MUHAMMAD HAYAT JUNEJO, J.----By this appeal appellants Waloo alias Wali Mohammad son of Pathan, Brahmani, aged 35 years. Allahdino son of A.I Sher Bhand aged 28 years, Imamuddin son of Yousuf Bhand aged 25 years, Rano son of Ramzan Brahmani aged 30 years, Beero son of Mahmood Leghari aged 25 years, and Buxal son of Saleh Bband aged 20 years have challenged the judgment dated 18-11-1968 of the learned Sessions Judge, Dadu, whereby the learned Judge convicted and sentenced them as follows :- ---Appellants Nos. 1 and 2, namely, Waloo alias Wali Muhammad and Allahdino have been convicted under sections 302. 307/149 and 148, P. P. C. And sentenced to death, R. I. For one year and R. I. For one year respectively. In addition appellant Waloo has been further convicted under section 13(D) of the West Pakistan Arms Ordinance, and sentenced to R. I. For one year.
The remaining four appellants, namely, Imamuddin, Rano, Beero and Buxal have been convicted under sections 302/149, 307/149 and 148, P. P. C. And sentenced to transportation for life, R. I. For one year and R. I. For one year respectively; all the sentences to run concurrently.--- As the matter has also been referred to us under section 374, Cr. P. C. For confirmation of the sentences of death awarded to Waloo alias Wali Mohammad and Allahdino, we shall dispose of both the appeal as well as the murder reference by this judgment.
2. Appellants Allahdino, Imamuddin 4nd Buxal are Bhands by case. They are closely related inter se and reside in village Minhoon Bhand, Taluka Dadu. Appellants Waloo and Rano are also closely related inter se but they are Brahmani by case and reside in village Shahdan, Taluka Johi. The remaining appellant, namely, Beero who is Leghari by case and said to be a friend of the other five, resides in village Nazam, Taluka Khairpur Nathan Shah, District Dadu.
3. About 1-- years before the present occurrence one Sharif Bhand, who was cousin of appellant Allahdino, brother of appellant Imamuddin and uncle of appellant Buxal was murdered and one Hussain Brahmani who was brother of appellant Rano and nephew of appellant Waloo alias Wali Mohammad was also killed in the same incident. Deceased A.I Nawaz, his brother Jam, and their two nephews, namely, Kirir and Khan were prosecuted for these murders but they were acquitted about 8 months before this occurrence. The two groups of Brahmani and Bhand appellants mentioned above, therefore made a common cause to avenge the murders of Sharif Bhand and Hussain Brahmani. Appellant Beero also joined them as he was their friend.
4. On 23-4-1966, the two deceased persons, namely, A.I Nawaz and Buxialah left their village in the morning alongwith complainant Jam. They were coming to Dadu. When they were just a short distance away from the Dadu Railway Station, complainant Jam, P. W. 2 went aside to urinate, while his two brothers proceeded further. Shortly thereafter at about 10-15 a.m. The complainant heard gun reports and saw that appellants Waloo and Allahdino had fired at his two deceased brothers, who both fell down. The other four appellants, who accompanied Waloo and Allahdino were all armed with hatchets. The complainant raised cries and ran towards west in the direction of railway police station which was only about 100 paces away from him. On hearing the gun reports, Abdur Rehman, Head Muharir, at the Railway Police Station Dadu asked P. W. Ghulam Abbas Police Constable on duty to go and see as to what had happened. Ghulam Abbas went and came back after 2-3 minutes. He informed the Head Muharir that two persons had been killed and the assailants, of whom two were armed with guns, were running towards South. On getting this information, P. W. Abdur Rehman gave rifles to Police Constables Ghulam Abbas, Mahmood Shah and Mohammad Ashraf and asked them to chase the culprits. P. W. Nasir, another Police constable who had also just got down from Larkana Express which was at the Dadu Railway Station Platform then, was also asked to join others in the chase. He was already armed with a rifle. Abdur Rehman, Head Constable rang up his S. H. O. P. W. Shafi Mohammad who was at that time at the Civil Hospital to convey the information to him and he also informed S. H. O. Mohammad Ibrahim of town Police Station Dadu on telephone. He then made the following entry in the station diary at about 10-30 p. m. :- ---It is shown and written that gun reports were heard from the side of the Bungalow of the Platier Sahib at 10-30. I sent duty constable Ghulam Abbas to see what is about that who went and returned immediately and reported that murders have been committed and culprits are running away. In the meanwhile travelling constable of train viz. Nasiruddin No. 81 and Muhammad Hassan No. 189 also came at police station, where Head Constable Mahmood Shah, Head Constable Asbraf were also present in their private dresses. I gave arms to them alongwith constable Hassan Askri and asked them to pursue the culprits. I sent constable Muhammad Hassan 189 to keep watch over the dead bodies. I heard the sound of the gun reports, gave such information on phone to S. H. O.
Town Dadu, immediately. I also informed my S. H. O. By phone in the Hospital. (Sd.) Abdul Rehman. . . W. H. C.---
5. After recording this information (Exh. 28) Head Constable Abdur Rehman, went to the scene of occurrence and found both Nawaz A.I and Buxali lying dead. In the meantime, S. H. O. Mohammad Ibrahim of Dadu Town Police Station, Police Inspector Inamul Haq and Incharge Superintendent of Police Dadu District also reached the wardat. They enquired from Head Constable Abdur Rehman about the direction in which the assailants had gone and on the latter's information S. P. Also went towards South along with his subordinate police officers including S. H. O. Shafi Mohammad.
