AJMAL MIAN, J.-The three appellants/accused stand .Convicted for tbt, murder of Pandhi son of Mooso under section 302/34, P. P..C. And have been awarded death sentences by the then learned Additional Sessions Judge, Hyderabad through a judgment dated 23rd August, 1980 and have also been ordered to pay Rs. 10,000 (each of the appellants) as compensa--tion under section 544, Cr.
P. C. To the legal heirs of the deceased. . The appellants/accused aggrieved by the above judgment have filed the present appeal, whereas the learned Additional Sessions Judge has made a reference for the confirmation of the death sentences. We by a short order of even dated have dismissed the appeal of the appellants Sobbo son of Bacho and Nasrullah son of Allah Bux with the modification that their death sentences have been substituted by life imprisonments. However, we maintain the amount-of the compensation payable by the above two appellants. As regard the third appellant /accused Sawan son of Khairo, we have convert--ed his conviction from 302/34, P.
P. C. Into a conviction under section 325, Cr. P. C. And have awarded 7 years' R. I. And have also imposed a sum of Rs. 3,000 payable by' him as compensation to the legal heirs of the deceased, in default 5, months' R. I. "We have also ordered that the above three appellants shall be entitled to the benefit under section 382-B Cr. P. C, In furtherance the above short order, these are the reasons.
2. It may be observed that the F. I. R. Was lodged by P. W. 3 Rahim Dino son of Samano resident of village Yousuf Chand, taluka Hale on 11th March, .1973 at 1530 hours at the Police Station, Matiari. In the F. I. R., it 'vas alleged that the complainant was a cousin of the deceased and was living with him. It was further stated that about 14-15 months back the deceased one Ismail had come to their house for theft but, .They woked up. Thereupon, said Ismail fired with Pistol upon the complainant and the deceased Pandhi causing injuries to them. It was also stated that while they were holding said Ismail they also caused injuries to him resulting into his death. It was alleged that they (complainant party) had lodged report with the Police in respect of the above incident, in which the deceased Pandhi was the complainant. Deceased Ismail and others bad also lodged a complaint against the complainant, the deceased Pandhi, and Machando. It was further alleged that the deceased Ismail was a habitual thief and his brother (present appellant) Sobho was also a thief. It was also stated that after the death of Ismail they went on conspiring against the complainant, the deceased Pandhi and Machando, which fact was brought to the notice of their nekmard, namely, P. W. Haji Imam Bux, who decided the dispute between the parties, but Sobho and Sawan (two of the appellants) Khairo and Bachalv declined to accept the above decision and went on saying that they would take revenge. It was also alleged that on 11th March; 1973 at about 1-00 p.m. The complainant came from his house for purchases from Sheikh-Teehar village and on the way near a hotel, he heard commotion and saw that his cousin Pandhi came out from the hotel and was running towards the village. He was followed by accused Sobho son of Bacho, Sawan son of Khairo and cne Nasrullah, who were armed with hatchets and who were giving him blows. It was also alleged that after the accused came out from the hotel, P. W. 6 Allah Bachayo, Shaikh and P. W.
5 Safer also came out from the hotel, who challenged the accused in order to catch them; but at a distance of about 20-22 paces,'the accused persons inflicted hatchet blows upon Pandhi, who fell down. It was further alleged by the complainant that after seeing the above incident due to fear he came back to his village and narrated the incident to his relatives, namely; Khan Muhammad and Machando. After that the complainant and his above two relatives came to the wardat and saw that due to hatchet injuries Pandhi had expired. It was also stated that all the three accused persons gave hatchet blows to Pandhi, and, thereafter ran away. It was further stated that a boy Maroof, was in the hotel, who ran away due to fear leaving Machando, Khan Muhammad and others besides the dead body.
