1. The main appeal, namely, Criminal Appeal No. 235 of 1980 has been filed on behalf of the three appellants whereas the other two appeals namely Criminal Appeals Nos. 236 and 237 of 1980 have been filed on behalf of the appellant Muhammad Saleh and Mittero respectively against their convictions under section 13-D of the Arms Ordinance. Although appellants Muhammad Saleh and Mittero were separately tried for the offence under section 13-D of the Arms Ordinance the three appeals which arise from the same incident are being dealt with in this order.
2. The three appellants in the main appeal were convicted under section 302 read with se;aion 34 by the First Additional Sessions Judge. Larkana for intentionally committing the murder of deceased Rustom Ali and deceased Mst. Nihalan and were sentenced each to imprisonment for life and to pay a fine of Rs. 2,000 or in default to suffer R. I. For six months. All the three appellants were further ordered under section 544-A, Cr. P. C. To pay Rs. 3,000 as compensation to heirs of each deceased, namely, Rustom Ali and Mst. Nihalan or in default to suffer further R. I. For six months. The sentence of imprisonment for life imposed on the appellants on each count was ordered to run concurrently except in the case of default of fine and default of payment of compensation for which the imprisonment is in addition to the sentence imposed on the appellants.
3. The three appellants have filed instant appeal against the aforesaid convictions and sentences.
4. The facts of the prosecution case are as under:- On 30th March, 1978 at 4 p. m. Mehboob Ali son of Muhammad Ehsan Patujo, resident of Deh Behram Hethoon on the land of Ahmad Khan Brohi about 14 miles towards west of the Miro Khan Police Station lodged information with S. H. O. Miro Khan whom he met on the bridge of Hakim Shah which was recorded on plain paper and later on sent to the Police Station where it was registered under section 154, Cr. P. C. As a cognizable crime at 6 p. m. The same day.
5. Mehboob Ali in the F. I. R. Stated that Rustom Ali was his brother who used to live in his house with him. On the day of the report of the incident Mehboob Ali was in his house when his brother Rustom Ali along with Bashir Ahmad son of Ghanwar Patujo and Abdul Hakim son of Fateh Khuhro all left together for taking bath at the water pump situated about a call---s distance from their house in the land of Yar Muhammad Brohi. Half an hour after they left Mehboob Ali went to fetch water from the tap of Ahmed Khan Brohi. He found his brother Rustom Ali, Bashir Ahmad and Abdul Hakim coming back alter taking bath and when they reached near the `Dera' of Ahmad Khan Brohi all of a sudden Muhammad son of Achar, Saleh son of Wali Muhammad and Mittero son of Amir Bux, all Mochis by caste emerged from the paddy straws lying in the Dera. Saleh and Mittero were armed with pistols and Muhammad was armed with hatchet. Mittero fired a pistol shot at Rustom Ali from behind and Saleh fired pistol shot from the front and Rustom Ali who was hit by the shots fell down.
6. Muhammad then gave him hatchet blow on his neck on front side.
7. The first informant further stated that while Saleh stood near the place where Rustom Ali had fallen with his pistol, Muhammad and Mittero went running towards the house of Muhammad. There was a report of a pistol shot and; after a short while, he, Bashir Ahmad and Abdul, Hakim who had been accompanying Rustom Ali saw Muhammad and Mitero bringing the body of Mst. Nihalan, wife of Muhammad by holding it from the arms and the legs. When they reached the place where Rustom Ali had fallen, they threw down the body of Nihalan, and thereafter Muhammad went over to the east and Saleh and Mittero went towards the north. The first informant, Bashir Ahmad and Abdul Hakim found that Mst. Nihalan and Rustom Ali were both lying dead. On their cries Illahi Bux son of Attur Patujo, Fateh Muhammad son of Shah Muhammad and other people of the village came running.
8. It is the case of the prosecution that Illahi Bux and Fateh Muhammad were returning after getting their paddy husked and were passing to the south of the house of Muhammad appellant when they saw appellant Mittero firing his pistol at Mst. Nihalan, wife of appellant Muhammad. Mst.
9. Nihalan fell down in the courtyard of the house and the two witnesses saw appellant Muhammad give hatchet blows to Nihalan, as the place was visible from where they were passing. The house of P. W. Illahi Bux is about 13 paces from the house of appellant Muhammad and before the two witnesses had reached the gate of their house they heard cries from the east. They went running there and saw appellant Saleh holding pistol in his hand who asked them to keep away. They saw Mebboob Ali, Abdul Hakim and Bashir who informed them that appellant Mittero, Saleh and Muhammad had killed Rustom Ali. The two witnesses in their turn also informed them that appellant Mittero and Muhammad had killed Nihalan. Appellants Mittero and Muhammad brought body of Nihalan held from the legs and arms to the place where the dead body of Rustom Ali was lying and placed it there. Appellant Saleh and Mittero then ran away to the north and appellant Muhammad ran to the east. Mehboob Ali then left to lodge report with the Police.
