1. The appellants, Afghan and Walidino, along with acquitted accused Mithal and Muhammad Hashim, were tried on a charge under sec--tion 302/34, P. P. C. By the 2nd Additional Sessions Judge, Larkana, who, by a judgment, dated 10th February, 1979 while acquitting Mithal and Muhammad Hashim convicted the two appellants under section 302/34, P. P. C. And sentenced each one of them to imprisonment for life and to pay a fine of Rs. 3,000 each, in default whereof they were sentenced to R. I. For one year. Being aggrieved, both the appellants have filed a joint appeal through Mr. Muhammad Hayat Junejo, who has appeared for them. The State was represented before me by Mr. Abdul Aleem Dareshani. On the conclusion of the hearing, I had, by a short order, dismissed the appeal, and the reasons for such dismissal will presently follow.
2. Appellant Afghan is the maternal uncle of appellant Walidino, while acquitted accused Mithal is a cousin of Walidino. Muhammad Hashim has not been shown to be related to them. It seems that, earlier than the date of the incident, which took place on 6th February. 1977 a question had arisen before the parties in regard to deceased Mst. Azmat being a Kari with Malho Bozdar. This allegation was made before one Misri Shah, and it seems that Mst. Azmat was held to be not a Kari, but still acquitted accused Muhammad Hashim, who is stated to be an influential man, left the Jirga, stating that he would have her murdered as a Kori. It is then the prosecution case that Muhammad Hashim had instigated the two appellants and Mithal to commit the murder of Kari Msr. Azmat.
3. Deceased Mst. Azmat was married to complainant Deedar. On 5th February, 1977, both Mst. Azmat and Deedar, along with a brother of Mst. Azmat, had gone to the house of Ghulam Farooq in Deh Wassayo Bhutto, Taluka Ratodero to congratulate the said Ghulam Farooq on the birth of a son.
4. While Ghulam Farooq was not present in house, his wife, Mst. Patoli, was present, who entertained deceased Mst. Azmat, Deedar and Sikandar with meals, and thereafter all of them went to sleep, keeping a lantern burning in the house. While Deedar and Sikandar slept on a Charpoi, the deceased, Mst. Azmat, and Mst. Patoli slept on the ground. At about Fajir prayers time there was barking of dogs, which woke up both Deedar and Sikandar, and they found the two appellants, together with acquitted accused Mithal, in the house of Ghulam Farooq. Appellant Afghan was armed with a single barrel gun, appellant Walidino with a pistol and acquitted Mithal was carrying a hatchet as well as a torch. Appellant Walidino made a challenge stating that Mst. Azmat was a Kari, and they would not spare her. Mithal flashed his torch and identified Mst. Azmat, upon which appellant Afghan fired a gun, which caused her injuries on her mouth, and Walidino fired a pistol, which caused injuries on her left hand. In the meanwhile, Leemon and Dhani Bux, who reside nearby, came running, and they also saw the two appellants and acquitted accused Mithal in the house as well as while they were going out. The appellants went away after firing some aerial shots. Complainant Deedar and Sikandar narrated the facts to Leemon and Dhani Bux. Some more people came to the house later, and thereafter complainant beedar left for Ratodero Police Station at a distance of ten miles, where he lodged the Report at 11-00 a. m. Viz within about five hours.
5. S. H. O. Muhammad Ismail, after recording the Report, came to the wardat. He secured blood- stained earth and some blood-stained pellets. He also saw a lantern at the wardat. He secured one empty cartridge. He also prepared Inquest Report, and thereafter sent the deceased to Ratodero Hospital for examination of injuries. Dr. Noordin found the following injuries on the person of deceased Mst. Azmat :-
(1) Irregular lacerated- wound 1--" in diameter at the back of left hand penetrating inside the palm.
6. There is scorching of surround--ing skin.
(2) Lacerated oval wound with irregular and reverted margins at the palm of left hand communicating with Injury No. 1.
(3) Lacerated wound 1-- " in diameter at the left cheek penetrating inside the face. There is scorching of surrounding skin.