3. The F. I. R. Was recorded by P. W. 10 Muhammad Hussain, S. H. O. Police StationMatiari, who after recording the F.I.R. Proceeded to the, place of wardat in the presence of P. W. 8 Amir Bux and one Chulto, which was situated in the land of Ghulam Muhammad Shah near Village Sheikh Teehar, in Deh Bhorunkeyo. The place of wardat was pointed out to him by the complainant P. W. 3 Rahim Dino, where he found the injured dead body lying. He also found a cap and a black slipper of right foot of the deceased and also one green towel. He secured the above articles, which were blood- stained. He also secured black slipper of left foot lying in the hotel of Gullo at a distance of about 20 paces from the place of wardat. He also prepared inquest report in the presence of the aforesaid two mashirs Exh:
22. He also drew a sketch of the place of wardat. Thereafter, he sent the dead body of the deceased through P. C. Usman, to the Medical Officer, Matiari for post-mortem examination. He recorded the statements of P. Ws. Maroof, Safer, Allah Bachayo. After that .He proceeded in search of the accused persons. The three accused were produced before him by Bachal, whom he arrested and prepared a mashirnama of arrest Exh.
23. It may also be observed that under the aforesaidmashirnama, he also seduced blood-stained clothes, which were produced by the three accused, which they were then putting on. The two, accused Sobho and Nasrullah produced, bloodstained hatchets, which were secured under Mashirnama Exh. 23, whereas Sawan had produced a lorh (i.e. a piece of Lathi having iron rings on one side and a iron plate on the other side of extremes). The above hatchets were sealed, however; lorh was not sealed as according to the S. H. O., it bad no blood stains. After that he proceeded to the village Shaikh Teehar, where he recorded the statements of Machando and Khan Muhammad. After that he recorded the statement of Haji Imam Bux on 12th of the same month. He produced the three accused before the SDM, Hala for getting their judicial confessions recorded. It may also be stated that according to him the clothes produced by the three accused were washed.
4. (a) The prosecution in support of the case has relied upon the following pieces of evidence
(i) Ocular evidence comprising of 4 eye-witnesses, namely, P. W. 3 Rahim Dino, P. W. 5 Safar P. W. 6 Allah Bachayo and P. W. 7 Maroof.
(fi) Recoveries of blood-stained clothes articles and chemical analysis report Exh. 44.
(iii) Judicial confession of 3 accused Exhs. 27, 28 and 29.
(iv) Motive.
(b) P. W. 3 Rabim Dino has more or less reiterated the contents of the F. I. R. In his deposition before the Sessions Court except that instead of mentioning hatchet he has deposed that the accused Sawan was armed with a lorh and instead of stating that the accused entered into the hotel, he has stated that only the accused Sobho entered into the hotel and the other two accused were standing at the door of the hotel, who inflicted injuries with the third accused after the deceased Pandhi came out of the hotel running in order to save himself from the accused Pandhi, who had inflicted one blow inside the hotel.
(c) Whereas P: W.5 Safar has deposed that it was about 1-30 p. m., when he was sitting in the hotel of Gul Phonra which was at some distance from village Shaikh Teehar. Allah bachayo and Maroof were also present in the hotel. Maroof was an employee of the hotel. He has further deposed that they were taking tea, the deceased Pandhi had also come to the hotel and ordered for tea. After that the present three appellants appeared at the hotel; whereas Sawan and Nasrullah remained outside the hotel, whereas Sobho came inside the hotel. Sawan was armed with lorh whereas Sobho and Nasrullah were armed with hatchets. It has also been stated by him that Sobho after entering into the hotel abused the deceased Pandhi and inflicted hatchet injury to him. Thereupon, Pandhi while crying came running outs1de the hotel. The three accused chased him and while he was running, inflicted injuries upon him. It has been further stated by him that after moving for about 25-30 paces from the hotel, the deceased Pandhi on account of the injuries fell down, and that he and Allah bachayo followed the accused persons and asked them not to kill the deceased.
Thereupon, the accused persons threatened them and asked them not to move further and therefore, they stayed back. After that the accused persons ran away. He also deposed that they observed that P. W. Rahim Dino-was coming running towards them rais--ing cries "do not kill the man" and-that Rahim Dino had seen the accused inflicting the injuries. He has also stated that subsequently complainant Rahim Dino brought Machando and Khan Muhammad from his village and that they reached near the injured body of Pandhi, but he was no more alive. He has further deposed that Rabim Dino, Machando and Khan Muhammad were given the facts by them on their making inquiry. After that Rahim D1 no went to lodge the F.I.R.
