M. HAYAT JUNEIO, J.-Appellants Jurio son of Bahadur, aged 30 years, Shahdad son of Shadi Khan aged 35 years. Mitho son of Shahmir aged 28 years and Nooro son of Bahadur aged 27 years were convicted by the learned Addi--tional Sessions Judge, Nawabshah, by his judgment dated 7-9- 1966 on the charge of committing double murder of deceased Allahando and his 12 months old grand daughter Ghulam Sakina; and causing injuries to P. W. Ali Bux and his brother Ali Ser, aged 10 years. The convictions and sentences were as follows: - Appellant Jurio convicted under section 302, P. P. C. And sentenced to transportation for life and a fine of Rs. 500 or in default R. I. For six months more; under section 452, P. P. C. To R. I. For 12 months; under section 323/34, P. P. C. To R. I. For 12 months; and under section 13(E) of the West Pakistan Arms Ordinance, to R. I. For 12 months; all the substantive sentences of imprisonment to run concurrently. The remaining three appellants namely, Shahdad, Mitho and Nooro were each convicted under sections 302/34 and 323/34, P. P. C. And sentenced to transportation for life and a fine' of Rs. 500 or in default to R. I. For six months more and to R. I. For 12 months respectively; both the substantive sentences to run concurrently.
All the four convicts preferred an appeal through jail (being Cr. Appeal No. J-351/1966); while Shahdad, Mitho and Nooro also filed an appeal through their Advocate, Mr. G. M. Shah (being Cr.
Appeal No. 332/1966): After both these appeals were admitted to regular hearing by the order dated 14-11-1966 of this Court, Mr. G. M. Shah filed his power on behalf of appellant Jurio as well. He has accordingly represented all the four appellants before us. As these Criminal Appeals Nos.332/1966 and J-351/1966 arise out of the same case and are directed against the same judgment of the learned Additional Sessions Judge, Nawabshah we propose to dispose of both the appeals by this judgment.
2. The offences for which the appellants were tried are alleged to have been committed during the night between 4th and 5th of July 1965, sometime after mid-night, in the house of deceased Allahando in village Jamal Mari Deh Rajo Kirio, Taluka Naushero Feroze, District Nawabshah. The prosecution case is fully set out in the First Information Report, Exh. 8, lodged by P. W. Ali Bux (injured) the next morning at 10 a.m. At Police Station Padidan, about 10 miles away from the scene of occurrence. It was recorded by Head Constable Bahadur Cband and was to the following effect: - "Ali Sher and Allah Bux are my brothers, who are minors. Mst. Dhiani is my sister, and Mst. Haliman is my mother. We have got our own land. I am married with Mst. Mariam, from whom I have a daughter Ghulam Sakina whose age is about one year. Suleman and Muham--mad Ramzan are my distant cousins. My sister Mst. Dhiani is married with Muhammad Ramzan Mari. I am with my father. Our houses and the house of my sister's husband Muhammad Ramzan are in the common courtyard. There is an entrance in the protection wall on East. I know Nooro son of Bahadur, Shahdad son of Shadi, Mitho son of Shahmir, Mari son of Janoo Mari and Jurio son of Bahadur Mari residents of Nihal Khan Mari near Lakha Road Taluka Kandiaro, who are my caste-fellows and they used to visit us. Mst. Lal Khatoon sister of Suleman and others was married with my brother Awal Khan, who has expired. In exchange of her, hand of my sister Mst. Dhiani has been given in marriage to Ramzan. After the death of my brother Awal Khan the hand of wife of my brother Mst.
Lal Khatoon was given to Nooro Mari. In exchange thereof Nooro gave hands of his two sisters to Suleman and others, as a result of which Mst. Zainab ' was married to Suleman and girl Grami was married to Ponbal, brother of Suleman. There was no love lost between the spouses. Therefore, Nooro Mari detained his sister Zainab with him after getting her from Suleman. And Suleman and others also detained Mst. Lal Khatoon with them. Thereupon they were annoyed with each other.
Thereafter Suleman filed a case in the Court against Nooro at Tando Adam, for get--ting divorce of Mst. Lal Khatoon. I was witness in the case. The Court restored the woman to Suleman and others.
