MUHAMMAD AFZAL ZULLAH, J.-Hakim Ali, aged 30 years, and his cousin Ahmad Khan, aged 20 years, have been convicted under section 302/34, P.. P. C. And sentenced to death; for having committed the murder of Shah Muhammad aged 60 years, their co-villager, in the area of village Shah Sarmast, District Gujrat, on 5th December 1966, by the learned Additional Sessions Judge, Gujrat, vide his judgment dated 4th July 1968. Two accused persons namely, Khan Muhammad aged 23 years, a brother of Hakim Ali convict, and Bahadur, aged 23 years, a brother of Ahmad Khan convict, who were jointly tried with them have, however, been acquitted. The convicts have appealed and the reference under section 374, Cr. P. C. For the confirma--tion of the sentences of death is also before us. Both the matters are being disposed of by this judgment.
2. Briefly, stated the facts, as disclosed in the statement of Muhammad Sadiq (P. W. 12) who is the son of Shah Muhammad deceased and is also the first informant, are as follows: On the day of occurrence i.e. 5th December 1966, at about chhahwela, one Khawaja (not produced) came to the house of the deceased and asked him to accompany him to the office of Union Council at Kotla Qasim where the divorce proceedings of Mst. Hayat Begum, the wife of one Rehmat who is nephew of said Khawaja, had to take place. On this, the deceased, Muhammad Sadiq P. W. And Muhammad Hussain (P. W. 13), who is related to the deceased, went to Kotla Qasim with aforesaid Khawaja. After the proceedings before the Chairman of the Union Council, in which the marriage of Mst. Hayat Begum was dissolved, the deceased accompanied by Sadiq and Muhammad Hussain proceeded towards their village. At about digerwela when they were near Chah Chavrianwala, the four accused persons, namely, Hakim Ali and Ahmad Khan (appellants) and Khan Muhammad and Bahadur (acquitted) emerged from a auger-cane field of one Walayat.
Hakim Ali and Ahmad Khan were carrying hatchets while Khan Muhammad and Bahadur were carrying dangs. They gave a lalkara. The complainant-party was unarmed. There Gold ornaments365.59 gms.
(gross weight)221.1 gms.
(gross weight)3.Silver Silver ornaments Silver coins39.055 kg.
24.105 kg.
2.655 kg.4.65.855 Kgs.65.855 kgs.5. Fixed deposits Rs. 1,500 Nil 6.Debtors------------------------- ------------------- lalkara they started running towards their village on the same path which they were already following. The deceased being an old man was overtaken. The to P. Ws. Were running ahead of the deceased. All the four accused persons attacked the deceased. Bahadur and Khan Muhammad gave him dang blows on the head on which the deceased fell down on the ground. Hakim Ali and Abmad Khan caught hold of the deceased from his arms and dragged him. Then Bahadur and Khan Muhammad caught hold of his legs, and in dangling position all four of them carried the deceased away to a nearby field of the accused. The witnesses followed and saw that after the deceased was taken to that field, Hakim Ali and Ahmad, Khan appellants gave one hatchet blow each on the neck of the deceased, as a result of which the head was severed from his body. Hakim Ali appellant then put the head in the 1oi (Exh. P. 1) of the deceased and then all the four accused went away to their dera, which is also near the place of occurrence; along with the bead (which was wrapped. In the loi). Bahawal Bakhsh (P. W. 14) a nephew of the deceased, and Rahmat (not produced) also saw this occurrence.
With regard to motive it may be straightaway stated that there is a long standing enmity between the parties. Hakim Ali and Khan Muhammad are real brothers, Ahmad Khan and Bahadur who are also brothers inter se are the sons of paternal aunt of Hakim Ali. Thus all the four are closely related to each other. About 10/12, year:, before the occurrence, one Muhammad Khan, a paternal uncle of Hakim Ali and Khan Muhammad (and also a maternal uncle of Bahadur and Ahmad Khan) abducted a daughter of Shah Muhammad deceased who was subsequently handed over to Abdullah Kashmiri and was never returned to her father. After some years, i.e. About 2 years, before the occurrence, Muhammad Khan, a son of the deceased, abducted the daughter of aforesaid, Muhammad Khan the uncle of the accused persons. This abductee was living with the son of the deceased when this occurrence took place. These abductions estranged the relations between the parties and, it appears, as a result thereof, a year before the present occurrence Shah Muhammad deceased, was given a beating for which all the four accused persons, in this case were being prosecuted under section 324/34, P. P. C. It is also clear that due to the enmity and the entire background, the Police got both the parties bound down, under section 107/151, Cr. P. C. In fact, the security proceedings were pending at the the of the occurrence, (statement of Investigating Officer P. W. 15). The complainant-party, in these proceedings, included Shah Muhammad deceased, his brother Muhammad Ali, his sons Muhammad Sadiq and Bahadur Khan (P. W. 3). The party of the accused, among others, included, all the four accused persons. It also appears probable that the deceased due to his being an elderly man in the complainant-party was conducting himself as the head of that party. It can be gathered from the trend of cross-examination and admissions made by Sadiq P. W. That the deceased was a litigious type villager. He along with his relations was involved in a criminal case for giving beating to one Ghulam Nabi Kashmiri. It was suggested that one Dhalla and eight others was challaned for firing at the deceased and that subsequently the deceased was prosecuted under section 182, P. P. C. For having brought a false firing case against those persons. A suggestion, which was denied, was also made to Sadiq P. W. That his father made presumably a false report to the Police that he and Bhalu had been injured at the hands of the "accused, etc". All this shows that both the parties were inimically disposed towards each other and further that the accused persons in this case were pretty annoyed due to the conduct of the deceased.
3. Sadiq P. W. Lodged report (Exh. P. A.) at Police Station, Lalamusa which is at a distance of four miles. It was recorded by Ch. Khurshid Ahmad, S. I. (P. W. 15) at 6 p. m. On the same day, i.e. 5th December 1966. The Sub-Inspector, reached the place of occurrence the same day.
After the preliminaries of the investigation, he despatched the dead body without bead to the mortuary. On the following day, blood-stained earth was collected from the spot vide memo. (Exh.
P. F.).
All the four accused were arrested on 8th December 1966. They were produced before the Police by one Rehmat Khan. They are said to have carried their respective weapons which they produced before the Police. Hakim Ali and Ahmad Khan appellants produced hatchets (Exhs. P: 6 and P. 7) which were taken into possession vide memos. (Exhs. P. G. And P. H. Respectively). They were sent to the Chemical Examiner but no blood was detected on them. The dangs, said to have been produced by the acquitted accused were not sent to the Chemical Examiner because the Police had not found any blood-stains on them. A chadar (Exh. P. 10) was removed from the person of Hakim Ali which was taken into possession vide memo. (Exh. P. L.). On Chemical examination it has been found to have been stained with human blood.