6. P. W. Jam who had witnessed the ghastly murder of his two brothers, first followed the railway police constables in chasing the assailants ; but after sometime he came back to the scene where he found both his brothers lying dead in pools of blood. Six empty cartridges and two pairs of slippers which the assailants had left behind were also lying at the scene of occurrence. P. W. Jam, thereafter rushed to Dadu Town Police Station where he lodged his First Information Report, Exh. 7, the same morning at I1-00 a. m. It was recorded by P. W. 14, Head Constable Mohammad Yousuf and was to the following effect :- ---Complainant complains that I am residing near the village Minhoon Bhand. We are in all four brothers. Today in the morning I and each one A.I Nawaz and Buxali all the three brothers were coming together to Dadu with our own private work, when we reached near the Bungalow of Railway Platier Sahib I sat down for urinating and my brothers went towards Dadu on the Northern side. They had their licensed guns on their shoulders. When they were at the distance of 30-40 paces, I heard the gun shots. I immediately got up and I saw each one of accused Allahdino Bhand, and Waloo Bhand who had guns in their hands and Rano Brihmani, Beero Leghari, Buxal Bhand and Imamuddin Bhand had hatchets in their hands and Allahdino Bhand and Waloo Bhand were firing gun shots at my brothers Buxali and Nawaz A.I who fell down on account of receiving gun shots. I raised cries and ran towards the Railway Police Station. I saw that four/five persons of Railway Police Station with guns went running towards them for chasing the accused and on seeing them, the above-named accused went running towards the South and police also pursued them. When the Police pursued them Allahdino and Waloo fired gun shots at police and police also fired shots at the accused. But the police went after them. I returned to my brothers and saw that both of them hall expired. They had gun shot injuries on their hearts and back. After a while police also came and they went after the, accused. I have left the railway police at the corpse, and have come to lodge a report empty cartridges which were fired from guns were also lying there.
Two pairs of slippers of the accused are also lying there. The gun of my brother Buxali has been broken from butt end and it is also lying there. The above accused have murdered my two brothers and for reason that about 11 years ago, the cousin of accused Allahdino, and brother of accused Imamud--din and maternal uncle of accused Buxal, Sharif Bhand and nephew of Waloo and Rano Brihmanies who was brother of Hussain Brihmani both of them were murdered together and whose complaint was filed at Police Station Dadu, against me and my brother Nawaz A.I and nephew Kirir and Khan. We were challaned but about 8 months ago, the above accused were acquitted from Sessions Court. On account of that revenge my brothers have been murdered. I am the com-- plainant. Justice be done."
7. After recording the First Information Report Head Constable Mohammad Yousuf left for the scene of offence. Shortly, thereafter P.W.11 A.S.I.P. Hardan Puri who had initially joined his superior officers in chasing the culprits returned to the spot to carry on investigations. At the wardat A.S.I.P. Hardanpuri found the dead body of Nawaz A.I and Buxali. He secured six empty cartridges, two of which were lying near the dead body of Buxali and the other two about 10 paces away from the corpse of deceased Nawaz A.I. Two pairs of slippers which were left behind by the assailants were also lying there and were secured by the A.S.I.P, who sealed the six empties and the slippers and prepared a mashirnama of the wardat in presence of mashirs Muhammad Parial and Murad A.I Khokar. The dead bodies of Nawaz A.I and Buxali were sent to the Civil Hospital for post--mortem examination.
8. While this investigation was being conducted at the wardat the assailants were being continuously chased by the Railway Police Constables followed by S. H. O. Shafi Muhammad of Railway Police Station, S.H.O. Mohammad Ibrahim of Town Police Station Dadu and his superior officers, namely, the Sub-Divisional Inspector of Police and Superintendent of Police, Dadu. After an encounter with them on the way, near the garden of one Najamuddin about one furlong away from the scene of occurrence. The police party followed the assailants right up to the village of Bhands, where they had taken shelter in a house belong--ing to one Yousuf Bhand. The police party surrounded the house and repeatedly asked them to come out, but without any result. The police thereafter entered the compound of the house and found the door of the room bolted from inside.
They knocked the door which was ultimately opened and they found all the six appellants inside the room with their respective weapons. Appellant Waloo alias Wali Mohammad had a single- barrel gun No. 53723 and 7 cartridges while Allahdino had a double-barrel gun No. 109613 and 12 cartridges. These were smelling of gun powder and appeared to have been freshly fired. S. H. O.
Mohammad Ibrahim secured the same and sealed them on the spot. He also secured a hatchet each from the remaining four appellants. The S. H. O. Sent one of his Head Constables to arrange for mashirs but as the latter could not secure any in this village of Bhands, S. H. O. Shad Mohammad of Railway Police and Head constable Ahmed Gul acted as mashirs for the recoveries vide mashirnama Exh. 33.
9. S. I3. O. Mohammad Ibrahim arrested the six appellants and recorded the statements of P. Ws.
Abdur Rehman, Nasiruddin, Mahmood Shah, Ghulam Abbas, Shafi Mohammad and others.
Thereafter he visited the place of encounter with the appellants which was about 2J miles away from their village and at a distance of one furlong from the scene of occurrence which was near Dadu Railway Station. He secured three empty cartridges of .12 bore from this place (Articles C/7 to C/9) of encounter and prepared a Mashirnama thereof as Exh.
