1. SAJJAD ALI SHAH, J.-This appeal is directed against the judgment dated 26th March, 1977 of learned Sessions Judge, Larkana, whereby appellants named above have been convicted for offence under section 302/149, P. P. C. And sentenced each to life imprisonment and a fine of Rs.
2. 1,000. In default of payment of fine, they are sentenced to R. I. For one year. State has filed appeal against respondents Sohbat and Mohammad Panjal, who were co-accused in the same case and have been acquitted by the trial Court vide the same impugned judgment. We propose to dispose of both these appeals by this single judgment.
3. The case of the prosecution is that the present three appellants and their two co-accused named above on 21st February, 1975 at about 9.30 a.m. Attacked Razi Khan and gave him sharp sided hatchet blows near paddy husking factory of Mohammad Parial Shaikh on public road in the Bazar of Larkana town. In the result of that attack Razi Khan became injured and his bead was severed from the trunk and consequently he died at the spot. All the assailants were armed with hatchets and first Mohammad Ramzan instigated that deceased Razi Khan was Dot to be spared then all the five assailants including Mohammad Ramzan belaboured Razi Khan with hatchet blows.
4. Incident was seen by complainant Abdullah and other witnesses. Present three appellants namely Mohammad Ramzan, Sikandar Ali and Mohammad Ishaq ran in one direction and were captured by Head Constable Abdul Latif and P. C. Mohammad Punhal, who arrived at the spot accidently while on patrol duty. The other two assailants namely Sohbat and Mohammad Punjal ran in other direction and could not be captured. Present three appellants were brought to the scene of offence and from there were taken to Police Station, Larkana town where report was lodged by complainant Abdullah on the same day after about 15 minutes of the incident. The distance between the Police Station and the place of occurrence is stated to be three furlongs. Blood- stained hatchets recovered from the appellants were produced before S. H. O. Haq Nawaz by Head Constable Abdul Latif. Blood-stained clothes of these three appellants were also recovered.
5. Hatchets and clothes were put into sealed parcels. S. H. O. Haq Nawaz then visited scene of offence which was pointed out by the complainant. He found dead body of Razi Khan lying on the ground near Municipal shops with hatchet injuries. He secured blood-stained earth and put it into a sealed parcel. He prepared mashirnama of injuries and inquest report and also mashirnama of scene of offence. He examined P. Ws. Mohammad Siddiq, Roshan, Juman, Rasool Bux, P. C. Punhal, P. C.
6. Mohammad Hassan and Head Constable Abdul Latif. He sent the dead body to Civil Hospital for post-mortem examination. On 24th February, 1975 S. H. O. Arrested acquitted co-accused Mohammad Punjal and Sohbat and Mohammad Punjal while in custody led to the recovery of blood-stained hatchet from the heap of rubbish lying in front of his house. Likewise Sohbat while in custody led to the recovery of blood-stained hatchet and shirt from the heap of rubbish lying in front of his house. Both these hatchets were put into sealed parcels. On 3rd March, 1975 statements under section 164, Cr. P. C. Of some of the witnesses were got recorded and after completion of other steps of investigation challan was presented in the Court.
7. Motive as stated in in F. I. R. Is that appellants Sikandar and Ishaq were Haris of deceased Razi Khan and were cultivating his personal land. About two years before the incident deceased Razi Khan had divested appellant Ishaq of cultivating possession of that land and also had threatened appellant Sikandar that he would do the same thing with him. It is also the case of the prosecution that about 15 or 16 days before the incident Baluchistan Police bad arrested Nabi Bux father of appellant Mohammad Ramzan, Jhando brother of appellant Mohammad Ishaq, Arbab brother of acquitted co-accused punjal and one other relative of the appellants. Appellants and acquitted co-accused suspected deceased Razi Khan to be instrumental in filing of that case against their relatives in Baluchistan as pressure tactics. For the reason stated above appellants and acquitted co-accused bore grudge against deceased Razi Khan.