On the same day, i.e., 8th December 1966, Hakim Ali appellant led the Police to a sugar-cane field belonging to one Fateh Khan and brought out the head of the deceased which was found wrapped in loi (Exh. P. 1). It was taken into possession vide memo. (Exh. P. C.). After preparing the injury statement (Exh. P. Q.) and a separate inquest report (Exh. P. R.) of the head, the same was despatched to the mortuary.
Dr. Bashir Ahmad Medical Officer (P. W. 1) performed the autopsy on the dead body (within head) of Shah Muhammad at 1 p. m. On 6th December 1966. The following garments were found on the dead body :-
(1) a blood-stained turban ;
(2) a blood-stained shirt with cuts at the back ;
(3) a blood-stained chadar ; and
(4) a brown shoes in the feet. (The shoes when taken into possession by the S. 1. Vide memo. Exh. P.
D. Are described as The following injuries were found on the dead body :-
(1) "An incised wound 5` x 4" at the level of lower most part of neck cutting away the whole head and neck. The seventh cervical vertebra was present with the body which had been partially cut away on the right side. The wound was about 1--" from the medial ends of clavicles. The whole surface of wound and adjoining parts of skin were blood--stained.
(2) A contused wound 1" x --" on the medial side of middle of right lower leg.
(3) A contused wound --' x --" on the front of lower part of right lower leg.
(4) An abrasion mark 3" x 1" on the back of right scapular region."
As is obvious the neck had been completely cut. Therefore, the death was due to injury No. 1. Which had caused shock and haemorrhage. This injury was caused by sharp-edged weapon and was sufficient in the ordinary course of nature to cause death. The other three injuries were caused by blunt weapon. Accord--ing to the Doctor, they could be caused by dragging on the rough ground.
The death was instantaneous but about 21 hours elapsed between the death and the post-mortem which would fix the the of occurrence at about 4 p. m. On 5th December 1966.
The doctor examined the head and the neck of the deceased on 8th December 1956, at 4 p. m. This part of the body which was wrapped in a loi was cut at the lower level of the neck. The sixth cervical vertebra was present with the neck with a small part of seventh cervical vertebra on the right side.
The following injuries were found :-
(1) An incised wound 5" x 4" at the level of lower most part of neck cutting away the head and neck from the remain--ing body. The sixth cervical vertebra was fully present with the neck and a small part of seventh cervical vertebra was present with the sixth vertebra on the right side. The whole surface of wound and adjoining part of skin were blood--stained.
(2) A contused wound 1" x --" x pinna deep on the middle of left ear.
(3) A contusion mark 3" x 2" on the left temple region the injury was oblique in direction about 1" from the left ear. At the upper end of this injury a small wound -- x --" x skin deep was present.
Left temporal, parietal, occipital and frontal bones were fractured due to injury No. 3. The brain was contused and lacerated on the left side due to injury No. 3, within an area of 4' x 3'. Spinal cord and other vital organs of the neck were cut due to injury No. 1. In the opinion of the Doctor, the head and the neck examined by him on 8th December 1966, were of the same person whose dead body he had examined on 6th December 1966. According to him, injuries, Nos. 1 and 3 were sufficient in the ordinary course of nature to have caused death. Injury No. 2 simple. The the that elapsed between death and examination of the head was about three days which would also fix the the of the occurrence at about 4 p. m. On 5th December 1966. The Doctor, gave another very significant opinion, that injuries Nos., 2 and 3, which could not be caused by a fall on a hard surface, were caused by to separate blows, prior in the to the injury caused on the neck of the deceased. The reason given by him is that "both the head injuries were ante-mortem and the death of the deceased was instantaneous due to neck injury therefore it was natural that both the above-- mentioned injuries were caused first". According to him, injuries on legs and back of the deceased were also caused before decapitation. He also opined that head injuries of the deceased were caused prior to the injuries on the legs and back. Two to four blows of hatchet could cause decapitation and, according to him, more than one blow with heavy sharp-edged weapon effected the decapitation in this case. He ruled out the possibility that the neck injury may have been caused after the death but admitted that some the a dead person is decapitated, in order to make his identification impossible.
4. At the trial, Muhammad Sadiq (P. W. 12), Muhammad Hussain (P. W. 13) and Bahawal Bakhsh (P.
W. 14) gave ocular account of the occurrence and fully supported the prosecution case. Exh. P. V. a certified copy of a document purporting to be the deed of divorce executed by Rehmat Khan, husband of Mst. Hayat Begum, on 5th December 1966, was produced in support of the assertion of the prosecution that on the day of the occurrence the deceased had gone to Kotla Qasim to attend the divorce proceedings. The copy shows that the original was thumb---marked by Shah Muhammad deceased as a witness. Muhammad Sadiq P. W. Also gave the facts about the motive.
Exh. P. M. And Exh. P. X, the F. I. R. And the judgment respectively, in respect of the previous case under section 324/34, P. P. C. Instituted at the instance of Shah Muhammad deceased against the four accused person, were produced in support of the motive part of the prosecution case. The recoveries were sought to be proved by the statements of Muhammad Latif (P. W. 8) Muhammad Fazil (P. W. 9) and the Investigating Officer (P. W. 15).
The defence plea was that of denial. It was, however, admitted that the accused persons are related inter se. The prosecution in the previous case was admitted, but it was asserted that it was a false case and they had been involved due to enmity and that they were ultimately acquitted.
The recoveries were denied. The abduction of the daughter of the deceased was admitted, but it was asserted that one Bahadur Kashmiri and not the uncle of the accused persons was responsible for it. Aforesaid Bahadur was sentenced to death and thereafter the abductee was handed over to Abdullah Kashmiri, an uncle of that condemed man. The abduction of the daughter of the uncle of the accused (Muhammad Khan) by another son of the deceased was specifically denied. Ignorance was shown' about the security proceedings. In answer to the question as to why the witnesses deposed against them, the appellants explained that the complainant-party had suspected that Bahadur Ali Kashmiri had abducted the daughter of the deceased with their help and with the help of the acquitted accused ; therefore, they had been falsely implicated by the P.
Ws. Who were all related inter se. They, however, stated that they had no enmity with the complain- -at-party. Exh. D. A. a pedigree-table showing the relation--ship of some of the P. Ws. And Rehmat, an alleged eye-witness who had not been produced, was produced in defence, Exh. D. B. Which is the copy of the proceedings before the Union Council, Kotla Qasim, in respect of the divorce of Mst.
