' Z. A. CHANNA , J.-The three appellants, of whom appellants W air and Bachu arc brothers inter se besides being brothers-in-law of the first informant, Adam, were tried in respect of an offence under section 302/34, P. P. C. For allegedly committing the murder of one Yar Mohammad and were convicted by an Additional Sessions Judge, Sanghar, of the said offence, by his-judgment delivered on 20.4-1976, and while appellants Wazir and Bachu were awarded capital sentence, appellant Mil was sentenced to suffer imprisonment for life. The appellants have preferred an appeal to this Court against their conviction and sentence and also a reference has been received from the learned Additional Sessions Judge for confirmation of the death sentence awarded to appellants Wazir and Bachu. This judgment will dispose of both the appeal and the reference.
2. The prosecution case, shortly stated is that at the time of the incident complainant Adam, deceased Yar Mohammad and the appellants, Wazir and Bachu, were putting up together in a Village in Deh 3 Dim, Sinjhoro Taluka. Mst. Haliman, a sister of Bachu and Wazir, was also putting up in the same house as she had left her husband Palio Mari. Wazir and Bachu suspected that she was maintaining illicit relations with deceased Yar Mohammad, who was unmarried, and complained in this behalf of Adam, but the latter apparently took no satisfactory action in the matter. It is alleged that on 28-9-1973, at about 1-30 p.m., appellant Adil took away the deceased and both were seen to go north towards the nearby cotton crop. That was the last time that deceased Yar Mohammad was seen alive. Two days later, that is on 30-9-1973, one Fatu came to the first informant, Adam, and informed him that he had gone out of the village for some work and on returning to the village that morning, he had been informed by his minor son, Mato, that two days previously, at about noon time, while he was cutting grass in the cotton crop, he saw deceased Yar Mohammad and appellant Adil coming towards the cotton crop, when in the meanwhile, appellant Wazir, who was armed with a hatchet, and appellant Bach, who was armed with a 'Darno' (long stick of rake), also appeared, that Bachu gave 'Darno? Blows on the head to the deceased, who fell down, whereupon appellant Adil climbed over the chest of the deceased the: appellant Bachu over his feet, while appellant Wazir gave a blow with the sharp side of the hatchet on the neck of the deceased and cut the same, and thereafter all the 3 appellants left, carrying away their weapons and warning him not to disclose the incident to anyone. On learning of the above facts, Adam went to the cotton field and found his brother Yar Mohammad lying dead with bus neck cut. After reporting the matter to Allah Warayo Mari, Adam lodged his F. I> R. The same day at 2 a.m. At Sinjhoro Police Station, seven miles away.
3. The F. I. R. Was recorded by witness Ghulam Rasool, who was then S. H.
0. At Sinjhoro Police Station. He accompanied Adam to the scene of offence, where he held an inquest report and also prepared mashirnama of the Vardat. From the scene of offence he secured bloodstained earth and also an 'Ajrak' which was lying under the dead body. The dead body, which was emitting foul smell, was then sent to Medical Officer Sinjhoro for post mortem examination. The S. H.
0. Then recorded the statements of witnesses Mato and Fatu. On the same day, at 5-15 p.m.,, the S. H.
0. Arrested appellant Wazir, at whose pointation a blood-stained hatchet, which was concealed in the hedge of his house, was secured in the presence of Mashirs. Thereafter, on the same day, at 6- 15 p.m., the S. H. O. Arrested appellant Bachu and at his pointation a blood-stained "Dharno" was recovered from the hedge of his house in the presence of Mashirs. On 2-10-1973, at 5-30 p.m., the S. H.
0. Arrested appellant Adam from Rahim Khan Village. He produced before the S. H.
0. And the Mashirs, from his house, a shirt on which there were blood stains on the back, collar and cuff. The hatchet, "Darno", shirt and the earth secured from the scene of offence were sent by the S. H.
0. To the Chemical Examiner to the Government whose report (Exh. 42) indicates that blood of human origin was found on all the four articles.
4. On 3-10-1973, appellant Adil was sent to the Mukhtiarkar and F. C. M., Sinjhoro, who on the same date recorded his judicial confession. In that confession appellant Adil has implicated himself as well as the two no-appellants.
5. The autopsy on the deceased was performed on 30-9-1975 at Sinjhoro dispensary by Medical Officer Krishinlal, who found the following external injuries on the dead body :- (1)An incised wound 11 x 1 deep to the bone on the left parietal region of head (left parietal bone cut).
(2)A lacerated wound 1' x 1/3" on the left parietal region of the head.
(3)Neck was cut and attached behind with skin only at the level of the fourth cervical vertebrae.
Blood vessels of both sides of neck are cut. Esophagus, trachea and spinal cord cut.
