1. ' SAJJAD ALI SHAH, J.-Above-named appellants have filed this appeal against the judgment dated 17th May, 1977 passed by the learned Additional Sessions Judge, Larkana whereby they have been convicted for offence under section 302/34, P. P. C. And sentenced to life imprisonment and a fine of Rs, 1,000 each. In default of payment of fine, they have to suffer R. I. For two years each. Fine, if paid, is directed to be made over to the heirs of the deceased.
2. ' Shortly stated prosecution case is that about four or five years prior to the incident Didar Ali son of Mohbat was murdered, in which case Ghulam Ali son of Muhammad Khan, complainant in this case and his relatives were challaned but were acquitted after the trial proceedings. In the present case under appeal Mohbat was also challenged along with his two sons Mohram and Sher Muhammad, the present appellants, but he has been acquitted by the trial Court giving him the benefit of doubt. The complainant party and the appellants are both Hasbani by caste but they are not inter-related. It is stated that on account of murder of Didar Ali the relations between the parties mentioned above, were strained and they were not on visiting terms. On the day of incident, that is, 4th August, 1975 at about `tripahri' time deceased Hubdar Ali, who was a young boy of about 15 years of age was grazing goats in the forest and nearby his grandfather Ghulam complainant was working in the field. P. Ws. Karim Bux son of Muhammad Khan and Muhammad Hashim son of Gul Mohammad, also Hasbani by caste, were working in their fields in the same vicinity. All of a sudden the witnesses heard cries of Hubdar All and rushed there to find Mohbat son of Sher Muhammad and his two sons-namely Mohram and Sher Muhammad were giving hatchet blows to Hubdar Ali, who fell down injured. On the arrival of the witnesses the appellants and the acquitted accused Mohbat threatened them not to approach, else they would be killed. The assailants thereafter ran away towards East in the forest raising slogans to the effect that they had taken revenge of murder of Did ar Ali. On the cries and the slogans of the assailants two other witnesses- namely Gul Muhammad son of Darya Khan and Muhammad Ismail son of Allah Din also reached the place of occurrence after the departure of assailants and were apprised of the incident and given the names of culprits by the eyewitnesses. The witnesses found Hubdar Ali badly injured but still alive, hence they had taken him on a cot and proceeded to the hospital but on the way Hubdar Ali succumed to the injuries. The complainant and the witnesses then brought the dead body to the Police Station, Dokri where F. I. R. Was lodged at 10-30 p.m. The distance between the Police Station and the place of occurrence was 13 miles. P. W. 9 Haji Hussain Bux A. S. I. After recording F. I.
3. R. Prepared mashirnama of injuries and inquest report of the dead body at the Police Station. He also made inquiries from witnesses Karim Bux, Muhammad Hashim, Muhammad Ismail and Gul Muhammad who had come along with the complainant and the dead body. He sent the dead body to the hospital at Dokri for post-mortem examination. On the following day at 2 p.m. He arrested the appellants and the acquitted accused from the village of Gul Muhammad Hasbani in presence of mashirs Ali Mardan and Sono Khan. The appellants and the acquitted accused were wearing blood-stained clothes which were secured and put into sealed parcels. The appellants and the acquitted accused, while in custody, produced three blood-stained hatchets separately from their common house which were put into sealed parcels. Thereafter the Investigating Officer proceeded to the vardat at 7 a.m. Which was situate in Deh Budho Dero forest. It was pointed out by witness Karim Bux. He secured blood-stained earth which was put into sealed parcel. Such mashirnamas were prepared. He recorded statement of Mohammad Azam on 5th August, 1975 and on the following day he got 164, Cr. P. C. Statements of witnesses Mohammad Hashim, Muhammad Ismail and Gul Muhammad recorded before the Muktiarkar and F.C.M. Dokri. He sent blood-stained articles to the Chemical Examiner. After taking other steps of investigation challan was presented in the. Court on 20th August, 1975 by S. H.