10. On the day of the incident Mazhar Hussain Shah was S.H.O. At Police Station Miro Khan. He had gone for investigation of Crime No. 25/1978 and while he was passing by Hakim Shah Bridge complainant Mehboob Ali met him and told him that he was going to lodge report. Mazhar Hussain Shah recorded the First Information Report on plain paper and sent the same to Incharge Police Station Miro Khan for incorporating it in the book kept under section 154, Cr. P. C. He then accompanied complainant Mehboob Ali to the scene of offence which was shown to him by Mehboob Ali. It was in village Ali Gohar Khuhro Deh Behram Hethoon. He saw there the dead bodies of Rustom Ali and Mst. Nihalan lying at a distance of about 7 paces from each other. He recovered blood-stained earth and two empty cartridges from the scene of offence. The two dead bodies were lying near Dera of Ahmad Khan. The other scene of offence was in the house of accused Muhammad which was at a distance of about 300 paces from the first scene of offence. There was blood in the house of accused Muhammad. He secured blood-stained earth from that place and sealed the same. He prepared joint mashirnama of both the scenes of offence in presence of mashirs Muhammad Umar and Soomar. Next he prepared inquest report of dead body of Rustom Ali and also the inquest report of the dead body of Mst. Nihalan in presence of the same mashirs. He sent the dead bodies through P. C. Moulabux to Medical Officer, Kambar for post-mortem examination and report.
11. He then recorded statements of prosecution witnesses Abdul Hakim, Bashir, Illahi Bux and Fateh Muhammad. On 31st March, 1978 he arrested appellant Muhammad in presence of the same mashirs. From his person he secured blood-stained loin-cloth. Appellant Muhammad produced a blood-stained hatchet which was recovered in the presence of the same mashirs. Both the loin- cloth and the blood-stained hatchet were sealed and sent to the Chemical Analyser. On 1 April, 1978 he arrested accused Saleh in presence of mashirs Muhammad Panah and Imam Bux. The aforesaid accused led him and the mashirs to his house where from the hedge he took a country- made pistol in working order and two live cartridges which the S. H. O. Took into his possession in presence of the same mashirs. The pistol was sealed. He then lodged F.I.R. On behalf of the State against accused Muhammad Saleh under section 13-D, Arms Ordinance at Police Station, Miro Khan. On 2nd April, 1978 he arrested accused Mittero in presence of mashirs Habibullah and Ghous Bux. The accused led him and the mashirs to house of Muhammad where from rubbish lying there he took out a country-made pistol and one live cartridge which were secured and sealed in presence of mashirs. He sent the blood-stained articles to the Chemical Examiner for examination and pistols to Ballistic Expert along with the empty cartridges recovered from the scene of offence.
12. On 2nd April, 1978 he filed F.I.R. On behalf of the State under section 13-D, Arms Ordinance against accused Mittero at Police Station, Miro Khan.
13. The report of Chemical Analyser showed that the blood-stained earth from the two scenes of offence, the blue loin-cloth secured froth the person of appellant Muhammad were stained with human blood, but on the hatchet blood could not be detected.
14. The Ballistic Expert, namely, Director F. C. L. Crime Branch, Karachi found one of the empties secured from the first scene of offence as having been fired from pistol secured from possession of Mittero accused and the other empty fired from pistol recovered said to have been produced by Muhammad Saleh.
15. There was ocular evidence of prosecution witnesses Mehboob Ali, brother of deceased Rustom Ali, Abdul Hakim. Bashir Ahmad, Illahi Bux and Fateh Muhammad. Of these witnesses Mehboob Ali, Abdul Hakim and Bashir had witnessed the three appellants committing murder of Rustom Ali and they further deposed that appellant Muhammad Saleh had stood near the dead body of Rustom Ali and had kept them away, while appellants Muhammad and Mitharo had gone towards house of Muhammad and had later brought the dead body of Nihalan taking it from Me legs and arms to the first scene of offence and had placed it near the dead body of Rustom Ali. The evidence of P.
16. Ws. Illahi Bux and Fateh Muhammad is mainly of witnessing the murder of Nihalan in the compound of the house of Muhammad and of bringing the dead body and placing it near the body of Rustom Ali.
