G. M. SHAH, J.-The two appellants, who are brothers inter se, were tried and convicted by the learned ex officio District and Sessions Judge, Thatta, under section 302 read with 34 of P. P. C. And sentenced to death by the judgment dated July 6, 1978.
2. The appellants have preferred the appeal against their conviction and sentence. There is also a reference made under section 376, Cr. P. C. For confirmation of the death sentence. This judgment will dispose of both, the appeal, as well as the reference.
3. Shortly stated the prosecution case is that the deceased Shero was masat (son of mother's sister) of the first informer Jumo. Deceased Ramzan was 'masat' of deceased Shero. Jumo cultivated theland, as a 'hari' of Sahib Dino Khan Gaho in Deh Kathor. And the appellants are the 'haris' of Imam Bux Gaho uncle of Sahib Khan. With his family, Jumo was residing on his land. They had small village of Goondras comprising of only about five houses, near Ghulamullah Town.
Deceased Shero was also residing in the same village, whereas deceased Ramzan was living in Karachi in those days. Beero is brother of deceased Shero. Mst. Asi is daughter of Beero and niece of deceased Shero. She is married to appellant Guli' atlas Gul Mohammed and in exchange Mst.
Hajran, sister of Guli, is married to Ado, brother of deceased Shero. Mst. Asi became ill. Appellant Gulli had a reputation of being a notorious man and a habitual "Garashi". He did not care to get his were Mst. Asi treated, for her illness. Deceased Shero, therefore, became angry with the appellant Gulli and brought her to his house and then took her to Karachi for medical treatment. Over this, the relationship between appellant Gulli and Shero had become strained, and developed into enmity.
They had made applications against each other. No settlement could be reached, in spite of the intervention of the 'Nekmards' of Ghulam--ullah Town. One day before the occurrence deceased Ramzan came from Karachi and stayed with deceased Shero in the village. He bad a licensed revolver with him. On the same night P. W. Ali Mohammed Shaikh also came and stayed as a guest with deceased Shero.
4. One day prior (18-9-1974) to the day of occurrence, deceased Ramzan and Shero had brought bailable warrants, issued by the Court of the Mukhtiarkar and F. C. M., Thai, District Jacobabad for service through the D. M., Thatta on both the appellants. The warrants were first received at P. S. Mirpur Sakro, from where, they were endorsed to Police Post Ghulamullah for service as the accused named therein, namely appellants Aboo and Gulli resided within the jurisdiction of that Police Post. The A. S. I. Mohammad Aslam (P. W. 10) served the bailable warrants and released the two appellants on bail. Both the appellants got enraged and were furious with the deceased Shero and Ramzan, who had got a criminal case filed against them at a tar-of place, in order to harass and intimidate them.
5. The prosecution case further is that on 19-9-1974 at about 8-30 a.m., Ramzan had left the village in order to return to Karachi. Deceased Shero went with him to see him of at the Bus Stand on the main road at Ghulamullah Town. Ali Mohammed Shaikh (P. W. 9) wanted to go to Mirpur, Sakro. He had also joined both the deceased. First informant Jumo and his cousin Jano (P. W. 8) who resides only about 10 paces away from Jumo, also left their houses at about the same time to go for house purchases and daily work, at Ghulamullah Town Both the deceased Shero and Ramzan, accompanied by Ali Mohammed Shaikh were about 150 or 200 paces ahead of Jumo and Jano.
6. When deceased Ramzan, Shero and P. W. Ali Mohammed Shaikh reached "Sim Nali" on the inspection path, both the appellants, who were hiding, suddenly came out from the jungle of 'Sar' bushes. Appellant Aboo was armed with a hatchet, and appellant Gulli had a lathi with an iron ring, at the end, In his hand. They at once attacked both the deceased: Abog caused hatchet injuries first, to Ramzan, who fell down. And appellant Gulli gave a lathi blow on the head of deceased Shero, who also fell down. As a result of the blow, the lathl broke into two pieces. Appellant Aboo then in--flicted hatchet blows to Shero and killed him at the spot. On the cries, P. W. Ayub, who was standing on the other side of the bank of the "Sim Nali", working in his field, came running towards the vardat. He had also witnessed the occurrence. Seeing the deceased being attacked P. W. Ali Mohammed Shaikh started running, towards Sulleman's Hotel, on the main road of Ghullamullah Town to save his life. Both the appellants chased him. The Hotel would be at a distance of about 630 feet. Sulleman, who is since dead, intervened and to save Ali Mohammed. The appellants thereafter went away. The complainant left P. Ws. Jan Mohammad and Ayub with the dead bodies and went to Police Post, Ghulamullah, and lodged the F. I. R. Exh.
