MUHAMMAD HALEEM, J.-Appellant Wazir (30) was tried along with Dodo, Yaqub, Muhammad, Manthar and Abdullah on charges under sections 302, 326, 324, 323 read with sections 149, 148 and 452, P. P. C. By the learned Additional Sessions Judge, Tharparkar and was alone convicted on charges under sections 302 and 452, P. P. C. And sentenced to death on the first count and to rigorous imprisonment for one year on the second count. All the others tried along with him were however acquitted. The appellant has filed an appeal to question his conviction on the above counts. The learned Additional Sessions Judge, Tharparkar has made a reference under sectton 374, Cr. P. C. For the confirma--tion of his death sentence. This judgment will dispose of both the appeal and the reference.
2. The relevant facts are these: Deceased Jumo Machi had three daughters, namely, Shah Khatoon, Rani and Marul. Mst. Rani is married to Arab Machi and Shah Khatoon is married to Juwan Machi.
About four months before the occurrence Mst. Shah Khatoon was abducted by the appellant. They had gone and lived in village Bachal Khaskheli. Information was subsequently received about their whereabouts and thereupon Moula Bux, Buxan and Soomar went to that village and through the interven--tion of one Muhammad Bachal, Mst. Shah Khatoon was restored to deceased Jumo Machi. However, the deceased had apprehended that Mst. Shah Khatoon would again be abducted. So he complained to Rais Nabi Bux Khan Solangi to intervene in the matter and prevail on the appellant not to abduct her. Rais Nabi Bux Khan thereafter called the parties to settle the matter. Noor Muhammad from the side of deceased Jumo Machi was called as well as the deceased himself. On the side of the appellant, his brothers, namely Dodo, Muhammad, Ramzan and Manthar had attended. They had on oath promised that Mst. Shah Khatoon would not be abducted again and that accordingly settlement was effect between the parties. Deceased Jumo Machi along with his daughters Mst. Shah Khatoon and Mst. Rani and his son-in-, JuH-an -had come and settled in deh Junejani, where Noon Muhammad, his nephew, resided, about 15 days prior to the date of the incident which occurred at 8 p.m. On 10 March 1967. At the relevant time deceased juma Machi along with Noor Muhammad, Muhammad Hasan, Bhai Khan Juwan and Ali Muhammad were sitting in the courtyard in front of his house with other family members and at that moment seven persons appeared from the entrance of the house of the deceased, amongst whom was the appellant and the other five acquitted accused and one unknown person. Appellant Wazir and Dodo were armed with guns while the others with hatchets. They then threatened to take away Mst. Shah Khatoon whereupon deceased Jumo Machi retaliated by refusing to hand her over to them. The appellant then fired his gun at him, which hit the deceased who fell down. During this commotion Ms,. Shah Khatoon and her sister Mst. Rani were taken away by Juwan who hid them in the house of a Kolhi. The appellant and his brother Dodo thereafter fired other shots with their guns and their companions caused injuries to Bhai Khan, Noor Muhammad and Muhammad Hasan with hatchets. The appellant and his companions then searched for Mst. Shah Khatoon in the house but having failed to find her left the place without having accomplished their object.
