SAJJAD ALI SHAH, J. Appellant Bakhir son of Allah Dito, Arab son of Haji, Mehrali son of A.I Murad anti Buxial son of Ghulam Qadir, all by case Gardehi have filed this appeal against the judgment dated 20-11-1976 of learned Sessions Judge, Larkana, whereby they have been convicted for offence under section 302/149, P. P. C. And sentenced each to life imprisonment and a fine of Rs.
2,000, or in default R.
1. For one year, under section 353/149, P. P. C. To R. I. For one year each. All sentences are directed to run concurrently. These four appellants were tried alongwith three other co---accused, namely Guloo, Fakiro and Gulab, who were acquitted of the charges vide the same judgment.
2. Shortly stated prosecution case is that on 22-9-74 one Gut Muhammad lodged F.
1. R. At Police Station Bakrani registered as Cr. No. 80/74 in which case one Achar was killed (hereafter to be referred as previous murder case) in the investigation of which S. H. O. Tashkil Haider, P. C.
Mahboob, Amin, P. C. Qalb Hussain and Head Constable Khadim Hussain went together to the scene of offence, where they reached at 4-30 p. m. Prepared Mashirnama of the dead body and despatched it to the hospital for post-mortem examination through P. C. Qalb Hussain. After that the police party proceeded in a Jeep to village A.I Bagh Gadehi in Deh Dodaiko Daro to arrest the accused person. Police Party parked the jeep near otak of Bakhir and arrested Janoo, Kirir alias Buxial, Guloo alias Mashooq and Shaman (accused in the previous murder case) and also recovered blood-stained hatcher from Janoo. After taking them in custody while Police Party was boarding the jeep alongwith the persons apprehended at about sun set time, they were attacked by seven assailants including the present four appellants and three acquitted co-accused. All the assailants were armed with hatchets. Assailants Fakiro and Gulab gave sharp-sided hatchet blows to Shaman on his back while assailant Guloo inflicted hatchet injury on the back of Rafique, cleaner of jeep. From the persons in custody of police Janoo and Kirir alias Buxial ran out from jeep to save their lives and went in the direction of otak of Bakhir. Assailants namely Bakhir, Arib, Mehrab and Buxial, armed with hatchets followed them and inflicted sharp-sided hatchet injuries to Janoo - who fell down and died in the shed of otak of Bakhir. In the meantime Head constable Khadim Hussain and P. C. Mehboob Ahmed fired from their rifles in the air. Kirir who was in custody in previous murder case made good his escape. S. H. O. And other constables of the Police Party succeeded in arresting Bakhir, Mehrab and Buxial at the spot and recovered blood-stained hatchets from them. S. H. O. Tashkil Haider prepared inquest report of the dead body of Janoo and sent the same through P. C. Muhammad Amin to the hospital at Larkana for autopsy. S. H. O.
Brought the appellants arrested from the spot in this case and P. Ws. In custody in connection with the investigation of the previous murder case, in jeep to the police station where he himself lodged F. I. R. On behalf of the State, which was registered at 8-30 p. m. Police Station, Bakrani.
3. D. S. P. Inayatullah, who was designated as D. S. P. Saddar Larkana. On receipt of special report, took over the investigation of this case and came to the police station. He made inquiries from S. H.
O. Tashki Haider, P. Ws. Guloo alias Mashooq, Head Constable Khadim Hussain and P. C. Mehboob Ahmed. He secured empty shbllg of bullets produced by Head Constable Khadim Hussain and P. C.
Mehboob Ahmed under separate Mashirnamas. He proceeded to the place of occurrence and kept watch during the night and in the morning inspected wardat in presence of Mashirs Fakir Muhammad and Hakim A.I. He found blood in the cattle shed of otak of Bakhir and two `anghoshas' and one Sindbi camp lying there stained with blood, which he seized earth and put it into a sealed parcel. He .Prepared Mashirnama of wardat and arrested assailants Guloo, Fakiro and Gulab, who produced their respective hatchets which were not stained with blood. Thereafter he recorded statement of P. C. Muhammad Amin who produced three empty shells of bullets. He also recorded statement of P. C. Qalib Hussain. On 24-9-75 he made enquiries from P. Ws. Shaman, Rafique and Muhammad Hassan. He inspected the jeep, which bore mark of hatchet blow on the hood. On 25- 9-1974 P. W. Kirir, who was in custody in connection with previous murder case and had escaped at the time of incident, appeared before him in his office at Larkana. He noted scratch marks on his back and prepared such Mashirnama. He got recorded statements under section 164, Cr. P. C. Of P.