7. After recording the report, the A.
S. I. Mohammad Aslam was about to leave for the vardat, when both the appellants appeared at the police post at about 10-20 a.m. Their clothes were blood-stained. Aboo appellant had the blood-stained hatchet in his hand and Gulli was empty handed. They were interrogated and arrested. Both had minor injuries on their person, which were noted in Exh.
11. The blood-stained hatchet, as well as, their clothes, shirt, shalwar, and banyan, from Aboo; shirt, shalwar, banyan and turban, from Gulli, were secured under the Mashirnamas Exhs. 12 and 13 by the Police, in presence of the Mashira Khamoo and another. The A. S. I. Informed the S. H. O. Mir Put Sakro on Telephone, at about 10-25 a.m., and himself proceeded with the police party, to the vardat, accom--panied by Jumo, the first informant. The vardat was pointed out by Jumo. In the meantime the S. H. O. Irshad Ali Mughal, also reached there, at the vardat, at about 11-50 a.m. And took up the investigation of the case. There were 'sur' bushes nearby. A lathi with iron rings, at the bottom tip, broken in two pieces, was lying there. One loaded revolver of '32 bore, alongwith bandolier, was found lying, near the 'sur' bushes, at a distance of 10 paces, from the dead body of deceased Ramzan. On inspection of the rounds, it was found, that all the cartridges were misfired. The "Sim Nali" was only 5 paces away from the dead bodies: The S. H. O. Prepared the mashirnama of the vardat Exh.
15. On the following day (20-9-1974) both the appellants were produced before the Mukhtiarkar and F. C. M., Mirpur Sakro for recording of their confessions. The blood-stained clothes and the hatchet were sent to the Chemical Examiner on 25-9-1974, whose report is positive (Exh. 31) that the articles were stained with human blood. The revolver and the cartridges were forwarded to the Forensic Expert for examination and report. He opined (Exh. 32) that out of seven, only three cartridges were misfired. No opinion could be given about the remaining four cartridges as they had more than one bit and the points of identity could not be established. After completing the investigation, the case was challaned in the Court.
7. The autopsy on the dead bodies of both tine deceased were performed by Dr. Abdul Ghani Memon, who was then the Medical Officer Incharge Rural Health Centre, Mirpur Sakro. Since then, he has gone out of Pakistan. It is not known, when he is likely to return, as is stated by Dr. Bashir Ahmed. The post-mortem reports were produced by Dr. Bashir Ahmed, who was conversant with his handwriting/the signature. Following external injuries were found on the dead bodies Ramzan son of Dost Muhammad, caste Mandro Goondar
(1) Incised wound 8' x 4' over the back of the neck cutting the skin, muscles, veriverlal column with spinal cord.
(2) Incised wound 6' x 4' over the right shoulder, cutting the flap of skin and muscles above, downwards.
Shero son of Mando caste Mandro Goondar:
(1) Incised wound oblique 4' x 3' over a right upper arm skin, muscles, brachial vessels and bone cut which just out from the wound.
(2) Incised wound 4' x 4' over the back of right knee joint cutting the skin, blood vessels, muscles, bones (only muscles and skin flap remains anteriorly).
(3) Lacerated wound --' x -- with laceration over frontal region in the middle.
8. In tine opinion of the doctor, the death of the deceased was caused by Injuries Nos. 1 and 2 which were individually and collectively sufficient, in the ordinary course of nature to have caused the death of the deceased. Both the injuries appeared to have been caused by a sharp cutting weapon like a hatchet. Injury. No. 3, however, appeared to have been caused by a hard and blunt object like a lathi. The death must have occurred within a few minutes.