0. Dilbar Yar Khan.
4. ' Prosecution in this case has examined 10 witnesses in support of its case. P. W. 1 Ghulam complainant, P. W. 2 Karim Bux and P. W. 3 Muhammad Hashim have been examined as eye- witnesses of the incident. P. W. 6 Muhammad Ismail has corroborated the ocular account of incident. He also claims to have seen the accused persons armed with hatchets coming out from the forest after the incident raising slogans. P. W. 4 Muhammad Hassan is tapedar who has prepared and produced sketch of vardat Exh.
10. P. W. 5 Ghulam Haider constable is corpse- bearer. P. W. 7 Dur Muhammad and P. W. 8 Ali Mardan have been examined as mashirs. P. W. 9 Haji Hussain Bux A. S. I. Is the Investigating Officer.
5. P. W. 10 Doctor Mohammad Ibrahim conducted autopsy on the dead body on 5th August 1975 at Dokri hospital at 8-30 a.m. He has stated that rigor mortis and post-mortem rigidity was present.
6. The body was foul smelling and in the early stage of decomposition. He has given the age of the deceased to be 15 years. On external examination he found the following injuries :- ' One transverse incised wound extending from left to right parietal region of head cutting the parietal bone size 4" x x 1" with brain matter coming out from the wound.
(2) 3 oblique incised wounds each size 2" x 4" x 1", 11' x 1/8" x 1' and 1' x 1" x 1' cutting the parietal bone.
(3) 2 oblique incised wounds left parietal areas of the head each size 2" x 4" x cutting the parietal bone at the back with brain matter coming out from the wounds.
(4) One incised wound 1" x x left side of face, below left eyeball cutting the left maxilla bone.
7. (5)
8. One incised wound 4" x 4" x 1/8" lower part of the left side of face.
(6) Four incised wounds left shoulder girdle region each size 6" x 1" x 11", 2" x 4" x 4", 1" x "x V' and 4" x 1/10" x 1/10" cutting the left scapula and left homers bone.
(7) One incised wound size 1" x 4" x 4" right shoulder girdle region.
(8) One incised wound size 14" x 41' x x near occipital region with fracture of left occipital bone. On internal examination he found as under :- ' Multiple fractures of the left parietal bone of the skull and the fractures of the left occipital bone with brain matter coming out from the external injuries Nos. 1, 2, 3 and 8.
9. ' Both the lungs were normal and pale. Heart was normal, right side contained little quantity of blood. Stomach was normal contained food particles. Small intestine was normal contained semi- digested food material. Liver was normal and pale. Spleen was normal and pale.
10. ' From the external and internal examination of the deceased he was of the opinion that the death was caused due to hemorrhage, shock and injury to the vital organ brain as a result of external injuries Nos. 1,2, 3 and 8. Time that elapsed between injury and death may be within 3 hours and within death and post-mortem within 18 hours. All the external injuries mentioned appeared as the ante-mortem injuries.
11. ' Before the trial Court the defense of the appellants was total denial of prosecution allegations and false implication due to enmity. They further alleged that the prosecution witnesses were interested and interrelated. They did not produce any witness in defense.
12. ' We have heard the learned Advocates appearing for both parties at length. In the context of their argument we have very carefully examined the record. The ocular evidence was criticized on behalf of the appellants on the ground that the eye-witnesses are closely related to the deceased and they were not present at the spot. No doubt P. W. Ghulam who is complainant in this case is grandfather of the deceased Hubdar Ali. The second-eye-witness Karim Bux P. W. 2 is step-brother of Ghulam, having same father. The third eye-witness P. W. Muhammad Hashim had admitted that he is distant cousin of complainant Ghulam, P. W. 6 Muhammad Ismail who has given corroborative evidence has also said that he is distant cousin of Ghulam. The evidence of the eye- witnesses, being inter-related is to be analysed with great care and caution and in the circumstances would be accepted only when it is corroborated by independent sources. Firstly it is to be seen whether these eye-witnesses are natural and have seen the incident. All these eyewitnesses reside in village Gul Muhammad Hasbani. The appellants and the acquitted accused also belong to the same caste Hasbani and live iri the same village, which is at a call's distance from the place of occurrence. According to P. W. 4 Muhammad Hassan tapedar this village is at a distance of about 100 paces from vardat. Complainant Ghulam has deposed before the trial Court that at the time of incident, which was tripahri time deceased Hubdar Ali was grazing goats while he was diverting water in the field which was under his cultivation. P. W. 2 Karim Btu(' has stated that he was present in his field at a distance of 10 or 12 paces from the place where attack was made on Hubdar Ali. P. W. 3 Muhammad Hashim has testified that he was collecting firewood from Jungle and was at a distance of 10 or 12 paces when incident took place. After the incident these witnesses took injured Hubdar Ali on the cot and were proceeding to the hospital when on the way injured died and thereafter they took him to the Police Station. P. W. 9 Haji Hussain Bux, A. S. I. Has testified before the trial Court that complainant Ghulam had brought the dead body of Hubdar Ali to the Police Station and F. I. R. Was registered at 10-30 p.m. And witnesses Karim Bux, Muhammad Hashim, Muhammad Ismail and Gul Muhammad had also come along with the complainant and he recorded their statements at the Police Station. The incident took place at tripahri time and F. I.