Ws. Head constable Khadim Hussain, P. C. Muhammad Amin, P. C. Mehboob Ahmed, Kirir alias Buxial and Guloo alias Mashooq before Mukhtiar kar & F. C. M., Dokri. He also referred Kirir for medical examination. After completion of necessary steps of investigation, challan was presented in the Court.
4. Prosecution has examined in all 13 witnesses in support of its case. P. W. 2 Khadim Hussain Head Constable, P. W. 3 S. H. O. Tashkil Haider, P. W. 4 P. C. Maqbool Ahmed, P. W. 5 P. C. Muhammad Amin, P. W. 6 Kirir and P. W. 7 Guloo alias Masbooq have been examined as eye-witnesses of the incident.
P. W. Shaman, another eye-witness of the incident who was himself injured during the attack died in Jail, while the trial proceedings were in progress, hence his evidence recorded in the Committal Court was brought on the file of Session under section 33 of the Evidence Act. P. W. Allahdad tapedar prepared and produced sketch of wardat Exh.
8. P. W. 11 Fakir Muhammad Mashir has attested Mashirnama of wardat and Mashir--namas in respect of arrest of Fakiro, Guloo and Gulab. P. W. 12 Muhammad Juman Constable produced copy of F.
1. R. In Crime No. 80/74 alongwith original. P. W. 13 Ejaz A.I, clerk of the Sessions Court produced Mashir--nama of arrest of Janoo, Kirir, Guloo and Shaman in Crime No. 80/74 of Police Station Bakrani.
P. W. 8 Doctor Wahid Bux conducted post-mortem examination on the dead body of Janoo on 23- 9-74 and found 11 incised wounds and one bruise on different parts of his body. He certified the death to be due to shock and haemorrhage as a result of injuries and Injury No. 1 and No. 4 to be indivi--dually and collectively sufficient to cause death.
On 27-9-74 this doctor examined Kirir and found two injuries on his person. One was scratch and the other was bruise, both on chest. Both injuries were declared by the doctor to be simple in nature.
P. W. 10 Doctor Muhammad Sharif examined Shaman on 22-9-74 and found two incised wounds and two lacerated wounds on his person. Shaman was treated as indoor patient for 10 days. Nature of injuries was declared to be simple.
D. S. P. Inayatullah who had investigated the case, was examined as P. W.
9. Report of Chemical Examiner Exh. 45 on the record is to the effect that earth and three hatchets were found to be stained with human blood. On hatchet containing in parcel No. 3 no blood was detected.
The defence of the appellants before the trial Court was total denial of the prosecution allegations and false implication due to enmity. It is further stated that the police witnesses have deposed falsely in order to save their own skin. No Police witnesses were interested and hostile. The appellants did not examine any witness in defence.
5. We have carefully examined the record in the light of arguments and submissions made by the learned counsel appearing for each side. In this case prosecution has furnished ocular testimony of seven eye-witnesses. Out of them four belong to police and three. Are private persons, who were in custody of police party alongwith their fourth companion Janu deceased in connection with the investigation of previous murder case of Achar. There is ample evidence on record to prove the presence of these witnesses at the 't spot at the time of incident beyond dispute. Exh. 51 is copy of F.