9. The defence of the appellants was of complete denial. They stated that Mst. Asi was left by appellant Gulli with her father at Malir Karachi, to get her treated. They claim to have been arrested on 18-9-1979 by A. S. I. Aslam from Ghullamullah Town under non-bailable warrants and were continuously kept in the Police lock-up. They displayed ignorance about the instant occurrence of 19-9-74. They also denied having surrendered at the Police Post with blood-stained hatchet and clothes and giving Con--fessional statements on 20-9-74, before the Mukhtiarkar and F. M. C., Mirpur Sakro, which they assert, were managed by the Police and were given at their instance.
Giving reasons of their false implication, appellant Aboo stated that Mst. Chatul, his cousin, was first betrothed to aim. She was enticed away by Siddik son of Gaho, who has detained her ever since.
He had objected to the enticement. Therefore Siddik had gut this case foisted upon them, through the witnesses, who are his hurls and kamdar. Appellant Gulli had adopted the same statement, and both had led no evidence in defence.
10. We have been taken through the entire evidence in this case by the learned counsel for the appellants Mr. Rasool Bux Baloch and Mr. Sarfraz Ahmad, Asstt. Advocate-General for the State.
11. The question whether the deceased Ramzan and Shero had sustained the injuries and had died as a result thereof, are not disputed. The evidence of Dr. Bashir Ahmed shows that the injuries on the person of both the deceased, were ante-mortem and were sufficient in the ordinary course of nature to have caused their death. There is also the ocular evidence of eye-witnesses Jumo, Ayub, Jan Mohammad and Ali Muhammad Sheikh, who have deposed that both the deceased were caused the injuries and as a result, they died at the slot.
12. While convicting the appellants, the learned trial Judge had con--sidered the following pieces of evidence against the appellants and relied upon them except, the judicial confessions:
(1) Ocular testimony of--
(i) Jumo First Informant.
(ii) Ayub.
(i.e) Jan. Mohammad alias Jano and
(iv) Ali Mohammed Shaikh
(2) Surrender of both the appellants at the Police Post, on the same day, soon after the occurrence.
(3) Production of blood-stained hatchet by appellant Aboo and recovery of blood-stained clothes from the person of both the appellants.
(4) Judicial confessions which were not relied upon.
(5) Motive.
The direct ocular evidence in the case is furnished by first informant Jumo Goondar and the eye- witnesses Ayub Khaskeli, Jan Mohammad Goondar and Ali Mohammed Shaikh. Jumo and P. W. Jan Mohammad are admittedly related Inter se, and in turn are also related to both the deceased.
Whereas P. Ws. Ayub who is a Khaskheli by caste and Mohammad Ali, is Shaikh by caste. They have no connection or relationship with the deceased or the first informant Jumo and witness Jan Mohammad. They have no enmity with or hostility towards any of the appellants. P. W. Mohammad Ali claims to have been with the deceased at the time the murderous assault was made on them.
Jumo and Jan Mohammad were about 150 paces only, behind them. Whereas Ayub was present in his field at the time of attack. All of them have unanimously testified that within their sight, each of the appellants had attacked both the deceased and appellant Aboo, who was armed with a hatchet, gave blows to Ramzan deceased. At the same time, appellant Gulli, who was armed with a lathi, having an iron tip at the bottom, gave lathi blow on the head of the deceased Shero, as a result the lathi broke in the two pieces. Appellant Aboo then gave hatchet blows to deceased Shero. The F. I. R. Was lodged by Jumo without any loss of time. He bad mentioned therein, the names of all the witnesses Ayub, Jan Mohammed and Mohammad Ali Sheikh. The version of the first informant Jumo and his relation Jan Mohammad is fully corroborated by the testimony of the two independent witnesses Ayub and Ali Mohammed Shaikh. Mr. Rasool Bux Baloch has criticised the evidence of the eye--witnesses and has argued that first informant Jumo and witness Jan Mohammad are related inter se, as well as, to both the deceased, with whom the appellants bad recorded enmity, therefore, their testimony requires independent corroboration. These witnesses are also related to both the appellants. Their version is corroborated by the other two independent witnesses Ayub and Ali Mohammed Shaikh. Their testimony also stands supported by the appellants surrendering at the police post and producing the blood-stained hatchet and blood- stained clothes from their person. Medical evidence also corroborates their version, which is in conformity with the details of the attack mentioned in the F. I. R. Their version, we have found, is free from any material discrepancies or inconsistencies in the evidence on the record. Mere relationship only, by itself cannot be a ground to discard their version altogether, The question of interested witnesses and independent corroboration required, for accepting their evidence, came up for consideration in the case of Nazir reported in PLD 1962 SC 269 where their Lordships were pleased to hold: "It is possible to lay down a rule of law "that a witness belonging to a particular category is to be presumed to be unworthy of credit without corroboration. In the case of an accomplice such a rule has already been accepted by the Courts. But we had no intention of laying down an inflexible rule that the statement of an interested witness (by which expression is meant, a witness who has a motive for falsely implicating an accused person) can never be accepted without corroboration.
