DORAB PATEL, J.-- The appellants have been convicted by the learned Sessions Judge, Larkana under section 302, P. P. C. Read with section 34, P. P. C. For the murder of Ali Hyder Meno on the 2nd August 1967. In Mena village, taluka Kambar, Larkana District. The appellants Ali Hyder. Son of Sumar Khan, and Allahando have been sentenced to death and the appellant Dur Muhammad has been sentenced to transportation for life, Allahando has also been convicted under section 13 (d) o1 the West Pakistan Arms Ordinance, 1965 and sentenced to one 'ear's R. I. Which is to run if his death sentence is not confirmed All the appellants have filed appeals against their conviction and sentences, and the case is also before us for confirmation of the death sentences, therefore we shall dispose of the confirmation case and the appeals filed by the appellants in this judgment.I
2. According to the prosecution, the material facts are as follows : the appellants Dar Muhammad and Allahando are step-brothers, whilst Ali Hyder is related to the appellant Allahando by marriage. Ali Hyder deceased owned a grocery shop in Mena village. On 2nd August 1967 he was in his shop and his uncle Khudabux was with him. The appellant Allahando suspected that the deceased was carrying on with his sister, Mst. Imamzadi, therefore he went to the shop of the deceased armed with a gun, accompanied by the other appellants who was armed with hatchets.
The appellant Allahando challenged the deceased and fired at him with his gun whilst the other appellants hit him repeatedly with their hatchets. The deceased fell down and died, but the gunshot report and the cries of the deceased had attract--ed P. Ws. Ghulam Hussain, Watoomal and Muhammad Saleh who all came running and saw the occurrence. They did not interfere as the appellants threatened them, therefore the appellants were able to run away. P. W. Khudabux, who was also the uncle of the deceased, went and lodged the F. I. R. (Exh. 7) at Kambar Police Station which was recorded by A. S. I. Miraj Hussain at 11-30 a. m. On the same day. A. S. I. Miraj Hussain went to the village, to commence investigations but P. W. Kadir Bux S. H. O., Kambar also reached the wardat on receiving information of the occurrence ; therefore he took over the investigation from A. S. I. Miraj Hussain. P. W. Kadir Bux S. H. O. Prepared the inquest report (Exh. 10) forwarded the body for post-mortem examination and commenced investigations. All the appellants were arrested the same evening. P. W. Kadir Bux S. H. O. Arrested the appellant Ali Hyder and recovered from him the blood-stained clothes which he was wearing vide mashirnama (Exh. 11). He arrested the appellant Allahando and recovered from him blood-stained clothes and a gun with an empty cartridge vide mashirnama (Exh. 12). He arrested the appellant Dur Muhammad and the appellant produced blood-stained clothes and a blood-stained hatchet vide masirnama (Exh. 13). He also recovered blood-stained earth and a blood-stained hatchet from the wardat vide mashirnama (Exh. 9). All the recoveries were witnessed by mashir P. W. Abdul Wahid. The blood-stained clothes and the hatchets were sent to the Chemical Analyser for a report and, according to his report (Exh.
21) some of the recoveries were stained with human blood, whilst the blood on others had disintegrated. The gun with the cartridge was sent to the Ballistic Expert, but his report was nega-- tive, therefore it was not produced. After completing investigations, the appellants were challaned.
3. In their statement in the Courts below, the appellants denied the occurrence and the recoveries secured from them. The appellant Ali Hyder merely stated that he had been falsely implicated on account of enmity whilst the appellant Dur Muhammad stated that he had been falsely implicated on account of enmity with his step-brother the appellant Allahando. The appellant Allahando stated that he has been falsely implicated by P. W. Muhammad Saleh and Watoomal who had suspected him of theft from Watoomal's shop, whilst Muhammad Saleh had appeared against him as a witness under section 109, Cr. P. C. Proceedings two years earlier. He also said that P. W. Abdul Wahid (the mashir of the recoveries) was a police tout. However the appellants did not produce any evidence in their defence. As the appellant Dur Muhammad wished to be present at the hearing of his appeal, he was produced before us and in reply to our enquiry he stated that he had been falsely implicated on account of election enmity. But we may observe here that , this plea was not raised in the Courts below.
