KHUDA BAKHSH MARRI, J.-Five persons namely, Abdul Sattar son of Nourang Buriro, Urs son of Ali Bux Buriro, Began son of Muhammad Azim Chandio, Aligohar son of Gendal Chandio and Muhammad Waris son of Rozi Chandio were duly challaned and convicted for murder of one Misri, by Mr. A. G: Muhammad-- ally, Sessions Judge; Larkana, vide his Judgment dated 10 June 1970.
The learned Sessions' Judge however, held guilty the accused Abdul Sattar, Began, Aligohar and Muhammad Waris and convicted them under sections 148, 302r1^49; 325/149, 324/ 149, and 323/ 149, P. P: C., and sentenced each of them to suffer R. I. For 2 years, transportation for life, 3 years, 2 years and one year respectively. Accused Muhammad Waris was further convicted to a sentence of 2 years' R. I. Under section 13(d), West Pakistan Arms Ordinance, 1965, all the sentences are to run concurrently.
2. As regards to accused Urs, the learned trial Judge found him guilty for cold and calculated murder by use of fire-arm and convicted him under sections 148, 302/149 325/149, 324/149 and 323 read with section 149, P. P. C. And he was sentenced to death for like offence punishable under section 302, P. P. C. He was further sentenced 2 years, 3 years, 2 years and one year R'. I. For offences punishable under sections 148, 325/149, 324/149 and 323/149; P. P. C. These sentences are to run concurrently in case his death sentence was not confirmed by this Court.
3.Amongst the above accused-convicts, only Abdul Sattar and Urs have filed appeal against their convictions and sentences in this Court, and this matter is also before us for confirmation under section 374, Cr. P. C. As well. Both the matters will be decided by this judgment.
4.A brief summary' of the facts of this case is that one Muhammad Hayat son of Ali Muhammad lodged a First Informa--tion Report on 13-104 969, of 23 hours at -Police Out Post Khabar, recordedth by Mir, Muhammad S. H. O: Bagh Tail Taluka Osto District Larkana, who was then incharge of Police Oat Post Khabar. Complainant Muhammad Hayat reported that Wallan, and Gullan Buriros had leased -out their 90 jirebs 'of land in Deh Koor Mohabat this year to Muhammad Bux Brohi for five years. Khalifo Ali Bux, father of Wallan and Gullan and his brother Urs had leased out 125 jirebs of land to one Shah Muhammad, Chandio from this year. Out of this land 25 jirebs were in the-.Name of Gullan which was also leased out to Mohammad Box Brohi. Urs' and his father Ali Bux falsely mutated this 20 jirebs in the name of Ali Bux and leased out the same also to Shah Muhammad, Complainant Muhammad Hayat further stated that out of this 20 jirebs Gullan had given 5 jirebs of land for' cultivation to this brother Misri Magsi this year which he cultivated with: paddy. 'A civil suit filed by Gullan and others with regards to the above 20 ,jirebs was pending in the ,civil Court, Larkana. It was further stated by him that from the to the Shah Muhammad Chandio the lease- holder of 20 jirebs used to tell Misri that they would. Take the crop of the land -cultivated by him as it was leased to them by Ali. Bux and 'Urs but' Misri used to tell that he has cultivated the land as hari of Gullaa who has leased the land to one Muhammad Bux Brohi ; therefore, he would give the share ' of the crop to' him and not to them. It was further stated that about6 or 7 days before the- incident Misri harvested some crop and kept it in front of the otak of Gullan, he was pressed by Waris Chandio who was karhdar of Shah Muhammad Chandlo and Abdul Haque and their "Karavas" Bago and Aligohar to bring the crop to their dera but the deceased refused to do so. It was further complained that in the, morning the of 13-10-1969 the and his deceased brother brought some crop and kept it near otak of Gullan as usual when accused Urs and Warts Kamdar came to them and threatened them for not obeying their orders and further told deceased that if he do not bring the crop in their dera `it will not be better for him and they went :away.