6. In the opinion of the Medical Officer injuries Nos. 1 and 3 were "caused by separate and two different blows with hatchet" while injury No. 2 was caused by a hard or blunt substance. He has further opined that injury No. 3 appeared to have been caused to the deceased while he was standing.
7. All the three appellants have denied their involvement in the murder of the deceased and have further denied that they suspected the deceased to be having an affair with Mst. Haliman or that they had made any such complaint to Adam. They have also denied having produced any blood- stained articles before the Police. Their defence is that they have been falsely implicated by the prosecution witnesses who are inimical towards them and want to save their skin. So far as his judicial confession is concerned, appellant Adil has admitted making the same, but while before the committal Court ho stated that he made the confession because he was tortured by the police and his women folk were locked up, in the Sessions Court he claimed that he was forced in the name of Pir Pagaro, whose Murid he is, to make the confession. He has also claimed that there was a dispute over land between Khan Mohammad, an uncle of complainant Adam, and the father of his maternal uncle and has produced some notices relating to the complaint filed by the said Khan Mohammad against Usmaa and his son Mohammad Ibrahim.
8. The direct evidence in the case is furnished by witness Mato. At the time of the incident he was about 11 years of age. He has deposed to having witnessed the fatal assault on the deceased while he was cutting grass in the cotton crop. He has testified that he first saw deceased Yar Mohammad and appellant Adil coming towards the cotton crop, where after appellants Wazir and Bachu turned up, that Bachu felled down the deceased by giving him "Dorna" blows on the head, that thereafter appellant Adil climbed on the chest of the deceased and Bachu caught hold of his feet while appellant Wazir gave a hatchet blow to the deceased on the neck and cut the same and thereafter the three appellants went away with their weapons warning him not to disclose the incident to anyone.
9. The testimony of this witness, which has been relied upon by the learned Additional Sessions Judge, has been assailed by Mr. Imam Ali Kazi, the learned counsel for the appellants on the grounds.
(a) that since the witness for two whole days did not disclose to anyone what he allegedly saw, his testimony cannot be relied upon In a serious case involving a capital sentence, and in support of this contention reliance was sought to be placed by him on the decision of the Supreme Court in Mohammad Saalk v. State PLD 1960 SC 223
(b) that the witness has made contradictory statements as to the weapon with which appellant Bachu is said to have been armed with the nature of the injury allegedly caused by appellant Wazir ;
(c) that the testimony of this witness is belied by the medical evidence for whereas be speaks for only two injuries having been caused to the deceased, the medical evidence shows that three injuries by means of separate blows were caused to the deceased l and
(d) that witness Mate is an interested witness, being in the employ of and a relative of complainant Adam and thus completely under his influence.
10. We have carefully considered the above submissions but find no substance in them. At any rate there is nothing substantial on the record to detract from his evidence or which would justify us in rejecting the same. No doubt the witness has not disclosed to anyone for two days the fact that he had witnessed the murder of deceased Yar Mohammad, but against this fact are the strong counter-balancing factors that at the time of the incident he was a boy of only 11 years, but the appellants had warned him not to disclose the matter to anyone and consequently he may well have been in fear of his own life and finally that his father, Fatu, was out of the village on the date of the incident and as soon as he returned to the village, the witness told him the whole story. Placed in the situation in which he was, and temporarily deprived of the protection of his father on whom alone he could rely. His reluctance to disclose the story to anyone else is understandable. The facts in Mohammad Sadik's case, on which case reliance is sought to be placed by the learned counsel for the appellants, in our opinion, were quite different and the decision in that case would not be applicable to the facts of the present case. In the reported case, it was found that the alleged eye - witness, who was an adult and a Mend of the deceased, neither chose to go to the help of his friend whom he found being attacked with a knife nor did he disclose what he had seen to anyone for 24 hours. These circumstances were held by the Supreme Court against allowing the least value to his evidence. The circumstances in the instant case, however, are materially different. Being unarmed and because of his tender age P. W. Mato could not possibly he expected to go to the assistance of the deceased, even if the latter was his relation. Furthermore, because of the threats of the appellants, whom he had seen murdering a person in cold blood, no adverse inference can reasonably be dra wn for his failure to disclose the matter to anyone except his father.
11. So far as the alleged contradictory statements made by this witness are concerned, they are in regard to the type of weapon carried by appellans Bachu' and the part of the body of the deceased on which appellant Wazir gave the hatchet blow. No doubt in his 164, Cr, P. C. Statement, the witness has stated that appellant Bachu was armed with a "Ghobato" while in his evidence at the trial ho stated that the said appellant was armed with a "Darno", but we consider that this contradiction is not material for both "Darno" and "globate" are basically sticks though of somewhat different types. Furthermore, in the earliest statement made by him to his father before even the F. I. R. Was lodged, he has stated that Bachu was armed with a "Darno". The F. I. R. Clearly mentions this fact. So far as the part of the body on which appellant Wazir gave the hatchet blow to the deceased, the witness in his 164, Cr. P. C, statement has stated that the blow was given on the mouth as a result of which the neck of the deceased was cut off while in his evidence in the Sessions Court he has stated that Wazir caused an injury on the neck of the deceased and his neck was cut off. We see no material contradiction between the two versions, the material part of his evidence being that with the hatchet blow the neck of the deceased was cut off.