Hayat Begum, was also produced in defence. It starts with the same document, of which the copy (Exh. P. V. P. Has been produced by the prosecution, except for the difference between the to that the heading of Exh. P. V. Is while that in Exh. D. B. It is. It appears that the heading is not the part of the original and the persons who issued the copies to to different parties gave different headings to .The same document. Otherwise, the contents of both the copies are absolutely the same. The original of Exh. D. B. Also, is shown to have been thumb-marked by Shah Muhammad, deceased on 5th December 1966, as a witness, It is a deed of divorce purported to have been signed by one Rehmat, the husband of Mst. Hayat Begum, Abdullah Khan, the Chairman of the Union Council, adjourned the matter to 25th December 1966 on 25th December 1966 none of the parties was present ; therefore, the matter was adjourned to 16th January 1967. The parties were again absent and the matter was adjourned to 27th January 1967. The parties, were also absent on 27th January, 28th February and 9th March 1967. On the last mentioned date however, the Chairman, pronounced the divorce proceedings, as complete, in absence of the parties on a finding that they did not want the conciliation to take place. No other evidence in defence was produced.
5. The learned trial Judge believed the eye-witnesses. He held that the manner in which the recoveries of the weapons of all the accused persons and: the chadar of the Hakim Ali appellant were taken into possession, did not inspire confidence, therefore, he held them to be doubtful and did not rely on, them. The recovery of the head along with loi' (Exh. P. 1) at the instance of Hakim Ali appellant was relied upon and used as a strong corroborative piece of evidence against him. The evidence of motive was used as a confirmatory items against Hakim Ali and Ahmad Khan appellants. They have, therefore, been convicted and sentenced as stated in the earlier part of the judgment. About Khan Muhammad and Bahadur accused, the learned Judge, remarked that there was nothing in the medical evidence "to indicate that, there were any lacerated wounds on the head of the deceased which could have been caused by Khan and Bahadur accused with lathis.
The medical evidence does not support the prosecution case so far as the role of Khan and Bahadur accused is concerned. In view of the medical evidence, the role played by Khan and Bahadur accused in allegedly murder--ing the deceased becomes highly doubtful." Therefore giving the benefit of doubt, he acquitted them.
6. Mr. M. Saleem, the learned counsel for the appellants read and analysed the evidence to show:
(i) That the occurrence was not witnessed by the eye--witnesses ; and
(ii) that the head of the deceased was not proved to have been recovered at the instance of Hakim Ali appellant,, and that the assessm ent of the evidence by the learned trial Judge, in respect of other recoveries from or at the instance of the accused persons was not reliable.
According to him it was not correct that the deceased had gone to Kotla Qasim on the day of the occurrence and further that he was murdered by somebody, may be on chance encounter; and because a criminal case was already pending at the instance of the deceased' against all the four accused persons, therefore, they had been implicated without anybody having seen them committing the offence. About the head, hi: argument was that it was found by somebody during the inves--tigation and in order to support the prosecution case the discovery was planted on Hakim Ali appellant.
7. Learned counsel urged that except for the assertion of the witnesses, there was no reliable evidence that the deceased went to Kotla Qasim, and that, -this fact could be established by producing some independent witness connected with the divorce proceedings. It was further contended that there was no reason why the deceased should have stayed on at Kotla Qasim for such a long the so as to return to his village at about digerwela. Above all, it was argued that there was no reason for the deceased and the to eye-witnesses to have gone to Kotla Qasim in the divorce proceedings, of Mst. Hayat Begum with whore none of them had been proved to have any connection.
It is true that Khawaja, who is uncle of the husband of aforesaid Mst. Hayat Begum, and at whose instance the deceased and the witnesses went to Kotla Qasim, has not been produced. But to say that an independent witness has been withheld is not correct because aforesaid Khawaja, according to the prosecution, must have. Had good relations with the deceased ; that is why the latter went with him. Therefore, the latter's appearance as a witness would not have added to the strength of the prosecu--tion case. The Chairman of the Union Council could make some relevant statement in this behalf but it cannot be held that he was an absolutely essential witness in so far as the material aspects of the prosecution case are concerned. In--stead the prosecutor might well have thought that the copy (Exh. P. V.) about divorce proceedings, the original of which is shown to have been thumb-marked by the deceased and signed by the Chairman of the Union Council, Kotla Qasim, on 5th December 1966, was enough. Learned counsel himself stated that he did not want to raise the technical objection about the admissibility and proof of Exh. P. V. As noted earlier in paragraph No. 4 above, a part of the copy (Exh. D. 8) of the proceedings is the same as Exh: P. V. Exh. D. B. Has been produced by the defence and has been relied upon to show that the divorce proceedings, in fact, culminated in March 1967. It bias already been shown earlier that the proceed--ings, started on the document (divorce deed) (Exh. P. V.) which is also a part of Exh. D- B.
It was written on 5th December 1966, i.e., the day of the occurrence and was witnessed thumb--- marked by the deceased. 'This documentary evidence, is, in our view, a very strong corroboratory circumstance. Therefore, the eye-witnesses, are telling the truth in that the deceased had gone to Kotla Qasim and had participated in the divorce proceedings of Mst. Hayat. Begum. It is of some significance that it was elicited in the cross-examination of Muhammad Hussain P. W. That Shah Muhammad deceased had "affixed the thumb-impression to the document prepared by the Chairman within my seeing," A minor discrepancy was pointed out in respect of the reason as to why aforesaid Khawaja did not accompany the party of the deceased back to village Shah Sarmast. The reason as to why Khawaja did not return with them is an insignificant detail of minor importance and that to about a matter which took place before the occurrence. Therefore, we attach no importance to it.
Sadiq and Muhammad Hussain were cross-examined at some length to show that there was no reason for them to accompany the deceased. According to Muhammad Hussain, he was sitting in the drawing room 'of the deceased and was listening to the radio when Khawaja made request to the deceased ; and when the deceased waned to go with Khawaja he asked Muhammad Hussain and Sadiq to accompany him. Thus it appears that, according to the prosecution, he needed the help of Shah Muhammad who, as noted earlier, must have been considered as one who was experienced and had knowledge about ordinary legal matters. He himself had been through many litigations and was also, as the proceedings show, intended to be and did at as a witness. There does not appear to be any apparent reason for Muhammad Hussain and Sadiq to have participated in the divorce proceedings, But the village life in our country is very peculiar. Litigation and legal proceedings is a pastime for so many villagers.' Sometimes they come in numbers without any direct interest in the parties involved, and behave as spectators at a show. At other occasions, the parties involved, their witnesses, and helpers take along their relations so as to give a visible support at least moral, to the party they side with. In this case, Muhammad Hussain explained that the deceased had asked him and Sadiq P. W. To accompany him; therefore, they went with him. This at first sight does not make out a strong reason for these to witnesses, to have accompanied the deceased ; but in the background of the village life, as explained above, it is neither unusual nor unnatural. We have particularly taken note of the fact that the occurrence took place in the month of December 1966, and during those days the villagers have not much work to do and a lot of the is spent by them in gossip and other pastimes. We are, therefore, of the view that Sadiq, who is the son, and Muhammad Hussain who, as will be presently shown is also a close relation, of the deceased, accompanied and remained with him during the divorce proceedings.
