SHAFI-UR-REHMAN, J.-On a jail petition by the four convicts, all sentenced to death, leave to appeal was granted to review the entire evidence to ensure that required corroboration was forthcoming in respect of each one of them.
2. Five or six months before the day of the occurrence which took place on 22-8-1973 one Haji brother of Suleman appellant was murdered.
Umar and Sikandar deceased, the two brothers, were facing the trial and happened to be on bail.
On 22-8-1976 they had to appear in the Court at Mehar in District Dadu in connection with the case.
As is usual on -such- occasion they along with A.I Bux and Haji Rehib deceased and A.I Sher (P. W.
7) and Hussain Bux (P. W. 8) were on way to the Court early in the morning. When the party reached the graveyard of Pir Muhammad Shah in village Gullan Khoso the appellants who were armed with firearms and hatchets surprised them. Suleman appellant fired at Umar and then at A.I Bakhsh while Abdul Karim appellant fired at Sikandar and then at Rahib while Abdul Karim and Pir Bakhsh gave them hatchet injuries causing the death of four persons.
3. A.I Sher (P. W. 7) lodged the report of the occurrence at Police Station Mehar at 7-45 hours. It was recorded by Muhammad Musa (P. W. 9) who reached the spot, found there the bullock cart and the bullocks belonging to Haji Rahib deceased, recovered two empties of a rifle, one rifle bullet which had misfired and three empties of '12 bore gun. After attending to the dead bodies he sent them for autopsy.
4. Haji Rahib had three fire-arm injuries on his person all with black margins one possibly by rifle and others by gunshot. Umar had two fire-arm wounds, both with black margins caused a gunshot, and three incised wounds on his person. Sikandar had two firearm injuries with black marg--ins caused by gunshot and two incised wounds on his person. A.I Bakhsh bad two fire-arm wounds with black margins and two incised wounds on his person.
5. On the same day Suleman appellant was arrested. His shirt, loin-cloth and/big cloth used as turban was found to be stained with blood and taken into possession. He had four incised injuries on his person. They appeared to the doctor to have been caused by sharp-cutting weapon such as hatchet. Suleman led to the recovery of the rifle which was hidden in a hedge, a live bullet and an empty bullet was found in the barrel .Of the rifle which to the Police Office appeared to have been freshly fired. He took these into possession.
6. On 23-8-1981 the appellant Shah Nawaz appeared before the same Police Officer and was found injured. Both the injuries on his person appeared to the doctor to have been caused by some sharp-cutting weapon _ like blade or knife and to have been self-suffered. Shah Nawaz led to the recovery of a hatchet which appeared to have been washed and apparently there was no blood- stain on it but the Serologist reported that it was stained with human blood. His shirt and lion-cloth appeared to the investigating Officer to contain some blood-stains and he took them into possession and sealed them but the Serologist reported them not to be stained with blood.
7. .On the same day Pir Bakhsh alias Piru appellant was also arrested and his loin-cloth, shirt and piece of cloth used by him as turban were found to be stained with blood and these were taken into possession. Pir Bakhsh also produced a hatchet but none of these articles was reported by the Serologist to be stained with blood.
8. Allahdino S. I. Police arrested Abdul Karim appellant on 26-8-1973. He led to his house and produced a ' 12 bore pistol which was lying buried under the refuse in the hedge of his house. There was an empty in the barrel. He also produced two live cartridges along with the pistol, all of which were taken into possession.
9. The plea of the appellants was one of denial of having committed the offences or to have led to the recovery of the weapons. Suleman appellant explained his injuries by saying that they were received "at the hands of the thief". He admitted the recovery of his blood-stained clothes and the murder of his brother for which Umar and Sikandar were being tried. The other appellants denied the recovery and alleged their false implication on account of enmity. Shah Nawaz pleaded that he was neither a companion nor friend of the other appellants and in fact Suleman had caused injuries to his cousin Siddiq for which he was convicted. Piru imputed his false implication to the fact that he had lands adjacent to that of A.I Sher and A.I Sher suspected him of maintaining his illicit relations with his wife. Shah Nawaz appellaat claimed relationship with Pir Bakhsh and their enmity with Suleman and Karim on account of the aforesaid Siddiq.