3. At about 8 p. m. That very night Ahmad Ali S. H. O. (P. W. 12) received a telephonic message from the Deputy Superintendent of Police that there was firing from near the residence of Qazi Taqi and that he should immediately proceed thereto. He thereupon left for that place and reached deh Junejani (village Kaim Din) at about 8-45 p. In. This place is at a distance of about 6 or 7 miles from Shahdadpur. It is there that he recorded the statement of Noor Muhammad (P. W. 6) which is incorporated in the 154 book and has been Exh. As 18-A. He then commenced the investigation of the case and secured four empty cartridges and one live cartridge of * 12-bore and one empty cartridge of '16-bore lying in the courtyard of the house 1 near the dead body of deceased Jumo Machi as well as the blood-stained earth. They were taken into possession as per Mashirnama (Exh. 13) and sealed into a parcel. A lamp was also secured as per Mashirnama (Exh. 16). The said seizures were made in the presence of Mashir Misri (P. W. 5). The dead body of deceased Jumo Machi was sent for post-mortem examination to the Medical Officer, Shahdadkot Dispensary. The injurcd persons, namely Noor Muhammad, Muhammad Hasan and Mai Khan were also sent to him for examination and treatment. The appellant was arrested on 17th March 1967 in the presence of Mashir Moula Bux (P. W. 11) from the utak of Haji Ghulant Shalt in village Manganhari. On 19th March 1967, the appellant volunteered to produce his gun and led investigating officer and the Mashir Moula Bux towards the graveyard outside village Manganhari and from under the Khabar bushes thereat produced his ' 16-bore gun, the number of which was erased. It was secured as per Mashirnama (Exh. 27) in the presence of the said mashir and sealed into a parcel. This gun as well as the -16-bore crime empty were sent to the forensic laboratory for test. According to the evidence of Ballistic Expert M. Z. Lqbal (P. W. I) the '16-bore crime empty recovered from the wardat was opined to have been fired from this gun.
4. The autopsy on the dead body of the deceased was performed bit Dr, 0-hiitgtilddin and according tee him, the deceased had received one gunshot injury in the left chest which had caused his death. Noor Muhammad (P. W. 6) had received three injuries by a blunt weapon while Muhammad Hasan had received two incised injuries and also multiple abrasions on his knees, the first two by a sharp weapon while the third with a blunt weapon or by fire. Bhai Khan had received two incised wounds and three abrasions, the first two by a sharp weapon and the remaining three by a blunt weapon, like the back side of a hatchet. .
5. The appellant had denied his participation in the crime and had further stated that the gun was foisted on him and that lie was falsely implicated due to enmity. He had denied having abducted Mst. Shah Khatoon but at the same time had alleged that the deceased had wanted to give Mst.th Shah Khatoon in marriage to him but the other prosecution witnesses were annoyed with him for this reason and that taking advantage of the murder of deceased Jumo Machi they had falsely implicated him so that she could be given in marriage to Juwan (P. W. 10). According to the appellant, deceased Jumo Machi was murdered by a gang of dacoits operating in that region, and that the prosecution witnesses have falsely implicated him.
6. Major-General Akbar Khan, the learned counsel for the appellant, has contended that in view of the discrepancy in the number of injuries as observed on P. Ws. 131iai Khan, Noor Muhammad and Muhammad Hasan by the investigating officer and incorporated in the Mashirnama of injuries and those as, observed by the doctor, there was scope for the belief that those which were not observed, by the investigating Officer were either self-suffered or self inflicted and that, therefore, this discrepancy in the number of injuries raises a suspicion about the presence of these two witnesses at the spot at the time of the occurrence. It was further urged that the absence of injuries on the appellant and his companions also indicates tile improbability oil the prosecution version for it was not possible that the prosecution witnesses would not have retaliated in tile face of an attack by the appellant and his companions The criticism against the evidence of recovery of the gun at the instance of the appellant, was that Mashir Moula Bux. Before whom the gun was sacred was related to the complainant party and that, therefore, his evidence was of an interested nature.
With regard to matching of the crime empty 'with the gun, the objection of the learned counsel was that there was a delay of 70 days in sending the parcels to the Ballistic Expert and that this delay by itself wars sufficient to throw out the evidence of matching, for there was likelihood of the original crime empty having been substituted by the one sent to the Ballistic Expert. Thus, according to the learned counsel, the evidence of the eye--witnesses was unreliable and that, therefore, it required corrobora--tion which was lacking in the instant case as the evidence of recovery and that of matching of the crime empty with the gun was not above suspicion and could not, therefore, be taken into consideration.
7. We have examined the above contentions in the light of the evidence on record. There appears a variation in the number and position of the injuries on P. Ws. Bhai Khan, Noor Muhammad and Muhammad Hasan noticed by the investigating officer and incorporated in the Mashirnama (Exh.