In cross-examination P. W. Safar's attention was invited to certain contradictions between the statements made by him before the Sessions Court and under section 164, Cr. P. C., namely, that in his 164 statement he had not stated that Rahim Dino came running while crying do not kill the man' and also to the fact that he had not so stated even before the lower Court and also to the fact that he had not stated before the Police that the accused persons on hearing the challenge of. Rabim Dino rushed towards him. He has stated in cross-examination that his house would be a distance of 100 paces from the house of P. W. 6 Allah bachayo and that relations of Pandhi were not visiting terms with them. He has further stated that the distance between his house and the village of Pandhi would be equivalent to a call's distance and that they had seen Rahim Dino the complainant reaching at the place of wardat when the accused were assaulting the deceased. He has also stated that Pandhi received the first injury while he was sitting in the hotel, but he does not recollect at what place he had received the first injury.
(d) P. W. 6 Allah bachayo has corroborated the statement of P. W. 5 Safar on all the material points.
In his cross-examination be has stated that after the incident about 50/60 persons had gathered at the place of wardat before the arrival of the police, and that there were number of persons available at the wardat, when the police arrived, whose number might be 30/40 and that those persons included the neighbours and his co-villagers. He has also stated that when he reached the hotel P. W. Safar was also there, but he could not state, whether he or Safar had reached the hotel first, nor he remembered, whether they had taken tea, when the deceased Pandhi bad come to the hotel. He goes on to state that deceased Pandhi might have come after 5/10 minutes. He has also stated that according to him Pandhi had also taken tea before the accused persons arrived.
(e) P. W. 7 Maroof a boy of 12 years was an employee of the hotel in question. The learned Sessions Judge had put several questions to him in, order to ascertain, as to whether he could understand the Court's questions. The questions and the replies thereto have been recorded by the learned Sessions Judge, from which it seems that the above witness is quite, intelligent. He has deposed that about 3J years back at about 1-30 p.m. He was in his hotel. Allah bachayo and Safar came to the hotel and asked for tea. After that the deceased Pandhi also reached there and ordered for tea.
Thereafter, the three accused Sobho, Sawan and Nasrullah who were present in Court also appeared at the hotel, Sobho and Nasrullah were armed with hatchets, whereas Sawan had a lorh.
He goes on to state that accused Nasrullah and Sawan remained at the door of the hotel, whereas Sobho entered inside the hotel and abused Pandhi and thereafter immediately inflicted injury upon him, who ran away outside the hotel. He has further deposed that when deceased Pandhi came out from the hotel accused Nasrullah gave hatchet blows to him, whereas accused Sawan inflicted lorh blow to the deceased, and that all the three accused chased the deceased and while chasing inflicted injuries upon him. The above witness was cross-examined at great length by the learned counsel for the accused. However, they were unable to bring anything on the record to impeach his testimony.
The above witness in his cross-examination admitted the fact that he and the complainant party belong 4o Lutuf Ali Shah. However, he has denied the suggestion that he was deposing against the Sawan as he was the man of Lutuf Ali Shah.
(f) The prosecution also examined Amir Bux one of the mashirs to the place of wardat, Mashirnama (Exh. 21), which includes the description of the injuries on the deceased person. He was also one of the mashirs to the inquest report and the recovery of the blood-stained clothes and hatchets from accused, Exhs. 22 and 23. He was also a mashie to another mashirnama in respect of the courtyard of the house of the accused Sobbo, where the three accused persons allegedly washed their blood--stained clothes and the two accused washed their blood-stained hatchets as well.
According to the above mashirnama the courtyards of the house of the accused Sobho was red and blood stains were visible.
(g) P. W. 9 Ali Bux, who was S. D. M. At Hala at the material time was also examined to prove the judicial confessions of the three accused Exhs. 27 to 29. He was subjected to lengthy cross- examination by the learned counsel for the accused in order to bring on the record that he failed to comply with the legal requirements of recording of a judicial confession inasmuch as all the three accused were sitting in the same room, when the judicial confessions were recorded and that they were sent back .Through the same police escort to the judicial custody. It may be observed that according to the above witness the three accused persons were produced before him at 3-30 p.m.