7. On 7th February, 1977 both the appellants, together with Mithal, were arrested. Appellant Afghan produced a single barrel gun from his house, which was seized. Acquitted accused Mithal produced a hatchet from his house, which bore no blood-stains. On 19th February, 1977 appellant Walidino produced a pistol and a cartridge before the same Police Officer, and the same were also seized. The two weapons and two 12 bore crime empties were sent to the Forensic Science Laboratory, but, on examination, it has been found that the crime empties have not been fired from the shot gun, or, the pistol. On completion of investiga--tion, the case was sent up to the Court for trial.
8. At the trial, the prosecution examined Deedar and Sikandar as eye--witnesses. The prosecution also examined Leemon, the neighbour, who had come on cries, and had seen the accused leaving the wardat and to whom the circumstances of the transaction had been related by Deedar and Sikandar. The prosecution examined Dr. Noordin, who was the Medical officer. Prosecution also examined Arbab and Nabidad, who had served as Mashirs during investigation. While the appellants and acquitted accused led no evidence in their defence, each one of them denied the prosecution case, They stated that the witnesses were interested and hostile: Appellant Afghan also produced a copy of judgment by the Sessions Judge, Larkana, to Sessions Case No. 128/1952 decided on 16th December, 1952. In this case, acquitted accused Hashim had been tried but acquitted on a charge of murder. The judgment was produced to show that the parties were on terms of enmity. The other three accused, namely, appellant Walidino and acquitted accused Mithal and Hashim had adopted the statement of Afghan.
9. Before I proceed to examine the evidence of witnesses. It is necessary to state that complainant Deedar is a brother of appellant Walidino. It seems that the learned defence counsel was conscious of the fact that Deedar, being a brother of appellant Walidino, was likely to be given great credit, when he implicated his real brother, and there was suggestive cross-examination aimed at proving that Deedar was not a brother of Walidino. In that respect, Deedar as well as Sikandar categorically stated that Deedar was a brother of Walidino, and so did witness Leemon.
10. However, Nabidad, who was produced by the prosecution as a Mashir in regard to arrest and recovery from the appellants, was produced by the prosecution to depose in regard to such facts.
11. His examination in chief was recorded on 28th November, 1978 and his further evidence was adjourned, at the request of the defence counsel appearing in the case, on the ground that he would be cross-examined together with the Investigating Officer. It seems that Nabidad was cross- examined on 12th April. 1979, viz. After nearly five months, when he stated that Deedar was the son of Mst. Sahibzadi and Hayat, whereas Walidino was a son of Mst. Bakhtawar and Sultan, showing that they were not brothers. Earlier to the cross-examination of Nabidad, complainant Deedar had submitted an application in Court on 28th February, 1979 stating that the Court should not permit cross-examination of Nabidad, as he had been won over. This fact is recorded in the case diary, dated 28th February, 1979 and reads as follows :- "Application submitted by complainant stating therein that mashir Nabidad whose Chief has been recorded, may not be cross-examined as he has been won over. Order thereon."
12. On the other hand, appellant Walidino or. Afghan have not categorically stated in their statements under section 342, Cr. P. C. That Deedar was not related to Walidino as a brother. On such facts, I have come to the conclusion that complainant Deedar is a brother of appellant Walidino, and further that appellant Afghan is the maternal uncle of complainant Deedar.
