G. M. SHAH, J.--The appellants Sikandar (27), Khoram (30) and Piral (32) all shares by caste were convicted under section 302 read with section 34, P. P. C. For the murder of Shah Nawaz by the learned IInd Additional Sessions, Judge Larkana by the Judgment dated 19th Novem--ber, 1977 to imprisonment for life and a fine of Rs. 1,000, .-in default thereof to suffer further R. I. For two years.
2. The learned Judge did not award the normal sentence of death, on the ground that the occurrence had taken place at the spur of the moment, after exchange of harsh words between the appellants and the deceased and there was no premeditation or planning to kill the deceased.
The appellants have preferred this appeal against the judgment of their conviction and sentence.
3. The brief facts of the case are that the first informant Khair Mohammad is the father of deceased Shah Nawaz. P. W. Ghulam Mohammad is his cousin (of Khair Mohammad) and is maternal uncle of the deceased Shah Nawaz whereas P. W. Ghulam Kadir is his (deceased's) father-in-law. They have their paddy fields, near their village, Mullan Kalhoro, which are cultivated by them on the basis of "harpa".
4. On 24th October, 1975 at about 1-30 p.m. (Friday) when Khair Mohammad and his son, Shah Nawaz, were harvesting their paddy crop in their fields and P. Ws. Usman and Ghulam Mohammad were also working on daily wages in the adjoining fields of Mooso Kalhoro, all the three appellants brought and left their sheep, for grazing, in the paddy fields of Khair Mohammad, and his deceased son. The deceased objected and asked them to take out of the field, their sheep over which, there was exchange of hot words between the deceased on one hand and the three appellants on the other. As a result of this, all the three appellants, who were armed with hatchets, tried to attack Shah Nawaz, but he started running towards the fields of Mooso Kalhoro in order to save himself. All the appellants chased and followed him. They reached him and inflicted several hatchet injures on his person. He received as many as 9 incised wounds on his neck; chest, left shoulder, right arm, and ankle. One incised wound was 7'' x --" x brain deep on left parietal and occipital region. The scalp, skull and vertebrae, the membrane, brain matter and the spinal cord were cut. Chest wall ribs and cartilages, pleurae and trachea left lung and oesophagus were also cut. Father of the deceased and the other witnesses Ghulam Mohammad and Mohammad Usman raised cries and challenged the appellants, not to kill the deceased, but they threatened them not to come near, Since the appellants were armed, the witnesses could do nothing. After killing the deceased Shah Nawaz, the appellants went away, carrying their hatchets. Khair Mohammad, left P. Ws. Ghulam Mohammad and Usman at the vardat, with the corpse, and himself went to Naudero Police Station and lodged the F. I. R. (Exh. 9) at 4 p.m. After covering the distance of about 8 miles, which was recorded by S. H. O. Mohammad Iqbal (P. W. 8).
5. The relations between the parties of the appellants and the first informant Khair Mohammad were already strained. Khair Mohammad is in possession of 12 `Jirebs' of land, near their village, in the same Deh. This land was an evacuee property. The- appellants had forcibly occupied it, about 1-- years before the occurrence, and Khair Mohammad had made the application to the Mukhtiarkar about it. The appellants were also involved in another case under section 326, P. P. C.
Filed by Illahi Bux, who also resides in the same village, as that of Khair Mohammad, first informant.'
6. After recording the F. I. R., the S. H. O. Mohammad Iqbal accompanied the first informant Khair Mohammad and visited the vardat in presence of the mashirs Ghulam Kadir and Ahmad. The dead body of Shah Nawaz was lying at the vardat. There was blood under the dead body, which was collected by the Police. The deceased was attired in blue coloured popline blood-stained shirt, which had corresponding cut from the right shoulder, as a result of the hatchet injury. The paddy crop was found trampled as a result of the struggle. The crop in the paddy fields of deceased Shah Nawaz and his father was found harvested. Towards West is the land of Moosa, in which the harvested paddy crop and paddy stalks were found. The inspection memo of the vardar was prepared Exh.
16. The dead body was despatched to the Medical Officer Larkana for post-mortem, and statements of witnesses Ghulam Mohammad, Usman, Ghulam Kadir and Ahmad were recorded by the Investigating Officer.
7. On 25October, 1975, the S. H. O. Mohammad Iqbal went to the village of the appellants and arrested them at 5 p.m. All the three appellants voluntarily produced three hatchets, which were found stained with blood, which were secured under the mashirnamas Exhs. 19, 20 and 21. The blood-stained articles were sent to the Government Chemical Examiner, who had sent his report (Exh. 23). After completing the usual investigation, the final charge sheet was submitted in the Court on 11November, 1975.
8. The defence of the appellants at the trial was a bare denial of the prosecution case. They led no defence.
9. The autopsy on the deceased Shah Nawaz was performed by Dr. Mohammad Amin Shaikh, Medical Officer Civil Hospital Larkana, who had found the following external injuries on his person:-
(1) One incised wound 6' x 2' x bone deep on front of upper part of the nece, cutting trachea, oesophagus, vertebra column and spinal cord.