Complainant Mohammad Hayat went on to state that- today at somahnitime he, his brother Misri Mohammad Alam, Abdul Rehman Magsi by caste and Wallan Buriro were sitting in the courtyard of Gullan's otak when they saw that some people were coming towards them. He and Abdul Rohman had torches. Which they flashed and in its light identified accused Urs son of Khalifo Alt Bux, Abdul Sattar son of Korang, Warts son of Roar; Wigohar son of Gendal and Began son of Muhammad Azim Chandio and to other unidentified persons, Urs had a torch and a double-- barrel gun and Waris had a single-barrel gun. The rest had hatchets in their hands. These people challenged them and asked them to put of their torches. Accused Urs immediately flashed his torch and challenged deceased Misri and told him that her has told him many a times to put the crop in their. Dera but he has refused, on this Misri tried to run away. Urs fired at him which hit him at his thigh and its front. Due to gun fire, he raised a cry and fell down on the ground. On this the complainant-- party raised cries of murder murder, accused Aligohar Began, Abdul Sattar and to unidentified persons, it is alleged, gave the complainant blows from the back of their hatchets and one blow from sharp side on the left hand and on his back. He further stated that he himself in' self-defence threw a hatchet blow to them but he did not know whether it bit any body or not. On their cries Shah Nawaz and Gullan arrived at the scene. Accused however, after firing in the air ran away towards East, the incident was narrated to Shah Nawaz and Gullan by the complainant party. It was reported by the complainant that due to gun-fire Misri had bled and he died on the spot. He further stated that Muhammad Alam was sent by him to inform Wahid Bux who also came and he was told about the incident and he saw Misri lying dead and he advised him to lodge a report. The complainant then left Muhammad Alam and Abdul Rehman at the place of incident and himself went to lodge the report. He further stated that Urs had a gun licence and in murdering Misri he was instigated by Abdul Haque Buriro, Shah Muhammad Chandio and he requested that investigation be made.
5: Thereupon A. S. I. Mir Muhammad P. W. 13 recorded the F. I. R., prepared the mashirnama of injuries on complainant Muhammad Hayat in presence of mashirs Shamsuddin P. W. 8 and Abdullah: The complainant also produced his torch and hatchet at the Police Post which was taken possession of in presence of same mashirs. The injured complainant was sent to hospital and he himself went to wardat and prepared the necessary mashirnamas in presence of mashir Wahid Bux P. W. 7 and Qamardin. The Investigating Officer found the dead body of the deceased just outside the otak of Gullan. He secured blood--stained earth, sealed the same. And also found paddy sheaves near Gullan's otak, prepared inquest report and sent the dead body for post- mortem examination through Constable Manzur Hussain P. W.
2. He examined Gullan, Wallan, Shah Nawaz, Muhammad Alam, Wahid Bux and Abdul Rehman who produced his torch as well which was secured in presence of mashirs Wahid Bux and Qamardin.
6. On 17th October 1969, he arrested accused Aligohar, Began and Waris from Jamal Khan Chandio village, 10 or 12 miles away from the wardat. An interesting feature of this case is that on 14th October 1969, i.e. The next day of the incident when Constable Abdul Kadir was incharge of Khabar Out Post accused Abdul Sattar lodged a counter report at 12-30 p.m. He to had injuries on his person and mashirnama of his injuries was prepared and, he was sent to Medical Officer, Shahdadkot according to the report of accused Abdul Sattar, the incident took place 15 to 20 paces away from the place reported by Muhammad Hayat previously. Constable Abdul Kadir also visited both the alleged places of wardat but he found no blood in the place of wardat alleged by accused Abdul Sattar, he prepared the necessary mashirnama.
7. Accused Urs was arrested by S. I. P. Sarwar Beg from Larkana on 17th October 1969, he produced his father's gun, its licence and some empty and live cartridges. He also produced his torch. These were secured in presence of mashirs Moula Bux P. W. 9, and Ali Muhammad, both the cases were sent up before the Resident Magistrate Kambar who committed them to the Sessions Court, Larkana, where they were tried and convicted as stated above.
8. As far the injuries on the deceased there is oral testimony of, the witnesses as well as evidence of Dr. Mutalib Hussain P. W. 14 who noticed the following injuries on the dead body of Misri on external examination "A gunshot entrance wound on the upper' part medial side of left thigh with multiple pellet wounds within the area of 3" in length and 4" in breadth, with to holes in the centre each measuring 1--" circular in shape, 4" deep of double fire."
The injury according to the doctor .Was ante-mortem and appeared to have been caused by discharge of a fire-arm i.e. a gun, and-was sufficient in the ordinary course of nature to cause death. From the internal examination of the deceased the doctor was of the opinion that the cause of death was shock and haemorrhage as a result of the injuries stated above and the death was instantaneous.
9. As regards to the injuries suffered by complainant Muhammad Hayat there is evidence of injured person himself together with evidence of other eye-witnesses Wallan; Abdul Rehman and Muhammad Alam P. Ws. Wahid Bux and Gullan and mashir Shamsuddin has also deposed to the same effect. Over and above this, there is evidence of Dr. Mutalib Hussain P. W. 14 who, found the following injuries on the person of Muhammad Hayat
(1) A contusion on left side of the neck measuring 2--"x 1"-
(2) A contusion on the right side of the neck 2" x 2".