4. As we have observed, P. W. Khudabux was the uncle of the deceased. He said in evidence that he had a grocery shop about 50 paces from the shop of the deceased, that P. W. Watoomal's shop adjoined his shop whilst the otaq of Azizullah was about 20 paces from the wardat. He further said that the appellant Allahando had suspected the deceased to be on illicit terms with his sister, therefore he had complained about it to P. W. Muhammad Saleh two days before the occurrence, and although Muhammad Saleh had said that he would try and settle the matter on the Holy Quran: the appellant had said he would settle the matter himself. P. W. Khudabux said that he was in the shop of the deceased on the morning of the occurrence and at about 7-30 a.m. The appellants came to the shop armed with deadly weapons. The deceased was sitting at the door of the shop and Allahando challenged him and told him that he had caused sufficient mischief and then he fired at him. Ali nyder fell down and the other appellants inflicted hatchet blows on him ; meanwhile lie (P. W. Khudabux) had raised cries, therefore P. Ws. Muhammad Saleh, Ghulam Hussain and Watoomal came on his cries and also saw the occurrence. He then went to lodge the F. I. R. At Mahi Makol Outpost but the Constable directed him to go to Kambar Police Station, therefore he sent and lodged his report at Kamhar Police Station. This evidence is fully supported by the evidence of P. Ws. Ghulam Hussain and is also corroborated by that of P. Ws. Watoomal and Muhammad Saleh. However, learned counsel for the appellants has stressed that P. W. ' Khudabux's evidence should not be believed because he was the uncle of the deceased and that the evidence of the other witnesses should not be believed because they were chance witnesses and their evidence was full of discrepancies.
5. We do not think that P. Vii. Khudabux's evidenced can be rejected merely because he was the uncle of the deceased. Additionally, as we have observed, his evidence is fully supported by P. W.
Ghulam Hussain who was not related to the deceased. It is true that P. W. Ghulam Hussain worked in the shop of P. W. Khudabux but that would not be any reason for him to implicate innocent persons, not has any enmity been alleged against him. Learned counsel then submitted that there were discrepancies in the evidence of these two witnesses, therefore their evidence was not fit to be believed. Thus whilst P. W. Khudabux had said in evidence in the Sessions Court that he had gone to the shop of the deceased to by sugar, in his F. I. R. He had merely said that he had gone to the deceased's shop to by stores. Again whilst P. W. Khudabux said in his evidence that on the morning of the occurrence he had gone from his house to the deceased's shop, P. W. Ghulam Hussain contradicted him and said that P. W. Khudabux had first come to his own shop and then gone to the shop of the deceased. We do not think that these discrepancies are material and, in any case, the evidence of these two witnesses is also corroborated by that of P. Ws. Muhammad Saleh and Watoomal who were not related to the deceased and were disinterested witnesses.
6. P. W. Muhammad Saleh has said that the appellant Allahando had complained to him a couple of days before the occurrence about the occurrence about the misbehaviour of the deceased with his sister and had threatened to settle the matter himself. He has also said that on the morning of the occurrence he was sitting in the otaq of his relation Azizullah and on hearing the alarm he had rushed to the wardat and seen the appellants near the body of the deceased and that P. Ws.
Khudabux, Ghulam Hussain and Watoomal were already there. He was not an eye-witness of the occurrence, but this evidence provides very strong corroboration of the evidence of P. Ws. Ghulam Hussain and Khudabux, therefore learned counsel criticised it on the ground that he was a chance witness and could not have been at the wardat during or after the occurrence. This was because he had said in evidence that he was sitting alone in the otaq of Azizullah. According to learned counsel he had no business to be sitting alone in Azizullah's otaq, therefore his claim to have seen the appellants and the other prosecution witnesses was false. There is no evidence to rebut his statement that Azizullah was his relation. It is also admitted that he lived in the same village, therefore we see no reason to doubt his evidence.
7. P. W. Watoomal was a completely disinterested and natural witness because he was a Hindu who owned a shop at a distance of 50 or 60 paces from the scene of offence: However, ' his evidence in the Sessions Court was discrepant with his statement under section 164, Cr. P. C. In the Sessions Court he has fully supported the prosecution case. But, in his section 164, Cr. P. C.