I. R. In Crime No. 80/74 for offence under section 302/34, P. P. C. Registered at same Police Station Bakrani by same S. H. O. Syed Taskeel Haider Shah on the same day i. e. 22-9-74. This First Information Report is in respect of murder of Achar in which complainant is Gul Muhammad and accused are deceased Janu and P. Ws. Kirir alias Buxial, Guloo alias Mashooq and Shaman. Copy of this report is produced by P. W. 12 Muhammad Juman constable of Police Station Bakrani. He was examined in the Court and had brought 154, Cr. P. C. Register containing original F. I. R. Which was perused by the trial Court and copy whereof was kept on the record of the Court. In connection with the investigation of this case police party consisting of S. H. O. Tashkeel Haider, Head Constable Khadim Hussain and constable Mahboob Ahmed, Muhammad Amin and Qalab Hussain went to the scene of offence near village Khuda Bux Brohi, commenced investigation, sent dead body of Achar for post-mortem examination through constable Qalab Hussain and proceeded to village A.I Bagh Gadehi to arrest accused persons named above. The police went in a jeep to the above-mentioned village on the same day and arrested Janu, Kirir, Guloo and Shaman in the evening. Exh. 54 on the record of this case is copy of Mashirnama of arrests of that case produced by P. W. 13 Ejaz A.I clerk in the Court of IInd Additional Sessions Judge, Larkana, who had brought original Police papers of that case including the said Mashir--nama, which was perused by the trial Court and copy was retained on the record. This Mashirnama is dated 22-9-74 and the arrests are shown to have been made at 5-45 p. m. One blood-stained hatchet alleged to be weapon of offence was secured from Janu which was put into. a sealed parcel. Accused persons in that case named above were taken into custody and were brought to the otak of Bakhir and made to sit in the jeep when incident in the present case took place and attack was made all of a sudden in which Janu lost his life due to hatchet injuries. This Mashirnama of arrest was prepared by S. H. O.
Tashkeel Haider and proves that at the time of incident in this case deceased Janu and eye- witnesses Kirir, Guloo and Shaman were in police custody with him. Further facts of this case indicate that murder of Janu was seen by Kirir, Guloo Shaman and who were in custody and member of the police party including driver and cleaner of jeep. During this incident first attack was made by seven assailants armed with hatchets on the jeep and blows were showered in the result whereof Shaman and Rafiq cleaner of the jeep were injured. Kirir and Jauu ran out of jeep and were followed by the present four appellants, who overtook Janu in the courtyard of otak and belaboured him with hatchet blows and killed him at the spot while Kirir managed to escape. In the meantime members of the police party fired in the air and succeeded in apprehending at the spot the present four appellants and also recovered from them blood-stained hatchets which were put into sealed parcels. The remaining three assailants and P. W. Kirir managed to escape. Thereafter immediately inquest report of the dead body of Janu and Mashirnama of arrest of the present four appellants and recovery of blood-stained hatchets were prepared by S. H. O. Tashkeel Haider which were attested by Muhammad Hassan taxi driver and Mahboob Constable. Then S. H. O. Took the appellants and eye-witnesses Shaman and Guloo alias Mashooq, who were in custody in previous case and other members of the Police party to the police station where F. I. R.. Was registered by S. H. O. Tashkeel Haider himself at 8-30 p.m. In which all the relevant details of the incident, as mentioned above, are described including the presence of the eye--witnesses. P. W.
Kirir also surrendered on the following day before D. S. P. Inayatullah who took over the investigation, injuries of P. Ws. Shaman and Rafiq are also medically proved. For the facts and reasons stated above it can safely be said that presence at the spot of the eye-witnesses at the time of incident is established fully beyond any doubt.
6. Evidence of eye-witnesses has been recorded who have fully supported the prosecution case with the exception of P. W. 5 P. C. Muhammad Amin, who was declared hostile in the trial Court. This witness narrated the facts of tie incident correctly but stated that when Kirir and Janu ran from jeep to save their livzs, they were chased by Buxial, Gulab, Arab and Gul Muhammad who gave hatchet blows to Jan Muhammad and killed him. On the contrary the pro--secution case is that Janu was chased and kiiled by Bakhir, Arab, Mehrab and Buxial with hatchet blows in the courtyard of otak of Bakhir. This witness also wrongly pointed out in the trial Court Bakhir as Arab and Buxial as Arab. In the cross-examination also he made other gratuitous concessions favourable to the appellants. We, therefore, rule out of consideration the evidence of this witness.
The evidence of other six eye-witnesses is very much consistent with the prosecution case, which they have supported wholeheartedly without any reservations. There are no contradictions and discrepancies on material particulars of the incident. Each witness has meticulously explained the details of the incident as to how the attack began all of a sudden, when deceased and eye- witnesses Shaman, Kirir and Guloo alias Mashooq were sitting in the jeep, including who caused injuries to whom and how the present four appellants killed Janu with hatchet blows. These eye- witnesses have successfully stood the test of cross-examination and we do not find anything adverse against them to doubt their veracity.