13. The evidence of the two eye-witnesses, Deedar and Sikandar, is categorical and definite. They have both stated that they had gone to the house of Ghulam Farooq to congratulate him on the birth of son, and they staved there for the night and were sleeping in the house when they woke up on the barking of dogs and found the two appellants, along with Mithal in the house. Each one of the two appellants and the acquitted accused Mithal were armed as aforesaid. Appellant Walidino pointed at them with a pistol and threatened to kill deceased Mst. Azmat as she was Kari with Malho Bozdar. At that time, acquitted accused Mithal flashed his torch and located the deceased, who was sleeping with a quilt over her, where after Afghan fired the first shot with a gun, hitting her on the face, and Walidino followed by firing a pistol at the deceased, causing her injuries on the left hand. Both these witnesses further state that Leemon and Dhani Bux had come on the wardar on commotion, and they were also threatened, where after the two appellants and the acquitted accused, Mithal, went away firing in the air. All the circumstances of the transaction were disclosed to Leemon and Dhani Bux. These witnesses have also deposed in regard to the earlier Faisla, which was arranged on the question of Karo Kari, where it was decided that Mst. Azmat was not a Kari, but the acquitted accused walked out in protest, saying that he would have Mst. Azmat killed. Both these witnesses have been subjected to detailed cross-examination, but nothing substantial has emerged, which might persuade me to doubt their evidence. Mr. Muhammad Hayat Junejo, the learned Advocate for the appellants, has urged before me that Mst. Patoli, the wife of Ghulam Farooq, in whose house the murder had been committed, had not been produced by the prosecution, and therefore the evidence of these two witnesses should be doubted, or. At least it should be presumed that, if Mst. Patoli had been examined, she would not have supported the prosecution. It is true that Mst. Patoli had not been examined, but, in my view, she had not seen the incident. It is possible that Mst. Patoli, having come to know. About the intrusion of persons in the house, may have kept herself concealed under the quilt out of the fear. It may also well be that she had not seen the intruders. Even otherwise, it is common knowledge that such persons, who are not closely related to the deceased, think twice before their entrance in the witness-box. In any case, the prosecution refraining from examining Mst. Patch is not a circumstance, which would rob the evidence of Deedar and Sikandar of their probative value. In the same context, Mr. Muhammad Hayat Junejo also urged that Kewro and Anjeel, who are living in immediate neighbourhood of the house of Ghulam Farooq were not examined. In that respect, I may state that the evidence discloses that Anjeel was not present in the house on the night of the incident, whereas the 'record discloses that Kewro, in fact, is blind.
14. It has next been argued by Mr. Muhammad Hayat Junejo that the evidence of identification was not reliable. The incident had occurred at Fajir prayers time, and there was a lantern burning in the house. What is more that it was the sixteenth day of the lunar month, and therefore the moon did provide sufficient light. The fact of the lantern burning is stated in the First Information Report, and even the Investigat--ing Officer has deposed to it. Each one of the witnesses is categorical on that point. All the three persons, including the two appellants, who had entered into the house, were known to Deedar and Sikandar. To the same effect is also the evidence of Leemon, who came on the cries and saw the appellants at the wardat, and identified them. I am of the view that there was sufficient opportunity for the witnesses to see and identify the appellants.
15. Mr. Muhammad Hayat Junejo has also attacked the case in so far as it concerns motive for the crime. He has argued that, if the motive, as is alleged, was true, it was Deedar, who should have felt aggrieved by Mst. Azmat being a Kari with Malho Bozdar, and it should have been Deedar, who might have been interested in causing the death of the deceased. We have known of several cases where the near relatives of the Kari, or, her husband, have committed the murder of Kari on account of supposed provocation. In these circumstances, it also happens that the relatives of the husband of Kari feel aggrieved and insulted, and therefore, in spite of the husband of the Kari refraining from killing her, they take upon themselves to cause her death In this case also, the proximity of relationship between Deedar on the one hand and the two appellants on the other may well have given a cause of grievance to the two appellants to commit murder of the deceased. While dealing with the evidence of motive, we have only to judge the probabilities, and find out, whether the allegations of fact may have persuaded the accused to commit that crime, and, in such an enquiry, no degree of exactness, or, mathematical proportions can come into play.