From about 1-- months Mst. Lal Khatoon resides with Muhammad Ramzan and others. Thereupon Nooro Mari was annoyed with Suleman and others as well as with us. He used to say that we had a hand in detaining his wife Mst. Lal Khatoon; and he threatened us. Three days back my cousin Suleman and my mother Mst. Haleeman went at Buchhahri to visit my maternal uncle Allahwarayo.
Yesterday, I my wife Mst. Mariam, my father Allahando, my brother Ali Sher, Mst. Lal Khatoon and other family members after taking supper, slept in the courtyard of the house. Ramzan and his wife slept separately in front of the cattle shed. The lamp was burning in the courtyard of the house. All of a sudden at about mid-night my wife Mst. Mariam raised cries that Nooro, Shahdad, Mitho and Jurio Mari had come to abduct Mst. Lal Khatoon. There--upon I, my father Allahando, Muhammad Ramzan and his wife Mst. Dhiani, Lal Khatoon and others got up. We saw in the light of the lamp that four persons were stand--ing in the courtyard whom we identified to be Nooro, Shahdad, Mitho and Jurio Mari, of whom Jurio was armed with a pistol, Mitho with hatchet, Shahdad with laths and Nooro with 'Ghobatas'. They approached Mst. Lal Khatoon, who ran towards the back of the house. The' accused flashed their torches and followed her but we all came in front of them and tried to stop them. Thereupon Shahdad gave me lathi blows; which hit me on my head and arm and oozed the blood. And Mitho gave handle blow to my wife Mst. Mariam, which missed and Nooro threw the 'Ghobatas' on his arrival, which hit my younger brother Ali Sher on his shoulder. And Jurio aimed pistol at my father and fired at him; the pellets of which hit him on his chest and belly.
He cried and fell down. 2/3 pellets hit my daughter on her head, who was in the hands of my wife.
We raised cries of 'murder' 'murder'. There--after accused Jurio and others went away from the same entrance of the courtyard, abusing us. On cries and pistol report Usman, Haider, Makoro Mari and other villagers came there to whom we narrated the above facts. There--after they saw my father Allahando, who also narrated the above facts to them and told them that he had identified the accused to be Nooro, Shahdad, Mitho and Jurio Mari. Then I got my father and daughter treated privately. On the day break my father died. Thereafter, I started from there and came at Bhiria Road from where I have come by train to lodge complaint that the above accused had given `lathi' blows to my brother and relations and they had fired pistol shot at my father Allahando and killed him and my daughter Sakina had also received pellet injuries. We have identified them carefully on the light of lamp, torches and voice. I complain that action be taken."
3. After recording this First Information Report Head Constable Bahadur Chand left for the scene of occurrence, which was in the house of deceased Allahando. On arrival in the said house the Head constable secured the lamp (Art. 1), which was found to be in working order. An empty cartridge (Art. 3) was also secured from the scene of occurrence and sealed on the spot. The statements of witnesses were recorded and mashirnama of the injuries sustained by some of them was also prepared.
4. On 10-7-1965, the appellants were arrested by A. S. I. P. Iran Khan. Appellant Jurio agreed to produce the weapon of offence used in this crime. He accordingly took the police to his house and from a heap of manure lying therein he took out a .12 bore country-made pistol (Art. 2) and two live cartridges (Articles 6 and 7). The pistol as well as the cartridges were secured vide memo. Of recovery, Exh. 21 in presence of Mashir Jam. The crime empty secured from the wardat and the pistol recovered from appellant Jurio were subsequently sent to the Ballistic Expert, Shah Jehan Khan, whose evidence shows that the crime empty was fired from the country-made pistol produced by appellant Jurio. After the usual investigation were completed the appellants were challaned on 6-8-1965.
5. The defence of the appellant was one of the denial and false implication on account of enmity.
Appellant Nooro produced a copy of an application, Exh. 33 made by his father Bahadur against Allahando and addressed to the Collector of Nawabshah wherein he had claimed the share of property for his wife. The remaining appellants also adopted the state--ment of appellant Nooro. In addition appellant Jurio pleaded alibi and examined two witnesses, namely, D. Ws. Muhammad Malook and Ghulam Nabi in support of this plea.