31. The empties were also sealed at the spot. S. H. O. Mohammad Ibrahim thereafter returned to the scene of occurrence and verified the investigations. On 30-5-1966, the two pairs of slippers left by the assailants which were secured from and sealed at the wardat were produced before P. W. Lutif A.I Butt, III Class Magistrate, who arranged a "wearing test" by trying the two slippers on the feet of all the accused. According to the evidence of the Magistrate and the mashirnama of the test, Exh. 22, the two pairs fitted appellants Allahdino and Buxal respectively.
10. The two guns recovered from appellants Waloo and Allahdino as well as the empties recovered both from the scene of occurrence (C/1 to C/6) and the place of encounter (C/7 to C/9) were sent to the Ballistic Expert, Ghulam Abbas, P. W. 2 whose evidence showed that crime empties C/1, C/4 and C/9 had been fired from S. B. Gun No. 53723 which was secured from appellant Waloo.
According to the Ballistic Expert, crime empties C/3, C/5 and C/7 had been fired from the right barrel of D. B. Gun No. 109613 while crime empties C/7. C/6 and C/8 were fired from the left barrel of the same gun which was a licensed gun standing in the name of appellant Allahdino and was actually secured from him after a chase soon after the occurrence. After the usual investigations were concluded the appellants were challaned on 2-6-1966.
11. The evidence of Dr. Abdul Ghafoor, Resident Medical Officer, Civil Hospital, Dadu, who conducted the post-mortem examination on the dead bodies of two deceased persons showed that Buxali deceased had the following injuries on his person :- "(1) Gun shot wound 1--" in diameter at the back of left ear pinna, destroying lower 2/3 part of pinna, and 1/3 attached, going through internal meatus destroying the internal ear bones going upwards to them fracturing mastoid and temporal bones into pieces, destroying middle cranial fossa, destroying brain substance (Cerebrum) and fracturing left front-parietal bones and destroying vessels of the left eye-ball, fracturing left upper jaw at the temporo-mandibular joint.
(2) Lacerated gun shot wound --" in diameter deep to muscles grazing the muscles destroying superficial blood vessels at Thenar eminence of the left hand.
(3) There are two abrasions at the distance of --" one abrasion --" x --" and second one --" x --" at the left shoulder joint.
(4) Oblique gun shot wound --" diameter 2--" below right nipple going upwards through the left side, fracturing 4th and 5th rib destroying muscles going outside, margins inverted (wound of entrance).
(5) Three gun shot lacerated wounds, two of them are below the left nipple at the distance of --" and third --" below the 2nd over heart region. First two, --" in diameter deep to muscles. Third --" in diameter deep to muscles. Margins averted (wound of exit)."
Injury No. 1 was individually sufficient to cause death in the ordinary course of nature. All these injuries appeared to have been caused by discharge from fire-arms and were the result of the two shots fired from a distance of more than 6 feet. The death must have been instantaneous. The stomach of the deceased contained semi-digested food.
12. The autopsy on deceased Nawaz A.I's dead body revealed the following injuries "(1) Gun shot wound 1" in diameter on the occipital region of the skull with inverted margins, fracturing occipital bone and destroying brain substance.
(2) Lacerated gun shot wound 7" x 5 --" x 6--" multiple fractures of facial and frontal bones destroying brain substance and communicating with injury No. 1.
(3) Gun shot wound lacerated 2" x 1--" x deep to bone fracturing bone and destroying muscles on the upper 1/3 of the right upper arm anterior medical.
(4) Gun shot exit wound 4" x 2--" x deep to bone resulting destruction of muscles and fracture of bone, surrounding of it is congested and adjoining tissues are damaged. Margins are inverted. It is communicating to injury No. 3.
(5) Distal ends of the middle and index fingers of left hand are destroyed.
(6) Gun shot wound --" in diameter deep to chest cavity, margins of it are inverted skin around it is congested and clotted blood is coming out through the wound :- Side-on the right side of the middle of the back (lower thorace region.)
(7) Gun shot wound --" x --" on the upper portion of areola, margins are inverted. This is communicating with injury No. 6."
Injuries Nos. 1 and 2 were individually sufficient to cause death in the ordinary course of nature. The injuries could be the result of more than one shot fired from a distance of more than six feet. The death must have been instantaneous.
13. The defence of the appellants was one of denial and false implication on account of enmity.
Appellant Waloo alias Wali Mohammad stated before the committing Magistrate that he was arrested along with Rano from the hotel of one Shafi Punjabi at Khairpur Nathan Shah Town in presence of Shafi Punjabi at one Akk Lund. This defence was, however, abandoned by him at the trial where he contended himself by a bare denial of the prosecution case. He, however, produced five certified copies of applications and complaints to show firstly, that he and his relations had enmity with complainant Jam and secondly, that besides them the two deceased persons and complainant Jam had other enemies as well.
14. The remaining five appellants also confined their defence to one of denial and false implication on account of enmity. They further stated that they were all arrested from their respective villages.
15. The evidence led by the prosecution as against the appellants may be divided under six main heads, namely -----
(a) direct ocular evidence of P. W. Jam ;
(b) evidence of Railway Police Constables P. W. 5 Mahmood Shah, P. W. 6 Ghulam Abbas, and P. W.