16. It is also urged by Mr. Muhammad Hayat Junejo that Misri Shah has not been examined, although the prosecution case is that he was present at the Faisla. It is, no doubt, true that Misri Shah has not been examined, but one cannot overlook that Misri Shah is a resident of Sehwan a place at a distance of about hundred miles from the place of incident. Perhaps, the prosecution thought that, in spite of Misri Shah not being examined, the evidence in regard to motive was otherwise substantial and reliable. Mr. Muhammad Hayat Junejo has also invited my attention to two other aspects of the case, namely, medical evidence and the acquittal of Mithal. The contention of the learned Advocate in regard to medical evidence is based on the evidence of Dr. Noordin, who, in his cross--examination, had stated that the injuries on the person of the deceased were the result of one gunshot. The learned trial Judge, who had an occasion of seeing and recording the evidence of the witnesses, has stated that this was an obliging statement. It would appear that the appreciation of the trial Court was correct. On the nature of the injuries that have been caused, I am myself of the view that the injuries were the product of two separate shots. The description of the injuries appears in an earlier part of the judgment. It would appear that the first two injuries, which are located on the back of the left hand and palm of the left hand, communicating with each other, are the product of a single shot. The third injury, which is on the left cheek, and has penetrated inside the fact is distinctly an independent injury. In a human body, the cheek and the hands are distinct and sufficiently separate organs, or, parts of the body. Mr. Muhammad Hayat Junejo, however stated that it is possible that the deceased might be keeping her left hand on the face at the time the shot was fired, so that there was a possibility that the shots having penetrated the hand, struck the cheek. Even this position does not appear to be correct. The first injury, which is on the back of the left hand, shows the marks of scorching, while the second injury, which is corresponding to the first injury does not show any scorching marks. However, again the third injury on the left cheek shows scorching marks. Now, if the pellets were first to pass through the hand, and then enter into the cheek, it is inconceivable that scorching marks may be shown on the back of the hand, and not on the palm of the same hand, which appears to be the exact wound. What is more that, if there were no scorching marks on the palm of the left hand, there could not be any scorching marks on the cheek, because, on an assumption of' the three injuries having been caused by a single shot, the only reasonable way to reconcile is to think that the shot entered from the back of the hand, penetrated and came out from the palm and thereafter entered the cheek.' If there were scorching marks on the face, then there must have been scorching marks even on the palm of the hand. The absence of scorching marks on the palm of the hand is ample proof that the injury on the hand was independent of the injuries on the cheek. Even otherwise I am of the view that, if the pellets had first entered into the hand, it was very improbable that the same pellets, while entering into the cheek, would also leave scorching marks. It is, therefore, clear that two separate shots had been fired.
17. The other argument of Mr. Muhammad Hayat Junejo is that, on the same evidence, accused Mithal has been acquitted. The learned trial Judge, in that context, has stated that no specific role has been assigned to Mithal, and, out of abundant caution, he was inclined to extend the benefit of doubt to him. No doubt, against Mithal, it has been alleged that he had come with the two appellants. He was carrying a hatchet as well as a torch, and such torch was used by him for the purpose of locating the deceased. It would seem that Mithal could, on this evidence, be held to have common intention. However, the State has filed no appeal to challenge the acquittal of Mithal, nor has the complainant taken any proceedings. For the mere fact of a person having been wrongly, acquitted, it cannot be said that such other person, who should appear t " have been rightly convicted, should also be acquitted. On the other hand, the view taken by the trial Court is not on the assumption that evidence against Mithal was false. The trial Judge, out of abundant caution, acquitted Mithal solely on the ground that he had caused no injury. This argument has not impressed me. It is not the case that the evidence against Mithal has been disbelieved.
18. Summing up the ocular- evidence, I am of the view that this evidence is true. It is, however, also urged that there was a background of enmity, which is borne out by the copy of the judgment produced by appellant Afghan in his statement under section 342, Cr. P. C. This judgment was pronounced in 1952, viz. About thirty years back. I attach no importance to it for, in the meantime, the rancour, if any, must have subsided.
19. The evidence of eye-witnesses is also corroborated by the evidence of Leemon. No doubt, this witness is a neighbour of Ghulam Farooq, in whose house the murder had taken place. He states that he had come on the scene after hearing commotion. He also claims to have seen the two appellants and the acquitted accused, Mithal. He claims to have identified them, as it was a moonlit night, and a lamp was also burning in the house. He also states that he was threatened not to come near, as the appellants said that they had killed Mst. Azmat, as she was a Kari. The entire pattern of the story given by Leemon is consistent with the prosecution case. The facts relating to transaction were also disclosed to him by Deedar and Sikandar, and, in that respect, whatever he has deposed is perfectly consistent with the prosecution case. There is absolutely no reason to doubt his evidence.
20. Coming to the evidence of recoveries of weapons and the cartridges, the Ballistic Expert's Report is in the negative. The weapon of Walidino was recovered after eleven days of the incident, and, during this period, he was in custody. In any case, the Ballistic Expert has also not been examined.
21. The trial Court also did not rely on this piece of evidence. The weapons may well have been substituted, in the meantime, by the accused.
22. To sum up, I rely on the evidence of Deedar and Sikandar. Deedar is a brother of appellant Walidino, and a nephew of appellant Afghan. I also rely on the evidence of Leemon, which corroborates the ocular testimony. Even if this corroboration was not available, I would be inclined to uphold the conviction of the appellants on the bare testimony of the eye-witnesses.
23. In the result, this appeal is dismissed.