At his camp at Matiari for recording judicial confessions, whereas according to the Investigation Officer P. W. 10 Mohammad Hussain the accused persons were produced before P. W.
9. Ali Bux for recording their judicial confessions at Matiari. P. W. Ali Bux in his cross-examination has also stated that on account of the lapse of considerable period he was not in a position to say, as to whether the three accused persons present in the Sessions Court were the same persons, who were produced before him for recording the above confessions Exhs. 27 to 29. However, be specifically denied all the suggestions that he had not complied with the legal requirements, namely, administering proper warning and keeping away policemen from the accused persons, providing them sufficient time for reflection in order to decide as to whether judicial confessions was to be made or not. He has also stated that the hall in which he recorded the confessions was a very big hall and that while recording the confession of one accused, he bad kept the other two accused persons at a distance from where it was not possible to hear the confession which were being recorded by him.
(h) The prosecution also examined P. W., 4 Haji Imambux in order to prove the motive on the part of the accused persons. The above witness has corroborated the statements of the above eye- witnesses to the effect that about three years back Ismail brother of accused Sobho had come to the place of Rahim and Pandhi (the complainant and the deceased respectively), whereupon, the complainant was awakened and they tried to apprehend Ismail at the spot: Thereupon, Ismail fired his fire-arm and injured both Rahim and Pandhi and that Pandhi and Rahim in self--defence caused injuries to Ismail, who died on the spot. He has further deposed that the above dispute was referred to him by the complainant party: Thereupon, he summoned the other party and their relatives. Accused Bachu, Sobho and the father of accused Sobho represented the opposite party, but they did not accept the faisla. This witness was cross--examined by the defence, however, nothing was brought on the record to impair the veracity of his testimony on the material points. It was not disputed that-the dispute was referred to him and that he summoned the accused party, nor it was suggested in the cross-examination that Ismail in fact had not died in the circumstances mentioned by him.
(i) Prosecution also examined Dr. Ali Mohammad, who has deposed that on 11th March, 1973 he was the Medical Officer Matiari, and that he received the dead body of Pandhi son of Mooso from Matiari P91ice Station through P. C. Mohammad Usman for post-mortem, which he performed and found the following injuries.
"External injuries :
(1) An incised wound 1' x --" x skin deep on the back of left hand.
(2) An incised wound 1" x --" x skin deep on the left side of the neck.
(3) An incised wound 2" x 1" x bone deep on back side of left ear cutting the mestroid bone and the part of border of left jaw.
(4) An incised wound 7--- x 1" x bone deep cutting the left parieto--occipital bone of the head.
(5) An incised wound 6" x 4" x bone deep cutting the oc6pttal bone, the brain matter was also cut and protruding out.
(6) An incised wound 5" x 2" x bone deep cutting the occipital bone and brain matter and both injuries are connected with each other.
(7) An incised wound 1 -- " x --" x, muscle deep on the right shoulder.
(8) A contusion 3" x 1" on the upper part of the right upper arm resulting the fracture of right humerus.
(9) An incised wound 7" x 2" x abdomen deep on the right side of the back and lumbar region cutting, the eleventh rib right kidney, liver and diaphragm resulting the protrusion of small instestine out--side of the injure.
(10) An incised wound 2" x 1" x bone deep, cutting the medical border of the right scapula.
(il) An incised wound 3 --" x --" x bone deep on the back cutting the sixth thoracio vertebrae.
According to him all the injuries were ante-mortem and the cause of death was shock and haemorrhage as a result of external injuries. The weapon used, according to him, was hatchet, except for injury No. 3 which appeared to have been caused by some bard blunt weapon such as lathi or the back side of the hatchet. He also opined that the death was instantaneous after the injuries and the probable time between the death and the post-mortem was about 5/6 hours. He has further opined that injuries 3 to 6 and 9 have been individually sufficient to cause death in the ordinary course. He produced the post-mortem report Exh. 32. 5. (a) Accused Sobho in his judicial confessions has stated that about 12 months back the deceased Pandhi had murdered his brother Ismail. He used to go at the grave of his brother from time to time but Pandhi used to say to the people that he (Sobho) was visiting the grave of some ---aulia---. He has further stated that yesterday evening after offering 'Qul' he was returning from the grave of his brother Ismail and passed near the hotel of Gullu Phonrio when he saw the deceased Pandhi sitting there, where he took tea. He went on to state that the deceased Pandhi made a joke with his friends and remarked that Ismail Shah was `aulia'. There--upon, he told him that it, was not good and that he should not behave like this, but Pandhi assaulted him with the hatchet and that in the meantime Sawan and Nasrullah who were sitting at the hotel and were his relatives stopped his attack and assaulted him with lathi and hatchets killing him. He has further stated that the fight had taken place on account of joke made by the deceased Pandhi.