8. Prosecution has examined before the trial Court 10 witnesses in support of its case. P. W. 3 Abdullah complainant, P. W. 4 Rasool Bux and P. W. 5 Mohammad Sadik have been examined as eye- witnesses of the occurrence. P. W. 6 H. C. Abdul Latif and P. W. 7 P. C. Mohammad Punhal have been examined as corroborating witnesses, who came to the spot at the nick of time and apprehended the present three appellants while running away from the spot. Further P. W. 1 Ghulam Nabi tapedar produced sketch of wardat Exh.
6. P. W. 2 Constable Sikandar Ali has been examined as corpse- bearer. P. W. 8 Ali Bux mashir produced mashirnamas of arrest of appellants Exhs. 24, 25 and 26, of secene of offence Exh. 27, inquest report Exh. 28 and mashirnamas of arrests of acquitted co- accused and recovery Exhs. 29 and 30. P. W. 9 is S. H. O. Haq Nawaz who has investigated the case.
9. P. W. 10 is doctor Shamsuddin who conducted post-mortem examination on the dead body of Razi Khan. He found 13 incised wounds on different parts of the body caused by sharp-cutting weapon such as hatchet. Further doctor opined that cause of death was due to severe shock and haemorrhage owing to injuries on the main organs and cutting off of main blood supply.
10. Prosecution also produced before the trial Court report of Chemical Examiner Exh. 32 according to which all the 5 hatchets recovered from three appellants and two acquitted co-accused, clothes of the three appellants shirt of Sohbat and earth were found to be stained with human blood.
11. Before the trial Court in their statements under section 342, Cr. P. C. Appellants and the acquitted co-accused took defence of denial simpliciter of all prosecution allegations. Appellant Mohammad Ramzan further stated in his statement that all P. Ws. Including mashirs were related to the deceased and were inimical to him. Police constables were set up by administration firstly for the reason that deceased Razi, Khan was friend of S. H. O. Haq Nawaz and secondly because the incident had taken place in Larkana town on the day on which Prime Minister was encamping at Larkana and Police Officers manipulated the, entire evidence against them in order to show their efficiency. The remaining two appellants and other three acquitted co-accused adopted statement made by appellant Mohammad Ramzan as stated above. Appellants and acquitted co- accused did not examine any witness in defence before the trial Court.
12. Now so far the ocular testimony is concerned, it is criticised by learned counsel for the appellants on the ground that witnesses are interested and are not worthy of reliance. P. W. 3 complainant Abdullah is admittedly brother of deceased Razi Khan. About him it is staled that this witness resided at village Naich which was four miles away from Larkana as such his presence at the scene of offence at the time of incident is unlikely. Complainant Abdullah has deposed before the trial Court that about 6 or 7 years before the incident his brother deceased Razi Khan migrated from village Naich and settled in Larkana but this witness continued 'living in that village. He has further deposed that one day before the incident he came to Larkana and stayed for the night with his brother deceased Razi Khan and next morning accompanied him to the husking factory where the incident took place. Contradiction has been pointed that this witness has stated before the committal Court that he had come to his brother deceased Razi Khan at Larkana on the day of incident. The witness explained before the trial Court that he had come to his brother not on the same day when the incident took place but on the evening preceding the day of the incident and he had definitely stayed for the night and in the morning the incident took place. Additionally it was submitted by the learned counsel for the appellants that before the trial Court complainant deposed that he had to recover an amount of Rs. 50 from Mohammad Sadik at the husking factory and that was the reason he had to go to the factory with his brother. He did not mention this fact in F. I. R. And in his statement before the committal Court. Criticism of the evidence of this witness on both these points stated above is insignificant and does not militate against his presence at the spot at the time of occurrence for the reason that he is complainant and has lodged F. I. R. Within 15 minutes after the incident and his presence is also confirmed by other eye-witnesses and two constables who apprehended the appellants. Since the F. I. R. Was lodged within such a short time and the present appellants were also apprehended at the spot and this F. I. R. Was lodged by this witness and furthermore his evidence was recorded by the trial Court on 27th October, 1976 which is after one year and eight months of the incident, such small omissions and. Discrepancies cannot be considered as material to doubt the presence of this witness at the spot at the time of occurrence.
