MUHAMMAD AKRAM Versus THE STATE

1. MUHAMMAD HALEEM, J .‑This appeal is by special leave of this Court against the judgment dated 12th September, 1972 of a Division Bench of the former High Court of Sind & Bluchistan by which Criminal Appeal No. 292 of 1972 and Criminal Appeal No. J‑226 of 1971 were dismissed and the death sentence passed on appellant Allah Rakhio was confirmed.

2. Leave to appeal was granted to consider as to whether the appellants Leave to appellant in the light of the could be identified by the prosecution witnesses at night moon.

3. Complainant Sadoro resided at his well in Deb. Dilawaro along with his father Khamiso and Hazoori, a relative. His uncle Khuda Bakhsh also resided in an adjacent house within the same enclosure along with his son Usman. On 1‑ace1968 at Somhani time jumma Kori came and joined the were sitting and talking around a hearth. At that time others while they Khamiso was offering his Isha prayers in the courtyard. He was fired at twice which attracted their attention and they saw Allah Rakhio army with a gun and Sheru with a hatchet who challenged them and except for Usman, the others ran away due to fear. Appellant Sheru then set the house on fire. Usman in the meantime ran towards Khamiso but he too was fired at by Allah Rakhio and on being hit he fell down. The appellants thereafter proceeded towards the West. Sadoro; Khuda Bakhsh, Hazoori and Jumma emerged from their hiding place arid saw Khamiso lying dead while Usman was still alive. Soon after they again heard gunshots and saw the house of Sadiq on fire. Again two gunshots were heard. A little later Arab who lived with Sadiq came and informed Sadoro and others that the appellants had come and set the house on fire and fired two shots at Mst. Jijan but, she was not injured as she took cover behind a pillar. There after they left the house and proceeded towards the house of Sher Muhammad from where Manzoor came and informed them that both the appellants had murdered Mst. Shahar Bano and Mst. Rant and caused gunshot injuries to Mst. Basran, who was alive. Sadoro and Arab visited the houses of Sadiq and Stier Muhammad and from there they alongwith Sher Muhammad proceeded to Police Station, Ubaura, District Sukkur where Sadoro lodged the First Information Report at 01‑00 hours on 2‑11‑1968.

4. The motive imputed was that Allah Rakhio suspected Sadiq of having illicit intimacy with his wife Mst. Shejan about which secret information was given to Kamber Ali, A. S.I. who initiated proceedings under section 107,Cr. P. C, against both the parties. The appellants, however, could not be arrested as they had left the village.

5. Usman was removed to the hospital where his dying declaration was recorded by Muhammad Yousuf, a Third Class Magistrate, at 05‑30 hours the same day. From the spot three crime empties, burnt blood and blood stained earth were taken into possession. Usman expired on 4‑11‑1968. The medical evidence disclosed that both the deceased had suffered gunshot injuries. On being arrested Allah Rakhio produced his licensed gun which. was seized. The gun matched with the crime empties.

6. The trial Court accepted the ocular testimony of Sadoro, Khuda Bakhsh" and Jumma, the dying declaration of Usman, the circumstantial evidence of the gun having matched with the crime empties and lastly the motive an convicted the appellants under section 302 read with 34 of the Pakistan Penal Code and sentenced Allah Rakhio to death and Sheru to transportation for life. They were further convicted under section 436 read with section 34. P.P. C‑ and sentenced to suffer rigorous imprisonment for five years.

7. On appeal and reference the convictions and sentences of the appellants were maintained.

8. The learned counsel for the appellants contended that the ocular testimony was interested and in the absence of independent corroboration it, should not have been acted upon by the Courts below. As, the incident had occurred in the courtyard of the house, it would be the inmates of the hoes who would witness it. Therefore, there is nothing unnatural if Sadoro and Khuda Bakhsh figured as eye‑witnesses. No doubt they are closely related to the two deceased but this fact alone is not sufficient to make them unreliable. There is .no direct enmity against the two deceased of whom on was aged 13 years. A's against Sadoro and Khuda Bakhsh, no enmity is established either and, therefore, there is no room for argument that they were interested witnesses. As for Jumma, he was a neighbour and resided a furlong and a half away. He came on the fateful night to collect a part of the persian wheel which he had asked Khamiso to make for him. He is no related to the complainant party but had admitted that he had filed a theft case against Kabil, a son‑in‑law of Allah Rakhio about 2 years back which ended in acquittal and in that case Khamiso had appeared as a prosecution witness. This enmity cannot be pressed against Jumma which is not only indirect but is also remote. Therefore, to all intents and purposes he was disinterested witness.

9. In regard to the enmity alleged against Jumma, the trial Court also held that even if Allah Rakhio had appeared as a recovery witness in the case filed by Khuda Bakhsh Kori against Jamma's relatives, his evidence was of a formal nature and it could not be dubbed as a reason for Jumma to falsely implicate Allah Rakhio. In regard to the theft case filed by him against the son‑in‑law, which ended in acquittal, the trial Court held that he could not have entertained any ill‑feeling for that reason so as to involve hint in a case of murder. Similarly the learned Judges of the High Court held his presence, as beyond doubt and further that there was nothing to show that he had nursed any grudge against the appellants. In the circumstance we were unable to agree that their evidence required corroboration, as contended by the learned counsel when they were otherwise reliable.

