ASLAM RIAZ HUSSAIN, J.-Niazoo appellant was tried along with his four brothers. Namely, Sobho, Umed Ali, Kadro and Ali Hyder, by the III-Addl. Sessions Judge, Sukkur, for the tripple murder of Muhammad, Mst. Wassan AndMst. Nihalan.
2. The facts of the case briefly are, as follows :- One Bachal Mangrio was married to Mst. Wassan (deceased) of Bahawalpur State. She had two daughters, namely. Mst. Nihalan (deceased) and Mst. Manzooran. Muhammad deceased, wanted to marry Mst. Manzooran and her mother Mst. Wassan bad promised to give her hand in marriage to him. Mst. Manzooran had, however, been a concubine (keep) of Niazoo appellant, for about a year. But he had turned her house about four months prior to the incident due to some domestic quarrel. It was thereafter that Muhammad (deceased) asked for hand in marriage from her mother Mst. Wassan. Niazoo, appellant, however, resented this and he and his brother, namely Sobho, Umed Ali, Kadro and Ali Hyder, asked him not to marry her or else they would kill him. About 15 days prior to the occurrence, Mst. Manzooran, Mst. Nihalan and latter's husband Ranjhan as well as her four years old son, came from Bahawalpur and stayed in the house of Bachal Mangrio.
Muhammad (deceased) again requested Mst. Wassan for the hand of her daughter, but she asked him to give her some time for this purpose. On the morning of 25th August, 1975, at about 9 a.m., Mst. Wassan requested Muhammad to escort them (i. e. Mst. Wassan, Mst. Nihalan and her husband Ranjhan) upto the bus stand of Jarwar Town, from .Where they wanted to catch a bus for Bahawalpur. Muhammad (deceased) accordingly proceeded with them towards the above noted bus stand. Suleman (complainant) Mitho P. W. 4 and Jalal P. W. 5, also went with them to the bus stand. They had hardly covered a distance of about 2/3 furlongs when they saw Niazoo appellant and his four above--mentioned brothers. Niazoo and Sobho, were armed with guns, while the remaining three, namely, Ahmed Ali, Kadro and Ali Hyder, were armed with hatchets. The accused challenged them, where after Niazoo fired with his gun at Muhammad which hit him on his side and be fell down. Sobho fired at Mst. Nihalan who also fell down. Niazoo again fired another shot at Mst. Wassan who also fell down. Ranjhan ran away with his son into the jungle. The accused thereafter left the place of occurrence along with their weapons. After their departure the P. Ws.
Who were raising cry but did not dare to do anything due to fear as the assailants were armed with deadly weapons, went near the three victims and found that they had already died. Leaving the other P. Ws. At the spot to guard the dead bodies, Suleman P. W., who cousin of Muhammad (deceased) went to lodge a report at Police Station Mathelo, which was recorded by Hamidulla, S. H. O. P. W. 7 at 1-30 p. m. On the same date. After recording the F. I. R. The S. H. O. Went to the place of occurrence. The dead bodies of the deceased, had in the meanwhile, had been removed to the village by the P. Ws. He collected and took possession blood-stained earth from three live places where the three dead bodies had fallen. He also took into possession the three crime empties from the spot. He then went to the village Ehsan Mangrio, where he found the dead bodies placed on cots under a tree. After preparing the necessary documents he dispatched the dead bodies for post-mortem examination. He arrested Niazoo and Kadro on 27-8-1975. Niazoo produced an unlicensed gun before him which he took into possession. Sobho was also arrested subsequently but the remaining accused, namely Ali Hyder and Umed Ali got themselves bailed out from the Court of Session before their arrest. The Investigating Officer sent the gun and the three empties of cartridges of 12 bore gun to the Forensic Expert but be was unable to give any definite opinion as to whether the gun and the empties matched with each other.
3. At the trial, the prosecution relied on the motive, evidence of three eye-witnesses, namely, Suleman P. W.
3. Cousin of the deceased, Mitho, P. W. 4, brother of Suleman and Jalal P. W. 5, sister's son of Muhammad (deceased) and the medical evidence, which shows that each of the three deceased had died of fire-arm injuries. But the evidence of recovery of gun from Niazoo, did not advance the prosecution case, because it could not connect him with the offence in question.
4. The accused denied the charges and pleaded innocence. The learned 'trial Judge, convicted Niazoo Appellant and Sobho under section 302 P. P. C. And sentenced each of them to death and a fine of Rs.3,000 each, or in default thereof to further undergo R.