13. About the other eye-witness P. W. 4 Rasool Bux it is contended that he has rendered himself unreliable for the reason that he has not admitted his relationship with the deceased. P. W. 4 Rasool Bux has deposed before the trial Court that on the day of incident he and P. W. Mohammad Juman bad carried paddy of Ali Jabbar Muhajir from village Naich in two bullock carts and reached the factory at about 8-45 a.m. He has further narrated the details of the incident in the same manner as ether witnesses have done. On the question of relationship this witness deposed before the trial Court that he was caste-fellow of deceased and the complainant. He did not know Mst. Pari but again said that he knew her. He did not know whether she had any brother or sister. First he said before the trial Court that he did not know the name of his own maternal-grandfather but then said that the name of his maternal-grandfather was Mohammad Sachal. Mohammad Sachal was not father of Mohammad Sadik. Mohammad Sachal had only one daughter who was mother of this witness and her name was Mst. Pathani. She had no brother and no sister. Mst. Pathani was not her sister. It was contended by the learned counsel for the appellants that Mst. Pathani was sister of P. W. Mohammad Sadik. In this context P. W. 5 Mohammad Sadik, who is an eye-witness, has deposed before the trial Court that he is son of Mohammad Sachal and has only one sister by name Mst. Umra. His father Sachal was dead. In the cross-examination P- W. 5 Mohammad Sadik denied a suggestion that deceased was his sister's husband. Mr. Mohammad Hayat Junejo Advocate for appellant contended that both these witnesses Rasool Bux and Mohammad Sadik had deliberately suppressed their relationship with the deceased and also the complainant has deposed before the trial Court that he is not on dinning terms with any other caste-fellows in his village, meaning thereby that he is not on visiting terms with eye-witnesses Rasool Bux and Mohammad Sadik as such they should not be relied upon. W e do not feel inclined to accept this contention for the reasons that firstly there is nothing on the record or in the cross-examination of these witnesses to show that there is some positive relationship, which they have denied and secondly even if they have done so, it does not reflect upon the fact that they were not present at the scene of offence at the time of occurrence which is amply proved by other factors such as the registration of F. I. R. Within 15 minutes of the incident in which the names of these witnesses appeared and in fact one of these witnesses namely Abdullah is complainant. S. H. O. Haq Nawaz has deposed before the trial Court that after the registration of F. I. R. He went to the scene of offence and examined both these eye-witnesses namely Rasool Bux and Mohammad Sadik who were present near the dead body. This fact is not challenged by the defence in his cross- examination. In these circumstances we are of the view that these three eye-witnesses were present at the scene of offence at the time of incident and have in fact seen the incident.
14. So far the details of the incident are concerned, the relevant facts are that deceased and complainant came together to the factory in the morning of the day of incident. There were seven bullock carts outside the factory laden with paddy and out of those carts five were brought by the appellants and acquitted co-accused mentioned above and there were two other bullock carts which were brought by. P. Ws. Juman and Rasool Bux. Deceased Razi Khan, who was kamdar of zamindar Ali Jabbar went inside the factory along with the complainant and asked P. W.
15. Mohammad Sadik, who was `wapari' to get the paddy unloaded and make payment to the drivers.
16. Roshan son of Mohammad Sadik was also present there. Deceased asked Mohammad Sadik that he would come back later on. While he was leaving factory three appellants and two acquitted co- accused, who were armed with hatchets, faced the deceased and appellant Mohammad Ramzan threatened that deceased would not be spared and instigated his other companions to make the attack. All the five assailants including Ramzan then landed hatchet blows with sharp side on the deceased and the complainant raised cries which attracted attention of the witnesses. P. W. Rasool Bux was already present outside the factory while P. W. Mohammad Sadik came from inside the factory on cries and both these witnesses as well as other persons saw the incident and after Razi Khan fell down injured and his head was severed, the assailants started to flee and the present three appellants ran in one direction when in the meantime H. C. Abdul Latif and P. C. Mohammad Punhal and one other constable reached there and apprehended the appellants while co-accused Sohbat and Mohammad Punjab who went in other direction succeeded in making good their escape. The same details are testified by other two eye-witnesses namely P. W. 4 Rasool Bux and P.
17. W. 5 Sadik. Since the attack was joint the narration of the incident is simple and there are no material contradictions in the evidence of all these three eye-witnesses.