Statement he had denied being any eye-witness of the occurrence, and had only said that he had seen the appellants running away and that the appellant Allahando was armed with a gun, whilst the other appellants had hatchets. According to the learned counsel, P. W. Watoomal"s statement in the lower Court should be preferred. Even if we disbelieve his evidence in the Sessions Court, and accept his statement under section 164, Cr. P. C. He has said in the said statement that he saw the accused run away and that Allahando was carrying a gun. By itself this statement provides strong corroboration of the evidence of P. W. Khudabux and Ghulam Hussain. Learned counsel then criticised his evidence on the ground that it was tained by enmity. This was because according to the appellant, he (Watoomal) had suspected Allahando of theft from his shop. But P. W. Watoomai denied this allegation and no evidence whatever has been produced to contradict his denial, therefore there is no reason to doubt his evidence at least in the lower Court. Finally, learned counsel stated that P. W. Watoomal should not be believed because his name had not been mentioned as a witness by P. W. Khudabux in the F. I. R. Lodged by him. It is true that P. W. Khudabux has not specifically said in his F. I. R. That P. W. Watoomal was present, but he has said that Ghulam Hussain, Muhammad Saleh and others were present. Thus the presence of P. W. Watoomal is not excluded by the F. I. R. Therefore as his shop was only fifty or sixty paces from that of the deceased we see no reason to doubt his presence at the wardat or his statement that he had seen the appellants running away. In any case, this is not the only evidence that corroborates the ocular evidence.
8. We have observed that blood-stained clothes and a blood--stained hatchet were recovered from the appellants. According to the report of the Chemical Analyser (Exh. 21) the shirts of the three appellants were stained with human blood and so was the hatchet produced by the appellant Dur Muhammad. The recoveries of these articles were made by P. W. Kadir Bux S. H. O., and were witnessed P. W. Abdul Wahid. According to learned counsel, the evidence of P. W. Abdul Wahid was not fit to be believed because he had witnessed all the recoveries, therefore, he was a police agent. But no question whatever has been put to P. W. Abdul Wahid in this respect in his cross-examination. No enmity has even been alleged against hire, therefore, we accept the evidence of the recoveries. The recovery of the shirts of the appellants and the hatchet' of Dur Muhammad, which were stained with human blood, provide strong corroboration of the ocular evidence. Accordingly, we hold that the prosecution have proved beyond reasonable doubt that the appellants killed Ali Hyder deceased, and were rightly convicted under section 302/34, P. P. C.
9. The only question which remains for consideration is that of the sentences passed against the appellants. The prosecution has established that Allahando fired a gun at the deceased, whilst the appellants Ali Hyder and Dur Muhammad attacked him mercilessly with hatchets. It is the prosecution case that the appellants murdered Ali Hyder deceased because he had an affair with appellant Allahando's sister. Further, according to P. W. Dr. Sikandar ali, who carried out the post- mortem, the assailants had inflicted one fire-arm injury and more than a dozen incised wounds which were caused by a weapon such as a hatchet, therefore, the prosecution version of the motive for the occurrence appears to be correct but at the biggest this is a mitigating circumstances relevant to the question of sentence. The learned Sessions .Judge has given all possible benefit of the mitigating circumstances to the appellant Dur Muhammad in sentencing him to the transportation for life. We see no merit whatever in his appeal, which is therefore dismissed. As to the other appellants, we have observed that the deceased had only one fire-arm injury. According to P.W., Dr. Sikandarali, the gun shot injury, was on the thigh of the deceased but it was not sufficient to cause his death. It is the prosecution case that it was the appellant Allahando who had fired with his gun on the deceased from a distance of two or three paces because he suspected that the deceased was carrying on with his sister. Bearing in mind this circumstance and the nature of the injury, we reduce the sentence against the appellant Allahando also to transportation for life. Further P. W. Dr. Sikandarali has said in his evidence that the death of Ali Hyder deceased was 'caused by three hatchet blows inflicted on his neck, head and back. All the prosecution witnesses have said that the appellants Dur Muhammad and Ali Hyder had inflicted hatchet blows on the deceased, but there is absolutely no evidence to show which of these appellants had inflicted the hatchet blows, which according to P. W. Dr. Sikandarali, were sufficient to cause death in the ordinary course of nature. As the appellant Dur Muhammad has been sentenced only to transportation for life and the sentence has become final, as no application for enhancement of the sentence was made, we are of opinion that, in the circumstances of the case, the sentence against the appellant Ali Hyder should also be reduced to transportation for life.
10. We have observed that they appellant Allahando has been convicted to one year R. I. Under West Pakistan Arms Ordinance, 1965 and has filed a separate appeal against the said conviction and sentence, being Cr. App. J. 325/68. As the pro--secution has proved that he had fired at the deceased, we uphold this conviction and sentence and dismiss Criminal Appeal No. J 325/68.
However, the sentence under the said Ordinance will run concurrently with the main sentence against this appellant.
11. In the result, we reject the reference made by the Sessions Judge and reduce the sentence against both Ali Hyder and Allahando to transportation for life. Subject to the said reduction in the sentences we dismiss the appeals.