(b) Whereas the other accused Nasrullah in his judicial confession stated that yesterday evening while returning from (not readable), when he came to the hotel of Gullu, he found Sawan, Sobho and Pandhi fighting with each other. Sobho was his masat. Sobho also took his side and gave blow to Pandhi who died, and that Pandhi and others had murdered his masat Ismail about 12 months back.
(c) Whereas Sawan in his judicial confession stated that yesterday evening he went to take tea at the hotel of Gullu, Nasrullah who was relative of Sobho while returning after "Wangar" (gratis labour) came to hotel. He goes on to state that the deceased Pandhi was also sitting at A the hotel and that during this time, Sobho also came to the hotel. The deceased Pandhi and Sobho had altercations, whereupon he gave lathi blow over the hatchet of the deceased Pandhi, which slipped from his hand and then all the three gave to the deceased lathi and hatchet blows and killed him.
He has further stated that Pandhi, Rahim Dino and Machando had murdered Ismail brother of Sobho about 12 months back.
However, the above appellants/accused in their statements under section 324, Cr. P. C. Before the learned Additional Sessions Judge had denied the commission of murder and came out with the plea that a false case had been foisted upon them. Accused Sobho has stated that his brother Ismail was killed, but he did not know who had killed him and that, he was innocent. Whereas Nasrullah in his statement under section 324, has denied of having anything to do with the murder.
Same was the case of accused Sawan. It may also be observed that all the three appellants/ accused have also denied of having made any judicial confession.
(d) It may be stated that the learned Additional Sessions Judge has discarded the recoveries and the Chemical Analyser's reports for the reason that there was a delay of about two months in delivering the alleged blood-stained articles, and in our view rightly so, as it has been consistently A held by this Court that the delay in the recovery or despatching of the alleged blood-stained articles for one or two months or more months may be fatal to admissibility of the recoveries. In this regard, it may be pertinent to mention the case of Suleiman and 2 others v. State (1981 PCrLJ 434) in which there was a delay in the despatch of incriminating articles for about 5 months and because of that the same. 3Aere discarded. While arriving at the above conclusion inter alia the reliance was also placed on the case of Gulzar v. State (1976 P Cr. L J 419), wherein one month's delay was considered by a Division Bench of Lahore High Court to be sufficient for rendering the recoveries as valueless.
7. (a) It has been contended by Mr. Azizullah Shaikh, learned counsel for the appellants that after excluding the recoveries, there is not sufficient evidence on the record to maintain the convictions against the appellants. It has been vehemently urged by him that P. W. 3 Rahim Dino could not have been an eye-witness as he was not present at the hotel where the incident had taken place, as according to his own showing he was coming from his village to the village Teehar for making purchases. It was next contended by him that the evidence of the remaining eye--witnesses, namely P. W. 5 Safar, P. W. 6 Allah Bachayo and P. W. 7 Maroof are not reliable. In our view, if we were to exclude the testimony of P. W. 3 Rahim Dino, there is still sufficient evidence on the record to sustain the convictions against the present appellants/accused. It is true that P. W. 5 Safar and P.
W. 6 Allahbachayo are related to the deceased Pandhi and because of the admitted enmity, their evidence requires independent corroboration. . In our view the required corrobora--tion is provided by P. W. 7 Maroof-cum-motive. It tray be observed that Maroof was aged about 12 years, but in spite of the lengthy cross-examination nothing could be brought on the record to cast doubt about his presence at the place of wardat or about the veracity of his testimony. He has corroborated the testimonies of P. Ws. 5 and 6 Safar and Allah bachayo respectively on all the material points.