10. The trial Court after examining the discrepancies in the statement of the two eye-witnesses concluded that they were "eye-witnesses of the occurrence notwithstanding the discrepancies brought out in their testimony". The discrepancies and the variations were explained away by holding that "the eye-witnesses naturally must have got terrified and therefore they might have not been able to observe correctly whether accused Sideman carried a rifle or gun". At one stage the trial Court felt that "there is no doubt that we have to base our finding on mere surmises and conjectures as ocular evidence is wholly lacking". So far as the defence of Piru and Shah Nawaz appellants was concerned, it was held that "it is possible after accused Suleman was convicted in that case parties patched up their differences and all the four accused were having cordial relations in the days of this incidence". The recovery of the blood-stained hatchet from Shah Nawaz was held to be corroborative evidence just as in the case of Suleman and Abdul Karim appellants the motive was held to provide the necessary corroboration. They were all therefore convicted under section 302/34, P. P. C. (on four counts) and each was sentenced to death. Suleman from whom unhcenced rifle was recovered was convicted and sentenced to three years' rigorous imprisonment under section 13-D of the Arms Ordinance while Abdul Karim from whom pistol was recovered was sentenced to one year's rigorous imprisonment. No fine or compensation was awarded.
11. While dealing with the question of the confirmation of the death sentence the learned Judges in the High Court upheld the view of the trial Judge that the two eye-witnesses had in fact witnessed the occurrence and the discrepancy about the specific fire-arm was due to the ignorance of rustic people as they were. As regards the involvement of Piru appellant, it was held that there was nothing to show that the relations between Peral and Suleman were not cordial or continued to be inimical after the judgment in Siddiq's case and the statement that Haji deceased was related to Peral remained unchallenged. The conviction and sentence was therefore maintained and the death sentences were confirmed.
12, As regards the motive, it has been admitted by both Suleman and Abdul Karim that Haji brother of Suleman had been murdered only a few months before the occurrence for which Umar and Sikandar were facing trial and were on bail. Abdul Karim is a cousin of Suleman and therefore could feel aggrieved. Pir Bakhsh and Shah Nawaz appellants belong to a different case but according to A.I Sher they were related to Haji deceased and so to the other two appellants. He however did not specify the exact relationship or elaborate it. 1t was admitted that Pir Bakhsh's cousin Siddiq had loged a complaint against Suleman and be had been convicted and sentenced by the Court on 7- 2-1970.
13. The day of occurrence, being the date of hearing in the murder case against Umar and Sikandar deceased, they had to attend the Court at Mehar. So had Suleman and Abdul Karim for prosecuting the matter. As is usual in rural community on such occasions both the parties take along with them their near relatives and close associates. A.I Bakhsh deceased, the father of Umar, and Sikandar, A.I Sher (P. W. 7) his cousin, and Hussain Bakhsh (P. W. 8) his nephew and Safar (not produced) father of Hussain Bakhsh were on way to the Court. Haji Rahib, apparently unconcerned and not related to any ,of the parties, had met them on way. According to the evidence A.I Bakhsh, Umar, Sikandar and Haji Rahib, the four deceased, were walking in one group about ten to twenty paces ahead of the other group comprising A.I Sher (P. W. 7) and Hussain Bakhsh (P. W. 8) and Safar (not produced). The attack was directed against the advance party and the others who were following them at some distance had an opportunity to avoid the brunt of the attack and to witness it. Such a grouping alone, it appears, accounts for the death of Haji Rahib in the firing that took place from close quarters.