8 Nasiruddin who chased the appellants ;
(c) evidence of police officers, namely Shafi Mohammad S. H. O. Railway Police, Abdur Rehman, P.
W. 9 and S. H. O. Mohammad Ibrahim, P. W. 15 who followed the Railway Police Constables and subsequently apprehended the appellants who had taken shelter in the house of one Yousuf in Bhand village ;
(d) the circumstantial evidence regarding all the appellants, who belonged to different villages, being found together and thereafter being captured from the same house after a hot chase ;
(e) the recovery of a hatchet each from appellants Imamud--din, Rano, Beero and Buxal and two guns from appellants Waloo and Allahdino coupled with the evidence of the Ballistic Expert, Ghulam Abbas to the effect that the empties recovered from the scene of occurrence as well as the place of encounter, one furlong away therefrom, appeared to have been fired from both these guns; and (f)the evidence of motive.
16. The direct ocular evidence consists of the testimony of P. W. 2 Jam which was substantially in accordance with his First Information Report Exh. 7, reproduced in paragraph 6 above and, therefore, need not be repeated.
17. Mr. A. K. Brohi, the learned counsel appearing for the appellants before us has contended that P.
W. Jam could not have witnessed the occurrence but was summoned subsequently after the out- rage. To substantiate this contention the learned counsel '.Aid great stress on the fact that the assailants had an equally strong motive to murder P. W. Jam and, therefore they would not have spared him if he had been with his two brothers at the time of the occurrence. A reference to the sketch of wardat, Exh. 11, may be useful in this connection. It shows that deceased Buxali was fired at when he was at point 'A' while deceased Nawaz A.I's corpse was found at point 'B' which is 127 feet away from point `A'. At the time of firing P. W. Jam was at point 'E' which is at a distance of 132 feet from point 'A'. The assailants were at points 'F' and 'C' which are near points 'A' and 'B' respectively; while point 'F' is situated in a completely different direction. The assailants had only two guns and they could not simultaneously fire at more than two persons. As both the deceased persons were carrying their guns with themselves they had naturally to be the first target. If one of the assailants had instead directed his attention at Jam, one of his deceased brothers could have easily retaliated. To safeguard against that eventuality, the two deceased persons were selected as the target of attack. Moreover, the location of the place of occurrence as well as the time of the incident was such that the assailants could not risk waiting even a moment longer after they had finished the two deceased brothers of P. W. Jam and thereby made themselves conspicuous. They had also avenged the two murders of their relations. For these reasons it would not be proper to disbelieve P. W. Jam only because he was not attacked by the assailants.
18. The learned counsel for the appellants has also emphasised the fact that when P. W. Jam's two brothers were both carrying guns, Jam would not venture to go out unarmed. This has been explained by P. W. Jam himself, who stated that he did not have a licence for any fire-arm.
Moreover, he was in the company of his two brothers who were both carrying their guns which under the ordinary circumstances would afford sufficient protection. There is, accordingly nothing extraordinary if the witness accompanied his two brothers without himself carrying any weapon.
19. P. W. Jam's presence is also confirmed by the evidence of Railway Constable Ghulam Abbas. We shall refer to his evidence later, but would like to mention here that he identified P. W. Jam in Court to be the same person who was seen by him crying immediately after the occurrence and saying that the murderers were running away. We find no reason to disbelieve his evidence on this point.
Moreover, the circumstance that P. W. Jam lodged his First Information Report, Exh. 7, at 11-00 a.m.
Within 45 minutes of the occurrence, also establishes his presence at the time of the incident. All the six appellants as well as the motive for the offence are mentioned in the F. I. R. And we consider it as strong corroboration of the testimony of P. W. Jam.
20. Realizing the importance of this document Mr. Brohi has contended that Exh. 7, would not be admissible as the information relating to the murders was already incorporated in the diary of Railway Police Station as Exh. 28, a telephone message about the incident was also sent to the Dadu Town Police Station by Head Muharir Abdur Rehman which was recorded in the Roznamcha at Dadu Police Station as entry No. 8 (Exh. 46). We, however, cannot agree with this contention of the learned counsel. An entry in the Roznamcha does not comply with the provisions of section 154, Cr. P. C. And cannot be deemed to be the First Information Report of a cognizable offence. In this connection we may with advantage refer to a judgment of a Division Bench of this Court in the case of Mohammad Afzal v. The State (PLD 1960 Lah. 97) wherein it was observed as follows :- "Exh. P. O/1 is an unsigned telephonic message. It is, there--fore, not a first information report within the meaning of section 154 of the Code of Criminal Procedure which reads as follows ---Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the local Government may prescribe in this behalf.--- Only information complying with the provisions of this section constitutes what is known as the first information report. The entry in the Roznamcha Exh. P. O/1 does not conform to the provisions of this section. Head Constable Sardar Khan, who obtained the information, was not incharge of the police station. The record of the information in the Roznamcha does not show that it was read over to Major Hamid. It was not signed by Major Hamid. Moreover, it was not entered in the book prescribed by the Provincial Government for the purpose of recording first information reports. In Ahman v.