(3) A contusion on the right ear 1" x 1".
(4) A contusion on the right deltoid muscle 2" x 1".
(5) A contusion on the upper part of the right leg 3' x 2".
(6) A contusion on the upper part of the back of right leg 3" x 2".
(7) An incised wound on the root of index finger, 1" x 1/6" x 1 /6".
(8) A linear scratch on the left scapular region 4" long.
In the opinion of the doctor, injury Nos. 7 and 8 appeared to have peen caused by sharp cutting weapon while 'the rest were caused by a blunt weapon like a lath' or back side of a hatchet and.
Injury No. .5 alone was grievous in nature.
10. As the factum of death of Misri and the injuries sustained by the complainant Muhammad Hayat by violence has not been challenged on behalf of the accused, therefore the learned Sessions Judge has rightly reached to the conclusion that death of Misri and injuries to Muhammad Hayat were caused by violence.
11. At the trial all the accused flatly denied having committed offences. Accused. Urs admits that there is a dispute between him acid P. Ws. Wallan and Gullan his step-brothers who according to him are of bad character. He denied having produced the torch or his father's gun or its licence, but he admits that he is shown as retainer in the said guts licence; he further alleges that, all the witnesses who gave evidence against him are thieves who joined together to implicate him. He produced a true copy of Exh: 42 a criminal complaint under section 107, Cr. P. C. Filed, by one Mithel against him and others -in which his brother Gullan appeared as a witness. In his statement under section 342, Cr. P. C. He in fact even denied his presence at wardat at the relevant the and in reply to a question put to him as to why co-accused Abdul Sattar implicated him in his counter-report filed against the P. Ws. Muhammad Hayat, Wallan, Gullan, Faiz Muhammad and deceased Misri, his reply is simple denial and pleaded alibi.
12. As regards to accused Abdul Sattar he denies having committed offences and stated that he had gone to spend that night with Muhammad Khan and Dilloo and while he was sleeping there' he woke up when complainant Muhammad Hayat inflicted injuries on him and in return he to gave injuries in self-defence in the house of Muhammad Khan and Dilloo. He further admits the filing of counter-report Exh. 30.
13. Rest of the accused have simply denied their participa--tion in committal of the offences and they have pleaded false implication by the prosecution witnesses but none of them however, led any evidence in their defence.
14. Before we proceed further it is necessary to ascertain the relationship of the main accused with some of those among the complainant party. It so happened that Ali Bux alias Khalifo: Ali Bux married three wives. He had from these wives 5 sons, out of which P. W. Wallan has a real brother by the name of Ahmed, P. W. 12 Gullan is from a second wife. Accused Urs and Saffar are from his third wife. It appears that at the the of incident their father Ali Bux was about 100 years old. It is stated by P. W. 12 Gullan that he being the eldest son was look--ing after 100 jirebs of the family land. He stated that his paternal grand-father had given' him 30 jirebs exclusively which he used to cultivate himself apart from taking care of the joint family 100 jirebs. He stated that out of this 30 jirebs he had given 5 jirebs to deceased Misri for cultivation, this was about 8 months prior to the incident. He alleged that his step-brother Urs got 20 jirebs of his exclusive land transferred to the khata of his father deceitfully, he therefore, filed a suit against his father and against the purchaser to whom the land is alleged to have been sold by his father and he -produced Exhs. 14 and 15 copies of the plaints which he filed, which were still pending decision and at the same the he claimed that he however, was all along in possession of his 30 firebs and when the crop was ready Misri deceased started storing it near his otak. This at of deceased Misri was objected by his step-brother Urs as he has leased out this land in dispute to Shah Muhammad Chandio and wanted to appropriate his 5 jirebs' crop as well. This fact was told to him by deceased Misri and he further informed that Urs had threatened to "kill" him if he continued storing the crop at Gullan's otak. From the narration of above facts it is quite clear that there was an existing dispute between the step-brothers about 30 jirebs of land which was allegedly given to Gullan by his paternal grandfather. It seems that other four brothers were aggrieved who have not a share from these 30, firebs which resulted in the pending cases and counter cases in various lower Courts. It appears that accused Urs and his brother Saffar were living together and had support or otherwise the influence of their old father on their side in pending dispute regarding land against their other to step brothers Gullan and Wallan.