We also find nothing unusual in the proceedings before the Chairman having taken sometime and the deceased accompanied by the to eye-witnesses having come back at digerwela the. It was not necessary that the divorce -proceedings should have been started and concluded according to some scheduled the. They are in the nature of proceedings by a village Panchayat and are conducted with ease and leisure. There is nothing in evidence to show that the deceased left Kotla Qasim at any earlier the than suggested by the prosecution. In any case we have failed to find any reason for the prosecution to have coined a false story that the party of the deceased was coming from Koda Qasim at the the of occurrence. Their presence, other-wise, in the suburbs of their own village, could not have been unusual ; particularly in view of the fact that the the and place of occurrence has not been contested.
The site plan shows a road going from vast to west and leading to village Sukchain and passing on the southern side of village Shah Sarmast at some distance. A line indicating an ordinary village path is shown taking of from this road and going towards the north, is on this path that Chah Chavrianwala, the place of occurrence, is situate. According to Sadiq P. W. The deceased and the to eye-witnesses had come on the road leading to Sukchain and then had taken the path which passes near Chah Chavrianwala for going to their village, and it is on this path that the occurrence took place. The the of occurrence, according to the prosecution, is digerwela and this circumstance has the support of medical evidence which fixes the death at about 4 p m. The recovery of the blood--stained earth leaves no doubt about the place of occurrence.
Considering all these circumstances, we hold that the deceased, while accompanied by Sadiq and Muhammad Hussain P. Ws. Had gone to and was coming back from Kotla Qasim, when he was murdered at the the and place alleged- by the prosecution. Therefore, unless there is something else inherently defective in their statement, they cannot be disbelieved on the basis of the above argument of the learned counsel.
8. The next argument of Mr. Saleem relates to the motive. According to him, the deceased had other enemies ; and the facts that the son of the deceased had abducted a cousin of the accused and that he (the deceased) was prosecuting them in respect of an earlier occurrence, were not sufficient as motive to murder him.
The appellants, have at least, indirectly admitted, the enmity between the parties. The abduction of the daughter of the deceased has also been admitted. According to the prosecu--tion, the uncle of the accused persons was involved in that abduction. There is sufficient evidence on the record to show that the son of the deceased was involved in the retaliatory abduction. Therefore, this is a clear case of enmity between the parties based on the abduction of each other's women. This, to our mind, is a very strong motive for attack of one on the other party or on an important individual thereof. We have already noted all the circumstances connected with the motive part of the prosecution case in paragraph No. 2 and have come to the conclusion that the deceased was an elderly and important person in the opposite-party, He had been the cause of a lot of trouble for the accused persons and they were being prosecuted at his instance (according to them falsely.)
For all these reasons they were being proceeded against under section 107/151, Cr. P. C. By the Police. Therefore they had, apart from the general enmity towards the deceased and his family, a strong motive against the deceased himself so as to do away with him.
It was pointed out from the judgment (Exh. P. X.) in the previous case under section 324,134, P. P. C.
That the deceased had favoured the party of accused persons, in deposing (during that trial) against only one of them, i.e. Ahmad Khan ; therefore, this should be considered as enough to show that the other accused should not have had any grudge against him. It is not clear from the judgment as to details of the statement made by the deceased in that case and as to how the learned trial Magistrate came to the conclusion that only one accused had been directly implicated by the deceased. The F. I. R. Shows that the d.-ceased had implicated all four of them. In any case, Ahmad Khan appellant was convicted under section 324/34, P. P. C. And the others were acquitted only on the basis of benefit of doubt. Therefore, the circumstance also does not, in any way, dilute the strength of the motive which the appellants and their acquitted co-accused had against the deceased.
9. The criticism of the learned counsel on the statement, made by the eye-witnesses is mainly based on general considera--tion. It is contended that the sugar-cane field in which the accused persons had concealed themselves is 150 yards from the path on which the deceased and his companions were going and, therefore, it was unlikely that such a place would have been selected for the purpose. It was also pointed out to us, that the place where the deceased fell down after receiving the head injuries was at a distance of 200 yards from the aforesaid sugar-cane field towards, its north-eastern side. All this, according to the learned counsel, would make the lalkara and the chase improb--able. Further it was pointed out that the distance of the field where the head of the deceased was severed after having been dragged may be at a distance of 150 yards from the place of first attack' According to the learned counsel, it is not explained as to why the culprits should have selected the last mentioned place at such a long distance away, for severing the heard.
There is no force in any of these contentions. The conduct of the culprits or that of the deceased and the witnesses is neither unusual nor improbable. A sugar-cane field, it is well---known, is the best place of hiding for preparing an ambush The crop in the month of December is fairly high. It is not shown that there was any other better place for the purpose near the place of occurrence. The wheat crop in those days must be very small in height and would not have provided any place for hiding. If the complainant-party consisted of about three persons, and if the deceased was to be lifted away it is probable that the number of the culprits may be near about four. Thus a sugar- cane field was the best place for so many persons to hide in; and prevent detection by the adversary. Moreover, it appears that the path which takes of from the road leading to Sukchain may be taking the turn from near Chah Chavrianwala for going to the village Shah Sarm4st. And it might have been considered certain that the deceased would in any case, pass the point near the sugar-cane field. 'therefore, that field vas the best available place from every point of view. After the lalkara, in order to avoid an encounter with the culprits coming from the western side, it was natural for the deceased and his companions to run towards the north-eastern side. This also explains an insignificant discrepancy in the statement of Sadiq P. W. At the trial and in the F. I. R with regard to the direction towards which the deceased and his companions ran after the lalkara. The situation thus visualised also explains the distance of 200 yards at which the deceased was overtaken by the culprits. With regard to the reasons why the culprits dragged and took the dosed to another field, the same must be within their special knowledge: It all depends upon the mentality of the culprits and the motivation working at particular moment that certain thins are done while committing a crime. Initially, the culprits, may have intended to take away the deceased to their dera and to kill him there. Their dera is on that very side at some distance. But lifting away the body might have proved hindrance. Therefore, on the way when they reached their own field, they killed him by severing his head. They wanted to demonstrate their strength and victory over the adversary therefore, they further humbled him by taking away his head as a trophy.
10. Next -it was urged that the fact that the culprits severe-d the head of the deceased shows that they wanted to cancel the identity of the deceased and this could happen only if nobody had seen the occurrence.. To support this supposition, it its further urged that nobody pursued the culprits to retrieve the head; therefore the occurrence, was not witnessed by anybody. The suppositions made by the learned counsel do not necessarily follow from the facts. The motive and the entire background of the case suggest that the head was severed and was taken away by the culprits so as to demonstrate a complete defeat of their adversary by taking the head away as a trophy. In such a situation, they would not care that they were seen by others in committing the crime.