18. Furthermore even if it be assumed for the sake of argument that these eye-witnesses and particularly Rasool Bux and Mohammad Sadik have suppressed relationship inter se and with deceased, their presence at the spot and veracity as witnesses in regard to the incident is amply proved and is further strongly corroborated by the evidence of H. C. Abdul Latif and P. C.
19. Mohammad Punhal. Both these witnesses have no relationship to and have nothing to do with either complainant or deceased or assailants. Both are independent and disinterested witnesses and happened to come to the spot at the right moment by way of chance as they were in police force and were on patrol duty at that time. P. W. 5 H. C. Abdul Latif has deposed before the trial Court that he, constables Mohammad Punhal and Mohammad Hassan were on patrol duty on the day of incident and at about 9-30 a.m. When they reached near bungalow of Ali Gohar Khoro near Empire Cinema they heard cries of "murder, murder !" behind Municipal shops. They rushed there and saw three persons coming towards them armed with hatchets and these witnesses declared to them that they were from Police and asked them to stop. Upon this three assailants stopped there and in the meantime they found complainant and four other persons following the assailants. All of them then apprehended the three assailants and they were brought to the scene of offence where dead body of Razi Khan was found with hatchet injuries. Thereafter the three assailants were taken to police station where they were taken in custody and recovery was made of their blood-stained hatchets and clothes. H. C. Abdul Latif has further deposed before the trial Court that at the time of apprehension of the appellants he had taken from them hatchets which were stained with blood and then produced them before the S. H. O. At the police station. It was argued by Mr. Junejo that this witness should have prepared mashirnama of recovery of hatchets at the place where appellants were apprehended, and such recovery was made from them. This witness has explained in his evidence that he bad merely apprehended and made recovery of hatchets from the appellants when the complainant and other witnesses who were following them had also arrived at that place. We find that it was necessary for this witness to disarm the assailants and sine this witness was not an Investigating Officer, it was not necessary for him to prepare a mashirnama of recovery of hatchets. Complainant and other witnesses had informed H.
20. C. Abdul Latif that assailants had committed a murder and in such circumstances it was necessary for this witness to disarm the appellants before taking them to the scene of offence and to the police station. It was then argued by Mr. Junejo that if H. C. Abdul Latif is to be believed that he had apprehended the three assailants then neither he nor the other Constable P. W. 7 Mohammad Punhal were found to be having any injuries as they were expected to sustain in the struggle of disarming the appellants. H. C. Abdul Latif has explained in his evidence Lefore the trial Court that there was no struggle and as soon as he and other. Constables informed the appellants that they were from police and they should stop, the appellants quietly stopped and did not resist. There is nothing adverse in the cross-examination of H. C. Abdul Latif and P. C. Mohammad Punhal to suggest that they are false and set up witnesses and they had not apprehended the appellants at a short distance form the spot and produced them before S. H. O. At the- police station. We therefore put full reliance upon the evidence of these two witnesses who have absolutely no motivation against appellants to falsely implicate them. Even appellants have not been able to show any thing to doubt the fact that they were not apprehended at the spot as asserted by the prosecution. They attribute no enmity to these police witnesses and the only thing they have said in their 342, Cr. P.- C. Statements is that police were over enthusiastic in order to show their efficiency because at that time Prime Minister was camping at Larkana. Even this suggestion is not put to these police witnesses in their cross-examination before the trial Court. We find absolutely no reason to disbelieve evidence of H. C. Abdul Latif and P. C. Mohammad Punhal.
21. The next piece of evidence against the appellants is recovery of their blood-stained hatchets and their clothes. So far hatchets are concerned it is in the evidence of H. C. Abdul Latif that at the time when he appre--hended the three appellants he disarmed them and took from them their blood- stained hatchets which he produced at the police station before S. H. O. Along with the appellants.
22. S. H. O. Then prepared mashirnama of recovery of these hatchets and bloodstained clothes from the persons of three appellants. P. W. 8 Ali Bux mashir has been examined who has supported these recoveries. P. W. 8 Ali Bux mashir has deposed before the trial Court that on the day of incident he was selling flowers in Seo Bazar on footpath. He and co-mashir Sahibdino who also used to sell flowers were coming via Bakrani Road when they reached near police station S. H. O. Called them.