That is why the land in dispute was leased out simultaneously to different lease-holders, by accused Urs and his father to one Shah Muhammad Chandio and on the other hand by Gullan to one Muhammad Bux Brohi, simply for the purpose of showing possession as well as entitle--ment to the land in dispute and for the purposes of creating perhaps some evidence in their favour; for decisions of the pending suits in the lower Courts. Admittedly the father who was very old failed to bring any compromise between the step-brothers and it will not be wrong to presume that each lease-holder had a counter claim and. After advancing certain amounts to the respective claimants, naturally instigated the various brothers to protect their interest which resulted in this unfortunate incident.
15. There is enough ocular evidence, with regards to the incident resulting death of Misri and injuries to Muhammad Hayat who were mere haris having no personal interest except for their share in the produce, apart from medical evidence on record. The evidence of complainant Muhammad Hayat as revealed in his F. I. R. Is supported by the statement of P. W. 4 Wallan who is the step-brother of accused Urs. He stated that he was, on the date of incident, sitting at the otak of Gullan along with others, when Muhammad Hayat brought food for deceased Misri at somhani the and in his cross- examination he stated that Misri had his meal before the incident and he was sitting on a different cot and he stated in his examination-in-chief that he was sitting along with Muhammad Alam, Abdul Rehman; Misri and Muhammad Hayat in the otak of Gullan when at somhani the 7 persons came to the place where they were sitting. He recognised the accused persons in the light of the torches by Abdul Rehman and Hayat, their faces were open. He further stated that identified them to be accused Urs, Waris, Abdul Sattar, Aligohar and Began. The other to companions were not known to them, Urs and Waris had guns and rest of them had hatchets. Accused Urs flashed his torch and told Misri that the day had come for him to breath his last as he did not listen his advice in handing over the crop of the land to him. Thereupon accused Urs fired at Misri who fell down as a result of the fire. We all then raised cries. Muhammad Hayat had a hatchet. He used it but I cannot say who was injured by it, and all other accused gave injuries both by sharp and blunt side to Muhammad Hayat. He further stated that I received no injury. He further testifies that Misri died within a few minutes. He admits that his statement was recorded by the police under section 164, Cr. P. C.
16. The next eye-witness is P. W. 5 Abdul Rehman by caste Magsi. He supports the prosecution case with regards to the incident and the involvement of the accused by stating that deceased Misri complainant Muhammad Hayat, Wallan and Muhammad Alam and he, were sitting in the otak of Gullan when 7 persons came there. He and Muhammad Hayat had torches which they . Flashed and identified the accused. Their faces were open, Urs and Waris had guns and the rest .Had hatchets. Urs had a torch also. He further testified that "Urs told Misri that his day of resurrection had come as he had misbehaved them." Urs then fired his gun at Misri as a result cf. Which he got injuries and fell down, complainant Muhammad Hayat also sustained some hatchet injuries from the accused persons. At this they raised cries which brought Shah Nawaz and Gullan and others at the wardat. They also saw the accused retreating and names of the accused were told to these persons. Tie further stated that Muhammad Alam was brought by Wahid Bux and Misri died there and then. He admits his statement was recorded by the police and he produced his torch before the police and he says that he has no dispute with any party. Then we have the evidence of P. W. 6 Muhammad Alam by caste a Magsi. He also supports in his statement the presence of Muhammad Hayat, Gullan Wallan, Abdur Rehman and himself at Gullan---s otak. His evidence in-fact is not different than those of the previous witnesses with regards to the coming of the accused persons and use of fire-arm by Urs and hatchet blows by the other accused to Muhammad Hayat and also the story with regards to the torches and recognizing the accused persons. He further stated that he was told by Muhammad Hayat and deceased Misrf with regards to the dispute about the crop and the threats extended by the accused Waris it the morning of the date of incident.
17. Then we have the evidence of P. W. 7 Wahid Bux, although not an eye-witness but he reached the wardat on being called by Muhammad Alam P. W. 6 soon after the incident. His house is situated nearby. He went to the wardat. He saw Misri deceased and injuries of Muhammad Hayat.
He further testified that he has seen Wallan and Abdul. Rehman also there. He states that on his arrival he was told that Urs had come with 7 persons and fired at Misri as a result of which he died and rest of the accused caused injuries to Muhammad Hayat. This witness was examined by the police and he was a masher also at wardat and also recovery of the torches and blood-stained earth.
18. From the perusal of the statements of the prosecution witnesses we have no reason to disbelieve the prosecution case' as set up in the F. I. R. And supported by ocular evidence of P.Ws.