6. It is not disputed before us that both the deceased namely, Allahando and his grand-daughter Ghulam Sakina aged one year died as a result of violence; while P. Ws. Ali Bux and his younger brother Ali Sher sustained injuries in the same incident. Dr. Sikandar Ali, Medical Officer, Tharushah Dispensary who conducted the autopsy on the dead bodies found the following injuries on their person: - Allahando: -
(1) Eight pea size ulcerated wounds of entrance with blackening of surrounding skin over epiganstric and umblical regions.
(2) Two pea size lacerated wounds of entrance with blacken--ing of surrounding skin over the right hypochondric.
(3) Contused 'wound 1" x 1/5" x 1/3" x 1/3" over the parietal region. '
(4) Lacerated wound of entrance of a Berry size with blackening of surrounding skin over the base of the right index finger.
(5) Lacerated wound of exit of Berry size over the base of right thumb.
(6) Four lacerated wounds of exit over the lumber region.
All the injuries except injury No. 3 appeared to have been caused by discharge from fire-arm and from a distance of 10 to 12 feet. Injury No. 3 appeared to have been caused by a hard blunt substance such as lathi or back side of the hatchet. Injuries Nos. 1, 2 and 6 were individually sufficient to cause death in the ordinary course of nature. According to the doctor, "deceased Allahando would have lost his senses after receiving the injuries till he would have died."
Ghulam Sakina: -
(1) Lacerated wound of entrance 1/2" x 1/2" x skull deep over frontal region.
(2) Lacerated wound 1 /4" x 1 /4" x skull deep. It was wound of entrance over the right side of frontal region.
(3) Lacerated wound of exit 1" x 1/2'' x skull deep over the right temporal region.
All the injuries were caused by a discharge from a fire-arm. Injuries Nos. 1 and 2 were individually sufficient to cause death in the ordinary course of nature.
Ali Bux: -
(1) Abrasion 3r x 1/3" over the middle of posterior aspect of right fore-arm.
(2) Contused wound 1/2" x 1/3" x 1/4" over the right parietal region.
Both these injuries appeared to have been caused by a hard blunt substance such as lathi or back side of the hatchet.
Ali Sher: -
(1) Lacerated wound 3/4" x 1/3" x 1/5" over the top of right shoulder.
The injury was simple and appeared to have been caused by a hard blunt substance such as a lathi or back side of the hatchet.
The evidence of Dr. Sikandar Ali accordingly leaves no room for doubt about the murder of deceased Allahando and deceased Ghulam Sakina. The said evidence also conclusively establishes that P. W. Ali Bux and his minor brother Ali Sher both sustained lathi injuries at or about the same time.
The only question which was disputed before us and which needs consideration in this case is whether it was the appellants or some of them who could be held responsible for these offences.
7. The evidence against the appellants consists mainly of the ocular evidence of P. W. Ali Bux son of deceased Allahando, P. W. 4 Mst. Mariam wife of the complainant Ali Aux and P. W. 5 Mst. Dhiani sister of complainant Ali Bux. After the conclusion of the prosecution case and even after the statements of the accused, the learned trial Judge examined Mst. Lal Khatoon wife of appellant Nooro and cousin of appellant Ali Bux as P. W.
11. She, however, did not support the prosecution case; with the result that she was declared hostile and was allowed to be cross-examined by the learned Assistant Public Prosecutor. Thereafter her deposition in the Court of the committing Magistrate (Exh. 44) in which she had fully supported the case against all the four appellants was brought on record under section 288, Cr. P. C. And her statement recorded under section 164, Cr. P.
C. Was also brought on record as Exh. 45 to cor--roborate her deposition before the committing Magistrate. As this witness has, however, made different statements at different times we would prefer not to rely on her testimony in either of the two Courts and would exclude it from con-- sideration altogether.
