B. G. N. KAZI, J.---Kauro son of Usman Machhi, resident of LalBux Lund Taluka, Naushahro Feroze, who was tried by Mr. Nazim Hussain Siddiqi, First Additional Sessions Judge, Nawabshah, for murder or Mohammad Ayub and convicted under section 302, P. P. C. And sentenced to death, has filed appeal against the aforesaid conviction and sentence. There is also reference for confirmation of the death sentence. The criminal appeal and the reference are being dealt with in is order.
2. The facts of the prosecution case briefly stated are as under:-
3. Abdul Ghani son of Abdul Hadi, resident of village Lal Bux Lund, Taluka Naushahro Feroze, lodged F. I. R. On 9th June, 1976 at 6 a.m. With S. H. O. Zulifiqar Ali Junejo of Naushahro Feroze Police Station, about the murder of Mohammad Ayub son of Mohammad Qasim, resident of Lal Bux Lund, who was his relative and caste-fellow, stating that the murder had taken place that very day at 4 a.m.
Mohammad Ayub, was a beggar and used to keep his money with himself. He used to reside in a Jhugi, near the Chak of Mohammad Umar. The house of complainant Abdul Ghani, is adjacent to it towards the West. On the night of the incident Mohammad Ayub was sleeping on his cot in front of his Jhugi as usual and the complainant was sleeping in his own houset. At about 4 a.m. He heard cries of "murder, murder" and thief--- thief" of Mohammad Ayub, on hearing which he and Abdul Rashid his sister's son went running to the scene of offence. Nazir Memon and other villagers also came on hearing cries. There was light from the bulb of electricity pole nearby and they saw in the light of the bulb Kauro son of Usman Machhi, a resident of their own village, causing injuries to Mohammad Ayub, with a hatchet. On being challenged the accused ran away to his house which is towards the north of the scene of offence. The complainant and the witnesses found Mohammad Ayub, having hatchet injuries caused with blunt and sharp side of the hatchet over his head, face, left eye and left arm. He was lying on the ground and died on the spot. The complainant leaving the aforementioned witnesses with the dead body first went to inform the nekmard Ghulam Mohammad Khan Lund, who after hearing of the incident accompanied him to the scene of offence. The nekmard advised him to go and lodge report with the police. The complainant in the report further stated that accused Kauro had entered the Jhuggi with the intention of committing theft of money and killed Mohammad Ayub by causing him hatchet injuries. After recording the F. I.
R. At about 7 a.m., the S. H. O., went to the scene of offence which was in front of Jhugi of the deceased in village Lal Bux Lund. There was the dead body of Ayub lying and there was blood on the ground. He prepared the mashirnama of scene of offence in presence of mashirs Mohammad Hashim and Abdul Karim. He secured blood-stained earth from the scene of offence and sealed it in presence of the two mashirs. He then prepared the inquest report and sent the dead body through police constable Mohammad Jurial to the Medical Officer. Tharushah for post-mortem examination and report. Next he recorded the statements of P. Ws. Nazir Ahmed, Abdul Rashid and Ghulam Mohammad. On 10th June, 1976 at about 4.30 p.m. He arrested the accused from his village in presence of mashirs Mohammad Hashim and Abdul Karim. The accused voluntarily led the Police and mashirs to a watercourse which was about 1 I/2 furlongs away from the village of the accused and from the bushes produced blood-stained hatchet, blood-stained ban can and blood-stained loin cloth. All these articles were secured and sealed in presence of mashirs and sent to the Chemical Analyser, Karachi for examination and report. All the articles were found to be stained with human blood. On 19th June. 1976 the S. H. O. Got statement of P. Ws. Nazir Ahmed and Abdul Rashid recorded under section 164, Cr. P. C. By A. C. M. Naushahro Feroze.
4. Accused appellant. Kauro, denied that he has caused injuries to deceased Mohammad Ayub. He however admitted that the, deceased, Abdul Rashid. Nazir Memon. Ghulam Mohammad and Mohammad Hashim reside in the same village Lal Bux Lund. He denied that complai--nant and other witnesses had witnessed the incident in the light of bulb fixed in the electric pole near the scene of offence. He denied that be had voluntarily led the police and mashirs to the watercourse and had produced the blood-stained hatchet and blood-stained clothes. He also denied that he entered the Jhugi of the deceased for the purpose of committing theft. The accused has stated that the prosecution witnesses have implicated him at the instance of P. W. Ghulam Mohammad.
He also urged that he was servant of P. W. Abdul Ghani who bad paid his salary and when he demanded the same Abdul Ghani had got annoyed with him and was therefore implicating him in the case.
5. The salient features of the case which must be taken note of are as under:---The F. I. R. Was lodged without any delay. The incident took place in a village where both the deceased and the accused used to live. The house of accused Kanto was only about 100 feet from the scene of offence. The houses of P. Ws. Abdul Ghani and Abdul Rashid and of P. W. Nazir Ahmed, were all very near the scene of offence. The alleged eye-witnesses namely complainant Abdul Ghani and P. Ws.