(2) One incised wound 6" x 2" over-Taping Injury No. 1.
(3) One incised wound 3" x 1' x bone deep on left side of front of the chest, cutting manubrium sterni.
(4) One incised wound 2" x 1' x bone deep on anterior aspect of left shoulder cutting left clavical.
(5) One incised wound 4" x 1" x bone deep on anterior aspect of upper part of right upper arm.
(6) One incised wound 1--' x --" x muscle deep on right side of neck.
(7) One incised wound 7" x --" x brain matter deep on left parietal and occipital region.
(8) One incised wound 2" x --' x skin deep on anterior aspect of right ankle joint.th th
(9) One incised wound --' x 1/8'' x skin deep on anterior aspect of left ankle joint. .
On internal examination, the Doctor found the following damages:- Scalp, skull, vertebra, membrane brain matter and spinal cord were found cut. Chest wall ribs and cartilages plurae, trachea, left lung, oesophagus and left clavical and right humerous bones were cut.
From the external, as well as, internal examination of the dead body, the Doctor was of the opinion that the death was caused due to haemorrh--age and shock as a result of the above-mentioned injuries, which appeared to have been caused by some sharp cutting substance such as hatchets.
All the injuries were ante mortem in nature and were sufficient to cause death in the ordinary course of life. The death was instantaneous and the time between death and post-mortem was 6- 10 hours.
10. The learned counsel Mr. Mohammad Hayat Junejo for appellants and Mr. Hamid Ali for the State, have taken us through the entire evidence in the case. The learned trial Judge, while convicting the appellants, had relied upon the following pieces of evidence:-
(1) Occular evidence of the first informant Khair Mohammad (P. W. 3) and witnesses Ghulam Mohammad (P. W. 4) and Mohammad Usman (P. W. 5).
(2) Motive.
(3) Recoveries of blood-stained hatchets from all the three appellants.
(4) Report of the Chemical Examiner.
11. The learned counsel for the appellants Mr. Junejo has assailed the evidence of the three eye- witnesses, on the ground that they are interested and their testimony is not corroborated by independent evidence of unimpeachable character. He has contended that the first informant Khair Mohammad is the father of the deceased. He could not have been present at the vardat, as it was Friday, a holiday, when Muslims do not work. About the other two witnesses Ghulam Mohammad and Mohammad Usma n it is argued that they are closely related to the deceased and in spite of the other independent witnesses being present at the vardat, they were selected to act as eye-witnesses, due to their relationship with the deceased and his father. Their testimony, therefore, as is submitted, should not be relied upon and considered as a corroboration of the evidence of the father of the deceased. It is further submitted that according to their version, all the three eye-witnesses and the deceased had gone for harvesting the paddy; but no sickles were produced by them before the Police, nor were any such sickles recovered by the Police from the vardat.
12. We have carefully considered these arguments of the learned counsel Mr. Junejo and find no force in them. The death of the deceased Shah Nawaz is not disputed. He had sustained as many as 9 (nine) incised wounds, which have been testified by the Doctor to be ante mortem and appeared to have been caused by a sharp cutting objects such as hatchets, and were sufficient to cause death in the ordinary course of nature. It is also not denied that the dead body was lying in the land of Moosa Kalhoro and quite a lot of blood was found lying on the ground and the grass, as well as, the place underneath the dead body. The shirt of the deceased was also found cut from the right shoulder, corresponding the incised hatchet Injury No. 4 on the left shoulder, cutting the left clavical. The paddy crop, where the deceased was attacked, was also found trampled.
According to the Tapedar, that place was in S. No. 61 of which. Mooso Kalhoro is a recorded --- harp" and had cultivated paddy in it. In the land of the deceased Shah Nawaz and his father Khair Mohammad, the paddy crop was found harvested and paddy stalks were seen lying there. Likewise paddy was also found harvested in the land of Mooso Kalhoro, which was harvested by witnesses Ghulam Mohammad and Mohammad Usman. Mere fact that the sickles were not produced by any of the witnesses, will not make any difference, to discard the version of the eye-witnesses, when the circumstance and the situation at the vardat supports the version, as has been deposed, on oath, by the eye-witnesses. Khair Mohammad has testified that he and his son, the deceased, were harvesting their paddy crop in the field and P. Ws. Ghulam Mohammad and Mohammad Usman were working in the adjoining field. It was about 1.30 p.m., when all three appellants, armed with hatchets, brought their sheep and left them in their field for damaging their paddy crop. The deceased had objected to the appellants over their bringing the sheep and leaving them in their field and asked them to drive out their sheep. There was an exchange of hot words between the three appellants and the deceased, over which the appellants attacked the deceased. He has further deposed that in order, to save himself the deceased started running, but the appellants caught up with him in the field of Mooso Kalhoro and all of them inflicted hatchets, blows upon him.