Emperor (AIR 1938 Lah. 787) it was held that an entry made by a Sub-Inspector in the daily diary of the police station is not a first information report. The question whether an unsigned telegram and telephonic message are first information reports, within the meaning of section 154 of the Code of Criminal Procedure, was considered by a Division Bench of the Lahore High Court, in Crown v. Faiz Muhammad (PLD 1952 Lah. 215) and their Lordships observed :- ---Unsigned telegram and telephonic messages are not First Information Reports within the meaning of section 154, Criminal Procedure Code, and if after the receipt of a telegram or telephonic message the police proceeded to the spot and take down the information from the complainant or the informant and get it signed by him, the signed statement would be the First Information Report and not the telegram or the telephonic message'.
This view was approved and followed by this Court in a later case, namely, that of Ghazl Khan v. The State (PLD 1965 Quetta 33). In the same judgment it was observed relying on Crown v. Faiz Muhammad that .- "Unsigned telegrams and telephonic messages are not first information reports within the meaning of section 154, Criminal Procedure Code, and if after the receipt of a telegram or telephonic message the police proceeded to the spot and took down the information from the complainant or the informant got it signed by him, the signed statement would be the first information report and not the telegram or the telephonic message.
Considering in the light of the above ruling the objection taken by the learned counsel for the appellants loses all its force, as in this view of the matter Abdul Ghafoor's statement (Exh. P. A.) recorded in the hospital could alone be treated as the first information report."
Besides, as held in Ghulam Sarwar v. The State (PLD 1959 Lah. 1002), it is well settled that :- ---Were a report about commission of an offence is given to police at two different places by two different persons, and one is earlier in point of time than the other, the latter report is not a statement made to a police officer in the course of investigation but is an independent F. I. R. And, therefore, can be used in evidence by the prosecution.--- Cases of Emperor v. Lalji R.I (AIR 1936 Pat. 11), Maganlal Radhakishan v. Emperor (AIR 1946 Nag. 173) and Emperor v. Aftab Muhammad Khan (AIR 1940 All. 291) were relied upon in support of this view and we may also mention in this connection the case of Tika Ram and others v. The State (AIR 1957 All. 755) in which it was observed as follows :- "The words in the course of an investigation' in section 162, Cr. P. C. Import that the statement must be made as a step in pending investigation, to be used in that investigation and do not refer merely to the period of time which elapses between the beginning and the end of the investigation.
Thus where there is a second report made to the police about the commission of an offence which is found to have been made quite independently of, and in no relation to, any pending investigation, and has no reference at all to the investigation which has in fact already begun, it is a document admissible for the purpose of corroborating the evidence of its maker, under section 157 of the Evidence Act, or to contradict him under sections 155 and 145, though it is not a substantive evidence of facts stated therein." .
21. Mr. Brohi, the learned counsel for the appellants has contended that the First Information Report appeared to have been filed late and the time of 1 1-00 a. m. Shown therein is a forgery. We find absolutely no grounds for holding so. In this connection a suggestion was made in cross- examination to P. W. Jam that he had filed the report between 12 and 4 p.m. Similarly, S.H.O.
Muhammad Ibrahim was asked in cross-examination on this point that he had "recorded the F. I. R.
At night after completing the investigation". Both of them, however, denied these contradictory suggestions.
22. Mr. Brohi has laid great stress on the fact that having regard to certain over writings in the Roznamcha entries, the evidence as to the timings mentioned in the F. I. R. Was also open to suspicion. We have examined these entries with the help of a magnifying glass and find that the original and the subsequent entries are as under :- Original Subsequent Entry No. Relating to entry hour. Overwriting hours.
7. Report under section 109, 0930 0930 Cr. P. C. In another No overwriting. case.
8. Telephone message about this09501015 occurrence received from Railway Police.
9. Police Constable Ghulam A.I's09521020 leaving the police station
10. Return of Foot Constable09551025 Muhammad Ramzan in connection with another case.
11. Post-mortem report in another10001026 case .
12. Head Constable' Nazir Ali10031027 being given a rifle in another case
13. Muhammad Ramzan being10051028 sent to guard dead bodies in this case.
14. F. I. R. In another case10301030 (no overwriting)
15. F. I. R. In this case11001100 (no overwriting).
16. Change of duty and resumption12001200 of duty by Foot Constable(no overwriting).
Karamat Hussain Shah.
17. Bringing all the six accused in16001600 this case to the police station(no overwriting) and mentions details about their Weapons, arrest etc.
4. The correctness of Exh. 28, which is an entry from railway police station diary, is not disputed before us by the learned counsel for the appellants nor was it disputed at any stage before the trial Court. As far as the entries in the Roznamcha maintained by the Dadu Police Station we would also like to point out that the time of the first report is shown as 11-00 hours in entry No. 15 which admittedly has not been overwritten. It is, therefore, obvious that at both the places namely the railway Police Station as well as the Dadu Town Police Station the time of the occurrence and time of report have been correctly shown as 10-30 a. m. And 11-00 a.m. Respectively. In view of this position the over writings in entries Nos. 8, 9, 10, 11, 12 and 13 do not appear to be of any special significance.