Abdul Rashid and Nazir being residents of the same locality and near neighbours are natural witnesses. It is true that P. W. Abdul Ghani is relative and caste-fellow of the deceased and P. W.
Abdul Rashid is the nephew of Abdul Ghani. P. W. Nazir Ahmed Memon, is a near neighbour of the deceased as his house is about ten paces away from the Jhugi in front of which the murder took place. However since the aforesaid eye--witnesses are natural witnesses and except for the allegation of the accused with regard to P. W. Abdul Ghani being annoyed with him over his demand for wages, there is no allegation of enmity with any other witnesses. The allegation about Abdul Ghani, not paying his wages cannot be considered to be sufficient and adequate explanation for the false implication in a murder case. The accused in his statement before the trial Court had stated that he bad been implicated at the instance of P. W. Ghulam Mohammad Lund, but no enmity of the aforesaid witness has been revealed even by the accused nor was there any mention of it in the cross-examination of the witnesses.
6. The ocular evidence is fully corroborated by medical evidence with regard to the injuries and there is no inconsistency in the account of the eye-witnesses about the causing of injuries by the accused. There is also corroborative evidence of nekmand, Ghulam Mohammad Lund, who has corroborated the testimony of Abdul Ghani by stating that the first informant had come to his house and bad informed him that accused Kauro had caused hatchet injuries to the deceased and further that P. Ws. Abdul Rashid and Nazir Ahmed, had witnessed the incident in the light of bulb which was fixed in an electric pole near the scene of offence. He has also corroborated the ocular evidence with regard to the time and the place of the occurrence and he has stated that he had advised Abdul Ghani to go and lodge report with the police.
7. The ocular evidence is also supported by the evidence with regard to the recovery of the blood- stained hatchet and clothes of the accused. There is evidence of S. H. O. Zulfiqar Ali fully supported by the evidence of Mohammad Hashim, mashir, who has stated that the accused after his arrest voluntarily led him the mashirs and police towards a graveyard near the village from which he had produced stained hatchet and the blood-stained banyan and lion cloth. The chemical analyser to whom the blood-stained earth from the scene of offence, the hatchet and clothes of the accused were sent for examination and report certified that all the items were stained with human blood.
8. There is no doubt about the identification of the accused inasmuch as all the alleged eye- witnesses have referred to the fact that there was light from the bulb of the electric pole near the scene of offence. It may be pointed out that according to the ocular testimony the incident took place outside the Jhugi and complainant has stated that before the incident he has seen the deceased sleeping on the cot outside near the entrance of his Jhugi. Since it is the case of a single accused substitution in such a case can hardly be conceived. The deceased, the accused and all the eye--witnesses belong to the same village and are very well known to each other.
9. It has been contended that since this is a case of no motive the lesser penalty should have been inflicted. The contention however cannot be acceptable in view of the fact that there is indication from the evidence on record that the motive was to commit theft of the money which the deceased beggar used to keep with him. This aspect of the case is also supported by the fact that the offence indicated in the first information report was mentioned to be under section 460, P. P. C.
Whatever the motive there is clear evidence of the eye-witness about the accused causing injuries to the deceased which resulted in his death on the spot. As many as six injuries were inflicted and Dr. Sikandar Ali, described the injuries as under:-
(1) Vertical contused wound 3--' x 1" scalp deep over the left side of the frontal region with selling of both the eye lid of the left eye.
(2) Contused wound 1--" x 1--" x --' over the right kastoid bone.
(3) Incised wound 3' x 1' x 2----- over the left mandible which was out through and through.
(4) Circular lacerated wound 2--" x --" x 1/10 over the right side of the chest.
(5) Crescent lacerated wound 2" x --" x 1/10' over the right shoulder.
(6) Two lacerated wounds each 2--" x --" x --" over the middle of left forearm on the lateral aspect."
The Doctor gave the opinion that injury No.1, individually was sufficient in the ordinary course. Of nature to cause death. There is (e.i)--dence of the eye-witnesses about seeing the deceased grappling with the accused and after receiving the injury No. 1, on the head the deceased must have fallen down. There is further evidence of the Doctor that injuries Nos. 2, 3 and 4 might have been received by the deceased while he was lying on the ground. This has also been substantiated by ocular evidence. Injury No. 3 was incised wound over the left mandible which was cut through and through. The intention of the accused to cause death is very clear from consideration of the injuries actually caused by him. The Additional Sessions Judge, has in his judgment observed that it was a Brutal murder on the part of the accused and there are no extenuating circumstances in his favour. We would agree with him and confirm the sentence of death. The appeal is dismissed and the sentence of death is confirmed.