Moreover, there was no question of concealing the identity of the deceased because the the and place of the occurrence cannot be disputed and the dead body was left and found clad in the garments of Shah Muhammad deceased. These facts would have in any case, straightaway, revealed the identity of the deceased. On the contrary, if the culprits wanted to conceal the identity of the deceased and they had opportunity to do so, the dead body could have been dealt with in some other manner. The explanation for the witnesses not having pursued the culprits for the recovery of the head is not. Far to seek. The latter was armed with deadly weapons and they (the witnesses) might. Not have thought it worth risking their lives, -and, in any case, it would not have made much difference. Shah Muhammad had already died. The dead body still being in the fields, the taking away of the head would not for the witnesses, have made any difference. We are conscious of the fact that one of the witnesses who saw all this was the son of the deceased and there would have been a strong urge for him to retrieve the head ; but for him also, the above reasons were sufficient enough not to have pursued the adventure.
The learned counsel also raised another argument, in that the culprits could riot have anticipated that the deceased would follow the route he actually did, and, therefore, his death must have been as a result of chance encounter with some one of his enemies ; and further that if the appellants and their co-accused wanted to murder the deceased for the alleged motive, they would have looked for a better opportunity where none could have witnessed the occurrence. If it was known to the culprits that the deceased had gone in the morning to Kotla Qasim, his return to the village would be expected at any the during the day or in the afternoon. The terrain is not hilly and the distance of that village is about to and a half miles. The dera of the accused persons is not far away from the place of occurrence. It is not difficult to imagine that they could have easily seen the deceased and his companions following a particular route and, as noted earlier in another connection, for that reason that appear to have selected the sugar-cane field as a place of vantage for attack. With regard to the second part of the argument, it suffices to say that the manner in which the head was taken away as a trophy does not suggest that the murder was intended to be committed in such a manner as not to be seen by others. The fact that the head was taken away as a trophy shows that the culprits made a demonstration of valour with of course, a true claim that they murdered their enemy openly during the day and took away his head.
11. The learned counsel also relied on some parts of the medical evidence to show that the eye- witnesses did not see the occurrence. The doctor found a blood-stained turban on the dead body and used the following expression in this connection "The body was wearing `a urban' ".
This, according to Mr. Saleem, does not go in line with the prosecution case. According to the eye- witnesses, the head of the deceased was wrapped in a loi and in that condition the same was taken away. It appears that in the absence of the head of the relations or the police, might have placed the turban of the deceased in place of his head while sending the dead body to the doctor; and we see nothing unusual in it. It has also been pointed out that the doctor found cuts at the back of the shirt of the deceased and, therefore, according to the eye-witnesses, no hatchet blow was given on the back of the deceased. The word "cuts" appears to have been used by the doctor in a loose sense injury No. 4 on the deceased is an abrasion mark 3" x 1` on the back of right scapular region and injuries Nos. 2 and 3, are contused wounds on the lower part of the leg.
According to the doctor, all these injuries (Nos. 2, 3 and 4) could be caused by dragging the deceased on the ground. According to the witnesses, the deceased, was dragged for some the and was then lifted away by the culprits. In this position, the shirt of the deceased, particularly under his back, must have been torn. The doctor, in all probability, has described that condition of the shirt by using the word "cut". He was not asked to explain these matters. It is in the light of the above supposition that the absence of cross-examination on the doctor on these points also gets explained.
Mr. Saleem also urged that whatever the type of weapon, complete decapitation could not take place with to blows and a flap of skin would have necessarily remained intact for which some other process of cutting must have been resorted to by the culprits, and because the eye-witness talk of the only to blows, therefore, they have not seen the occurrence. The doctor was cross-examined at length on this question' and he has not agreed with this proposition. We are also unable to agree with the learned counsel. Two blows with heavy large hatchets with clean sharp edges could easily completely sever the head and this is what appears to have happened in the instant case.
12. The learned counsel tried to show that none of the eye--witnesses could be with or near the deceased at the the of occurrence. His contention in respect of Sadiq and Muhammad Hussain P.
Ws. Have already been dealt with. With regard to Bahawal Bakhsh (P. W. 14) the main contention is that the explan--ation of the witness for being present rat the the of occurrence, is unreal.
According t4 the witness, his mare had strayed towards the place of occurrence and he was trying to catch it when be saw the occurrence. It is true that the occurrence was seen by him through the chance provided by the running of the mare towards a particular side. However, this, by itself, would not show that the witness did not see the occurrence at all or that it was impossible for him to be present there. It was elicited from him in cross-examination that his well is at a distance of 4/6 killas from the place of occurrence. In fact, that well is a joint family property in which Shah Muhammad deceased was also one of the owners. He further stated that he and others remain on that well during the day and go to the village at night. This would show that the witness has stated (and followed) a general practice in the village. Therefore, if he claims that he was at his well and that his mare strayed towards the place of occurrence, the opportunity provided to him, though by chance, cannot be held to be absolutely improbable much less impossible. The learned counsel pointed out an admission (so-called) by this witness before the committing Magistrate, with which he was confronted that "he did not reach the spot until the dead body was despatched by the police to Kharian." We have seen the original statement before the committing Magistrate, in English as well as in Urdu. The sense in the above quotation is not at all conveyed by the original statement. What he stated was that it was only after the despatch of the dead body by the police that he came back meaning thereby from the place of occur--rence to his village. The words used in Urdu are"
The learned counsel while reading the statements of the eye-witnesses brought to our notice some improvements (so-called) vis-a-vis their earlier statements and some minor discrepancies. The witnesses, we have noticed, were subjected to lengthy, and if we may say so, gruelling cross- examination. In these circum--stances, some variations of detail are bound to occur. After carefully considering their effect; we have come to the conclusion that they do not affect the essentials of the. Prosecution case. We, therefore, hold that the eye-witnesses did see the occurrence.
13. The eye-witness are closely related to the deceased. Sadiq is his son and Bahawal Bakhsh is his nephew. Wife of Bahawal Bakhsh P. W. Is the maternal cousin of Muhammad Hussain P.WV and sister of Bahawal Bakhshis the wife of his (P. W.) cousin named Khadim. In fact, there are cross- marriages. The learned teal Judge has treated this relationship as remote. We are afraid we cannot agree with this assessm ent. Admittedly, the relations of the parties were strained for a long the and events of abduction of women on both sides and criminal, litigations between the parties took place not long before the occurrence. Where in a village to parties are inimical towards each other, in this manner the relationship of the type Muhammad Hussain had with Bahawal Bakhsh P.
W. And through him with the deceased, to our mind, is fairly close. Therefore, we have come to the conclusion that the eye-witnesses being inimical towards the accused, and related with the deceased should by way of abundant caution, be not relied upon without corroboration. In reaching this conclusion, we have, also taken note of the fact that all the four accused persons were being prosecuted at the instance of the deceased, in the previous case under section 324/34, P. P. C. And were to appear in the Court of a learned Magistrate, a day after the occurrence. It is not absolutely unlikely that the same accused may have attacked and killed the deceased. This circumstance however, can work both ways. They maybe the likely persons to attack the deceased, and at the same the if any of the assailants was unknown to the eye-witness, they would have the inclination to fill in the gap by naming an enemy.