12. We also find no substance in the contention of the learned counsel for the appellants that the evidence of witness Mato is belied by the medical evidence. The witness has deposed to having seen the deceased being given a blow with a blunt weapon on the head and also his neck being cut off with a hatchet. In respect of both these injuries he is supported by the medical evidence. No doubt the medical evidence also indicates a third injury which was found on the head of the deceased and which appeared to have been caused with a hatchet, but the non-mention by this witness of this injury would not justify the inference that his testimony is unworthy of credit or unreliable. The attack on the deceased was a sudden one and could not have taken more than a few moments. It is possible that in the confusion of the attack he may not have noticed this blow.
13 So far as the contention is concerned that witness Mato is a servant and a relation of complainant Adam and has deposed against the appellants under the influence and pressure of Adam, it may be mentioned that no enmity between Adam and the appellants has been established or even alleged. On the contrary, as already stated, appellants Wazir and Bachu are the brothers-in-law of Adam and are putting up with him. Adam would thus be strongly disinclined, in the absence of an overpowering motive (which is singularly absent) to falsely implicate them or suggest to anyone else to do so. On the contrary his natural inclination would he to save and protect them.
14. The direct testimony of Mato receives strong corroboration from the testimony of his father Fatoo (to whom he narrated the incident immediately on Fatoo's return to the village), the medical evidence and the recoveries made from the appellants. As already pointed out, the medical evidence discloses that injuries were caused to the deceased with a blunt weapon and a hatchet and nis neck was cut off. It further shows that death of the deceased had taken place between 60 to 72 hours prior to the postmortem which was conducted on 1-10-1973 between 7 20 a.m. The time of death estimated by the Medical Officer thus coincides with the time mentioned by P. W. Mato.
15. As regards the recoveries from the appellants, both S. H.
0. Ghulam Rasool and Mashir Allah Warayo have deposed that on 30-9-1973 a blood-stained hatchet was recovered at the potation of appellant Wazir from the lorha of his house and a blood- stained "Dorna" was recovered at the potation of appellant Bachu from the lorha of his house, and that on 2-10-1973, a blood-stained shirt was recovered from the house of appellant Adil in village Rahim Khan. All these articles have been found by the Chemical Examiner to be stained with blood of human origin. The appellants have not explained how human blood came to be on these articles. Mr. Imam All Kazi bas assailed the evidence of the recoveries on two counts, firstly, that the hatchet and "Dhorna" were not recovered from the exclusive possession of appellants Wazir and Bachu but from a common hedge which was accessible to others, and secondly, that the evidence of Mashir Allah Bachayo, is untrustworthy, as he is not a respectable person, that further he is clearly interested In complainant Adam, who had contacted him before even lodging the F. L R., and that finally the witness has made numerous contradictory statements.
16. No doubt, the hatchet and "Dhorna" were not recovered from the exclusive possession of appellants Wazir and Bachu, but they were found concealed and these two appellants had knowledge of the fact where the weapons were concealed. They have not explained how they came to possess this knowledge. In the absence of any such explanation it is to be presumed that they had concealed the weapons in the hedge which surrounds their house.
17. The contention that Mashir Allah Warayo is not a respectable person of the locality, in our opinion, is clearly untenable. He is the owner of 16 acres of land and thus would be deemed to be a man of substance. He resides at a distance of only a mile from the scene of offence and would accordingly be considered to be an inhabitant of the locality. An attempt was made to show that the witness does no work, has no ostensible means of livelihood and is involved in fights, but these allegations were stoutly denied by the witness, though he frankly admitted that he had sustained a hatchet injury on the cheek in a private fight. The mere fact that the witness was involved in a single fight would not make him a disreputable or inresponsible person.
18. No doubt the Mashir has made certain contradictory statements but the contradictions are minor and not in regard to any material point or in regard to the recoveries.
19. We also find no evidence on record in support of the contention of the learned counsel for the appellants that Mashir Allah Warayo is an interested witness. He is no doubt a caste-fellow of the complainant but not his relative. The mere fact that he is a caste-fellow of the complainant)_ Who before lodging the F. I. R. Had reported the matter to him would nod' make him an interested witness.
20. Mr. Imam Ali Kazi submitted that even if the evidence as to recoveries is believed, but the other evidence against the appellants, specially the coular evidence is held to be unreliable, the appellants would be entitled to an acquittal and he based this contention on the decision in Yousuf v State (1). We find no substance in this contention as besides the recoveries there is both direct and other trust worthy evidence against the appellants.