10. The next piece of evidence is the dying declaration of deceased Usman. We have no hesitation in holding, as the Courts below have held, that it is genuine. He has clearly stated that he had identified the appellants in the light of the fire when he rushed towards Khamiso and it was then that he was fired at. His statement is in line with the ocular testimony and being a teenager he had no reason to falsely implicate the appellants. The next question is as to whether the appellants were identified beyond doubt in the light of the fire and the moon. Deceased Usman has stated that he had identified the appellants in the light of the fire. This must have been so for, he had seen the appellants from a close distance while rushing towards deceased Khamiso. Similarly Khuda Bakhsh and Jumma had stated that they saw the appellants from 8 to 10 paces in which case they would have also identified the appellants who were previously known to them not only by their conspicuous features but also by the familiarity of their voices when they challenged them. The learned Judges in accepting; their testimony on this point have held thus.

11. .

12. "The witnesses have testified that they had identified the appellants in the light of the moon and the blaze of the fire. According to them the incident had taken place on the 13th of the lunar month. We have checked up the diary, it falls on the 10th of the lunar month, but even then there would he sufficient brightness. The parties are also very well known to each other. The appellants lived at a distance of only two and half furlongs away as deposed by P. W. Muhammad Sadiq. Even the number of culprits named by them does not appear in the circumstances disclosed, open to doubt."

13. It was next contended that the locale of the crime was not satisfactorily proved. This contention is without substance, for, not only the dead bodies it removed from the courtyard but also burnt blood, blood‑stained earth and the crime empties were found from the spot. The direct evidence also points to it. In the face of direct and raise such contention when no foundation was laid in the evidence. The learned counsel attempted to argue that there was a jungle in front of the gate on the southern side and that there were 8 to 10 trees of Bairees and Tallis 20 to 25 paces away from the main entrance which would have obstructed the view of the witnesses but ill the context of the evidence of the witnesses and deceased Usman, it is riot possible to accept that they had not seen the appellants who had come as near as 8 to 10 paces from deceased Khamiso.

14. The learned counsel challenged the recovery of the gun and further submitted that the evidence of matching of the crime empties should not be believed in view of the delay in sending them to the Ballistics Expert. Allah Rakhio admitted being in possession of his licensed gun when he was arrested by the Police. Hence no doubt can be entertained even if the time of arrest was discrepant. As for the delay in sending the crime empties and the gun for matching, nothing turns on it in the absence of any feature in the evidence to show the planting of the crime empties or the gun.

15. It was submitted that motive was not established, particularly in the context of the fact that Mst. Shejan had left Allah Rakhio s house about 25 days earlier and was at the relevant time living with her father and there was, therefore, no reason for him to kill the deceased on account of suspicion over her fidelity. It was also urged in this context that there was nothing on record to establish that he was aware of the security proceedings and, there fore, he could not be said to have absconded even if he was not found in the village. The Courts below have held motive to have been established from the evidence on record. In this connection they have relied on the evidence of Muhammad Sadiq who has stated that Allah Rakhio had declared him to be `Kayo' with his wife Mst. Shejan and had asked for a Faisla and also demanded compensation. He further stated that in this connection security proceedings were initiated and he was taken into custody along with the other three sons of Allah Rakhio but Allah Rakbio and Sheru had absconded. Kambar Ali, A. S. I. has confirmed this statement, for, it was he who had initiated the proceedings on 30‑10‑1968 and taken him and the others into custody under section 151, Cr. P. C. on that date, on account of the informa tion having been conveyed to him that "there was a dispute over Karo Kari. As for Allah Rakhio, he was not available and, therefore, he could not be arrested. Learned counsel took exception to the statement of Muhammad Sadiq that Allah Rakhio and Sheru had absconded on the 5th November, 1968 whereas the offence was committed on 1‑11‑1968. This discrepancy is due to lapse of memory and nothing turns on it. Nothing has emerged on record to discredit the statements of Muhammad Sadiq and Kamber Ali, A. S. I. Accordingly, we would accept the finding of the Courts below.

16. Lastly it was urged that Allah Rakhio was aggrieved by the infidelity of his wife and, therefore, motivated to commit the murders to avenge, the disgrace suffered by him, and that this was an extenuating circumstance tot mitigate the punishment. We are reluctant to accept it, for, neither Khami nor Usman had anything to do with this affair and ought it be said that he committed the murders in frenzy and they were the relatives of Sadiq against whom he could not take his revenge for he was in jail. Accordingly, we would maintain his death sentence.

17. However, we find that the Courts below have not awarded compensation under section 554‑A, Cr. P. C which is mandatory which we now propose to inflict. Each of the appellants is ordered to pay a fine of Rs. 2,000 as compensation to the heirs of the two deceased or in default to suffer rigorous imprisonment for six months. This sentence shall be suffered by Allah Rakhio in case his death sentence is commuted by the Executive Subject to this modification, the appeal is dismissed.

18. Appeal dismissed.