AGHA ALI HYDBR, ACTG. C. J.-Appellant Lai Chand was convicted by the learned Additional Sessions Judge, Sukkur, for an offence under section 302, P. P. C. And was sentenced to death. He was also convicted under section 323 read with section 34, P. P. C. And sentenced to R. I. For one month.
Under section 544-A of the Cr. P. Code, he was further directed to pay a sum of Rs. 3,000 as compensation to the heirs of the deceased, in default whereof he was to suffer further R. I, for six months. Appellant Jhuroomal was convicted under section 302/34, P. P. C. And sentenced to undergo life imprisonment, and R. I. For one month under section 323, P. P. C. Code. Both the sentences were to run concurrently. There was also a direction against him for the payment of compensation in the sum of Rs. 2,000 under secti--on 544-A of the Criminal Procedure Code. The matter has come up for the confirmation of the death sentence, and the convicts have also preferred an appeal. The appeal and the reference will be disposed of by this composite judgment.
2. The deceased, Amar Chand alias Amar Lai, was the brother of P. W. Ranomal. Motan Mal, the informant, is the brother of P. W. Shaman Mal. They are related to each other. Lalchand was living on Survey No. 558, which belonged to one Piral Malik, and was situated at a distance of a few furlongs, where some Punjabis were living. The prosecution story, in brief, is, that Amar Chand, with whom the prosecution witnesses referred to above, were associated, had, a month before the incident, obtained a contract of earth work from Piral Malik, and the appellants had dissuaded them from the same. The appellants were nursing a grudge, because their word had gone unheeded. On the night of the 25th of December, 1975 Amar Chand, Motan Mal, Shaman Mal, Bhiku Mal and Rano Mal were sleeping outside the house. At about 3-00 a. m. The appellants had turned up. The appellant, Lai Chand, was armed with a country-made pistol, while jhuromal was having a "lathi". Amarchand and others, on seeing the appellants approaching them, had got up, sensing danger to their lives. Amar Chand had grappled with Lai band and Shaman Mal with the appellant, Jhuro mal. During the course of rappling, Lai Chand had fired a pistol, and Amarchand died almost instantaneously. Jhuromal had given two 'lathi' blows on the legs of Motan Mal. None of the companions of Amar Chand mustered courage to interfere, and the appellants are stated to have taken to their heels. Motan Mal, later on, proceeded to the Dhabarki Police Station, where he lodged the first informa--tion report, which was recorded by S. H. O. Mohomed Sadiq at about 5/30 a.m.
The S. H. O. Proceeded to the "Wardat", and prepared the Mashirnama'. Later, the dead body was sent for the post-mortem examin--ation, and enquiries were made from Shamanmal, Ranomal and Bhiku Mal. The injuries of Shaman Mal also came to be duly noted in the 'Mashirnama" and a letter was given to him for examination at the hospital. The appellants came to be arrested on 27- 12-1975 at about 10-30 a. m. Jhuromal had a 'lathi' in his hand which came to be secured. However, there was no blood on the same. Lalchand had led the police party and the Mashirs to his house, and dug out a country-made pistol and a live cartridge from a ditch from the back of the house.
These articles came to be secured under a 'Mashirnama'. On return, the S. H. O. Had registered a separate case under the Arms Ordinance against Lai Chand, as the latter could not produce any licence for the pistol. The S. H. O. Had also sent the blood-stained articles, secured by him, to the chemical examiner.
3. Both the appellants in their statements at the trial denied the various allegations made against them, and maintained, that they had been run down because of matrimonial disputes with the complainant's party.
4. According to the Medical Officer, there were nine lacerated punctured wounds on the dead body of Lai Chand, each measaring 1/3' x 1/3', chest cavity and abdomen cavity deep, and were on the left side of the chest 2' below the left nipple scattered upto sub-costal margin. Charring and blackening marks were present on ea h wound. The internal examination revealed the fracture of the 5th, and 6th. Ribs. In his opinion, death had resulted due to injury on vital organs, resulting in shocks and massive haemorrhage from the discharge of a firearm, which was sufficient in the ordinary course of nature to cause instantaneous death.
5. P. W. Shaman had two injuries-
(1) One contusion 3' x 3" on the right side of leg lateral surface below the knee.
(2) One contusion 2" a 4' over the right thigh, lateral side above the knee.
The injuries were simple and caused by a blunt weapon. In the cross-examination, however, he stated that these injuries could be sustained by a fall on the ground, and also by coming into contact with some hard and blunt substance, such as a tree.
6. According to the First Information Report, there were four persons sleeping, along with Amar Chand, at the time of the incident. They were Motan Mal the first informant his brother Shaman Mal, P. W. Ranomal and Bhiku Mal. Out of them, Bhiku Mal, who is married to Motan Mal's sister, has not been examined. The statements of all these witnesses are totally consistent with each other's version. It is true that Shaman Mal and Rano Mal in their statements under section 164 of the Cr. P.
Code had mentioned the presence of a third man, but that was at a distance. However, neither any word is attributed to him, nor there is anything to show that he had anything to do with the incident.