13. R. Was recorded on the same day at 10-30 p.m. When the distance between the Police Station and the spot is 13 miles. Complainant and the witnesses mentioned above carried the dead body on the cot and when he was still alive, yvere takina'' him to the hospital but when on the way injured died they went to the Police Station on foot. Since they were carrying a dead body on the cot they must be walking slowly as they had covered a distance of 13 miles it cannot be said that F. I. R. Was lodged with any ostensible delay. Secondly, mashirnama of vardat Exh. 21 indicates that at the scene of offence there were lying droppings of goats and dungs, which confirms the fact that deceased was grazing goats when the fatal attack was made upon him, mashirnama of vardat further indicates that scene of offence was situate in Budho Dero forest in Taluka Dokri where forest consisted of small thorns and bushes. Blood was lying on the ground and bushes. At a call's distance from the scene of offence is the land of complainant Ghulam. The places where other witnesses were present are also specifically mentioned. Further these facts are confirmed by sketch of vardat and tapedar Muhammad Hassan P. W. 4 has admitted that on the western side of the forest there are cultivated lands. He has stated in the sketch of vardat that complaint Ghulam was at a distance of 94 feet from point A where incident took place and Muhammad Hashim eye- witness was cutting wood at a distance of 125 feet and another eye-witness Karim Bux was at a distance of 126 feet from the place of occurrence at the time of incident. Tapedar Muhammad Hassan has further stated before the trial Court that the place of incident was visible from the places mentioned above where the witnesses are stated to be present at the time of incident.
14. Thirdly, the eye-witnesses have given a consistent version of the incident and their evidence is free from material discrepancies, which shows that they were present at the spot and have seen the incident. There is no question of mistaken identity as the incident took place in broad daylight and the assailants live in the same village and were already named in F. I. R. Which was lodged without any delay in the circumstances mentioned above. The eye-witnesses had carried the dead body to the Police Station. Ocular account of incident finds ample support from medical evidence and other circumstances. It was argued on behalf of the appellants that eye-witnesses have, mentioned 4 injuries inflicted by the assailants on the deceased when the medical evidence shows that deceased had sustained 11 injuries. The perusal of the evidence of eye-witnesses shows that they do not claim to have seen only four injuries inflicted on the deceased but it is their case that on the cries of Hubdar All their attention was attracted and they ran to the spot and saw the assailants in the process of giving hatchet injuries to the deceased. It is also clear from the mashirnama of vardat and sketch of vardat that the witnesses were at some distance from where they could see the assault and after they reached the spot they saw the last injuries being given by the assailants which they have specified and separately attributed to the assailants.
15. ' It was argued on behalf of the appellants that eye-witness Karim Bux has not deposed before the trial Court as eye-witness but has stated that on hearing the cries he ran to the spot and saw the accused persons having hatchets in their hands and Hubdar Ali lying injured on the round in unconscious condition. It appears from the perusal of the evidence of this witness before the trial Court that in his examination-in chief he did not mention actual infliction of injuries by the assailants but when specific question was put to him by the prosecuting counsel whether he saw deceased receiving injuries, the witness replied that he saw the deceased being given hatchet blows by all the three accused present in the Court. Defense counsel in the trial Court objected to this question as being leading and the learned trial Court recorded the objection to be decided at the time of arguments. In the judgment of the trial Court, there is no mention about this objection.