17. In their statements in the trial Court Muhammad Saleh and Mittero accused-appellants denied participation in the murders and the recovery of pistols and cartridges from their possession, and declared that they were innocent. Appellant Muhammad denied the allegations except that he admitted that he had killed Rustom Ali and deceased Nihalan on finding them in compromising position due to grave and sudden provocation. He admitted that at the time of killing deceased Rustom Ali and Mst. Nihalan he had hatchet. He totally denied that the two co-accused were with him at the time when he killed the two deceased and stated that co-accused Mittero is his maternal uncle and co-accused Muhammad Saleh is his `Masat'.st I have heard Mr, Azizullah K. Shaikh, the learned counsel for the appellants and Mr. Ghulamally Agha for the State. It is his contention that the eye-witnesses are interested persons being mostly related to the deceased and, although there are admissions in the cross-examination that other persons had come to the scene of offence on hearing cries, no independent evidence has come on record.
18. It is further his contention that appellant Saleh has unnecessarily been roped in and since there is no evidence with regard to motive, the only evidence on the point which is the statement of accused-appellant Muhammad should be taken as correct. He has therefore argued that even where accused Muhammad is concerned, the offence would be one under section 304, Part 1, P. P.
19. C. As if the statement of accused Muhammad is accepted, he had found deceased Rustom with Nihalan in compromising position and had under grave and sudden provocation killed them.
20. Mr. Ghulamally Agha, the learned counsel for the State has, however, pointed out that the version given by accused Muhammad in his statement can only be considered as correct if the testimony of all the eye--witnesses is discarded, and there is no reason why their testimony should not be relied upon as this is not a case of alleged enmity between the parties.
21. Of the alleged eye-witnesses Abdul Hakim is Khuhro by caste and even if there is relationship of the other eye-witnesses with the deceased, in the circumstances of the case they were the most natural witnesses of the incident at the two places of incident, the version of accused Muhammad cannot be accepted inasmuch as there is evidence of Dr. Nanikram with regard to the nature and number of injuries which fully supports the version of the eye-witnesses Mehboob Ali, Abdul Hakim and Bashir Ahmad in respect of death of Rustom Ali in that there was fire shot injury at the back of abdomen left side near mid line and another fire-arm wound on the left side chest near the nipple ; besides there being incised wound muscle deep on the front of neck. The three eye-witnesses, namely, Mehboob Ali, Abdul Hakim and Bashir all have stated that Mittero had fired pistol at Rustom Ali from back side and .He fell on the ground, and then appellant Muhammad Saleh had fired at Rustom Ali and the shot had hit him below left nipple. It was further stated by these three eye-witnesses that Muhammad had given the hatchet blow - on the neck of Rustom Ali. The testimony of these witnesses has stood the test of cross-examination, and their testimony is fully corroborated by the medical evidence. It is also apparent from the medical evidence on record that at least three persons were concerned in the killing of Rustom Ali as three types of injuries were caused. Similarly, the evidence of P. Ws. Illahi Bux and Fateh Muhammad to the effect that they had seen Mittero firing at Nihalan with pistol with the result that Nihalan fell on the ground and then accused Muhammad gave her hatchet blows is fully corroborated by the evidence of Dr. Nanikram, who found fire-arm wound on the left side of back, besides incised wounds caused by sharp-- cutting weapon like a hatchet. All the eye-witnesses have also deposed to the effect that appellant Muhammad Saleh stood near the dead body of Rustom Ali with his pistol threatening people not to come near till the dead body of Mst. Nihalan was brought by Mittero and Muhammad and placed near the dead body of Rustom Ali. The evidence of recovery of pistols and the report of the Ballistic Expert stating that the two empties found from the first scene of offence were fired from the two pistols also goes to support fully the evidence of the three eye-witnesses who saw the killing of Rustom Ali.
22. In view of the fact that there was no previous enmity between the parties, there is no reason to disbelieve the evidence of the eye-witnesses. It may here be stated that Mr. Azizullah K. Shaikh, the learned counsel for the appellants, has pointed out certain minor discrepancies in the prosecution story, for instance, `Angosha', soap and jug not having been secured from the first scene of offence by the Police as throwing doubt upon the very presence of Mehboob Ali, Abdul Hakim and Bashir Ahmad. The aforesaid omissions however could be a lapse on the part of the Investigating Officer, but are not sufficient to discredit the evidence of the eye-witnesses. The defence version about appellant Muhammad finding the two deceased in compromising position and killing them on the spot is also belied by the evidence on record regarding the two scenes of offence. If, as stated by accused Muhammad, he alone had killed the two deceased, there is no explanation as to why when he was, as he himself admits, armed with only a hatchet, there were fire arm injuries found on the two dead bodies by Dr. Nanikram. As already stated, the evidence of the Medical Officer makes it clear that there were at least three persons concerned in the murder of Rustom Ali, and two persons in the killing of Nihalan.
23. For the reasons stated, I do not find any substance in the main appeal and Mr. Azizullah K. Shaikh, the learned counsel for the appellants, did not press the two appeals for conviction of the accused under the Arms Ordinance. 1965. The three criminal appeals are accordingly dismissed.