It is true that they are related to the deceased, but they will also be related to the appellants. The appellant, Jhuroomal, is the uncle of Shamanmal's wife, and Lai Chand is the brother-in-law of Jhuroomal. It has not been denied that Shamanmal was living one mile away, and Ranomal was living nine miles away from the "Wardat", but they have deposed that they were with Amarchand, because of the contract that they had taken. The first information report was lodged without any delay worth talking about, and the names of these witnesses were duly mentioned therein. They were also examined by the Investigating Officer soon after be had arrived. What is more, Shamanmal had injuries on his leg, which were noted by the Investigating Officer, and is also deposed to by the Medical Officer. Their presence, under the circumstances, is not open to any doubt. The incident took place on the 21st of the lunar month, and the parties were known to each other. Therefore, there is no question of any mistaken identity in the flush of the torch light. The motive, as put forward, has been denied by the appellants, but they have themselves mentioned a matrimonial dispute. However, it has not even been remotely mentioned as to what the causes were.
7. It was, however, contended by Mr. Muhammad Hayat Junejo, learned counsel for the appellants, that if Amar Chand had grappled with Lalchand, there could pot be much of a distance between the two, and therefore there was no occasion for nine lacerated wounds from the pistol fire.
According to the learned counsel, in that case, there should not have more than one injury, as opined by Modi in his book on Medical Jurisprudence at page 220 of the 18th Edition. However, it is not the case of the prosecution witnesses that the shot had been fired by putting the pistol on the chest of Amar Chand, According to the Medical Officer, the shot had been fired from a distance of about six feet, and the charring and blackening marks do lend support to the same. In the course of the struggle, it is not difficult to imagine, that the appellant, Lal Chand, might have extricated himself from the grip of Amar Chand to carry out his object. Nor do I find any force in the contention of Mr. Muhammad Hayat Junejo as to why the appellant should have picked up Bhiku Mal, who is alleged to have been responsible for the acceptance of the contract. After all, it was Amarchand and Shamanmal, who had stood up and tried to challenge the intruders, and had, therefore, to face the brunt of the attack. I have no hesitation in holding that the eye-witness- account in the case is free from all doubt, and worthy of credence.
8. The evidence of the production of the 'Lathi' by Jhuroomal has not been relied upon as corroboration, as there were no blood stains thereon. However the production of the pistol by Lalchand is not open to any doubt. P. W. Mulla Abmad is the son of the Nekmard of the village and has no partisan feelings. It is true that he was with the Investigating Party for three days, but there is nothing, in anyway, to show that be had any animus against the appellants, or, any interest in the complainant in special. There are no insinuations of any type. Nor be appears to be a henchman of the police. The fact, however, remains that there were no empties found at the "wardat", so it cannot be said for definite that it was this particular pistol which had been used for commission of the offence. Technically speaking, it will no be a piece of corroboration. All the same, it shows that the appellant, Lalchand, was in possession of a pistol, which he had concealed, and which he produced in the presence of the mashirs before the Investigating Officer. That will be a circumstance not totally devoid of significance.
9. Mr. Muhammad Hayat Junejo, learned counsel for the appellants, however, maintained that there was no corrobration, at any rate, against Jhuroo Mal. It is also true that the Courts do look forward to some corroboration in support of the prosecution case as a matter of prudence. But it was held in Niaz v. The State (PLD 1960 SC 367) that, if there be no reason to doubt that the interested witnesses did see the incident, and were in a position to identify the offenders, and charged only one person with the commission of the crime, or "where the number of persons whom they name does not exceed that which appears from independent evidence or from circumstances not open to doubt to be the true number of culprits, their evidence may, in the absence of anything making it unsafe to do so, be accepted without corroboration, for substitution is a thing of rare occurrence and cannot be assumed, and he who sets up the plea of substitution has to lay the foundation fort". It was further observed that "if the Court finds that the number mentioned by interested persons may have been exaggerated their word cannot be made the basis of conviction and the Court will have to look for some additional circumstance which corrobrates their testimony . . " The injuries on the version of Shamanmal are from 'lathi', which according to the prosecution version, was caused by Jhuroomal. It is also normal to expect that, if the intention of Lalchand was to feed fat the grudge he was bearing against the complainant's party, he would not have ventured out in the dead of the night all by himself. The presence of the appellants, in the circumstances of the case, and as deposed to by the witnesses, is not open to any doubt. Jhuroomal had accompanied Lalchand to Amarchand's house at an unearthly hour.
Lalchand was having a pistol. They could not have gone in the dead of the night, except with the intention to teach the complainant's party a lesson. It was a case of premeditated concert, pursuant to a pre-arranged plan. Under the circumstances, his conviction for an offence under section 302 read with section 34, P. P. C. Would not be open to any exception. The principle enunciated in the case of Mahbub Shah v. Emperor (AIR 1945PC 118) will be distinguishable in the instant case. I am satisfied that the case against both the appellants is free from all doubts.
10. In the result, the reference is accepted, and the death sentence awarded to Lalchand is confirmed. The conviction and sentence of both the appellants is upheld and their appeal stands dismissed.
S. A. NUSRAT, J.-I agree.