7. The learned Advocate for the appellants assailed the evidence of these witnesses on the ground that police officials had not seen the incident as they had left behind the deceased and P. Ws. Kirir, Guloo and Shaman, who were in custody in the jeep when the attack was made and at that time the police party was enjoying a feast given by appellant Bakhir in his otak as it was Iftari time in the month of Ramazan. This claim is not substantiated on the record. No witness has admitted having taken meal in that otak at Itari time. Had it been so, Mashirnama of varddt would have mentioned plates and glasses etc. In the otak. Secondly the murder had taken place in the courtyard of the otak, where dead body of Janu was found lying. There was blood there. Even on that assumption murder of Janu in the court--yard could not go unwitnessed particularly when he sustained as many as 12 injuries. Secondly the present four appellants were apprehended at the spot by those very police officials against whom it is stated that they were having a feast. It was then weakly argued that P. W. 2 Khadim Hussain had deposed that they broke fast in the otak of Bakhir, who served them water and just at that time the attack was made on Janu and others. Only this one witness has said so and even if we assume it to be true, it certainly does not show that Bakhir after serving water could not join the assailants in the otak which took place right in the vicinity. After all jeep was not far from otak, it was right outside the otak. This assertion is falsified by the fact that Bakhir was seen by all the eye-witnesses causing injuries to Janu and was apprehended at the spot and blood-stained hatchet was recovered from him. It was also argued that Janu and three eye-witnesses were arrested in the murder case and were not handcuffed when incident took place. This argument has no bearing on the facts of the instant case. Janu and others were in police custody and that is proved by documentary evidence, if the police had not handcuffed them for any reason it is for them to answer. This does not falsify the facts of the incident as stated above. It is in the evidence that S. H. O. Was suspended because one of the persons died while in the police custody, this does not mean that incident has not taken place in the manner as claimed by the prosecution.
8. It was then contended that why Shaman or Kirir did not become first informant and why S. H. O.
Had to file the first information report himself. The facts of the incident are peculiar and they are stated above. If S. H. O. In these circumstances thought fit to become complainant himself when he is an eye-witness, there is nothing illegal or improper about it. The other eye-witnesses who were in custody like Kirir, Guloo and Shaman have also fully supported the prosecution case, which shows that version of incident given by S. H. O. Is correct.
There is a heavy load of strong confirmatory evidence which further corroborates the ocular testimony. It is proved beyond doubt that the incident took place in the otak of appellant Bakhir.
Dead body of Janoo was found there. Blood was also found there. Mashirnama of scene of offence Exh. 37 prepared by D. S. P. Inayatullah on the following day of the incident also confirms the fact that incident took place in the otak of Bakhir and at a distance of 16 paces from there close by the road were found marks of wheels of jeep which was parked there. Blood was also found lying in much quantity in the courtyard of the otak in the cattle-pen. There were also found lying two blood-stained Angoshas and a Sindhi cap, embroidered with `Zari' belonging to the deceased Janoo. A.I the four appellants were arrested at the spot immediately after the incident by S. H. O.
Tashkil Haider and the Police party and blood-stained hatchets were recovered from them which were put into sealed parcels. The appellants after being taken' n custody were straight rushed to the police station. Medical evidence also fully supports the prosecution case. Post-mortem notes show that there C were as many as 12 wounds on the dead body of Janoo out of which 11 were incised wounds on different parts of body. This large number of incised wounds is commensurate with participation of four appellants in attack of deceased Janoo with hatchet blows. These injuries are reported by the doctor to have been caused with sharp-cutting weapon such as hatchet except Injury No. 12 which was an abrasion. Doctor who conducted post--mortem examination, has opined that death was due to shock and haemorr--hage caused by injuries to neck and head by heavy sharp cutting weapon such as hatchet. The doctor has further stated that the time that elapsed between the death and post-mortem examination was 17 hours. Post-mortem examination was conducted on 23-9-74 which was a following day of the incident at 10-50 a. m. 17 hours back from this time takes the time of death to about 6 p. m. On the previous day that is 22-9- 74, which very much tallies with the time of incident given by the prosecution as 6-30 p. m. On 22- 9-1974.