23. He saw at the police station three appellants who were taken in custody and their blood-stained hatchets and clothes were recovered. The evidence of this mashir is assailed on the ground that he has deposed before the trial Court that each appellant produced his own hatchet while on the other hand the case of the prosecution is that hatchets were recovered from appellants by H. C Abdul Latif at the time when they were apprehended near the place of occurrence. Perusal of evidence of this mashir shows that in his examination-in-chief he has said so. There is no further clarification on this point in his cross-examination. This mashir has admitted the contents of Mashirnamas Exhs. 24 to 25. He acknowledged his attesta--tion of these Mashirnamas and produced them in the Court. The contents of the Mashirnamas were read over to him and lie admitted them to be correct. According to these Mashirnamas Exhs. 24 to 26 it is clearly stated there in that the appellants were produced at the police station by H. C. Abdul Latif. P. C. Punhal and P. C. Mohammad Hassan. Their blood-stained clothes and hatchets were taken into possession in presence of mashirs and were put into sealed parcels. Although this mashir has not explained specifically, neither such question was put to him while he was deposing before-the trial Court that three hatchets were already there produced by H. C. Abdul Latif and other Constables and only clothes were recovered from the persons of the appellants but this fact is explained by H. C. Abdul Latif and P. W. 9 Haq Nawaz S. H. O. S. H. O. Has deposed before the trial Court in his examination-in- chief that three appellants were brought at police station by H. C. Abdul Latif, who also produced blood-stained hatchets of the appellants and he saw that all the appellants were wearing blood- stained clothes and he secured from each appellant his blood-stained clothes. After this positive assertion made by S. H. O. In his examination-in-.Chief no further question was put to him on this particular point in his cross-examination. On the other hand suggestive question was put to the S. H. O. In his cross-exami--nation that Head Constable and other two constables did not produce appellants before him and he directed them to depose falsely against the appellants as it was town of the Prime Minister who was encamping at Larkana on that day. This suggestion is flatly denied by S. H. O. In his evidence before the trial Court. The other suggestion put to the S. H. O. Was that these three appellants were first arrested from village and then F. I. R. Was lodged. This suggestion was also denied by S. H. O. In these circumstances it appears that the assertion of mashir Ali Bux that each appellant produced his own blood-stained hatchet is innocuous and is in advertently made, which further stands fully explained in the evidence of H. C. Abdul Latif and S. H.
24. O. Haq Nawaz and the contents of the Mashirnamas Exhs. 24 to 26. There is nothing adverse in the cross-examination of Mgshir Ali Bux to suggest that he has given false evidence. It was contended on behalf of the appellants that this mashir sold flowers on the foot path hence he was under the influence of Police. On the other hand it appears that mashir Ali Bux has deposed before the trial court in positive terms that S. H. O. Did not know him previously and on the day of incident he happened to pass by police station when he was called by the S. H. O. And on the second occasion he was again called by S. H. O. Through a constable when he witnessed arrest and recoveries from the acquitted co-accused. There is nothing in the evidence if this mashir to show that he acted under the influence of Police. There is nothing in the cross-examination of this mashir to suggest that on previous occasions also he has acted as a witness or mashir for police so that he could be termed as "stock witness" of Police. The report of the Chemical Examiner is positive hence the prosecution has been able to prove that hatchets and blood-stained clothes were recovered from the present three appellants which have been found by the Chemical Examiner to be stained with human blood. This piece of circumstantial evidence against the appellants stands fully established.
25. So far motive is concerned, it has been described above. It is contended on' behalf of the appellants that prosecution was not able to prove the motive. Motive is divided into two parts. In the first part it is stated that deceased Razi. Khan had some personal agricultural land which was being cultivated by appellants Ishaq and Sikandar. Some time before the incident deceased Razi Khan had divested appellant Ishaq from cultivating possession of his land but Sikandar still continued and deceased Razi Khan threatened him also of dispossession. In this context it was suggested to complainant in his cross-examination before the trial Court that a zamindar could not dispossess a hart without obtaining an order from tenancy tribunal. Complainant replied that he did not know. Complainant also stated before the trial Court that even after appellant Ishaq left harap of deceased, he was plying his bullock carton hire and was carrying paddy of other persons as well as of deceased Razi Khan. It was argued on behalf of the appellants that this grievance was not sufficient to motivate appellants to commit murder as the other appellant Sikandar still had cultivating possession of the personal land of deceased and deceased used to go to the agricultural land of Ali Jabbar as he was his kamdar. If the appellants were motivated on this account to murder deceased, they could have done it on some other occasion in the agricultural lands and would not have committed murder in the in bazar of the town presence of several eye- witnesses. The other part of the motive is that before the incident relatives of appellants and acquitted co-accused were arrested by Baluchistan police in connection with a case filed there.