On his cries, his father Khair Mohammad and witnesses Ghulam Mohammad and Mohammad Usman, who were harvesting there, went running, to intervene and save the deceased, but the appellants, by then, had caused several hatchet injuries to the deceased, who was found dead at the spot. Witnesses Ghulam Mohammad and Mohammad Usman, who had witnessed the occurrence, have testified the facts in details and have supported the version given the first informant Khair Mohammad. It is argued that the day of occurrence was a Friday. For the poor villagers to work for livelihood, is equally a prayer for them. It is possible, they may have had intentions of going for prayers, in the meantime, the fateful occurrence took place. The situation at the vardar, however, establishes the fact that the alleged incident did take place, as is' sworn by the witnesses, because the paddy was found harvested on that day, in the fields of the deceased, as well as, that of Mooso Kalhoro, where the two witnesses were also harvesting the paddy crop.
The first informant Khair Mohammad has candidly, admitted his relationship with the two witnesses Ghulam Mohammad and Mohammad Usman, who have also not denied it. Mere relationship between the witnesses inter se, would not discredit their testimony. The evidence in the case is to be appraised in its entirety, keeping in mind all the facts and circumstances of the case. The occurrence had taken place in broad daylight. It is difficult to believe that the witnesses would let go the real culprit and falsely implicate the innocent persons. The attack on the deceased was sudden and swift. It could have taken only minutes for the whole episode to be over. The other witnesses had reached the vardat, after every thing was over and the appellants had also run away. There are no special circumstances or material discrepancies in the evidence of these three eye-witnesses, to persu--ade us to discard their testimony, which we find, is reliable and trust-- worthy.
13. It is next contended by Mr. Junejo that there was enmity between the parties over the possession of the land, which had resulted in the false implication of the application. According to Khair Mohammad, he was in possession of 12 jirebs of land, in the same Deh, which the appel-- lants had forcibly occupied about 1-- years prior to the occurrence, against which he had made the application to the Mukhtiarkar. The grievance of enmity. If any, could not be said to be against the appellants. On the contrary, the appellants who could not retain the possession of the land forcibly occupied by them, had the motive to take revenge and had brought their sheep and left them to damage the paddy crop of the deceased and his father. When the deceased had objected to it, he was chased, attacked and killed.
14. As regards the recoveries of the blood-stained hatchets, Mr. Junejo has criticised the evidence of the mashir Ghulam Kadir, who is father-in-law of the deceased and is brother of P. W.
Mohammad Usman, and has argued that being closely related to the deceased and his father the evidence of the mashir, on the point of recoveries, cannot be considered as independent corroboration. We have already observed that relationship alone cannot disqualify and discredit a witness from becoming a truthful witness. The mashir Ghulam Kadir has testified that the appellants had voluntarily produced the blood-stained hatchets before the police, which were secured and sealed in his presence under the mashirnamas Exhs. 19, 20 and 21. This aspect is fully supported on oath, by S. H. O. Mohammad Iqbal, who could not have played party in the hands of the first informant. There is nothing on the record to suggest any hostility or interest of the S. H. O. In the false implication of the appellants.
15. Mr. Junejo has cited the case of Ahmad and others reported in Ahmad v. State (1977 P Cr. L J 662) and has argued that the evidence of the interested witnesses cannot be corroborated by the mashir, who is also related and interested. The facts of the cited case were distinguishable. In that case the first informant, in his F. I. R., as well as, deposition in the committal Court had admitted his relationship being the maternal uncle of the deceas--ed: but at the trial, he had dented this relationship. Even about the place of occurrence he had changed his version. His evidence was full of contradictions, which made his being an eye-witness doubtful, though, in spite of such contradictions and other discrepancies in his evidence, which clearly indicated a conscious but unsuccessful effort on his part he tried to show, at the trial, that he was an uninterested witness.
Similar was the character of the other eye-witness. The evidence of such witnesses, necessarily required corroboration, which was again provided by the mashir, who was placed in the same category as regards his relationship. Whereas, in the instant case, the testimony of the eye- witnesses, is free from such contradictions and discrepancies and their testimony independently, inspires confidence.
16. The other case relied upon by Mr. Junejo is of Lalan and others v. State (1976 P Cr. L J 52). In that case also there were discrepancies in the material evidence of the eye-witnesses and the prosecution story was improbable and the recovery of the incriminating articles was made from the place, to which the public bad the access. In the instant case the testimony of the eye-- witnesses, is consistent and has not been shaken in the cross-examination.
17. At the request of Mr. Mohammad Hayat Junejo, detailed argu--ments were re-beard again on 1st October. 1980 and after examining the: entire evidence brought on the record, with the help of Mr. Junejo and Mr. Hamid Ali the learned counsel appearing for the State, and considering all the contentions raised on behalf of the appellants, we have reached the conclusion that there is no justification made out for our interference in the judgment of the trial Court.
18. As a result of the foregoing reasons, we are of the opinion that the prosecution has fully established the guilt of the appellants on the charge of murder. We, accordingly uphold their conviction, and dismiss their appeals.