case was of theft against the appellants. People in villages have very peculiar tendency. When they are accused of theft or any allegation of a nature, which disgraces them or lowers their reputation and status in the eyes of the villagers, they are apt to take revenge, without realising the seriousness of the motive. Mental attitude of individuals living in villages is also different. The villagers, are rusty, tough and rough, do not have the tolerance equal to that of the educated city people. Villagers are usually found more excitable and react sharply to any insult or disrespect to them. Therefore the strength or quantum of the gravity of seriousness of the motive is immaterial for commission of the offence. People have committed murders over a cup of tea or dispute over a petty sum of money, or over a filthy abuse, disrespecting them or their family members.
16. We have been referred to certain contradictions in lenghy cross-examination. While considering the whole evidence, it would appear that these contradictions brought on the record from the lower Court statements are of minor nature and are natural in statements of truthful witnesses, particularly when, there is lengthy cross-examination and the statements of witnesses are recorded about a couple of sears after the occurrence. To be precise, P. Ws. Dodo and Muhammad Murad were examined in the trial Court on 6-2-1976 and 25-2-1976 respectively when the incident had occurred on 30-8-1974. Likewise, other contradictions are also of unimportant nature. They do not detract from the intrinsic value of the testimony deposed to by them at the trial. Mere relationship of the witnesses with the deceased would not disqualify them from being competent witnesses. In the case reported in 1971 SCMR 229, on which reliance was placed by the trial Court and it would be appropriate to reproduce the relevant paragraph as under:- "In the petition for special leave to appeal the appellant contested his conviction on grounds which went to appreciation of evidence. It was contended that all the eye-witnesses were related to the deceased and being interested persons conviction should not have been based on their evidence.
The contention did not hold good as mere relationship of the eye-witnesses of the deceased was not a sufficient ground to reject their testimony. The account given by the eye-witnesses was consistent and no material circumstance or fact elicited in their cross-examination to cast doubt on their presence at the scene of crime. They had given the minutest details of incident which fitted in with the circumstances attending upon the crime. Their evidence was further corroborated by Shah Mohammad P. W. Who arrived at the spot immediately after the occurrence and was informed by Mohammad Amin, Balal and Faiz, P. Ws, that the appellant had fired at Mohammad Sherif, deceased and killed him. Lastly, the empty cartridge marked 'C' recovered from the scene of shooting was found by the Examiner of Fire Arms, Central Forensic Science Laboratory, Lahore, to match with the pistol recovered at the instance of the appellant from his house in the presence of Ghulam Mohammad and Niaz Ahmed, P. We. Both of whom were found to be independent and trustworthy. No case for re-examination of the evidence was thus made out."
17, Presence of Mohammed Murad, who is son of the deceased, cannot be doubted, whereas Dodo lived only rine feet away, in the same enclosure from the house of the deceased. Incident occurred so swiftly, with the barking of the dogs and Mohammad Murad's shouting and entreaties to save his father, which had attracted Dodo, who reached the vardat. Dodo had no grudge against the appellants, so that ho could have prompted to falsely implicate them. The incident had occurred at such a time, when the whole village was peacefully asleep, No neighbour could have possibly come at once at that time to witness the crime.
18. As regards the identification of the appellants, we have no doubt as they were identified on the light of the moon. It was the month of August and on the night of occurrence, there was sufficient light to enable the witnesses to identify the appellants, who were already known to the witnesses and had come so close where Mohammad Murad son of the deceased, could conveniently identify them. In the case of Allah Rakhio and others v. The State (1), in which leave to appeal was granted to consider whether the appellants could be identified by the prosecution witnesses in the light of the moon, it has observed by Mohammad Haleem, J. t- "It is also not disputed that having regard to the time of the incident, there was bright light of the moon and the appellants were known to the witnesses and therefore, being fully aware of their features and familiar with their voices, there could not be any mistake in their identification from a close distance."
' The presence of P. Ws. Mohammad Murad and Dodo, in our view is established beyond doubt and we have no hesitation in accepting their statements that they had identified the appellants.
19. For the foregoing reasons and in view of the above discussions. We are fully convinced that the eye-witness account of P. Ws. Dodo and Muhammad Murad corroborated by the complainant Gul Hassan and finally supported by medical evidence and further corroborated by the recoveries was enough to bring home the guilt of the appellants. We accordingly confirm the conviction, accept the reference and dismiss the appeal. {{FOTE NOTE}} 1977 SCMR 347 {{FOTE NOTE}}