8. Reverting to the evidence of Ali Bux Mst. Mariam and Mst. Dhiani, we find that they are all inmates of the house where the incident has admittedly taken place and therefore, natural witnesses of the occurrence. One of them, namely, P. W. Ali Bux himself sustained injuries at the hands of the assailants. Mst. Mariam is his wife and must naturally be with him in the same house. Mst. Dhiani is also sister of the complainant and her presence in the house cannot be disputed. The injuries on the, person of P. W. Ali Bux and his younger brother Ali Sher, who could not be examined in Court on account of tender age, clearly show that the assailants had remained in the house of the com-- plainant sufficiently long and the witnesses must have got up from sleep in the meantime. They had, therefore, ample opportunity of seeing the assailants on the light of the lamp, which was actually secured by the police immediately after their arrival at the wardat and found to be in working order. It is usual in this part of the country for villagers to keep a lamp lighted as a possible safeguard against thieves who usually commit thefts of cattle at night. We accordingly, find no reason to doubt that all these three witnesses must have seen their assailants and as all the four appellants were admittedly known to them there could be no difficulty in identifying them.
9. Mr. G. M. Shah the learned counsel for the appellants has contended before us that notwithstanding the fact that the presence of these witnesses could not be disputed, their evidence should not be relied upon without looking for some independent corroboration, as they had a motive for falsely implicating the appellants on account of enmity. In this con--nection, the learned counsel pointed out that as stated in the First Information Report itself and also admitted by Mst. Dhiani in her cross-examination there were differences between the parties, because one Suleman had filed a civil suit against appellant Nooro for getting divorce for his sister Lal Khatoon and complainant Ali Bux was a witness in that suit. Accord--ing to the F. I. R., the Court had restored the woman to Suleman and his relations with the result that about 11 months before this occurrence Mst. Lal Khatoon came to the house of the complainant and was actually residing with him at the time of this incident. While these facts would no doubt provide a motive for this incident, it is obvious that the com--plainant party had no reason whatsoever to leave the real culprits and falsely involve the appellants in this case. They have also no reason to exaggerate the number of the assailants.
This is amply demonstrated by the circumstance that Mst. Lal Khatoon herself has gone back on her deposition in the Court of Enquiry with a view to favour the appellants even at the risk of exposing herself to prosecution on a charge of perjury.
10. Mr. G. M. Shah next contended that there was also enmity over land as Exh. 33 would show. We have examined this document ourselves and find that it is not a carbon copy of the original application supposed to have been addressed to the Collector; but it is written by hand in ink. It is also not dated. Relying on a post office Registration receipt Exh. 34, produced by appellant Nooro, Mr. G. M. Shah con--tends that it was sent on 6th September 1949. This receipt only proves that some one addressed a registered letter to the Collector of Nawabshah on 6th September 1949 but it does not -necessarily mean that a copy of this letter was sent by Bahadur father of appellant Nooro. This document Exh. 33 appears to have been forged subsequently with a view to create some evidence of enmity. This can also be seen from the circumstance that it was not produced in the Court of Enquiry where appellant Nooro contended himself merely by stating that he was falsely implicated, without disclosing, even the nature of the alleged enmity. However even if we take the most favourable view about Exh. 33 all that it shows is that such an application was sent to the Collector by the father of appellant Nooro on 6th September 1949, I.e. About 16 years before this incident. This can hardly be sufficient to hold that there was a reason for the P. Ws. To falsely involve appellant Nooro or any of his relations or friends. The evidence of P. W. Makoro also shows that besides the dispute between the parties about Mst. Lal Khatoon, there was no other dispute between them. This cannot be disputed also in view of the admitted position that only a few months before the occurrence the parties had married Mst. Lal ' Khatoon with appellant Nooro in exchange for two sisters of Nooro. These marriages could not have taken place if there was enmity between the parties over land for the last 16 years as alleged by the appellant. The ocular evidence of the three prosecu--tion witnesses, namely, Ali Bux, Mst. Mariam and Mst. Dhiani has accordingly gone totally unchallenged and we find no reason whatsoever for doubting it.
This ocular evidence is also corroborated by the evidence of P. W. Makoro, who reached the scene of occurrence on hearing gun reports and was given the names of all the four appellants soon after the alleged incident.
11. Apart from this corroboration we find that as the object of the assailants was to abduct Mst. Lal Khatoon a grown up woman aged 26 years, the number of person named as culprits appears to be consistent with the kind of crime committed. As held by their Lordships of the Supreme Court in the case of Nazir and others v. The State (PLD 1962 SC 269) this circumstance would by itself corroborate tile ocular evidence in this case; specially when we consider that as many as four persons were injured in this incident and besides the gun shot injuries there was also a large number of injuries caused by a blunt weapon such as lathi or back side of the hatchet. The nature of the attack as well as the object of the culprits was such that the number of persons whom the witnesses name does not exceed that, which appears from circumstances not open to doubt, to be the true number of culprits. We are, accordingly, fully satisfied that all the four appellants have participated in this occurrence and have been rightly convicted and sentenced.
