1. MUHAMMAD HALEEM, ACTG. C. J -This appeal by special leave arises from the judgment of the High Court of Sind, dated 15-10-1980, by which the conviction of the appellants under section 302 read with section 34, P. P. C. Was upheld and the death sentence of Khadim Hussain was confirmed.
2. According to the prosecution, ten years before the incident Haji Ali Sher apprehended danger on account of some dispute with Qurban, the father of Khadim Hussain and consequent upon a report lodged by him, Qurban was arrested and sent to jail where he had a fight with the inmates and was killed. The appellants accordingly nursed a grievance that had it not been for the fact that the deceased had lodged a report, Qurban would not have suffered death and this prompted them to commit his murder at Bepahri time on 11-2-1978 on a katcha road connceting Rawat Lighari village with Mangwani village. As alleged, the deceased alongwith Ali Khan his brother, Muhammad Laiq and Sono, his neighbours and caste fellows, went to Khairpur Nathan Shah to make purchases from their village Kalar and while they were returning at the stated time, the two appellants emerged from a dried watercourse and challenged the deceased and thereafter Khadim Hussain fired a pistol shot and being hit he fell from the cycle and as he lay on the ground, Ranjho gave-a hatchet blow on his head followed by another shot fired by Khadim Hussain. The appellants thereafter decamped from there. Ali Khan and others thereafter went near the deceased and found him dead. Leaving the other two there, Ali Khan proceeded on his cycle to Police Station, Mehar, which was seven miles away and lodged the F. I. R at 6-30 p. m.
3. From the spot, two crime empties and blood-stained earth were secured and so also the cycle of the deceased.
4. Four inlet wounds caused by bullets and one incised injury were noticed on the deceased Appellant Khadim Hussain was arrested on 13-2-1978 from his village Ali Gohar Khuhro and he led to the recovery of a pistol from the bushes in the vicinity of "Dhamaraha Wah", which was 12 miles away from his village, and it matched with the two crime empties. Appellant Ranjho also on being arrested from the same village produced a blood-stained hatchet from his house.
5. The trial Court rejected the plea of the appellants that they had been falsely implicated on account of enmity of the complainant party with Hussain Jatoi, who was their friend for having abducted their female relative, Asst. Zubeda, The trial Court further believed the ocular testimony, the motive, and the recoveries of incriminating articles connecting the appellants with the crime and convicted the appellants under section 302 read with section 34, P. P. C. And sentenced them to death. They were further ordered to pay a fine of Rs. 1,000 each or in default to undergo rigorous imprisonment for sir months. Additionally, they were also directed to pay Rs. 2,000 each as compensation to the heirs of the deceased under section 544-A, Cr. P. C. Or in default to suffer R. I.
6. For six months.
7. On appeal and reference, the death sentence of Ranjho was altered to imprisonment for life, and in all other respects, the findings of the trial Court were upheld.
8. Leave to appeal was granted to reappraise the evidence consistent with the principles of safe dispensation of justice.
9. Mr. Murtaza Hussain, the learned counsel for the appellants urged that the testimony of the eye- witnesses was discrepant in regard to the number of shots fired at the deceased; that the presence of P. Ws. Muhammad Laiqat and Sono was doubtful as their cycles were not noticed ; that the seizure of the crime-empties was doubtful as no mention of it was made in the F. I. R.; and lastly, that the report of the Ballistic Expert was not worthy of credence as no reasons were given in support of it.
10. Appellant Ranjho is the uncle of the other appellant. As for P. Ws. Muhammad Laiqat and Sono, they are not related to the deceased and at the same time had no enmity with the appellants. Both of them according to their version had gone to make purchases alongwith the deceased and Ali Khan. It is nobody's case and for that matter no question was put to lay a foundation that they could have been called from the village after the commission of the crime, which was five miles away. Therefore, the purpose asserted by them for accompanying the deceased could not be regarded as unusual for it is common knowledge that people from villages go to make purchases of articles of daily life from small towns and villages having large Abadis. Further if these witnesses had not been present there, it is too far--fetched to assume that the complainant would have mentioned their names in the hope that they would support the prosecution case. It is also worthy of mention that when the A. S. I. Reached the spot, he found them there which further clinches their presence, for it could not otherwise have been that they would alone be attracted to the wardat on the news travelling to the village about the murder of the deceased. As for some of the villagers having come to the spot after sun-set time, none of them has been identified nor did the A. S. I.