Wallan, Abdul Rehman, Muhammad Alam, Gullan and complainant Muhammad Hayat. Their statements are consistent in every detail and nothing has been stated to the contrary by these witnesses in their cross-examination to raise suspicion , or doubt that they are not truthful witnesses. The Police Station was at one mile distance and the F. I. R. Was lodged promptly. There was not much the on the part of the complainant to concoct false allegation against the accused person. No enmity admittedly existed between the complainant Muhammad Hayat and deceased Misri with the accused persons. In any case the accused failed to show in the trial Court that in fact any such enmity existed between them to implicate them falsely. The dispute of the brothers with regards to the land has already been stated earlier, therefore, the participation of accused Urs along with other accused to punish the deceased and his brother being the haris of his step-- brother cannot be ruled out as they have disobeyed him. The factum of filing of counter-report by Abdul Sattar accused on the very next .Day against the complainant-party and the injuries caused due to the fight of the previous night lends support to the prosecution case that he along with other accused in fact did participate in the fight. In fact in his counter-report he stated that accused Urs was a person who fired the gun at deceased although he tried. To cover the offence by taking the plea of self-defence but there is sufficient evidence of the other witnesses to show that it was a pre-planned attack by the accused on complainant party.
19. At the the of arguments Mr. Tufail Ali A. Rehman, learned counsel for the appellants vehemently argued that accused Urs as alleged in the prosecution evidence to have a gun as well as a torch and his flashing of the torch and firing of the gun at the same the cannot be reconciled with because as he argued, the handling of the gun require the use of both the hands and wanted us to believe that the prosecution story as regards firing of the gun by Urs should not be believed on this score. We are afraid, e we are not convinced by this argument at this minor contradiction in the statement of one of the P. Ws., is not sufficient to disbelieve the consistent ocular evidence of many P. Ws. With regards firing of gun by Urs. As regards participation and presence of accused Abdul Sattar the learned counsel for the appellants had not much to say and very rightly so in view of the injuries sustained by Abdul Sattar and his counter-report the very next day, although a clever move on the part of Abdul Sattar but belied by the evidence of the prosecution witnesses.
20. After giving our anxious thought we cannot but believe the prosecution story particularly so when to step-brothers of accused Urs, namely, Wallan and Gullan categorically stated the involvement of accused Urs. Out of these to step-brothers P. W. Wallan is an eye-witness of the incident and he testified the factum of use of fire-armby Urs, against deceased Misri and the involvement of other accused. It is also clear that P. W. -W-Allan has another real brother Ahmed.
They are from the third wife of Ali Bux. He has no dispute or claim at least with regards to the 30 jirebs of the land so it cannot be said that this P. W.Will involve his step-brother-accused Urs innocently and will give false evidence against' him.. As regards to the statement of other step-- brother, brother P. W. Gullan against accused. Urs although there is some dispute between the step-brother about a piece of -land but it becomes unbelievable that a brother; or ,a step-brother will', go to the extent of falsely implicating a brother knowing fully well the consequences that in case he vas found guilty he has- to go to the gallows. There is another, circumstance which lend support to this argument Le- father of. Accused and P. Ws. Ali Bux was alive the the and sometime thereafter of the occurrence, in base Wallan and Gullan. Were so callous and mean enough to involve their step-brother accused'. Urs innocently it will not be wrong to argue that their father although very old and sick would-have use a some influence at- least to prevail upon them not. To involve-.Their own brother innocently: This failure on the part of father or failure' on the part of to brothers to change their statements before the Courts below, lend support to the truthfulness of their evidence and we have no reason to disbelieve the statements of these brothers which have been supported by the ocular evidence of other witnesses .Referred to earlier The learned counsel for-the appellant drew our attention to certain pending proceedings between accused Urs and P.
W Wallan and his other step--brother Gullan' 40 show, that: there was sufficient enmity between these- persons to involve Urs innocently We are afraid weare not convinced by this argument of the learned counsel because the proceedings between the brothers are, of minor nature i.e. a declaratory civil suit as well as proceedings under section 107, Cr. P.C Now normally this kind of proceedings are very common between interested parties with regard to property and on such petty disputes murders are no usually committed
21. In view of the above facts and reasons we are the-Arm opinion that the prosecution had sufficiently proved its case against the accused persons and there is sufficient ocular evidence against them. It was a cold and calculated murder committed by accused Urs with support of other, accused in this case and the learned trial Judge in: our opinion has very rightly convicted the appellant---s. We have no other alternative but to confirm the sentence of death awarded to the accused Urs under section 302, P.P.C: we also uphold the sentences of transportation for Life and other sentences awarded against appellant Abdul Sattar. The sentences are to run concurrently.
22. As out of the five accused only to persons Ursand Abdul Sattar have come in appeal before us we refrain to say anything, about the other three accused persons namely. Began, Aligoharand Muhammad Waris.
23. The result is that the appeal stands dismissed.