There may be an interested witness whom the Court regards as incapable of falsely implicating an innocent person. But he will be an exceptional witness and, so far as an ordinary interested witness is concerned, it cannot be' said that it is safe to rely upon his testimony in respect of every person against whom be deposes. In order, therefore, to be satisfied that no innocent persons are being implicated along with the guilty, the Court will, in the case of an ordinary interested witness look for some circumstances that gives sufficient support to his statement, so as to create that degree of probability which can .Be made the basis of conviction. This is what is meant by saying that the statement of an interested witness ordinarily needs corroboration. For corroboration, it is not necessary that there should be the word of an indepen--dent witness, supporting the story put forward by an interested witness. Corroboration may be afforded by anything in the circum-- stances of a case which tends sufficiently to satisfy the mind of the Court that the witness has spoken the truth. What circumstances will be sufficient as corroboration, it is not possible to lay down."
13. It is further argued that the place of vardat (point A) is about one mile away from the house of the first informant, from where the two deceased, P. Ws. Jan Mohammad and Ali Mohammad Shaikh had started for their respective destinations that morning. The place (Point D) is from where the first informant. Jumo and Jan Mohammad are stated to have witnessed the occurrence. It is urged that both, Jumo and All Mohammad could not be at Point D, which is not in the same direction. We have carefully considered this point and find no force in it. The distance between Points A and D is only 640 feet, and 610 from point B where deceased Shero was attacked on the Sim Nali inspection path. It is immaterial, from which side the witnesses came up to the inspection path.
14. It is next argued that the purpose for which the witnesses had left the village, is suspicious, because they could not have left together, towards the same direction for house purchases, on the 2nd of Ramazan, when the shops were expected to have been closed. There is no evidence that all the shops were closed in Ghulamullah Town. We have also no evidence, as to what the witnesses wanted to purchase. In villages, the requirements of people are meagre and limited, even for breaking their fast. Nothing serious turns out from this point.
15. The learned counsel has also pointed out that Mst. Chattul, cousin of appellant Aboo, was betrothed to him, and she was abducted by Siddik son of Imam Bux, who is cousin of Sahibdino, with whom the first informant Jumo, and witnesses Jan Mohammad were the 'harts' and Ayub was the Kamdar. Due to that hostility, it is argued, that the appellants were falsely implicated. This argument, is based on the surmises for which, no evidence is brought on the record. On the other hand, relationship between the two deceased and the appellants was strained over Mat. Asi which took a serious turn when the bailable warrants of the arrest of the appellants were brought by the deceased persons. The evidence of Ali Muhammad Shaikh was criticized that he was not the resident of the locality and his service could be acquired, as he was a beggar and lived about 19 miles away from Ghulamullah Town. His evidence was said to be full at contradictions and discrepancies. His being a beggar, will not quality from becoming an independent eye-witness. He had no enmity with the appellants, nor bad any close relationship with the deceased, so as to falsely implicate innocent persons. The evidence of Ayub is criticized that he is short sighted and lived 1-- miles away from the vardat and could be classed as a chance witness. He is admittedly the "Kamdar" of the land, near the place of occurrence. Being of a different caste, he had no interest in the deceased or the first informant and Jan Mohammad. Nothing is brought on the record about his hostility with the appellants.