11. State about the presence of any such villager at the time when he came to the spot. He only spoke about the presence of Laiq and Sono. Accordingly, the presence of these witnesses cannot be linked with those villagers whose arrival appears to -be highly doubtful. We are, therefore, of the view that these witnesses had accompanied the deceased and Ali Khan. Having held so, it is difficult to accept that their evidence should be discarded for the reason that their cycles were not noticed by the A. S. I. Or that the number of shots imputed to Khadim Hussain was not consistent with that stated by Ali Khan. As for the cycles, they had no significance and therefore, it was not necessary to have spoken about them in the evidence. Furthermore, no question was put to the A.
12. S. I. As to whether he had seen the cycles and, therefore, it is not possible to say that he would not have noticed them.
13. Equally no question was put to Laiq and Sono as to whether they pointed out the cycles to the A. S. I.
14. Therefore, in the absence of any explanation from them, no inference of the cycles not being there can be drawn. There is some discrepancy as to the number of shots having been fired by Khidim Hussain. Ali Khan has mentioned two shots in the F. I. R.; although the inlet wounds are four in number. May be that he could have made a mistake as to the number of shots fired but this feature can only reflect to his own veracity and cannot be used to contradict what Muhammad Laiq and Sono had stated so as to militate against their credibility. Muhammad Laiq has stated that Khadim Hussain had fired four shots while Sono had given the number as two to three shots. If, the shots are fired in quick succession, it is possible to make a mistake as to their number and, therefore, this feature by itself in hardly of any significance. As for the crime empties not being mentioned in the F. I. R, it is not an invariable rule that their presence should also be disclosed and ought it be said that in a confused state of mind, one is likely to omit mentioning some of the details which he may have noticed. There is no foundation in the evidence about the planting of these crime empties at the spot, therefore, this omission in the F. I. R. Has no importance.
15. In regard to the opinion of the Ballistic Expert, if there was any short coming in it, it was for the counsel to have pointed it out to the Court at the stage of the trial so that the Ballistic Expert could have been summoned and the defect rectified. Not having done that, it is not open to the counsel to take this objection at the appellate stage. Section 510, Cr. P. C. Permits the opinion of the Ballistic Expert to be read in evidence without calling him as a witness. Its proviso empowers the Court to examine him, if necessary, in the interest of justice at the instance of the counsel for the parties or suo motu. Therefore, if the report was lacking in some respect, it was the duty of the counsel for the appellants to have pointed it out to the trial Court for its rectification by examining the Expert. The failure to do so would not give a reason later to assail that opinion: Accordingly, we see no justification to exclude it from consideration.
16. There appears a delay of about two hours in the lodging of the report, which the prosecution should have explained. But this feature alone will not cast a reflection on the credibility of the prosecution case. If Ali Khan had been examined on this aspect, he could have given some reason but that not having been done, it is not possible to draw an adverse inference on a hypothetical plane.
17. About the motive, the Courts below have rightly held that they had nursed a grievance and it was for that reason that they bad migrated to village Dhamaraha situated in District Larkana. 'The long period of ten year by itself would not be a factor to assume that they would have condoned the grievance as instances are not lacking about murders having been committed on account of blood-feud even after 15 or 16 years ; and being closely related to urban, they would be the persons to avenge that grievance.
18. The High Court re-evaluated the evidence and reached the conclusion that the eye-witnesses were truthful, and that further the discrepancy in their evidence as to the number of shots having been fired at the deceased was inconsequential. The High Court also held that the trend of cross-- -examination pointed to a suggestion that the murder was committed by Hussain Jatoi which fact was denied by these witnesses, and in effect this was an attempt to make out a case of substitution which the appellants failed to do so. The High Court believed the motive and has held that the ocular testimony was corroborated by the recovery of the crime weapons, which clinches their guilt. In this context the High Court further held that the securing of the crime empties from the spot was beyond any doubt.
19. We see no error in the appraisal of the evidence and finding no substance in the appeal, we dismiss it.