26. The case of the prosecution is that appellants and acquitted co-accused suspected deceased of having initiated that case. Com--plainant Abdullah has been cross-examined in detail on these lines. He has deposed before the trial Court that he did not know as to who was complainant before Baluchistan police and who were witnesses in that case. He did not know whether deceased Razi Khan was complainant or witness in that case. He also did not know in which town of Balu-- chistan the case was registered and in which Court. Now so far the motive is concerned whatever evidence prosecution had to produce it has been produced. Some times murders are committed without prosecution being able to dig out motive. Each case is to be considered in the light of its own peculiar circumstances. In the instant case evidence of motive is available on the record and that is to be considered in the peculiar circumstances of this case. Assailants were seen by the eye-witnesses in the act of committing murder of Razi Khan. Three appellants were apprehended at the spot. F. I. R. Was lodged at the police station within 15 minutes of the incident. Blood-stained hatchets and clothes were recovered from the appellants. The witnesses produced by the prosecution have supported the case as stated above. 1n these circumstances if the evidence of motive is not satisfactory and convincing it would not detract other over whelming evidence which proves the case 'against the appellants beyond doubt. The trial Court has already acquitted co- accused Sohbat and Mohammad Punjal whose case is distinguishable from the case of the present appellants. Sohbat and Punjal were arrested not at the spot like appellants but after three days that is on 24th February 1975 from their village. There is also evidence of recovery of blood- staired hatchets from Sohbat and Punjal, and also bloodstained shirt from Sohbat. These hatchets and shirt are stated to have been recovered from the heaps of rubbish lying in front of their houses.
27. These hatchets and shirt have been found to be stained with human blood by the Chemical Examiner. The trial Court has acquitted them on the ground that the case against them is doubtful for the reasons firstly that the Police witnesses had not seen them and have not deposed against them and secondly that they were arrested after three days and thirdly that recovery of hatchets and shirt was doubtful as these articles were recovered from rubbish lying in front of their houses, which was accessible of all hence exclusive knowledge cannot be attributed to them. In fact the prosecution evidence on this point is that acquitted co-accused Punjal led to the recovery of blood-stained hatchet from the heap of rubbish lying in front of his house and likewise acquitted co-accused Sohbat while in custody led to his house and from a heap of rubbish lying in front of his house he took out hatchet and shirt which were blood-stained and were put into sealed parcels. Acquitted co-accused Sohbat and. Punjal were arrested from village Naich which was at a distance of four miles from Larkana. The fact that village Naich is at a distance of four miles from Larkana as admitted by complainant Abdullah in his deposition. Mashir P. W. 8 Ali Bux who has deposed about the recoveries from acquitted co-accused Sohbat and Punjal belongs to Larkana hence he could not be said to be a witness from the locality of village Naich. Mashir Ali Bux has further deposed before the trial Court that both Sohbat and Punjal were arrested from one house and he could not say as to whom that house belonged. He has further deposed that Naich was a big village and had about 50 or 100 houses. In these circumstances the Investigating Officer should have procured mashirs from that village and moreover the evidence regarding production of hatchets and blood-stained shirt does not appear to be satisfactory. The trial Court has done right by not relying upon this evidence against acquitted co-accused namely Sohbat and Punjal.
28. For the facts and reasons mentioned above we are of the considered view that prosecution has proved its case beyond doubt against the present three appellants and we dismiss the appeal filed by them and maintain impugned Judgment of conviction and sentence against them. At the same time we find no reason to interfere with acquittal of Sohbat and Punjal and acquittal appeal filed by State is hereby dismissed.