It may be mentioned that the learned trial Judge, also sought for corroboration against the appellants and used the recovery of the head and the, motive as corroboration against Hakim Ali appellant and the motive only against Ahmad Khan appellant. We, however, proceed to examine this question ourselves.
14. Khurshid Ali S . I. (P. W. 15) has deposed that on 8th December 1966, Hakim Ali appellant led the police, to a sugar-cane field belonging to Fateh Khan and therefrom brought out the head of the deceased which was wrapped in lot (Exh. P-1) The memo. Of recovery (Exh. PC) is also substantially to the same effect. It is attested by Atta. Muhammad (P. W. 10) and Muhammad Fazil (P. W. 11). Both of them are the co-villagers of the appellants and have fully supported the prosecution case about this recovery: Atta Muhammad is a Sarbarah Lambardar. The suggestion that one Budha, said to be an uncle of Ahmad Khan, appellant, had enmity with the relations of this witness, has not been admitted by him the trial. He however, stated that aforesaid Budha belonged to the party of the accused. In the state--ment before the committing Magistrate with which he was con--fronted, he had admitted that in a case under section 326, P. P. C. Against his maternal uncle, Ahmad Khan, Budha was a prosecu--tion witness. At the trial, he showed, ignorance, about this fact. Similarly, he showed ignorance about the suggestion that his paternal uncle Nawaz had litigation with Budha; but before, the committing Magistrate, he had admitted this fact. No docu--mentary proof in support of the suggestion has been produced. May be they are generally true but in the absence of the knowledge about the details of the alleged litigation, the witness it appears was advised or he simply thought it fit not to commit himself in a definite manner. However, assuming that his statement before the committing Magistrate, was correct, it does not show that aforesaid Budha was related to the accused persons. In any case, the alleged estrangement between aforesaid Budha and the relations of this witness is not of the type which would impel the witness to choose and falsely implicate Hakim Ali appellant out of all the accused persons. It may be mentioned that it is not known as to when and with what results the litigation took place between aforesaid Budha and the relations of this witness. There--fore, for all the above reasons we hold that he is neither interested in the complainant-party nor inimical towards the accused.
Muhammad Fazil P. W. Who is aged about 39 years, was cross-examined, in respect of more than a dozen relationship, some of which he admitted and about others he showed his ignorance. The questions were mostly directed to show that Rehmat (given up P. W.) Muhammad Hussain, Bahawal Bakhsh, Sadiq and Bahadur, P. Ws. Were related to the deceased. These relationships have been admitted by the witness. It was suggested to him that he only feigned ignorance about the other relation--ships, presumably to help the prosecution. We feel that the question was so indiscriminate that the ignorance shown by the witness about the other relationships, in the circumstances, does not appear, to be motivated by a desire other than telling the truth. However, no direct relationship of the witness with the deceased was suggested to him. It is admitted by this witness that his niece is married to Muhammad Fazil (P. W. 9). The latter, who is also a young man of 35 years, was asked several questions about various relationships suggesting a connection with the deceased but he has denied it. Therefore, it is not shown that any of these witnesses has any particular or close interest in the complainant-party.
Mr. Saleem attacked the recovery of the head on various grounds. He brought to our notice that it was not mentioned in the F.I. R. That Hakim Ali had wrapped the head in lot (Exh. P. 1) at the spot, and further that the person who carried the head was neither mentioned in the report nor by the eye-witnesses at the trial. Lot (Exh. P. 1) had been identified by Muhammad Sadiq P. W. As belonging to the deceased. No other warm garment was found on the dead body. The occurrence took place in December. It is not improbale that the deceased may have covered himself with a loi at the the of attack. The lot is nowhere mentioned as having been recovered from or near the dead body. Therefore, it will be ligitimate to presume that whatever garment the deceased had for protecting himself from cold, was taken away by the culprits. And there is nothing unnatural in the lot (Exh. P. 1) being that covering and the same having been used for wrapping the head by the culprits. The omission with regard to the mention of the lot in the F. I. R. Is not very material. It is only a matter, of detail and depending upon the intelligence, of the informant, one individual may and another may not make a mention thereof in the report. Similarly, this being a question of detail, even if mentioned, the explanation given by Sadiq P. W. In cross-examination, wherein he stated that he did make mention in the F. I. R. About the lot and the fact that Hakim Ali appellant put the head in that lot.
It was next contended that according to the F. I. R. All the four accused appear to have taken away the head. This, according to the learned counsel, was impossible. Only one would have carried it. At the trial, the wrapping of head in the lot is attributed to, Hakim Ali. It is not specified as to who carried it away. This statement of fact does not affect the prosecution case and appears to us, to be quite natural. It was not possible for the witnesses to have kept a trace of the head as to who in fact, handled it or carried it after the departure of the accused from the spot.
It was also argued that the natural conduct of the appellants would have been to bury the head or to throw it" in a pond or well. This supposition was sought to be supported by the state--ment of Atta Mohd. (P. W. 10) in cross-examination to the effect that the blood-stains on the lot when recovered, were wet. We have already held that the head was taken away as a trophy. At that the, the culprits, did not intend to conceal A. Therefore, there was no question of burying it or concealing it anywhere else. It might have just been thrown away in a field. And nothing turns upon the blood-stains on the lot being wet. It was not suggested to the witness that the loi or the head were wet or that they were drenched in water. The impression of the witness that the blood-stains were wet might be due to lack of keen observation or it may be only his impression. In any case, the fact that the head remained in the sugar-cane field for some the may have kept the blood-stains in a damped condition, and further the possibility that the field might have recently been watered or the night dew have had same effect on the blood-- stains cannot be excluded. Therefore, this circumstances, is also of no help to the appellants.
Mr. Saleem also argued that there were no scavengers near the head in spite of the fact that it lay in the field for about three days. This circumstance, also, according to him, shows that either the head might have been found by somebody in a place like well or pond, or it might have been thrown in the field by somebody before its discovery by the police. There is no basis for the first supposition. It is doubtful if the vultures would have been attracted, within 2/3 days to the head (without body) in a crop of sugar-cane. In any case; there is no doubt about the fact that the head was wrapped in the lot. This may have had some effect in this behalf. The second supposition; however, does not go against the prosecution version. We have already held that the culprits had taken away the head as a trophy and that Hakim Ali had initially wrapped it in the lot (Exh P. 1). They could not have kept it under their guard for a long the parti--cularly when the police investigation had started. Therefore, it might have been thrown in the field wherefrom it was recovered and in these circumstances, Hakim Ali's conduct in leading to this recovery is not, in any way, insignificant.