15) and those found by the doctor on examination of the injured witnesses. However, we would attach no importance to this variation, for when the injuries were noticed by the investigating officer it was dark (22-15 hours) and it may not have been possible for him to determine the actual location and the number of injuries on each of the injured persons. Moreover, it is not expected of the investigating officer to make a thorough examination of each, witness with the skill with which it is done by a doctor. The preparation of the mashirnama of injuries is a routine matter and no particular emphasis can be laid with regard to its correctness for, if the witnesses are injured they are usually sent to the doctor for examination and treatment. The learned counsel for the appellant has not addressed any argument on the point that the injuries noticed and incorporated in the mashirnama by the investigating officer were not received by the injured persons. His contention that the extra injuries were either self-suffered or self-inflicted is not supported by any material on record. The injuries which are either self-suffered or self-- inflicted have special features and it is only the doctor who can give an opinion in the matter. No cross-examination was done on 'this aspect of the case. It also does not appear to us that if the witnesses had some injuries on their person why should they add more. Additionally, there is the circumstance that these witnesses reside in adjoining houses very close to that of deceased Jumo Machi and there was every probability that they would have been present at that time. This contention of the learned counsel is without any substance.
8. We are also not inclined to lay any emphasis on the fact that neither the appellant nor any of his companions had received any injury as there could not have been any question of a struggle and infliction of injuries in retaliation. The appellant and his companions .Had suddenly appeared armed with deadly weapons with a view to forcibly abduct Mst. Shah Khatoon and in that situation it could not be expected of the prosecution witnesses to offer resistence unarmed. The absence of the injuries on the appellant thus does not make the version of the prosecution witnesses improbable and we repel this contention. However, the probability of the version as given by the eyewitnes--ses that Mst. Shah Khatoon and her sister Mst. Rani who were sitting near them and were taken away by Jumo and hidden in the house of a Kolhi, is open to doubt. To us it appears that the appellant and his companions must have demanded that Mst. Shah Khatoon be handed over to the appellant and that in consequence of deceased Junto Machi's refusal to hand her over or to, disclose her whereabouts that he was shot at and killed. The injuries on the other prosecution witnesses must have been caused with a view to extort information in regard to her where-- abouts. This could be the way in which the events must have taken place as it is apparent that the object of the appellant was to forcibly abduct Mst. Shah Khatoon and not to straight--away kill the deceased. If Mst. Shah Khatoon was sitting neat the other prosecution witnesses she could not have gone unnoticed by the appellant and his companions. There was no question of any escape from the place, for she would have been the first person to have attracted the attention of the appellant and his companions. We are, therefore, not inclined to believe either the injured prosecution witnesses or Mst. Shah Khatoon and Juwan on this aspect of the prosecution case. P.
W. Juwan, if he was at all present, would have also attracted the attention of the appellant and his companions as he was the husband of Mst. Shah Khatoon. The absence of injuries on his person additionally makes his presence highly improbable and we are inclined to feel that neither Mst.
Shah Khatoon nor her husband Juwan were present at that time. The nature of injuries on the eye- witnesses and deceased Jumo Machi shows that they were caused by different weapons. There cannot be the slightest doubt that apart from the appellant there must have been other persons as well who have must caused the injuries although those tried along with him have been acquitted. The injuries on the prosecu--tion witnesses establish beyond doubt their presence at the spot. Even after eliminating the evidence of Shah Khatoon and Juwan there are still three eye- witnesses, who have implicated the appellant and there is no reason for us to conclude that he had been falsely implicated as there appears no feature in their evidence to indicate any false implication.
8-A. The appellant had fired the shot from within a distance of 3 feet. Moreover, he was known to the prosecution witnesses and there was also a lamp burning. There was thus every opportunity for the prosecution witnesses to have identified the appellant.
9. We are also of the view that the murder of the deceased was committed in consequence of an attempt to forcibly abduct Mst. Shah Khatoon. It appears that the appellant had not reconciled to the faisla and had therefore made the second attempt to abduct her. No other motive appears from the evidence of any of these three eye-witnesses for the killing of deceased Junto Machi. The reason for his implication as given by the appellant finds no support from the evidence.