12 Against appellant Jurio, there is also circumstantial evidence inasmuch as immediately after his arrest he took the police and the mashirs to his house and from a heap of dung lying in the courtyard thereof he produced a country --made pistol, which was lying concealed therein. The pistol was produced in presence of mashir P. W. Jam vide memo... Of recovery Exh. 21, and was sealed on the spot. It was later sent to the Ballistic Expert alongwith the empty cartridge recovered from the scene of offence, which was also separately sealed on the spot. The evidence of the Ballistic Expert P. W. Shah Jehan Khan showed that the crime empty had been fired from this pistol.
The Expert has formed this opinion after noting several points of similarity and we find no reasons to doubt it. Mr. G. M. Shah has, however, argued that P. W. Jam who acted as a mashir regarding the recovery of the pistol is related to the complainant. This may be correct but as admitted by the learned counsel himself both the parties in this case are related inter se and P. W. Jam is also a relation of some of the appellants. Moreover, he has admittedly no enmity with appellant Jurio or for that matter with any of the appellants; and consequently absolutely no reason to be party to the fabrication of this evidence against Jurio.
13. Mr. .G. M. Shah next contended' that the pistol and crime empties were received by the Ballistic Expert on 31-8-1965 after a delay of nearly two months which renders this evidence doubtful. The Investigating Officer was however, not asked as to why these articles were sent so, late. As a rule such articles are sent through, the office of the Superintendent of Police, where i8 takes sometime before the same are despatched to the Expert. If the Investigating Officer had been asked about it he may have perhaps given very good explanation for this slight delay. Moreover, when both the pistol as well as the empty cartridges were sealed at the spot and were received by the Expert with the seals intact we fail to see how the delay in sending these articles would help the case of the appellants.
14. Appellant Nooro had also examined two witnesses in defence, namely, D. W. 1 Muhammad Malook and D. W. 2 Ghulam Nabi to prove his alibi. The learned trial Judge was justified in discarding the evidence of these two witnesses; and we have no hesitation in agreeing with him on this point also. D. W. Muhammad Malook stated that accused Jurio had stayed with him for the whole of the night between 4th and 5th July 1965 and for three days thereafter. This witness has, however, admitted in cross-examination that Haji Bux an uncle of appellant Jurio was his friend. He further admitted that he did not inform anybody or any officer that Jurio was with' him on the night of the murder. This infor--mation was not given to the police also. The witness admitted that he had not kept any note regarding the accused being with him on that night but he had kept a note in his memory. It is difficult to believe that he could remember the exact date when appellant Jurio was with him specially in view of the fact that he was being examined more than a year after the occurrence. In reply to another question in cross---examination D. W. Muhammad Malook admitted that Ghulam Hadi Advocate of the accused was his friend and Haji Bux an uncle of Jurio had told him that Ghulam Hadi would be engaged as an Advocate in this case.
D. W. Ghulam Nabi supported D. W. Muhammad Malook by saying that he had seen appellant Jurio in the otaq of Muhammad Malook. The reason for this witness being there was that he had gone for purchase of land. He stated in cross-examination that he remembered the date by memory and could not give any reason as to why he remembered this date. He further admitted that he had never seen Jurio before that date and even on this occasion he was not intro--duced to him: either by Muhammad Malook or by any one else. In view of this it is surprising that the witness should be able to identify the appellant in Court more than a year after the occurrence. The evidence of these two defence wit--nesses read as a whole fails to inspire confidence and has been rightly discarded by the learned trial Judge who saw these witnesses and observed their demeanour.
15. As we have already observed the ocular evidence of P. Ws. Ali Bux, Mst. Mariam and Mst. Dhiani inspires con--fidence and does not stand in any need of support from any other source. After a careful consideration of this ocular evidence we feel that the appellants have been rightly convicted and sentenced on the basis thereof. We find no merit in this appeal, which is accordingly dismissed. The convictions and sentences awarded to the appellants are maintained.