Some discrepancies in' the statements of recovery witnesses relating to the direction and distance of the place (field) of recovery and its ownership have been brought to our notice. Muhammad Fazil (P. W. 11) stated that the field belonged to Fateh Khan whose well is on its southern side. Atta Muhammad P. W. In the concluding portion of his cross-examination stated that the sugar-cane field is attached to Chah Shahabanwala which is owned by 8 or 10 persons and that it (field) is at a distance of one from Chah Chavrianwala. He had stated before the committing Magistrate that the' field was cultivated by one Akbar Ali but he disowned this statement at the trial, In examination-- in-chief he had stated that the sugar-cane fields belonged to Fateh Khan son of Akbar Ali, and in the beginning of his cross-- examination he had stated that the field in question measured about one Killa and gave its exact location with reference to the surrounding fields and crops. He further stated that Raja Chavri was the tenant of Fateh Khan on the field and that the land on the southern side belongs to all the four accused jointly. The fact that the field is attached to a well which is owned by 8 or 10 persons does not mean that Fateh Khan is not one of those owners. If that is so, the statements of both the witnesses in this behalf are not inconsistent. There is, however, a discrepancy in that before the committing Magistrate Atta Muhammad stated that Akbar Ali (the father of Fateh Khan) cultivated the land himself while at the trial he stated that Rajab Ali was the tenant. This might have been due to some mistake about the relevant the, with regard to which the question was being asked. In any case the discrepancy, is not such so as to discredit the witness. We are satisfied that the to witnesses gave a consistent account in respect of the field, its location and ownership. The discrepancies about distances and direction in the statements of witnesses can be the result of difference in estimate or sense of direction. So long as the ownership of the field and its location vie-a-vie a certain well is established, the discrepancy about the distance and direction will not make any difference.
Mr. Saleem laid great stress on to more discrepancies, one relating to the the and place of arrest of the accused and the other relating to the the of the recovery of the head. Mian Khan (P. W. 2) a Foot Constable, stated that after the post-mortem examination on the dead body (without head) he came back to, the spot and that he "continued to be on the spot till the morning of 8th when I again started for the mortuary with the head of the deceased. By the morning of 8th the S. I. And the Constables were busy in looking for the accused but not for the head of the deceased". He further stated that he saw that the accused persons for the first the in the custody of the Sub-Inspector on the morning of 8th at about 5 or 6 a.m. And that the Sub-Inspector at that the was in the village dara. He also stated that he did not see the hatchets or sticks with the Sub-Inspector at that the.
Muhammad Fazil (P. W. 9) stated that all the four accused appeared before the police and the recoveries were made from them at the dera of Sardar Khan wherefrom the police after putting them under arrest proceeded to the village dara. It was elicited from Sadiq. W. In cross- examination that the police visited village Barnali twice or thrice to look for Khan Muhammad and Ahmad Khan accused. He, however disowned his statements before the committing Magistrate that on the third day of the occurrence, the police brought along these to accused at digerwela and that Hakim Ali and Bahadur accused were with the police on its return from village Barnali "in the second evening." About the recovery of the head he stated that it took place on the third day of the occurrence; but denied that it was recovered at chhahwela, though before the committing Magistrate he had admitted this fact. According to the recovery witnesses (P. Ws. 10, 11 and 15) all the four accused appeared before the police and were arrested on the 8th December. Atta Muhammad P. W. Stated that the police party started from the village darn for the recovery of the head at about 1 p.m. And that he was called by the police in this connection about one hour before the recovery., In his statement before the committing Magistrate, however, e had stated that he joined the investigation at about chhahwela. Muhammad Fazil (P. W. 11) stated that they started for the place of recovery "at the thick of the noon".
The learned counsel frankly admitted that the statements, by the witness with regard to the "second evening" "second or third day of the occurrence," are confusing description of a particular day and that there is no description about the date of the recovery of the head. But about the the of arrest recovery of weapons and garments and the the of recovery of the head, he insisted that there are serious discrepancies. We are unable to agree with him. Mian Khan F. C. And Sadiq P. Ws.
Are not the witnesses of the recovery of the head any knowledge of these witnesses must necessarily be based on hearsay. The Foot Constable stated in cross-examination that the accused persons were in police custody by the the the head of the deceased was recovered. With regard to his departure for the mortuary with the head, he simply stated that he continued to be at the spot till the morning of 8th when he started for the mortuary with the head. This shows that when he stated that he started for the mortuary in the morning, he gave, the the as a general estimate and it need not be treated as the early morning hours. It can be any the before noon.
Similarly, the statement of Sadiq P. W. Before the committing Magistrate that the head was recovered at 'chhahwela, even though it appears to be hearsay, does amount to only this that the the was before noon. The g other to witnesses, no doubt, gave the the of recovery as noon or a little after. None of these witnesses was asked as to whether the the given by them was by the-watch or it was their estimate. The difference of estimates of the in villages is very well-known and there is no unanimity even on the exact the of chhahwela or the noon (see Darghahi and others v. The State (PLD 1958 Lah. 300). It appears that the recovery took place at about noon the, and it could be shortly before or after noon. If it was before noon it could be mixed up with Chhahwela. In reaching the above conclusion we have taken note of the further fact that the witnesses were examined at the trial after about one and a half years of the occurrence. Therefore, the so-called discrepancy about the the of the recovery of the head is not only insignificant but also gets explained.
With regard to the arrest also, there is no real discrepancy between the statements of the witnesses. Muhammad Fazil (P. W. 9) stated that the arrest took place at the dera of Sardar Khan wherefrom the accused were taken to the village dara. Mian Khan, F. C. Saw the accused in custody at the village dara in the morning. It appears, that he was not present at the dara of Sardar Khan when the accused appeared before the Sub---Inspector. Therefore, his statement in cross- examination relates to his knowledge about the subsequent custody.
Similarly, the fact that Mian Khan, F. C. Did not see the recovered weapon and garments with the Sub-Inspector at the village dara does not necessarily show that these things were not recovered.
They were taken into possession at the dara of Sardar Khan before the Sub-Inspector, proceeded to the village dara and he may not have taken them along to the second place. That is how they were not seen by the Foot Constable there. The learned counsel for the State argued that Mian Khan, F. C. Was cross-examined at a great length which, according to him, showed that he was expected to give some favourable answers and that is why in his answers an effort was made to create some confusion. It is true that three other police officials, I e., P. Ws. 4, 5 and 7, were not cross-examined to that length and it might be correct that Mian Khan wanted to create some confusion and thus obliged the defence. But it is not necessary for us to come to any definite conclusion in this behalf because the answers given by him are otherwise explainable and do not, in any way, help the defence.