10. The Learned counsel for the appellant then attempted to argue that the delay of 70 days that elapsed between the recovery of the gun and the cartridge and their final transmission to the Ballistic Expert was of a suspicious nature and that there could be a possibility of the crime empty being substituted for the original one. There is nothing on record to suggest any substitution of the crime empty. Delay by itself cannot lead to such an inference unless other doubtful features are brought out. If by reason of delay the crime empty would lose its characteristics it can then be legitimately argued that the delay would render the matching improbable. Since this was not the case, delay alone cannot be a feature which can lend to the inference of substitution. No question in cross-examination has been put to Ahmad Ali (P. W. 12), the investigating officer, in regard to any suspicious feature resulting from this delay. I frequently happens that delay ensues because of permission which is required to be taken from the higher authorities and the correspondence that is done in that connection. Since nothing positive has come on record as to the cause of delay it is no possible for us to conclude either its reason or the suspicion that is said to be attached, to this ay. P. W. Moula Bux, although related, has no enmity against the appellant. His evidence cannot, therefore, be discarded as being interested for that reason. No suspicious feature has appeared in his evidence to make the recovery doubtful. We would, therefore, accept the evidence of the recovery of the gun at his instance, for it was because of his exclusive knowledge that it was recovered from the place where it was. There is, therefore, the ocular evidence furnished, by the evidence of prosecution witnesses Noor Muhammad Hasan and Bhai Khan against the appellant which is duly corroborated by the recovery of the '16-bore gun at his instance, from which, according to the Ballistic Expert, the16-bore crime empty was fired. This evidence, according to us, has proved beyond a reasonable doubt the guilt of the appellant. The trial Court while accepting their evidence has described them as inmates of the house and their presence as natural. We are also of the same view. The trial Court has, however, acquitted his companions not on the ground that their evidence suffered from any improbability or was discrepant but that on the premise that the presence of the lighted lamp was doubtful and that, therefore, the identification of the accused was not certain and in the absence of corroborative evidence they were entitled to an acquittal.
We do not, however, agree with this reasoning of the learned trial Court, for it is expected that at a time when the occurrence had taken place the witnesses would sit in a lighted place. Moreover, the lamp was secured immediately thereafter and there is no challenge to the position that a lamp was burning. The trial Court has, however, entertained a doubt because the lamp was not mentioned in the mashirnamu pertainim tea the vardar although in point (if fact the lamp was secured under another mashirnama prepared at the same time. The oittission of the-lamp, therefore, from the mashirnama of the wardat cannot be of any consequence. We are, therefore, of the view that the learned trial Court was wrong in drawing an inference that no lamp was burning because it was not mentioned in the mashirnama of the wardat. We also feel that the trial Court had wrongly rejected the evidence of mashir Moula Bux on the ground that he was related to the complainant party and resided at a distance of 16 miles. This reasoning without any other supporting feature to make the recovery doubtful cannot be a basis for the rejection of his evidence. We have ourselves placed reliance on his evidence as we have found no suspicious feature in his evidence.
11. The learned counsel for the appellant lastly attempted, to argue that the hole caused by the discharge of the fire-arm was about 3/4" and that it could only be caused by a ' 12-bore gun which has a diameter of an inch and not that by a ' 16-bore gun which has a diameter of half an inch.
Neither the Ballistic Expert nor the doctor has been cross-examined on this aspect of the case. This is again a technical matter and there being nothing on record to lend support to this contention we are constrained not to give any weight to it as we cannot form any such opinion on this bare contention.
12. Having thus accepted the evidence of the eye-witnesses and the corroborative evidence we would uphold the conviction of the appellant on both the charges. However, as regards the sentence we do not find any mitigating circumstance for the reduction of his sentence. It was a premeditated affair and the appellant had come armed to forcibly abduct Mst. Shah Khatoon and had killed deceased Jumo Machi on his refusal to hand her over to him. The death sentence, according to us, alone can meet the ends of justice in the circumstances of this case. We would, therefore, confirm the death sentence imposed on the appellant and accept the reference. His appeal is dismissed.