1. For six months each, under section 544-A, Cr. P. C. Vide his judgment dated 15-11-1976. Umed Ali, Kadro and Ali Hyder, were, however, acquitted.
4-A. Niazoo and Sobho, filed Appeal against their convictions and sentence in the High Court of Sind. It was heard by a Division Bench of the High Court. The matter had also been sent for confirmation of the death sentences. The High Court, vide its judgment dated 11-1-1978, acquitted Sobho but dismissed the Appeal with regard to Niazoo appellant, and confirmed the sentence of death awarded to him. A short order to that effect was recorded by the learned Judges of the Division Bench on the same date for which reasons were to be recorded later. But before a detailed judgment could be delivered, both the learned Judges retired.
5. Niazoo filed a Petition for Leave to Appeal before this Court and it was argued by his learned counsel that the credibility of the eye-witnesses was not divisible and when their testimony had been disbelieved by the Courts below with regard to four of the co-accused the conviction of Niazoo could not be sustained on the same evidence, unless it was corroborated by some other independent piece of evidence. The learned counsel also urged that since a detailed judgment giving reasons for dismissing the appeal of Niazoo and the acquitting of Sobho (co-accused), had not been delivered before the learned Judges of the High Court retired, the short order recorded by them could not be treated as a judgment. Leave was accordingly granted by this Court on 13-1- 1980, to consider the above noted two questions.
6. The learned counsel for the appellant did not press the question of the above-mentioned Short orders of the High Court, but argued the appeal on merits with regard to conviction of Niazoo Appellant and urged that the testimony of the three eye witnesses who had been disabelieved qua the four of his co-accused, should not have been believed as against Niazoo.
7. We have gone through the evidence with the help of the learned counsel for the appellant and heard him on the above noted question at great length. The High Court, nor we, however, find that neither the learned trial Judge had disbelieved any of the eye-witnesses. As a matter of x fact, the learned trial Judge who has given a detailed judgment, placed implicit reliance on their testimony as truthful witnesses. But, as a measure of abundant caution, he gave benefit of doubt to Umed Ali, Kadro and Hyder Ali, co-accused who are real brothers of Niazoo and Sobho, so as to a obviate any chance of false involvement because no overt act or even instigation had been attributed to any of them. The trial Court convicted Niazoo (appellant) and Sobho, because specific role of firing and killing the deceased had been attributed to them. The relevant portion of trial Court's judgment is produced below : ---..After giving my anxious thought to the entire aspect of the case I entertain doubts in my mind regarding the participation of accused Kadro, Ali Hyder and Umed Ali. The reasons are firstly that it would be too much to expect that all the 5 real brothers would commit the murders of these persons only on the reason that the keep of accused Niazoo was being given in marriage to a person against their wishes. Secondly the eye-witnesses have assigned specific role to only two accused, namely Sobho and Niazoo, who did the actual killings. Against the other 3 accused the only evidence is that they were present there with hatchets which evidently have not been used.
Even there is no allegation that they instigated any one or did any overt act. These facts create doubts in my mind benefit of which must go to the accused person. I, therefore, hold that the three accused namely Kadro, Ali Hyder and Umed Ali were not the members of unlawful assembly and by giving them benefit of doubt I acquit them from all the charges."
It is evident that the learned trial Judge had not disbelieved the eye--witnesses but had merely given benefit of doubt to the three acquitted accused so as to mitigate the chance of false implication of all the five real brothers. We do not have the advantage of having the detailed judgment of the High B -Court before us but on going through the evidence on the record it is evident that they were persuaded to acquit Sobho because the eye-witnesses had contradicted each other as to the women on whom he (Sobho) accused, was alleged to have firdd, While Suleman, P. W. 3 and Jalal P. W. 5, stated that he had fired at and killed Mst. Nihalan, Mitho P. W. 4 has stated that he bad fired at and killed Mst. Wassan. The learned Judges of the High Court, therefore, evidently felt that he too was entitled to the benefit of doubt. As far as Niazoo, appellant is concerned the case against him has been proved beyond any reasonable doubt at least with regard to the murder of Muhammad (deceased). In view of what has been observed above, it is C -evident that the question of divisibility of the credibity of the eye-witnesses does not arise in this case and need not therefore be discussed. We are of the view that the case with regard to Niazoo, Appellant, has been proved beyond reasonable doubt. The appeal is consequently dismissed.