S. H. O. Muhammad Ibrahim's explanation about these over-writings is that his watch had stopped as he forgot to wind it in time. There was also no clock available at the police station and he made the first entry by referring to his watch implying thereby that he did so without realizing that the watch had stopped. We find nothing wrong with this explanation. In this view, it is possible that when S. H. O. Muhammad Ibrahim made entry No. 8, the actual time was about 10-15 a. m. But since his watch may have stopped about 23 minutes earlier he showed the time as 09-50 a. m. The subsequent entries namely Nos. 9, 10, 11, 12 and 13, therefore, are consistent with his explanation because once it is conceded that entry No. 8 was incorrectly recorded then the rest of the entries were bound to be incorrect by the same margin of time. By examining these entries we have not been able to understand nor the learned counsel for the appellants pointed out to us as to what advantage the prosecution could take by tampering with the entries at S. Nos. 8, 9, 10, 11, 12 and 13. It is not denied that at least the original entry at S. No. 8 was recorded at 09-50 hrs. And therefore by its subsequent change to 10-15 a. m., which is just a margin of 25 minutes we fail to see what could be the possible advantage for the prosecution.
Mr. Brohi's next contention was that in the note added to the First Information Report under the heading of "police proceedings" it is clearly mentioned that the entry No. 8 was made at 10-15 a. m.
From this the learned counsel drew the inference that this note must have been made after the return of the S. H. O. To the police station at 4-00 p. m. As it was he who made the corrections in the Roznamcha entries and accordingly the writer of this note would not have known at 11-00 a. m. That the entry No. 8 should really be 10-15 a. m. And not 09-50 which was actually the original entry before it was corrected. In this connection we may again refer to the relevant entries in the Roznamcha and we would point out that it is clearly mentioned therein that the report about this offence was lodged at 11.00 a.m. As the entry at S. No. 15 would show. Admittedly this entry has not been ever written or tampered with. The next entry, namely, the one at S. No. 16 is made at 12-03 hours and relates to a different matter. It is accordingly clear that the First Information Report was really lodged at 11-00 hours as otherwise this entry could not have been made before the entry at S. No. 16 regarding the change of duty of Foot Constable Karamat Hussain Shah which was made at 12-00 hours and does not show any overwriting. S. H. O. Mohd. Ibrahim stated in cross-examination that entries at S. Nos. 11, 12 and 13 were in the hand of Head Constable Mohammad Yousuf. As regards over writings he stated as follows :- "I think I have corrected the timings due to same reason."
It appears from this that S. H. O. Mohammad Ibrahim is not certain on this point and one cannot blame him for this, as he was being examined more than 2J years after the incident. We, therefore, feel that the corrections in the Roznamcha entries must have been made by one of his subordinates before Jam went to the police station at 11-00 a. m. As it must have been by then realized that incorrect timings had been shown on account of Mohammad Ibrahim's watch being slow by 25 minutes or so.
24. In any event the over writings in the Roznameha could not be sufficient justification for discarding the direct evidence of P. W. Jam which we have found to be extremely convincing.
25. The learned Sessions Judge, Dadu who tried this case and observed the demeanour of the witnesses came to the conclusion that P. W. Jam's "presence at the wardat and his evidence could not be doubted", and that his evidence was "true, convincing and sufficient for the purpose of holding that Waloo and Allahdino accused fired at Nawaz A.I and Buxali and that accused 3 to 6 were with Waloo and Allahdino . . . " The learned Judge also inspected the scene of occurrence personally before reaching this conclusion, which appears to have been based on good reasoning.
After carefully scrutinizing the testimony of P. W. Jam and after considering all the contentions raised by the learned counsel for the appellants on this point, we have not the slightest hesitation in agreeing with the learned trial Judge that P. W. Jam had witnessed the occurrence and identified the six appellants, who were previously known to him, as the assailants of his brothers. ---
26. Apart from the evidence of P. W. Jam we have also on record the testimony of P. Ws. Mahmood Shah Head Constable Railway Police, Ghulam Abbas and Nasir, both Railway Constables, who alongwith Muhammad Ashraf and Hassan Askri chased the appellants for a distance of about 3 miles from the scene of occurrence right up to the Bhand Village where the appellants subsequently took shelter in the house of one Yousuf Bhand. They had an encounter with the appellants about one furlong away from the scene of occurrence. There empty cartridges were also secured from this place of encounter as deposed to by Mashir Allah Warayo P. W. 10 and S. H.
O. Mohammad Ibrahim. Their evidence is corroborated on this point by the Mashirnama Exh, 11.
27. P. Ws. Mahmood Shah, Ghulam Abbas and Nasir are all independent witnesses having neither any connection with P. W. Jam nor any enmity or grievance against any of the six appellants; and their evidence cannot be discarded merely because they happened to be in Police Service.
28. Mr. Brohi has pointed out certain contradictions in the evidence of these witnesses regarding the place where their statements were recorded and on some other unimportant aspects of the prosecution case. Such contradictions are bound to be there in every case specially when numerous witnesses are examined nearly 2j- years after the alleged incident. Moreover, as observed by, their Lordships of the Federal Court in the case of Ghulam Safdar and another v. The Crown (PLD 1956 FC 126) the fate of a criminal case does not depend upon the existence of vague discrepancies in the1 statement of witnesses.
29. It is no doubt correct that these witnesses have made certain admissions in their cross- examination with a view to whittle down the force of their evidence. P. W. Ghulam Abbas stated in his, cross-examination that "the faces of the culprits were muffled at the time when they were running". Similarly, P. W. Nasir stated that he was not certain about the identity of any appellant except Waloo. The learned Sessions Judge who saw these witnesses received the impression that they had made certain admissions to favour the appellants by creating some confusion in their evidence which was otherwise convincing and not open to any doubt whatsoever. We fully concur in this view of the learned trial Judge.