16. In the cross-examination of this witness this aspect of the case was not brought up again and the witness has testified about other matters co-related with the incident. The reading of the whole evidence of this witness is suggestive of the fact that it was through inadvertence that he ,had not mentioned actual infliction of injuries by assailants on the deceased in his examination in-chief and since this technical objection was not determined by the trial Court, as a measure of abundant caution, we exclude from consideration the answer of this witness to the leading question, mentioned above. Even after the exclusion of that part of evidence objected to, the remaining evidence of this witness fully corroborates the ocular testimony of other witnesses along with having seen the accused persons present at the spot with hatchets in their hands and Hubdar Ali lying injured and unconscious with hatchet injuries caused by sharp side.
17. ' The direct evidence is further fully supported by the medical evidence on the question of time of death. Eye-witnesses have said that after the incident Hubdar All was alive and unconscious and died subsequently. The doctor has affirmed that the time which elapsed between injuries and death might be within three hours and between death and post-mortem examination within 18 hours. It is the case of prosecution that Hubdar Ali was alive and was being carried on cot by the witnesses to the hospital and on the way he died after some time. This statement is consistent with the medical evidence. Secondly the time of 18 hours between the death and post-mortem examination when calculated from the post-mortem examination brings back the time of death to 4 p.m. On the previous day, if calculation is made from 8-30 a.m., which is the commencement of the post-mortem examination and 6 p.m. If the calculation is made from 10-25 aan which is the time when post-mortem examination was finished. Of course some margin in this calculation is to be allowed, but the fact is evident that incident took place at tripahri time which is round about 3 p.m. And injured Hubdar Ali died sometime after the incident when he was being carried to the hospital. The eyewitnesses have not been able to give clear cut time when the injured Hubdar had expired, as they are laymen but what appears distinct is the fact that there is tremendous amount of consistency between the round about time of death given by eye-witnesses and that given by the Medical Officer, who conducted the post-mortem examination. This factor lends great corroboratory value to the assertion of the eyewitnesses that they were present at the spot and saw the incident and were carrying the dead body. Needless to say that the Medical Officer had also found as many as 9 incised injuries on different parts of the body of deceased which were caused by sharp-edged weapon such as hatchet. Number of injuries is commensurate with two or three assailants who participated in the attack. Post-mortem notes also show semi-digested food material in the abdomen of deceased which is consistent with the prosecution version that incident took place at tripahri time.
18. ' Criticism was made on the evidence of the prosecution on the ground that there was previous enmity between the parties and some time ago one Shaukat All related to the complainant party was murdered at Hyderabad in which case lmdad Ali was complainant and the present two appellants and their father Mohbbat were accused persons. This was rather half-hearted suggestion and was made to complainant in his evidence before the trial Court and the complainant admitted that Shaukat Ali was murdered at Hyderabad but he was not related to him and was only his caste-fellow. It was further stated by the complainant that Imdad Ali who was complainant in that murder case was his distant cousin. Complainant further denied the knowledge that accused persons in the present case were already accused in the murder case of Shaukat Ali. P. W. Karim Bux expressed ignorance about the fact whether Shaukat Ali was murdered at Hyderabad. P. W. Muhammad Hashim admitted relationship with Shaukat All but expressed ignorance about the fact whether Shaukat Ali was murdered at Hyderabad a few years ago. There is similar denial from P. W. 6 Muhammad Ismail about the murder of Shaukat Ali, In any case the accused persons in their statements under section 342, Cr. P. C. Have not asserted that they were involved by the complainant party in the murder case of Shaukat All at Hyderabad. There is no other proof on the record of this case to confirm this fact. On the other hand the witnesses have testified about the murder of Didar Ali brother of the present two appellants and son of acquitted accused Mohbat. It is stated that complainant Ghulam and his other relatives Gul Muhammad and others were challenged in the case but were acquitted. Acquitted accused Mohbat was complainant in that case and the present two appellants were witnesses. When this question was put to the appellants