14. The main defects pointed out in the prosecution case are that in the F. I. R. The two main accused Suleman and Abdul Karim were attributed guns but subsequently and at the trial Suleman was attributed a rifle and Abdul Karim a '12 bore pistol. Similarly nothing was said about the injuries caused to Suleman by Umar and the sequence in which it was caused though the prosecution case clearly established that a broken handle of hatchet belonging to Umar was recovered from the spot. Keeling in view the unexpected suspected surprise attack and the background of the witnesses the discrepancy and the omission was taken to be human and explicable. Finding that there was a bullet injuries an sharp edged weapon injuries, it appeared that at least three persons ha joined in the attack. The presence of A.I Sher and Hussain Bakhah ha been believed because of their close relationship with the deceased and the prompt report of the occurrence. In view of the enmity on accoun of the murder of Haji and the trial of Umar and Sikandar, A.I Sher and Hussain Bakhsh have been taken to be interested witnesses. Motive was found to provide the necessary corroboration in the case of Suleman and Abdul Karim. The injuries of Suleman having not been mentioned in the F. I. R. Could not be used as a .Piece of corroborative evidence. As regards Abdul Karim there is yet another piece of corroborative evidence which the two Courts have omitted to take into consideration. Three '12 bore empties were recovered from the spot. They were sealed into one parcel. This one parcel containing the three empties was opened by the Ballistic Expert, Mukhtar Ahmad (P. W. 1) who gave them his own marking as Nos. C/3 to C/5 and found one of these Le. C/4 to have been fired from the pistol recovered from Abdul Karim. The two Courts have wrongly held that it could not be identified whether this empty C/4 was the one recovered from the barrel of the pistol or from the spot. This should not have presented any problem because three '12 bore empties which had been recovered from the spot were sealed into one parcel and the other parcel bad only one '12 bore empty recovered from the pistol. The parcel containing one shell yielded the empty C/6 and the other parcel yielded the three empties C/3 to C/5. In the case of the rifle recovered from Suleman the confusion however persists and the benefit of it was given to Suleman on the failure of the Expert and the Investigating Officer to distinguish the '303 empty recovered from the barrel from the one recovered from the spot. In fact the recovery from the spot was of two '303 shells and one misfired '303 bullet but for reasons unexplained the Ballistics Expert received two separate parcels each containing only one '303 shell.
15. The fire-arm injuries on the person of the deceased unmistakably showed that they had been caused from to close a distance. In every case there was blackening around the wound. This enabled the victims o the attack to use hatchet if they could. The ocular evidence is not consistent with regard to the exact sequence when Umar deceased was able to inflict injuries on Suleman; after having received the shots, in between, or before. Keeping in view the nature of the firearm injuries on his person and the damage caused is unlikely that he could have used the hatchet after he ha received one of the effective shots. The explanation given by Suleman that he bad received injuries "at the hands of thief" can hardly afford an acceptable explanation.
16. As against Shah Nawaz though no relationship as such is established, the hatchet recovered from him was found by the investigating officer to have been washed but was reported by the Serologist to stained with human blood. Its recovery from Shah Nawaz has been) accepted and it affords the necessary corroboration against him.
17. As regards Pir Bakhsh alias Piru not only he had alleged enmity against Suleman on account of Siddiq and established it, there appears to be no corroborative evidence against him at all. His shirt, loin-cloth and the cloth used as turban were suspected of being stained with blood but were not so. The hatchet recovered from him was found not to be stained with blood. There being neither motive nor any incriminating recovery and a background of enmity with Suleman it is unlikely that he could have joined them in this attack leading to the death of four persons. The requirement of safe dispensation of justice in criminal matters requires that benefit of reason-- able doubt must be extended to him. On a consideration of the case, we find that the conviction and sentence of the appellants Suleman, Abdul Karim and Shah Nawaz is proper and based on evidence which conclusive proved their effective involvement in the commission of the crime. On that account their appeal against conviction and sentence is dismissed. The conviction of Abdul Karim and Suleman for possessing unlicensed rifle by Suleman and pistol by Abdul Karim is based on the evidence of recovery which has been believed by the two Courts. It is upheld. The appeal of Pir Bakhsh alias Piru is however accepted and his conviction and sentence is set aside. He shall be released forthwith unless his detention is required in some other case.