1. ' ASLAM RIAZ HUSAIN,. J.-Sahib alias Sabel and his brother Soomar were convicted by the learned Sessions Judge, Khairpur under sections 302, 307, 34, P. P. C. For the murder of Umed Ali son of Usman and for making a murderous assault on Wahib Bux and Ghulam Muhammad. Soomar was also convicted under section 13 (e) of the Arms Ordinance, 1965 for being found in possession of an unlicensed gun. For the offences under sections 302, 307, 34, P. P. C. And 13 (e) of the Arms Ordinance, 1965 Soomar was sentenced to transportation for life, 5 years' R. I and 2 years R. I.
2. Respectively, while Sahib alias Sabel was sentenced to transportation for life under section 302/34, P. P. C. And 5 years' R. I under section 307/34, P. P. C. Their appeal was dismissed by the Sind High Court. They then filed a petition for leave to appeal (No, J. P. K/7 of 1972) before this Court from Jail.
3. Leave was granted by two learned Judges of this Court on 22-9-1972 on a limited point which did not require the re-opening of the whole case or re-appraisal of the entire evidence. It would be useful to reproduce the Leave Granting Order recorded by Waheeduddin Ahmad and Salahuddin Ahmed, JJ. : "The point for consideration in this petition is whether the prosecution witnesses were able to identify the petitioners. It was the 8th of lunar month and it is to be examined whether the moon was in such a condition that the prosecution witnesses could see the accused persons. I am inclined to grant leave in this case."
4. ' The facts necessary for considering the aforementioned question be recorded here briefly.
5. ' The occurrence took place on the night between 14/15 August 1969, near village Pirjogoth. Umed Ali, deceased (son of Usman P. W.), his brother Wahid Bux and Ghulam Muhammad, brother-in-law of Usman were sleeping under a shed in open land to look after the sheep and goats tethered on the said uncultivated land. Usman P. W. And his brother Mitho were sleeping at a short distance from them. At about mid-night Usman woke up on hearing the report of a fire-arm from side of the shed. He and Mitho rushed to the spot and saw three persons standing near the cot of Umed Ali, deceased. They recognized Soomar and Sabel accused, appellants in the moonlight. Soomar was armed with a gun while Sabel was armed with a hatchet. But they could not identify the third person who was armed with a hatchet. They saw Sabel, appellant inflicting hatchet blows to Ghulam Muhammad P. W. While the unidentified person was inflicting hatchet blows on Wahid Bux P. W.
6. ' Usman P. W. And Mitho challenged the accused but they fled away with their respective weapons.
7. Shahnawaz and Ali Nawaz who were sleeping at some distance, also reached the spot on hearing noise. Usman P. W. Narrated the incident to them and also told them the names of the two assailants whom they had recognized. Usman P. W. Then went to the police station, Pirjogoth and lodged a F. I. R. At 5 a. m. Which was recorded by Abdul Aziz A. S. I. The two injured persons were also brought to the police station in a bullock cart by Sher persons. The A. S. I. Recorded their statements and sent them to the hospital for treatment.
8. ' The motive for the offence is stated to be that Ali Madad, a brother of the two appellants had been murdered about two years earlier for which LTsman P. W. And his two sons Ali Hasan and Gul Hasan were acquitted.
9. ' S. H. O. Bahar Ali went to the spot and conducted the investigation. He recovered an empty .12 bore cartridge and also took into possession some blood-stained earth from the spot. He sent the dead body of Umed Ali for post-mortem. The two appellants were arrested by the Head Constable Sohrab Khan. Blood-stained Banyan and shirt of Sabel, appellant, were removed from his person and taken into possession. Sabel, appellant also produced his licensed .12 bore gun from inside the house. This gun and the empty .12 bore cartridge recovered from the spot were sent to the fire-arm expert who reported that the empty cartridge matched the gun. The postmortem report revealed the following injuries on the body of Umed Ali: ' One gunshot wound entrance star-shaped the central circular part measuring 1 x 1" brain deep.
10. Each limb of the star measuring 1 to 2.
11. ' Following injuries were found on the two injured persons of : ' Wahid Bux P. W.-"An incised wound 2 x 1" incompletely cutting the underlying sternum running horizontally:
2. Abrasion-cum-swelling 1" x 1/2" on and below the left side of the lower lip."
12. Ghulam Muhammad P. W.-"An incised wound 6" x 1" cutting underlying bone and frontal lobe of the brain about 1" running from the below upwards on the right side of the head starting from the zygomatic orach about 1/2" behind the right eye. This bone was cut through and through". (This was found to be a grievous injury).
13. ' At the trial, the prosecution relied on the ocular testimony of Usman, Wahid Bux and Ghulam Muhammad P. Ws., the recovery of clothes found stained with human blood and the gun of Sabel, appellant which matched with the empty cartridge found from the spot, the medical evidence and the evidence of motive.
14. ' The accused (appellants) when examined before the Committing Magistrate denied their guilt. In their statements before that Court they stated that the P. Ws. Had involved them in the case due to enmity but at the trial they denied it. When asked at the trial as to why the prosecution witnesses had implicated them, they stated that they had done so without any reason. Sabel admitted the recovery of the gun from his house. As to the recovery of bloodstained clothes, he first admitted but in the same breath resiled from the admission and said that the witnesses were related and were victimizing them unnecessarily.
15. ' The trial Court believed the evidence and convicted and confirmed the sentence, as stated earlier.
16. The High Court rejected their appeal.
17. ' The short question on which leave was granted is as to whether the eyewitnesses could have identified the assailants.
18. All the eye-witnesses have stated that the two appellants were previously known to them. This is supported by the fact that the accused/appellants had themselves admitted before the Committing Magistrate that there was enmity between them and the eye-witnesses, which implies that they, i.e, the eye-witnesses and the two appellants knew each other previously. It is noteworthy that the eye-witnesses were honest enough to admit that they did not know the third assailant who had accompanied and joined the two assailants in the attack. If they were liars and intended to implicate the appellants due to enmity, they could have easily named a third person from amongst the relatives of the appellants as the person who had given hatche blows to Wahid Bux P.
19. W., and the injuries found on the person of Wahi Bux would have formed corroboration of the evidence against that person. Moreover, at least two of the witnesses, namely Ghulam Muhammad and Wahid Bux had seen the assailants from very close quarters, as they had been attacked and injured with hatchets. Even Soomar appellant is said to has fired a shot at the deceased from a very close short distance, which is evident from the dismension of the fire-arm injury on the body of the deceased, and the extent of the spread of the pellets. Admittedly it was the night of the 8th of lunar month and the moon was still in the horizon at that time. Considering that the witnesses knew the two appellants even previously, they would have had no difficulty in identifying them, even though it was not full-moon on that night. Had the eye-witnesses not identified any of the assailants and decided to falsely implicate their enemies due to suspicion, the would not have stated that they did not know the name of the third person because in that case they could have easily named some other member of the appellants' family. As such we feel that the learned Courts below were justified in not doubting the statements of the eye-witnesses that they had identified the two appellants. In this view of the matter we find that there is no merit in this appeal, which is, consequently, dismissed.