16. The prosecution had also led the evidence of judicial confessions which was rightly rejected by the learned trial Judge, on the ground that the confessions did not appear to be voluntary. The Magistrate, who had recorded the confessions, had admitted in the cross-examination that both the appellants were sitting in his room, when he recorded their con--fessions, and the questions and answers of both the appellants, as narrated in the confessions are practically the same. They appear to have been recorded in a mechanical way. The confessions of appellants Aboo and Gulli read as under:- Aboo: "I and Gul Mohammad alias Gulli are brothers Inter se, and we reside together in our house in Deh Naiki near Ghulamullah. About two years back Ramoon Mandbro and Shero Goondar took away the were of my brother and his daughter and went to reside at Karachi. We approached Nekmards and made applications to the Higher authorities and our faislas were held before Malak Sikandar Khan and Munawar Khan. Before them they promised but then they used to run away, and did not return the hands of my brother's were and daughter. They have killed the girl and now she is not alive. Recently they brought warrants from the Court of F. C. M., Thai against us and we were called by Police at Ghulamullah and Police after obtaining surety released us. Thereafter we came and stayed night at our village. In the morning at about g or 9 a.m. We both were going to Var for selling a calf for meeting with expenses and were passing from Sandook Makan along the Sim Nali. On our way on the Sim Nali three persons namely Ramoon Mandbro, Shero Goondar and Ali Shaikh suddenly appeared from the jungle. Ramoon had a revolver. On his coming Ramoon abused us and said that you "had made a case before S. P. Against us. On this my brother made entreaties and said to him that we are poor and were going to sell the calf. On this Ramoon threatened us and fired r. Revolver shot which missed, he fired again and fox the third time also. On this my brother Gulli grappled with Ramoon they fell down my brother. Then Ramoon gave hakal to Shero who gave lathi blow to Gulli and myself. Then I gave hatchet blows to both of them and they died.
Then we both surrendered to Ghulamullah Police outpost alongwith the hatchet and narrated the facts on which Police arrested us."
Gulli: "I and my brother use to reside together in our house in Deh Naiki near Ghulamullah. About two years back Sheto son of Mandho Goondar and Ramoon son of Doosu Mandhro, of whom Shero reside in Deh Kathore and Ramoon reside at Bakkra Piri Karachi, they alongwith three other persons abducted away forcibly my daughter Mst. Noori and were Mst. Asi by means of firing of revolver shots from my house. We both brothers were in jail at that time, and they took away both ladies to Karachi. I approached Nekmards and moved such application and made complaint to our Malak Sikandar Khan Munawar Khan who is brother of Malak where the faislas were held and opponent party promised there but then they used to run away. Recently they brought warrants from the Court of Magistrate, Thull against us. Police executed the same upon us, and at the police station after obtaining surety police released us, and then we went to our house. On the next day we both were going to sell our calf with intent to arrange for the expenses. We were going to Var village from Sandook Makan along the Sim Nali. On the Sim Nali we saw three persons, namely Ramoon and Shero and third a Shaikh whose name is Ali appeared from the jungle and at once Ramoon Mandhro abused me and picked out revolver on which I made entreaties to him that we are poor and were going to sell our calf. On this be threatened me and fired a revolver shot and said that you are instituting case against us, and again Ramoon fired another shot. On which I had a stick in my hand with which I was driving the calf fell on the ground and my brother Aboo ran away into the paddy crop and raised cries there. On which Ramoon abused us and instigated Shero that why he was still waiting bit him with latni and Ramoon fired third shot. In the meanwhile I went and caught the arm of Ramoon by which he was firing the revolver and we grappled with each other. On that Shero gave me lathi blow on my shoulder. I fell down. Then both Ramoon and Shero sat over me. In the meanwhile my brother who had hatchet gave them blows. Then I do not know what happened.
Then after fight, both Ramoon and Shero died on receiving the blows in the fight. Thereafter we went and surrendered at Ghulamullah Police Station alongwith the hatchet, and Police arrested us."
Relying upon the Supreme Court case, reported in PLD 1975 3 C 187 (Dhani Bux), the learned trial Judge reached the conclusion that the confes--sions were not voluntary and excluded them from consideration against the appellants. There is no need to discuss the confessions, which in our view are also exculpatory, as regards the actual assault and killing of the two deceased.
17. Next piece of evidence is of the production of blood-stained hatchet and the recovery of blood- stained shirt, shalwar and banyan from appellant Aboo and shirt, shalwar, banyan and turban from appellant Gulli. It is argued by Mr. Baloch that the presence of mashir of recovery P. W. Khamoon at the Police Post is doubtful and that he had himself admitted in the Committal Court that clothes of both the appellants were not blood-stained. According to A. S. I. P. Mohammad Aslam, whose version in material particulars, is corroborated by mashir Khamoon. The A. S. I. P. Had arrested both .The appellants on 19-9-1974 at 10-20 a.m., only 10 (Ten) minutes, after the F. I. R., lodged by Jumo, was recorded, whey be was about to leave for the vardat. Both the appellants had minor injuries on their person which were noted in Mashirnama Exh.