Furthermore, motive has also been proved through P. W. 4 Haji Imambux. His testimony also remained unimpeached op all the material points.
(b) It was also contended by Mr. Azizullah Shaikh, that in view of the infirmities in the procedure adopted by the learned Magistrate P. W. Ali Bux in recording the alleged judicial confessions and because of the material discrepancy between the testimony of the above witness and the Investigation Officer P. W. 10 Mohammad Hussain as to the place where the alleged judicial confessions were recorded (namely, whereas according to the P. W. Ali Bux, he recorded the judicial confessions at his camp office Matiari, whereas according to P. W. 10 he produced the accused before the P. W. Mr. Ali Bux at his Court at Hala), the same cannot be relied upon. His further submission was that the appellant Sobho's alleged judicial confession is exculpatory and is also contrary to the version of the eye-witnesses, and, therefore, liable to be excluded. As regards the confessions of the other two appellants the contention of Mr. Azizullah Sheikh was that the same also suffer from infirmities of procedure and they are also contrary to the evidence of the eye- witnesses, and, therefore, liable to be ignored. Without going into the merits of the above contention, in our view even if we were to discard the above judicial confessions, the remaining evidence on the record referred to hereinabove, namely, the testimonies of P. W. Safar, Allahbachayo and Maroof and the motive are sufficient to sustain the convictions.
(c) It was next contended by Mr. Azizullah Shaikh that conviction of the appellant Sawan under section 302/34, P. P. C. Is not warranted from the evidence on the record. We are inclined to agree with the above contention. It is an admitted position that the appellant Sawan did not have .Any hatchet, but had a 'lorh'. From the medical evidence of P. W. Dr. Ali Mohammad, it is evident that only injury No. 8 could be attributed to the back side of a hatchet or of a blunt weapon like a lathi. In this view of the matter, the only injury which could be attributed to the appellant Sawan was injury No. 8. It was not inflicted on any vital part of the body. According to the Investigating Officer P. W. 10 Mohammad Hussain's testimony, he did not seal `lorh' produced by the appellant Sawan for the reason that it had no blood stains. In our view, there is nothing on the record to prove that the appellant Sawan had the intention to kill the deceased or that he participated with the other two accused in furtherance of a common intention which is prerequisite in order to press into service section 34. P. P. C. Admittedly appellant Sawan had no personal motive against the deceased. He is not related to the other two appellants/accused. His case stands entirely on different footings from the case of the other two appellants, who had motive to kill. Furthermore, the number of injuries inflicted by them with hatchets indicates that the appellants Sobho and Nasrullah had common intention to kill. Even otherwise, it seems that each of them individually intended to kill the deceased. In this view of the matter we are inclined to hold that the prosecution was able to make out a case against the appellant Sawan under section 325 and not under section 302/34, P. P. C.
We, therefore, alter the conviction from 302/34 to section 325, P. P. C. And g set aside the death sentence and award the sentence of 7 years' R. I. We also fix a sum of Rs. 3,000 as compensation amount under section 544. Cr. P. C. Payable by appellant Sawan to the legal heirs of the deceased and in case of default 6 months' R. I.
8. (a) As regards the other two appellants, it was vehemently contended by Mr. Azizullah Shaikh that the following extenuating circum--stances were present in the case of the above two appellants, warranting the imposition of lesser punishment than the capital punishment of death.
(i) Sudden fight.
(ii) Blood-feud.
(iii) Delay of about 7 --years in the trial of the case.
(b) In support of the above first reason, he has referred to the case of Sher Mohammad v. State (1975 P Cr. L J 1346), the case of Mohammad Akram v. State (1976 P Cr. L J 329), the case of Mohammad 1qbal v. State (PLD 1957 Lab. 31) and the case of Gurdev Sing and others v. Emperor (AIR 1948 Lab. 58).
(i) Referring to case of Sher Mohammad, it may be observed that the facts of the case were that the deceased summoned the accused in his house and abused him. Thereupon, the accused shot the deceased. In these circumstances, it was held that there was no direct enmity or motive against the deceased and that the incident had taken place suddenly without any premeditation and therefore, lesser punishment of life imprisonment was justified.
