SOOMER Versus THE STATE
1. The appellant Soomer son of Wasno was tried by the learned 1st Additional Sessions Judge, Sukkur who by his judgment, dated 22-5-1984 convicted the appellant for the offence under section 302, P.P.C. and sentenced him to imprisonment for life and fine of Rs.1,000 and in default the appellant to undergo R.I. for one year more. The appellant has challenged the said conviction and sentence under this appeal.
2. Complainant Tindoo lodged the report at P.S. Ubauro stating therein that on the night of incident he was sleeping at his 'Dera' alongwith his wife Mst. Allah Diwai, near his house. P.W. Haleem and Khan Muhammad were sleeping in their respective `Deras'. At about mid-night time the complainant woke up on the cries of his wife and on moonlight he saw the appellant who was armed with an iron bar and was causing blows to Mst. Allah Diwai on her head. On the cries of the complainant, P.Ws. Haleem and Khan Muhammad also came there and saw the appellant. They even tried to catch him but failed to do so. It is also stated that after killing Mst. Allah Diwai, the appellant declared that he had taken revenge. Thereafter, they saw that Mst. Allah Diwai had head injury, she was bleeding and had expired. It was further mentioned in the F.I.R. that about 8 months ago, the deceased was to be married to the accused but later on her father got her married to the complainant. This had annoyed the accused and therefore he had committed this murder.
3. The report of the complainant was recorded by S,H.O. Bashir Ahmad. On the same day he arrested the accused. On the following day the crime weapon was also recovered on the pointation of the accused. As the accused volunteered to make a confession as such he was produced before Mukhtiarkar and F.C.M. Ubauro on 26-5-1981, on which date the judicial confession of the appellant was recorded. Subsequently the said S.H.O. handed over the case papers to S.H.O. Din Muhammad who challaned the accused.
4. At the trial the prosecution examined P.W. Dr. Muhammad Punhal, P.W. Ghulam llussain Tapidar, P.W. Tindoo complainant, P.W. Khan Muhammad, P.W. Haleem, P.W. Khillo, P.W. Khamiso, P.W. Abdul Latif, P.W. Bashir Ahmed, P.W. Amanullah F.C.M., P.W. Bhutto, acid P.W. Pir Bux. Thereafter, vide Exh.22 the prosecution closed its side;. In his statement under section 342, Cr.P.C. the appellant denied the allegations and claimed that the confession was extorted from him as his family members were detained. He claimed himself to be innocent, however, he did not examine any defence witness. The appellant was thereafter convicted and sentenced by the trial Court as mentioned above. It may be mentioned that prior notice was issued to the learned counsel for the appellant but for the reasons best known to him he has chosen to remain absent without any intimation. As this was a very old matter and it was noticed that the trial lasted for three years and thereafter this appeal is pending for disposal since 1984 which means that the appeal is pending disposal for the last nine years. So, in these circumstances, I have decided to dispose of this appeal with the assistance of the learned counsel for the State Mr. Abdul Sattar Chohan.
5. The trial Court convicted the appellant on the ocular testimony of complainant Tindoo, P.W. Khan Muhammad and P.W. Haleem coupled with motive, corroborative evidence of P.W. Khiloo, judicial confession of accused and the recovery of iron bar. From the above pieces of evidence I may outright discard the evidence of recovery as the said iron bar was neither blood stained nor sent for chemical analysis. So far as the ocular testimony is concerned, the first eye-witness is complainant Tindoo. He has stated in his evidence that alongwith his wife he was sleeping in his Dera and at about mid-night time he woke up on the striking, of arm of his wife and saw that the appellant was standing with an iron bar in his hand, He further saw that the appellant gave blows on the head of his wife Mst. Allah Diwai. He raised cries which attracted P.W. Haleem and Khan Muhammad who also identified the accused on moonlight. Thereafter, the accused went away from the place of Wardat and then they saw that Mst. Allah Diwai had injury on her head and she had expired. He then went and lodged the report. He has also given the motive of the crime and stated that the deceased was to be married to the appellant, but instead her father married her to the complainant. Though he was cross examined but nothing worthwhile has come out. The next eye-witness is P.W.4 Khan Muhammad. He is brother-in-law of the complainant and P.W. Haleem is his nephew. He mentioned that on the night of incident he was sleeping at his Dera. At about mid-night time he woke up on the cries of the complainant. P.W. Haleem who lives next door to his house also came and they both ran to the Dera of the complainant, where they saw the accused Soomer with an iron bar in his hand, he had warned them not to reach him, so on account of his threats they did not go near him. However, they identified the accused on moonlight who ran away from the Wardat. They found Mst. Allah Diwai was dead and she had injury on her head. They both sat with the dead body while the complainant Tindoo went to lodge the report. The third eye-witness P.W. Haleem has also deposed on the same lines as P.W. Khan Muhammad. It will thus appear that the three eye-witnesses have clearly stated that they identified the accused on moonlight. All the three witnesses had no reason to falsely depose against the accused. It may also be pointed out that none of the witnesses had any kind of enmity with the appellant. The appellant was already known by name and face to the witnesses and as they were near enough to the accused to see him therefore it was not difficult for them to identify the accused/appellant on moonlight. I do not find any reason to discard the evidence of these witnesses and therefore I am of the view that the three witnesses have been rightly relied upon by the trial Court.
6. There is no denial of the fact that the three eye-witnesses are related to each other but that by itself will not be sufficient to discard their evidence. The learned Trial Judge has observed in para 27 of the judgment that he had the occasion to see the demeanour of the witnesses and was of the view that they had given a true account of the incident.
7. The ocular account is also corroborated by the judicial confession of the accused which was recorded by the Mukhtiarkar and F.C.M. The said Mukhtiarkar is P.W.10 Amanullah Soomro who in his evidence has deposed that he took all the proper caution and complied with all the legal formalities and only thereafter he recorded the confession. In the confession the appellant stated the same fact that he was to be married to Allah Diwai but since she was married to the complainant therefore out of Ghairat he has committed this murder. The judicial confession casts a very strong piece of corroboratory evidence of the eye-witnesses.
8. The position which emerges is that there are three witnesses who had identified the accused/appellant. It is an admitted position that the three witnesses knew the appellant by name and face and they were at a very short distance from the appellant at the time of incident and as such they had full opportunity to see and identify the appellant. Though it is a case of moonlight identification but if the accused is already known by name and face, such an evidence of identification cannot be discarded merely on the ground that it was not possible to identify on moonlight. In this regard I may refer the case of Allah Rakhiyo and others v. The State 1979 SCMR 347.
9. In the reported case, the incident had taken place in the house and the witnesses identified the assailants on moonlight. The assailants were known by name and face and a question arose before the Honourable Supreme Court whether the witnesses could identify the assailants on moonlight. It was observed that there was bright light of the moon and the assailants were known to the witnesses and, therefore, being fully aware of their features and familiar with their voice there could not be any mistake in their identification from a close distance. The observation of the High Court was that the eyesight of the people living in the village not used to bright fight is stronger than the people living in the city. In respect of the said observation of the High Court, the Supreme Court observed that the said fact can hardly be denied as it was a common knowledge that it is so.
10. In the present case on the relevant date, the corresponding Islamic date was 19th of Rajab which means the moonlight was still bright if not full bright and, therefore, the appellant who was already known by name, face and C voice, it is not possible to disbelieve the witnesses who identified the appellant.
11. In the light of my above discussion I am satisfied that the appellant p was rightly convicted by the trial Court and no interference is called for in this I case. Accordingly the appeal is dismissed.
12. N.H.Q./S-1018/K Appeal dismissed.