9. Another circumstance is that as per assertion of the prosecution some Constables from the Police Party fired in the air from their weapons at the time of incident to scare the assailants to prevent the onslaught of attack. In this connection D. S. P. Inayatullah, who investigated the case recovered three empty shells of bullets from P. C. Muhammad Amin Exh. 35 on the record is Mashirnama of recovery of bullets dated 23-9-74 which shows that '303 empty shells were recovered from constable Muhammad Amin in presence of Mashirs Muhammad Ramzan son of Karimdad and Ahmed son of Muhammad Umar. Mashirnama Exh. 36 shows recovery of four '303 empty shells from H. C. Khadim Hussain. As already stated above, Constable Muhammad Amin did not support the prosecution case and was declared hostile. S. H. O. Tashkil Haider and other eye- witnesses have stated that Muhammad Amin Constable had fired at the time of incident.
Constable Khadim Hussain has admitted in his deposition before the trial Court that he had fired and this also as reiterated by other eye-witnesses. Mashirs of these recoveries have not been examined but since the recovery or empty shells was only confirmatory circumstance to prove the assertion that the Government ammunition was used by the constables and it was accounted for as stated above. There is adequate evidence on his point that the constables mentioned above had fired from their fire-arms and produced the empty shells.
10. Next comes the evidence of motive which is testified by eye-witnesses P. W. 6 Kirir P. W. Mashooq and P. W. Shaman. P. W. 6 Kirir has stated that assailants in the case under appeal had enmity with deceased Jan Muhammad for the last three/four years prior to the incident. Deceased Janoo was his uncle and P. W. Shaman was his cousin. Shaman was also nephew of Janoo. Some time before the incident Khan Muhammad a relative of the appellant, had filed a case under section 307, P. P. C.
Against this witness and his relatives. Deceased Janoo had filed a criminal case against Fakiro and others. This witness Kirir was accused with Jan Muhammad in the case under section 307, P. P. C.
Because of these cases the relations between the parties were hostile. Khan Whammad was related to Achar deceased in previous murder case. Acbar was nephew of Khan Muhammad is closely related to Gul Muhammad P. W. 7 Mashooq has alo admitted enmity between the parties even before the murder of Achar. Likewise P. W. Shaman has also admitted enmity. ' In view of these facts it is established that relations between the parties were inimical and murder of Achar was committed on the same day, who was related to the appellants and acquitted co-accused in this case. In connection with the case the Police Party had arrested the three eye-witnesses and deceased Janoo and the jeep of the Police was also parked near the otak of Bakhar who was interested in the prosecution of the previous murder case in which Achar was killed. This explains why the incident took place in the court--yard of otak of Bakbir.
11. Lastly there is evidence of recovery of blood-stained hatchets from the appellants who were apprehended at the spot immediately after the incident. This Mashirnama is attested by Constable Mahboob and Muhammad Hassan driver of the jeep who were available at the spot at the time of incident. Constable Mahboob has been examined and he has fully support the contents of Mashirnama of recovery of weapons allegedly used in the crime. Muhammad Hussain driver has not been examined and was given up by the prosecution for the reason that his whereabouts were not known. This witness constable Mahboob at the fag-end of cross-examination has made a gratuitous concession in favour of the appellants by saying that D. S. P. Had seen other hatchets at the police station which were secured by the S. H. O. At the spot and saw blood on them.
Subsequently he corrected himself by saying that the hatchets were already in parcels and the D.