(ii) In the case of Mohammad Akram v. State it was held that in a case of sudden quarrel lesser punishment of life imprisonment was the proper sentence.
(iii) As regards the case of Mohammad lqbal v. State, it will suffice to observe that in the above case also a lesser punishment of transportation for life was substituted in place of death sentence for the reason that the murder was not pre-planned or premeditated.
(iv) Reverting to the case of Gurder Sing v. Emperor, it will suffice to observe that Munir, J. (as he then was) observed that where death was intended by the accused and murder is premeditated, the offender shall normally be awarded death sentence. But where common object of unlawful assembly was beating of a person and death was not intended, but was likely the consequence of the riot, death sentence was not to be imposed.
(v) In the instant case, it is an admitted position that Ismail was killed about a year back and, therefore, appellants Sobho and Nasrullah had sufficient time to pre-plan the murder and to waylay the deceased at an isolated place. In our view if the above appellants would have pre- planned the murder of the deceased, they would not have chosen a hotel in a bazar in a broad daylight, but would have selected some isolated place. From the facts of the case, it seems that the appellants met the deceased by chance and something transpired, which resulted in the attacking of the deceased by the appellants. This inference gets support from the judicial confessions of the three appellants referred to hereinabove.
(c) In furtherance of the second reason, namely, blood-feud Mr. Shaikh has referred to the case of Ajun Shah v. State (PLD 1967 SC 185) the case of Zulfiqar and 5 others v. State (1974 P Cr. L J 100) and the case of Shera and others v. State (1976 P Cr. L J 1028).
(i) Reverting to the case of Ajun Shah v. State, it may be observed that in the above case the Supreme Court hold that in a case of murder death sentence should ordinarily be imposed unless the trying Judge for the reasons to be recorded by him considers it proper to award lesser punishment. In the above case the Supreme Court altered the death sentence into the sentence of transportation for life on the ground that the appellant belonged to the former Frontier Province, where it was a matter of tradition and even of family duty to avenge the murder of father. In the above case the appellant had committed the murder to avenge the murder of his father by the deceased.
(ii) As regard the case of Zulfiqar and 5 others v. State, it will suffice to observe that in the above case also the death sentence was sub--stituted by the sentence of transportation for life and it was held that it was a matter of tradition and family duty in the Punjab to avenge the murder of the father, reliance was also placed on the above 1967 SC case.
(iii) Reverting to the case of Shera and others v. State it may be stated that in the above case a Division Bench of the Lahore High Court altered the death sentence to imprisonment for life, as the murder had taken place on account of old blood-feud and to avenge the murder of accused's brother.
(iv) In our view it cannot be said as broad proposition of law that in every case where an accused person intends to avenge the murder of his- family member, a lesser punishment, namely, life imprisonment instead of death is to be awarded. It will depend on the facts of each C case. In the instant case nothing has been brought on the record to indicate that in Sind to avenge the murder of a brother is a family duty or that it can be equated with the taking of avenge of the murder of father, which according to the above Supreme Court and Lahore case is a family duty in Frontier and Punjab respectively.
(d) Reverting to the third reason, namely, delay of about 7-- years in the trial of the present appellants, it may be observed that it is an admitted position that the offence had taken place in 1973, the convictions were recorded in 1980, and, therefore, the finalization of the case had taken about U years. Reliance has been placed on the case of Kambar Ali Shah v. State (PLD 1959 Kar.
460) in which a Division Bench of the erstwhile High Court of West Pakistan, Karachi Bench, held that a delay of four years in the conclusion of the trial was a mitigating circumstance to warrant lesser punishment of transportation for life in place of death sentence. Mr. Dareshani, learned counsel for the State has candidly conceded that in--ordinate delay in the trial of the accused will constitute a mitigating circumstance warranting lesser punishment.
9. In view of the above discussion we dismiss the appeal of the above two appellants with the modification that death sentences, are substituted with imprisonment for life. However, we maintain the amount of compensation imposed on the two appellants by the learned Additional Sessions Judge.
We may also again observe that all the 3 appellants shall be entitled to the benefit under section 382-B, Cr. P. C.