11. They were wearing blood-stained clothes, which were seized (Exh. 12). Appellant Aboo had produced the blood-stained hatchet which was secured ((Exh. 13). We believe the evidence of recoveries of the articles and find no force in the arguments of the learned counsel.
18. On the point of motive there is evidence of first informant Jumo and witness Jan Mohammad.
They are consistent in their version that Mst. Asi was married to the appellant Gulli, who did not get her treated when she was sick. This fact is not denied by the appellant Gulli. Deceased Shero, uncle of Mst. Asi got annoyed, when she was not taken for treat--ment, and brought her to his house and then took her to Karachi for treatment. Over this, there was ill-will between the deceased and the appellants and both the parties had made applications against each other to the authorities. One day before the occurrence bailable warrants were brought by both the deceased and they were handed over to A. S. I. P. Mohammad Aslam for service, on the appellants. Such entries of service of bailable warrants were made on 18-9-1974 at Entries Nos. 38 and 39 in the Register kept at the Police Post. When the appellants were arrested, on the complaint of deceased Shero, who had filed the case at Thul, Jacobabad, a far-of place, they wanted to avenge the insult and humiliation.
19. Finally the learned counsel pleaded the point of right of private defence, on the ground that deceased Ramzan was armed with a revolver, which contained all the misfired cartridges, therefore, the presumption would be that the revolver was fired by the deceased and to save themselves, the appellants had attacked him. We are not satisfied with the contention of the learned counsel. The revolver may have contained the misfired cartridges, but there is not a single word in evidence to suggest that at the time of occurrence, the deceased Ramzan bad fired at any of the appellants. The case of both the appellants, on the other hand, is that they were arrested on the previous day on 18-9-1974 and had remained in the police lock-up, even on 19-9-1974.
Therefore, they did not know anything about this case. There are two deceased persons. If deceased Ramzan was carrying the revolver, deceased Shero was unarmed. Not a single witness has deposed that they had heard a revolver shot or any fire-arm report. There were no circumstances found at the vardat, to suggest such an inference. The appellants had a motive.
They had armed themselves and were hiding before starting the deliberate and fatal attack on the deceased, by giving them repeated blows with the sharp side o the hatchet and one blow by a lathi, having on iron ring, at the bottom. The plea of right of defence is, therefore, not available to the appellants.
20. It is next argued by Mr. Baloch that the case of appellant Gulli is distinguishable from that of appellant Aboo and warranted lesser sentence. He has submitted that appellant Gulli was armed with a lathi and is alleged to have inflicted only one blow on the head of the deceased Shero, and the lathi broke, into two pieces, causing a simple injury. We nave gone through the evidence of Dr. Bashir Ahmed and have also perused he post-mortem Report of deceased Shero. It is correct that out of three injuries, two were incised wounds, which were caused by sharp-edged weapon, like a hatchet and were individually, as well as, collectively sufficient, in the ordinary course of nature, to have caused the death of deceased where. Whereas, injury No. 3 attributed to appellant Gulli was a lacerated wound --' x --' with a laceration over the frontal region in the middle of the head, and injury was simple. In the circumstances, we are of the view that a distinction could reasonably be made in awarding sentence to appellant Gulli. As regards appellant Aboo, who had caused the fatal injuries, with the sharp side of the hatchet, to both the deceased, in a cruel and wanton manner, we would confirm the sentence of death awarded to him, as the evidence against him does not disclose anything in the manner of mitigating circumstances in his favour. So far as appellant Gulli is concerned, who did not cause the fatal injury to deceased Shero, we would, therefore, substitute, for the sentence of death, a sentence of imprisonment for life under section 302/34, P. P. C. For the foregoing reasons, there is, otherwise, no merit in the appeal, which is dismissed and the reference made by the learned trial Judge under section 376, Cr. P. C., in respect of appellant Aboo, is accepted; whereas, in respect of appellant Gulli is rejected, who is sentenced to imprisonment for life.