ASLAM RIAZ HUSSAIN, J.-This Appeal is directed against the judgment of a Division Bench of the Sind High Court dated 19-7-1976, maintaining the appellants' conviction and confirming their death sentence.
2. The facts leading to the present case are ; that Qabool Khan and Darya Khan appellants were accused, the murder of Nabi Bakhsh (deceased). The occurrence in this case took place at about 6-15 p.m. On 28-2-1972, in Shahi Bazar, Tando Ghulam Ali. The F. I. R. Was lodged by Ali Dino (P. W. 1) a maternal-uncle of the deceased at Police Station Tando Ghulam Ali at 6-30 p.m. On the same day. It was recorded by Muhammad Jameel A. S. I. (P. W. 7).
Briefly stated, the prosecution version is that on the fateful evening Nabi Bakhsh (deceased) and his maternal-uncle Alidino (P. W. 1) who lived in the adjacent house, came out and proceeded to the volley ball ground where Nabi Bakhsh started playing volley ball while Alidino watched him playing. After a short time Ghulam Hyder (P. W. 3) brother-in-law of the deceased came and informed him that his (deceased's) brother (Kazi Ali Bakhsh) had phoned him from Hyderabad and wanted to speak to him. On this Nabi Bakhsh (deceased) stopped playing. All three of them, namely, Alidino, Ghulam Hyder, P. Ws., and the deceased, left the play ground for the telephone.
When they reached the hotel of one Gul Hamid they met Soomar (P. W. 2) and Iqbal Hussain (P. W.
5) who shook hands with them and asked them why they were in such a hurry. The latter started talking with Soomar and Iqbal Hussain, when the three accused suddenly turned up. Qabool Khan and Darya Khan appellants were armed with hatchets while Hyder (acquitted accused) was empty-handed. The latter caught hold of Nabi Bakhsh (deceased) in his grip while Qabool Khan and Darya Khan started inflicting hatchet blows to him in quick succession. The witnesses raised hue and cry but the assailants ran, away along with their hatchets shouting that they bad taken their revenge.
The motive for the offence was stated to be that about a month prior to the occurrence Nabi Bakhsh (deceased) had a quarrel with Hamir Shoro and Pirano Shoro on his land after abusing them he (Nabi Bakhsh deceased) turned them out from the land. It was to avenge this that the three accused attacked and injured Nabi Bakhsh (deceased).
Nabi Bakhsh (deceased) was seriously injured. Though he was uncon--scious but he was still alive.
Muhammad Soomar, Ghulam Hyder and Abdul Hussain, P. Ws., therefore, took him to the hospital while Alidino (P. W. 1) rushed to the Police Station Tando Ghulam Ali and lodged the F. I. R. At 6-30 p. m. It was recorded by Muhammad Jamil, A. S. I. (P. W. 7). After recording the F.
1. R. The A. S. I.
Immediately proceeded to the place of the incident. He took into possession some blood-stained earth from the spot and then proceeded to the Tando Ghulam Ali Hospital where the doctor had already examined Nabi Bakhsh (deceased) who was unconscious. But soon after the A. S. I.
Reached the hospital the deceased succumbed to the injuries. The A. S. I. Informed Khalil Ahmad S. H. O. (P. W. 8) about the incident on the telephone. He then prepared the inquest report. By the time Muhammad Jamil, A. S. 1. Finished the report, Khalil Ahmad, S. H. O. Reached the hospital and took over the investigation.
The accused were arrested. Darya Khan and Qabool Khan appellants led to the recovery -of their blood-stained hatchets, which were taken into possession by the Investigating Officer vide Memos, Exh. P. 21 and Exh. P. 2; respectively. The hatchets were subsequently found to be stained with blood of human origin.
3. At the trial the prosecution relied on the testimony of Alidino (P W. 1) a maternal-uncle of the deceased, Muhammad Soomar P: W. 2 (a friend of Ali Bakhsh brother of the deceased;, Ghulam Hyder .P W.3, brother-in-law of the deceased) and Iqbal Hussain P. W. 5, who is neither related to the deceased nor to the other witnesses. It also relied on the recovery of the blood-stained hatchets recovered from Darya Khan and Qabool Khan, appellants, the medical evidence and the motive.
4. The learned Additional Sessions Judge who tried the accused, acquitted Hyder but convicted Qabool Khan and Darya Khan under section 302/34, P. P. C. And sentenced each of them to death.
Both of them filed an appeal. The High Court,. However, dismissed their appeal and confirmed their death sentence.
The appellants filed a petition for grant of leave to appeal. Leave was granted by this Court vide order dated 11-1-1977, for reappraisal of the evidence to consider whether the testimony of the eye- witnesses was not falsified by the fact that although the accused are alleged to have given hatchet blows to the deceased yet the doctor on examination of the deceased found the injuries to have been caused by blunt weapon and secondly to consider whether the High Court had not been unduly impressed by the fact that the F. I. R. Had been lodged very promptly which, according to the learned Bench granting leave, did not appear to be correct on reading the statements of Muhammad Jamil. A. S. 1. (P. W. .7) and Khalil Ahmad S. H. O. Read with documents Exhs. P. 30 and P.
31 written by the A. S. I. And the doctor respectively.
5. We have heard the learned counsel for the appellants at length and with his help have gone through the entire evidence on the record including the statements of the two Police Officers and the doctor have also gone through the above-mentioned two documents Exhs. P. 30 and P. 31, and the relevant portions of the judgment of the High Court. Learned counsel for the appellants contended that it was a `blind' or unwitnessed murder and that the eye-witnesses being chance witnesses ought not to have been relied upon. He also contended that the Police had reached the spot after Nabi Bakhsh (deceased) had already died and sent the dead body to the hospital and further that the F. I. R. Had not been lodged properly but was recorded after due deliberations.
6. We have carefully considered the said contentions advanced by the learned counsel for the appellants. We notice that out of the four eye--witnesses Iqbal Hussain (P. W. 5) is admittedly an independent and disinter--ested witness who is not connected with either of the parties.
Muhammad Soomar (P. W. 2), though stated to be a friend of the brother of the deceased is yet neither related to the complainant party nor hostile towards the appellant. He too, therefore, is an independent witness. Alidino (P. W. 1) and Ghulam Hyder (P. W. 3) are, no doubt, .Maternal-uncle and brother-in-law, respectively, of the deceased but it has not even been suggested to them during the cross-examination that they had any enmity whatsoever against the appellant. As such they had no motive to involve them falsely. Nor has the learned counsel for the appellants been able to show any material inconsis--tency or serious defect in their testimony. We, therefore, see no reason why they should not have been believed even without independent corrobo--ration. But, it so happens that their testimony is corroborated by the recovery of the blood-stained hatchets at their instance, which, on chemical examination, were found stained with blood of human origin.
No doubt the injuries found on the person of the deceased were not incised, But this does not falsify the prosecution case inasmuch as the[ witnesses are not expected in the circumstances of this case to have noticed as to from which side the assailants weilded their hatchets nor has that complainant stated in the version given by him in the F. I. R. That the hatchets were used from the sharp side.
7. As already mentioned above we have gone through the medical evidence, the statements of the doctor and the two Police Officers as well as the documents Exhs. P. 30 and P. 31, but are not persuaded to agree with the learned counsel for the appellants that these documents go to show that the F. I. R. Was lodged after due deliberations. Having carefully reappraised the entire evidence on the record we are inclined to agree with the conclusion arrived at by the learned Division Bench of the High Court, and consequently dismiss the Appeal.