Apart from P. W. Ghulam Abbas no other witness was even asked whether the faces of the assailants were muffled. Ghulam Abbas himself had not introduced this fact in any of his earlier statements and was all along positive that he had seen all the assailants whom he identified in Court.
30. As regards P. W. Nasir, the learned Sessions Judge brought his deposition before the Committing Magistrate on record as Exh.
25. Although it has not b.-en specifically mentioned, we have no doubt that the learned Judge did so under the provisions of section 288, Cr. P. C. As the witness was duly confronted with the relevant passage and all the provisions of the Evidence Act in this regard were complied with, we do not see any thing wrong with the procedure adopted by the learned Sessions Judge in bringing Exh. 25 on record and treating it as evidence in the case. In his deposition P. W. Nasir (also described at some places as Nasiruddin) had stated that "the accused present in Court are the same". He had further pointed out appellants Waloo alias Wali Muhammad and Allahdino as the assailants who were armed with guns and the remaining four appellants as those who were armed with hatchets. The witness unequivocally stated as follows :-- ---These are the six persons who were running away, being chased by us and who were subsequently arrested by D. S. P. Dadu. In the Court of the committing Magistrate this witness was cross-examined at length but nothing was brought out in the cross-examination to discredit this testimony in the slightest degree. It was, therefore, obvious that he was deliberately introducing certain matters at the trial with a view to favour the appellants by creating some sort of doubt in the prosecution case.---
31. Mr. A. K. Brohi, the learned counsel for the appellants contended that if the witnesses had deliberately introduced these facts so as to favour the appellants, on this ground alone, their evidence should be completely discarded, as they were basically dishonest. We regret we cannot subscribe to such an extreme proposition. In this connection we cannot do better than to reproduce a passage from the judgment of Muhammad Munir, C. J. In the well-known case of Adalat v. Crown (PLD 1956 FC 171) wherein it was observed as follows :- "Generalizations relating to the appreciation of evidence are not at all rules of law, and if they were ever to be treated as such, the result, in my humble opinion, would be chaos and would deprive Judges of the lower Courts who have to decide on conflicting evidence, of that freedom of reasoning and action which is the first requisite of a judicial investigation. If we were to say that, however, definite the evidence of a witness in examination-in-chief may be, it must be read subject to all the qualifications, however dishonest, which a witness introduces in his cross- examination, we would be paving the way for miscarriage of justice on a large scale, and encouraging the accused persons in this country and their relatives to purchase from the prosecution witnesses as a admission in their cross---examination that when in their examination- in-chief or reports to the police they charged certain persons with the commission of murder their only justification for naming the accused was the sizes of the miscreants. In my opinion, the judgment of the High Court was right and no reason of the kind that prompts this Court to interfere in criminal cases exists. I would, therefore, dismiss the appeal because it seems to me that interference with the judgment of the High Court in a case like this can only be justified on a general principle and that general principle which, I must confess appellants had been captured after a hot chase and that two guns which were freshly fired and were smelling of gun powder were recovered from appellants Allahdino and Walloo.
35. The evidence of the Ballistic Expert P. W. Ghulam Abbas conclusively proves that both these guns were fired at the scene of occurrence as well as at the second place of encounter. The learned counsel for the appellants contended before us that the opinion of P. W. Ghulam Abbas should be discarded as he was not sufficiently experienced and further that the crime weapons and empties had been sent to him after a long time so much so that these were received by him only on 11-8-1966. Mr. Brohi also emphasised that inasmuch as the expert had not conducted any negative test by using guns other than the two sent to him, his opinion was not entitled to much weight.
P. W. Ghulam Abbas has stated that he has examined about 16C0 fire-arm cases and appeared as a witness in 40 such cases. Naturally, he could not say as to how many times he had been believed or disbelieved as he cannot be expected to read judgments in all these cases. Besides, from the mere fact that he had not gone abroad for training it would not mean that he is not competent or that his opinion is useless.
As regards the delay in sending the parcels to the Ballistic Expert we feel that it is immaterial as the weapons as well as the empties were sealed at the spot and the parcels were received by the Ballistic Expert with the seals intact. Such weapons are usually sent to the Ballistic Expert through the office of the Superintendent of Police and this process takes some time. It is also our experience that as a rule no negative test is held in such cases but in spite of its absence the opinion of the Ballistic Experts has been relied upon by this Court as well as by the Supreme Court in a large number of cases. We, therefore, consider the opinion of the Ballistic Expert to be a weighty circumstance against appellants Allahdino and Waloo.
36. All the six appellants denied that they were captured in chase or that any weapons were secured from them. In the Court of Enquiry appellant Waloo stated that he and his relation appellant Rano were both arrested at the hotel of one Shafi Punjabi in Khairpur Nathan Shah town, which is any map would show, is about 30 miles away from Dadu. The appellant asserted that he was arrested in presence of Shafi Punjabi and Akk Lund. Appellant Ratio also adopted this defence.
One would have normally expected the two appellants to examine S Punjabi and/or Akk Lund to prove their alibi. Instead, both of them abandoned this defence and contented themselves by a bare denial of the prosecution case. Similarly, appellant Beero stated before the Committing Magistrate that he was implicated at the instance of one Ghulam A.I Police Constable against whom he had made an application alleging therein that he had taken an illegal gratifica--petition from this appellant. This defence was also abandoned at the trial with the same case with which it was advanced in the Committing Court. None of the other appellants made any efforts to explain any circumstance appearing in evidence against him. They have denied the allegations and stated that they had been falsely implicated on account of enmity. Apart from P. W. Jam none of the other witnesses who have given evidence regarding the capture of the appellants have any reason to falsely involve any one of them. There is also nothing on record, not even an allegation to the effect that any of these witnesses was under the influence of P. W. Jam or any of his relations. In fact, the unimpeachable testimony of these witnesses has gone totally unchallenged.