and the acquitted co-accused in this case in their statements under section 342, Cr. P.C. Before the trial Court, they have admitted the murder of Didar Ali, remained quiet about the implication of Ghulam and his other relatives in that oase and stated that allegation of revenge was false and they did not suspect Hubdar to be murderer of Didar Ali. The motive therefore, has been proved. Evidence of P. W. 6 Muhammad Ismail was also attacked on the ground that he was partisan and related to the complainant and has given false evidence of corroborative nature. The perusal of his evidence shows that he has admitted being related to complainant Ghulam and also living in the same village but there is nothing adverse in his evidence to show that he has given false evidence. He is a Government servant and was doing boring work in the tube-well of Zamindar Atta Muhammad at a call's distance from the scene of offence. He has asserted that on the cries he ran to the spot, saw the accused persons coming out armed with hatchets and raising slogans that they had taken revenge of Didar Ali. He identified them as they were known to him previously. At the spot he saw Hubdar Ali lying injured with hatchet injuries and the eye-witnesses present who narrated the facts of incident to him. He further carried the dead body on the cot to the police station where the statement was recorded. Mashirnama of vardat Exh. 21 mentions the tube-well of Atta Muhammad Zamindar at a call's distance from the place of occurrence. ' ' 'The evidence of this witness is trustworthy.
19. ' In the circumstantial evidence there are recoveries of blood-stained clothes and hatchets from the appellants. The appellants were arrested on 5-8-1975, that is on the following day of the incident. They were wearing blood-stained clothes which were secured and put into sealed parcels. They were arrested from inside the shop of Hakim Ali who is running a grocery shop. Hahim Ali was not present at the time of arrest of the appellants. The appellants are stated to be inside the shop, the door of which was stated to be closed from inside. Such spy information was given to the Investigating Officer who went to the said shop and arrested the appellants and the acquitted co-accused. The appellants while in custody led to the recovery of blood-stained hatchets from their joint house. Appellant Sher Muhammad led to the recovery of his hatchet from under the bed while appellant Muhram led to the recovery of his hatchet from `manah' of the cattle shed. These recoveries were made in presence of mashirs Ali Mardan and Sono Khan. P. W. 8 All Mardan has supported the recovery of blood-stained clothes and hatchets from the appellants and the acquitted co-accused, The above articles were put into sealed parcels and the parcels were signed by both mashirs. However, in the cross-examination this mashir has made some &ratuitions concessions in favour of the appellants by saying that Police had shown him the hatchets recovered from the appellants and hatchets were blood-stained. Police had also shown him blood-stained clothes of the appellants and the acquitted accused. Police had obtained his thumb marks on some papers at the police station saying that these were mashirnamas. This mashir was not declared hostile, however, on acount of the assertions made by this witness, as a.Pre- cautionary measure we exclude from consideration the evidence of this witness. We propose to rely upon the evidence of the Investigating Officer on the point of recoveries as is allowed under the law. The Investigating Officer has conducted the investigation honestly and there is nothing in his evidence to suggest that he had an ulterior motive or other reason to falsely implicate the appellants.
20. ' The learned trial Court had acquitted the third accused Mohbat who is father of the present two appellants on the ground that Mohbat had stated in his 342, Cr. P. C. Statement that his right hand was crippled and he cannot use the hatchet. This fact was supported by mashir Ali Mardan. The trial Court had observed the hand of this accused in the Court. Furthermore the report of the Chemical Examiner was also to the effect that out of all the three hatchets two were stained with human blood and on the third hatchet which was in parcel No, 7, the blood had disintegrated and is origin could not be determined. This hatchet is claimed to have been recovered from Mohbat.
21. The learned trial Court therefore, gave benefit of doubt to Mohbat and acquitted him. The report of Chemical Examiner is positive, so far clothes and hatchets of the present two appellants are concerned, that they were stained with human blood.
22. In the circumstances and for the reasons aforementioned, we are, firmly of the view that the case against the present appellants is proved', and there is sufficient evidence of incriminating nature to connect them!' with the commission of crime. We find no reason to interfere with the, impugned judgment. The appeal is therefore, dismissed.