21. In addition to the above pieces of evidence against the appellants, there is the judicial confession made by appellant Adil on 3-10-1973 before Mr. Gopaldas, the Mukbtiarkar and F. C. M.
Add was arrested by the police on 2-10-1973 at 5-30 p.m., while he was produced before the Magistrate for confession on 3-10-1973 at 11 a.m. He thus appears to have been produced before the Magistrate with commendable promptitude. The confession appears to have been recorded with due formalities. In his confession, to the question why he was making it, appellant Adil told the Magistrate: "I am making this confession of my own free will. No body {{FOOT NOTE}}
(1) PLD 1963 Lab. 274 {{FOOT NOTE}} ' has misguided me. I am follower of Pir Sahib Pagaro and so fearing God. I stated whatever the fact is. I am prepared to sacrifice my life for Pit Sahib. I have never to speak lie." The above statement taken with the other circumstances indicated above, in our opinion, clearly establishes the fact that the confession is both true and voluntary.
22. In his confession, appellant Adil has admitted luring deceased Yer Mohammad to the cotton crop where he was done to death by all the three appellants, of whom appellant Bachu gave him a blow on the head with a "Darno", as a result whereof the deceased fell down, whereupon he (Adil) sat on the chest of the deceased and appellant Bachu caught hold of his legs, while appellant Wazir cut off the neck of the deceased with a hatchet. In his confession, appellant Adil has further stated that the motive for the murder was that Wazir and Bachu suspected the deceased of having illicit relations with their sisters Mst. Hallman, and asked him in the name of Pir Sahib to help them in their enterprise.
23. The confession, though retracted, substantially corroborates the ocular testimony of witness Mato and is corroborated by the medical evidence and the recoveries of blood-stained articles from the three appellants. As such it can be adverted in adjudging the guilt of the co-appellants also, as held by their Lordships of the Supreme Court in Maqbool Hussain v. State (1) and Joygum Bibi v. State (2). No doubt the confession makes no mention of the injury on the head of the deceased, which according to the Medical evidence was caused with a hatchet, nor of the recovery of a bloodstained shift from the house of appellant Adil, but the absence of mention in the confession of these facts does not, in our opinion, suggest that the confession is either not true or not voluntary. It is our experience that generally accused, while making true and voluntary confessions, state merely the essential facts, stressing those aspects which they consider important, and avoid details. The absence of any mention of the recovery of the blood-stained shirt may also have been due to the belief entertained by appellant Adil that the confession had to relate strictly to the incident of the crime itself and not to matters that occurred subsequently.
24. Finally, there is evidence of a strong motive for two of the appellants, namely Wazir and Bachu, to have killed the deceased. Complainant Adam has deposed that these two appellants suspected the deceased of maintaining illicit relations with their sister, Mst. Hallman, who had left her husband, Palio Mari. Mention of this motive has also been made by appellant Adil in his confession.
In the rural areas of Sind such belief is a prime motive for killing the "Kara". It would appear that Wazir and Bachu entertained more than a mere suspicion that the deceased was carrying on with their sister, for they brought their grievance to the notice of the complainant who questioned the deceased about it but he naturally denied the accusations. It seems to us that disappointed by the failure of complainant Adam to put al end to the illicit relations which were going on practically under his nose between the deceased and Mst. Hallman, appellants Wazir and Bachu hatched the plan to do away with the deceased and seat appellant Adil, whom they had initiated in the plan, to decoy the deceased. We are satisfied that this was the motive and it has been fully established on the evidence on record. A further circumstance which supports the inference that deceased was killed because he was believed {{FOOT NOTE}} 11) PLD 1960 SC 382 (2) PLD 1960 SC 313 {{FOOT NOTE}} to be a "Karo" is the fact that his neck had been completed severed. It is a common custom in Sind when killing a "Karo" to cut off his neck completely.
25. For the reasons discussed by us above we are of the opinion that the appellants have rightly been convicted under section 302/34 for the murder of D deceased Yar Mohammad. we, however, do not consider that the circumstances of this case call for a capital sentence. No doubt, the murder was pre-planned and was quite gruesome but at the same time we have to give due consideration to the humiliation apparently felt by appellants Wazir and Bachu at the knowledge that the deceased was having an illicit affair with their sister, which outrage, in the peculiar way of thinking of quite a few of the rural people still adhering to some of the tribal and age old customs, can only be wiped out by the death of the "Kato" as well as the "Kari". In the circumstances we would alter the sentence of death awarded to appellants Wazir and Bachu to imprisonment for life.
The sentence awarded to appellant Adil is maintained. Subject to the above modification, the appeal of the appellants is dismissed. The reference for the confirmation of the death sentence awarded to appellants Wazir and Bachu also stands rejected.