37. The appellants have further stated that they were arrested separately from their respective villages. It is hard to believe; as two of them, namely, Waloo and Rano are residents of Shahdan Village which is situated in Taluka Johi, while Beero resides in Village Nazam in Taluka Khairpur Nathan Shah. The remaining three appellants who are Bhands by case are residents of Dadu Taluka. It can, therefore, be seen that it would have been more or less impossible for the Police to collect these six appellants from such far flung places and to bring them to Dadu Police Station within 4-5 hours after the occurrence. Moreover, if Mr. Brohi wants us to believe that P. W. Jam himself came to the scene a long time after the occurrence, who else could have given their names to the Police so as to enable the latter to arrest all the six appellants within a few hours of the occurrence from their respective villages which as we have already stated are located in far flung areas of different talukas. The facts and circumstances of this case are fully consistent with the prosecution case that the appellants were arrested in a hot chase and we cannot discard or doubt this weighty circumstance which goes a long way in establishing their guilt beyond any reasonable doubt.
38. In a test held subsequently in presence of a Magistrate P. W. Abdul Latif, the slippers left by the assailant at the wardat were found to have fitted appellants Waloo and Buxal. The evidence of the Magistrate is corroborated by the Mashirnama Exh. 22, and this circumstance also connects the two appellants with the crime.
39. Lastly, all the appellants had a strong motive for the commission of this crime. P. W. Jam has stated in his evidence that about 1i years before this occurrence Hussain Bhand nephew of appellant Waloo and brother of appellant Rano and one Sharif Bhand who was cousin of Allabdino, brother of Imamuddin and uncle of Buxal were murdered. Deceased Nawaz A.I alias A.I Nawaz, P. W.
Jam and their two nephews Khan and Kirir were prosecuted for these murders but they were acquitted about 8 months before the present incident. The two parties of Bhands and Brihamanis appeared to have made a common cause to avenge the murders of their relations. Appellant Beero is said to be a friend of the other five appellants. This part of the evidence of P. W. Jam has not been disputed before us; nor is there any cross-examination on the point of motive which is also mentioned in the First Information Report.
The manner in which these murders were committed in broad daylight in the heart of Dadu town, indicates that whosoever committed this crime must be having a strong motive such as has been alleged and fully proved by the prosecution in this case.
40. Mr. A. K. Brohi has argued that besides the appellants several others had a motive to commit these murders. May be so; but that would be no ground for us to discard the clear, cogent, unimpeachable and convincing direct as well as circum--stantial evidence adduced by the prosecution in this case.
41. In the course of his arguments Mr. Brohi repeatedly emphasised that if this had been a premeditated affair as alleged by the prosecution, the appellants would not have chosen a crowded place like the Railway station for committing these murders. The learned counsel contended that the time as well as the place of occurrence negatived the theory of a preplanned murder. It is impossible to say as to what exactly prompted an individual or a body of persons to commit a crime in the manner they did. However, the fact remains that the deceased persons were also conscious of the fact that they had several enemies and they were carrying guns for their protection. It was only in the town of Dadu that they must have felt secure and, therefore, could be taken unawares in this manner. Be that as it may, the place and time of occurrence are not disputed and we may also add that it is inconceivable that the police should decide to falsely involve innocent people in a case like this in which the investi--gations have been conducted from the very beginning under the supervision of superior officers including the S. P. And the assailants were caught in hot chase.
42. Before we conclude we would like to deal with yet another contention of the learned counsel for the appellants. Mr. Brohi repeatedly argued that although this incident was alleged to have taken place at a crowded locality like Dadu Railway Station at a time when an express train was at the platform, yet the prosecution has not examined any independent eye-witness the occurrence. It is no doubt true that several persons must have witnessed the occurrence and it has also come in evidence at some people chased the culprits for some distance. However, in a case of this nature it is well known that no disinterested person, much less a town deweller or a city businessman, would like to come forward as a witness; as the consequences thereof may not be very pleasant.
Whoever committed this audacious crime must be men of daring and no person would like to incur their wrath by coming forward to give evidence against them. Moreover, although a few persons must have initially chased the assailants there was no need for them to run after the culprits for a distance of three miles. This is particularly so as the appellants were firing to scare their pursuers.
Besides the policemen were already following them. It is accord--ingly nothing extraordinary if the entire evidence on the point of chase and capture consists of the testimony of police officers.
43. After having heard the learned counsel for the appellants at length and having considered the evidence on record, we have not the slightest doubt that the guilt of all the six appellants has been fully established by very cogent and convincing evidence. We, accordingly, dismiss their appeals.
44. There are no extenuating circumstances in this case. In fact it has not been even contended before us that the death sentences are not called for. Indeed in a case of brutal and audacious murders like this, only the normal sentence of death 1 can meet the ends of justice. We would, therefore, while dismissing this appeal, also accept the reference under section 374, Cr. P. C. And confirm the sentence of death awarded to appellants Waloo alias Wali Mohammad and Allahdino.