S. P. Had seen all the four hatchets at the police station. He has not further clarified unequivocally whether the parcels were opened and the hatchets were seen by the D. S. P. In any case this part of statement of this witness manifestly appears to be a concession by this witness in favour of the appellants and can easily be ignored. There is also no reason why to disbelieve the statement of Tashkil Haider who had put the hatchets recovered from the appellants at the spot into sealed parcels. Report of the Chemical Examiner Exh. 45 on the record shows that in all five parcels were received by the Chemical Examiner containing blood-stained earth in parcel No. 1 and four hatchets in the remaining 4 parcels and after investigation blood was found on all the articles with the exception of hatchet which was in parcel No. 3. For this hatchet in parcel No. 3, the finding of Chemical Examiner clearly is that blood was not detected on this hatchet. Mashirnama of recovery of this hatchet Exh. 12 on the record shows that first hatchet of Bakhir was recovered, then of Arab, then of Mahrab and lastly of Bakhshal. Although the Investigating Officer has not put specifically parcel numbers to say as to which parcel number contains hatchet of which accused but it appears from the evidence as well as Mashirnama that the Investigating Officer has made parcels in accordance with serial-wise recoveries made of hatchets as mentioned in the Mashirnama. It is therefore clear that parcel No. 1 with Chemical Examiner contained blood-stained earth and parcel No. 2 contained hatchet recovered from appellant Bakhir and parcel No. 3 contained hatchet recovered from appellant Arab at Serial No. 2 as mentioned in the Mashirnama and parcel No. 4 and parcel No. 5 contained hatchets of Mehrab and Buxial respectively as specified in the Mashirnama of recovery. In this context the observation of the learned trial Court on parcel No. 3 as given by the Chemical Examiner containing hatchet of Buxial is therefore incorrect. Secondly it is observed by the trial Court that this particular factor that this hatchet was not found stained with human blood by the Chemical Examiner does not detract the role of the assailant who is alleged to have been . Armed with this hatchet for the reason that there was sufficient evidence that he shared the common object/intention, which was further fortified by the fact that he alongwith other three appellants was apprehended at the spot and the hatchet was also recovered .From him and further that the sharing of common object/intention was complete regardless of the fact whether he got an opportunity to inflict a blow on the deceased or not. We do not feel inclined to agree with this line of reasoning in the peculiar circumstances of this case. There were in all 8 assailants and the case of prosecution is that deceased Janoo was followed by four appellants, who inflicted hatchet blows on him in the courtyard of the otak of Bakhir and killed him. After the incident the four appellants were chased and apprehended and the hatchets were recovered from them. It is clearly stated that all the hatchets were stained with blood and that is why they were put into sealed parcels and sent to the laboratory of Chemical Examiner. It is clearly stated in the Masbirnama of recovery of hatchet Exh. 12 that the blade of the hatchet recovered from appellant Arab which was in parcel No. 3 with the Chemical Examiner, was stained with blood. The Chemical Examiner has given a clear cut finding that this particular hatchet was not found to be stained with human blood which negates the fact this particular hatchet was not used in infliction of injuries to the deceased. The learned trial Court acquitted four other accused persons for the reasons that they were not apprehended at the spot and the weapons recovered from them were not stained with blood. So far the case of present appellants is concerned apprehension at the spot of appellant Arab along with hatchet does show that he was present at the spot but since his hatchet has not been found to be stained with human blood, it becomes doubtful whether he did participate in the attack on , deceased Janoo. Mere presence at the spot alongwith hatchet does not prove that appellant Arab also shared common object as it is possible that he might just be present in the otak of Bakhir at that time. Villagers do carry hatchets with them and mere carrying of hatchet does not show that he had participated in the assault. The prosecution case is that there were 8 assailants and four of them succeeded in running away and the other four, who are present appellants and against whom it is alleged that they caused injuries to Janoo were apprhended at the spot. Prosecution case does not claim that there were other persons also present at the spot and because they did not carry hatchets and did not participate in the assault hence they were let off. On the other hand the prosecution case is that the present four appellants did participate in the attack on deceased and all of them caused injuries and they were apprehended at the spot and their hatchets were recovered which were found to be stained with blood and were put into sealed parcels. This assertion is falsified by the report of Chemical Examiner which is to the effect that hatchet of Arab was not stained with human blood and consequently his participation in assault becomes doubtful and also it is doubtful whether he shared common object/intention with other assailants. It is possible that he might be spectator with no intention to participate in the assault. We -therefore, hold that case of appellant Arab P is not free from doubt. We therefore, give him benefit of doubt and set aside his conviction and sentence. He may be released forthwith if he is not wanted in any other case. So far other three appellants namely Bakhir, Mehrab and Buxial are concerned, the case of prosecution is proved against them beyond doubt and their appeal is dismissed and their conviction and sentence are upheld. In the result appeal is partly allowed so far appellant Arab is concerned and dismissed in respect of other three appellants.