The learned counsel brought to our notice the fact that the Investigating Officer was not cross- examined by the defence; therefore, his statement should not carry much weight. It is true, that the learned counsel for the accused was not present when the statement of the Sub-Inspector, was recorded. But the note of the learned trial Judge, dated 1st July 1968, shows that he waited for some the, for the learned counsel and thereafter gave opportunity to the accused to cross-examine the Sub---Inspector. They said that "they did not want to cross-examine him. It is specifically noted on record that opportunity was afforded to the accused. Therefore, in our view, no illegality was committed by the learned Judge. In any case, the recoveries are supported by other evidence also and we attach no importance to the technical objection raised by the learned counsel in this behalf. Considering all the circumstances, we have come to the conclusion that Hakim Ali appellant led to the recovery of the head which was wrapped in lot (Exh. P. 1) belonging to the deceased.
15. The learned counsel, in the alternative, argued that even if it is proved that Hakim Ali led to the recovery of the head, the same cannot be used as corroboration in this case because his knowledge about the head may not necessarily connect him with the crime. It is not a case of circumstantial evide:ice in which the recovery of thebead is to be used as an independent - substantive piece of evidence. If this were the only evidence against Hakim Ali, it might not have been sufficient for conviction for murder. But the recovery, in our view, is in the circumstances, of this .Case, a corroboratory circumstances. The fact that the witnesses saw the head being severed by the culprits and that Hakim Ali appellant wrapped it in lot and further that the culprits took it away, provides a consistent chain of events with the recovery thereof at the instance of the same culprit i.e Hakim Ali. Therefore, the account given by the eye-witnesses finds corroboration in a material circumstances. In any case, Hakim Ali appellant has not claimed nor there are any circum--stances, to show that he gained the knowledge about the head being in the sugar-cane field in any innocent manner. We, therefore, held that this recovery corroborates the eye-witnesses, so far as Hakim Ali appellant is concerned.
16. In the preceding paragraphs, we have indicated that there is sufficient evidence to prove that to hatchets were produced by both the appellants and that a tehmad (Exh. P. 10) was removed from the person of Hakim Ali appellant. The memos. In respect of these three recoveries are Exhs. P. G., P.
H. And P. I. The learned trial Judge disbelieved the evidence of recovery on the ground that it was unlikely that the accused persons who had been hiding for three days, would have produced their respective weapons of offence when they appeared before the police and that Hakim Ali would in all probability have disposed of his blood-stained tehmad during these days.-- Therefore, Therefore, he came to the conclusion that these recoveries did not inspire confidence. There is a queer circumstance, about the blood on the hatchets which needs to be noticed. The aforesaid recovery memos. Show that these articles were found by the police to have been blood-stained. It is also pertinent to note that the recovery memos with regard to the dangs of Khan Muhammad and Bahadur (acquitted accused) do not show that the police noticed any blood on these to weapons. That is why only the hatchets and the tehmad of Hakim Ali were sent for chemical examination. The Chemical Examiner reported that the to hatchets were not at all stained with blood while the tehmad of Hakim Ali was stained with blood which was found by the Serologist to be of human origin. It appears that the police did notice some substance on the to hatchets.
Therefore, they are mentioned in the memos. As blood-stained. It also appears that the police were not out to do any padding in the case because the to dangs, were not even mentioned as blood- stained nor were they sent to the Chemical Examiner. If the substance noticed, by the police on the hatchets was not real blood, then certainly they were not stained with anything as a result of any padding done by the police. This would show that the hatchets were besmeared with some substance so as to make them appear as if they were stained with blood and thus to mislead the police. If that is so, there can be no doubt the production of the hatchets, before the police.
Therefore, the general observation of the learned trial Judge that a culprit would not produce a hatchet after three days of the occurrence is not applicable in this case. In our view, the hatchets were produced before the police by the appellants and the above-noted circumstances, supports this supposition. The observa--tion of the learned trial Judge that Hakim Ali would have in all probability, disposed of the blood-stained tehmad is also not very convincing. It is true that the accused did not help the police till about the third day after the occurrence, but that does not show that they had made themselves scarce. It is in evidence that they were produced, by some respectable, before the police and that they were available in a neighbouring village. The offence bad been committed in day-light and the attending circumstances, show that it was an at of daring with a show of victory. In these circumstances, it is not essential that all the culprits would have taken care of disposing of their blood-stained clothes. The supposition, that the clothes, sometimes are disposed of by the culprits after the crime, has no support of any circumstance in this case. Therefore; the general observation of the learned trial Judge about the tehmad of Hakim Ali is not applicable to the present case There is convincing evidence that the weapons were produced before the police by the accused and that the tehmad was taken into possession from the person of Hakim Ali. It is significant to note that no other garment of any of the accused persons was taken into possession The conduct of investigation does not, in our view, appear to be In any way tainted. Therefore, we hold that the recoveries of hatchets from the to appellants and the tehmad (Exh. P. 10) from Hakim Ali appellant, stand proved. No blood was found on the hatchets and there is no,4 evidence, about their identity nor can it be said that the neck injuries were necessarily caused by these hatchets. Therefore, they do not connect the appellants with the crime. The recovent of the tehmad (Exh. P. 10) which was found to have been stained with human blood, from the person of Hakim Ali, however. Provides another corroboratory circumstance, against that appellant.
17. As a result of the above discussion, we have come to the conclusion that there is sufficient corroboration of the statements of the eye-witnesses, in so far as Hakim Ali appellant, is concerned. There can be no doubt about his participation in the crime. He has rightly been held guilty of the offence of murder. There are no extenuating circumstances, so faras the sentence is concerned. Therefore, while maintaining his convic--tion we confirm the death sentence awarded to him and dismiss his appeal.
18. So far as Ahmad Khan appellant is concerned, no doubt he had almost equal motive as Hakim Ali had. But in the background of enmity it will not be safe to maintain the conviction of Ahmad Khan in the absence of any other corrobora--tion simply because he had a motive to kill the deceased. The hatchet produced by him before the police is not proved to have been connected with the crime. And his non-availability in the village till the morning of 8th does not provide any evidence of abscondence; firstly, because it appears that the accused persons were in search of some respectable to produce them before the police; and. Secondly, they remained present in the vicinity and the police had no difficulty in finding them. We, therefore, giving the benefit of doubt to Ahmad Khan appellant, acquit him of the charge. The sentence, of death awarJed to him is not confirmed and his appeal is accepted.
19. Before closing this judgment, we may remark that the reasons given by the learned Judge with regard to the acquittal of Khan Muhammad and Bahadur accused, who were said to have caused to blows on the head of the deceased and thereafter helped the others in taking him away, are not very convincing. In our view, the medical evidence, does not contradict the eye--witness account in so far as these to accused persons are concerned. However, we find that there case which even otherwise is not before us is not distinguishable from that of Ahmad Khan appellant. There is no corroboration of the eye-witnesses, qua those to accused persons. Therefore, their acquittal by giving them the benefit of doubt, though on different grounds, is also justified.