1. MUHAMMAD HALEEM, ACTG. C. J.--This appeal, by special leave, arises from the order of the High Court of Sind dated 24th of September, 1980, by which the convictions of the appellants were maintained but their sentences were reduced to imprisonment for life.
2. It was the prosecution case that Sbahban was declared kari with Mss: Zainab, wife of Nangar, the cousin of the appellants. Apparently, this matter was settled by the Nekmard of the village though thereafter Mst. Zainab left the abode of her husband and resided with her brothers. The appellants nonetheless harboured a grudge against Shahban and to avenge their grievance they along with Nawab mounted an attack on the deceased while he was sitting and chitchatting along with Ali Nawaz, Allabando, Mato and Mevo at his Baithak, situate in Deh Jiand, Taluka Garhi Khairo, District Jaccobabad, at Tipahri time on 4th of October, 1976, and caused to him fire-arm and hatchet injuries. In this attack Meyo also sustained fire-arm injuries. Shahban succumbed to his injuries at the spot while Meyo was later removed and treated for his injuries in the hospital. Allabando lodged the F. I. R. At 8 a.m. On 5th of October, 1976, at Police Station Tajodero, which was 10 miles away.
3. From the spot one crime empty was secured. Swali, on being arrested, led to the recovery of a .12 bore gun which matched with the crime empty. Similarly Ghulam Nabi produced a blood-stained hatchet. However, Nawab did not produce any incriminating article.
4. Shahban suffered 3 fire-arm and one hatchet injury which almost severed his neck from the trunk.
5. As far Mevo, there was a lacerated wound of 5' x 4' dimension with charring around its margins on his right fore-arm and "multiple small lacerated wounds 1/8' in diameter each, above the big wound".
6. The appellants and Nawab are cousins inter se. Allahando was the brother of the deceased. Ali Nawaz and Mato, who are brothers inter se, were his cousins. They all resided in the same village.
7. Swali proclaimed his innocence and attributed his implication in the crime on account of enmity.
8. He further stated that the gun was foisted on him by the "S. H. O.". Similarly, Ghulam Nabi denied the prosecution case and alleged enmity for his implication in the crime. Nawab also denied his implication.
9. The trial Court accepted the motive and believed the ocular testimony as it did not doubt their presence at the Baithak and held them to be the natural witnesses. It further accepted the recovery of the incriminating articles as against Swali and Ghulam Nabi as these stood proved to be the crime weapons.
10. The trial Court, by judgment dated lst of November, 1978, convicted the two appellants and Nawab under section 302 read with section 34, P. P. C. And sentenced the appellants to death and Nawab to imprisonment for life. They were further ordered to pay Rs. 500 as fine or in default to suffer R. 1.
11. For 6 months. Swali was also convicted under section 307, P. P. C. And sentenced to 4 years R.
1. And to pay a fine of Rs. 500 or in default to suffer R. I. For 6 months. He was again convicted under section 13-D ofthe Arms Ordinance and sentenced to suffer R. I. For 2 years. On appeal and reference, the High Court acquitted Nawab and altered the death sentences of the two appellants to imprisonment for life as aforestated.
12. Leave to appeal was granted to assess as to whether the convictions of the appellants were sustainable consistent with the principle of safe dispensa. Of justice According to the prosecution case Swali was armed with a gun while Ghulam Nabi and the acquitted accused had hatchets and the fire-arm injuries were caused to the deceased and Mevo by. Two shots fired by him ; and as for Ghulam Nabi and Nawab, they were attributed the role of causing hatchet injuries although one such injury was noticed on the deceased.
13. The deceased had three pellet injuries while Mevo had multiple small lacerated wounds above the big wound which distinctly showed that they were not the result of one shot for there was no charring around the margins of these lacerated wounds. The two shots were, therefore, fired from different distances. These lacerated wounds and those found on the deceased were the result of one shot as equally no charring was found around their margins. Further, the three pellet injuries on the deceased showed that the shot was fired from an angle and had spread causing multiple lacerated wounds on Mevo as he also happened to be in the line of fire. The fire-arm injury of a larger dimension further established that it was fired from a close range. Similarly, the hatchet Injury on the deceased also showed the nearness of the assailant to the deceased. In this background and for the further fact that the stomach was empty although be had taken his meals a few hours before the incident, it was contended that the incident bad occurred at night and it was, therefore, that the report. Was lodged on the next morning. In this behalf support was also taken from the first information report where it was stated that the complainant had gone to lodge the report after midnight. However, from the evidence of Mevo, which was unchallenged, the presence of Ali Nawaz, Mato and Allahando was established and so was the time of occur--rence.
14. He was a disinterested witness and had no reason to falsely state about B the presence of these witnesses and the time at which the incident had taken place. It is true that he did not deliberately disclose the identity of the assailant and for that he gave out the reason that he became unconscious on receiving the injuries but this appears to us to be more for the fear of reprisal and not fur any other cause. If the witnesses were present then there appears to be no reason why they would not identify the assailants who had come so close to the deceased and Mevo as to fire the gun from a close range and to cause a hatchet injury on the neck of the deceased. C It may be that on seeing the first shot fired they had taken to their heels and for that reason were not able to correctly state as to how many hatchet blows were caused to the deceased.
15. There also appears to be no reasons as to why the complainant would wait till midnight and allow Mevo to die for lack of medical treatment. It is also not possible to believe, as contended by Mr. Hayat Junejo, that the witnesses were under the spell of some intoxicant and it was, therefore, that they had not identified the assailants and lodged the report after the delay of almost eight hours.
16. There is no evidence to sustain this plea for nothing was observed by the doctor on examination of the deceased or Mevo. However, that appears to us to be suspicious is that there was no occasion to mention that he had left after midnight in the F. I. R., as if to lay the entire blame on the complainant for this inordinate delay. Allahando himself stated that he left his companions at the Vardat and proceeded to lodge the report on foot and reached the' police station on the next day at breakfast time. However, in his cross-examination he gave out a different version stating therein that Mevo was taken to the police sr-1tion by his son in a bullock cart while he went on foot and that Mevo reached there earlier and all of them stayed for the night at the police station.
17. Muhammad Paryal who had recorded the report however stated that they had come to the police station in the morning in bullock cart. It seems to us that there was no reason for Allahando to wait till midnight ; and ought it be said that. They had reached the police station at midnight which was ten miles award on a bullock cart but the report was recorded in the morning for the more weighty reason that possibly the S. H. O. Was not available during midnight and, therefore, significantly the word "midnight" was introduced in the F. I. R. To attribute the delay to the complainant. It also appears to u highly improbable that Mevo could remain in an injured condition at his Baithak without taking any steps for his treatment. As for the stomach o the deceased being empty, it is in the medical evidence that the stomach an . The intestines were perforated. Therefore, there was likelihood of the`' contents of the stomach having passed out through the perforations ; and as no question was put to the doctor to establish that the contents of the stomach could still be there despite the holes in the stomach, nothing can turn on it.
18. It was next urged that the complainant party and the accused lived in the same village and if at all they had nursed the grievance they would not have waited for such time as to find an opportunity only when the deceased and the prosecution witnesses had visited the Baithak of Mevo ; and for that matter they could have found an opportunity even earlier to kill the deceased. This submission concerns the mental state of the assailants and it is difficult to say as to when and how they contemplated to avenge their grievance. This submission cannot thus be used to militate against the participation of the assailants. Further incidents have come to light when despite the opportunity murders have been committed after many long years and this circumstance has not been used to deny their guilt.
19. The learned counsel further contended that the hatchet was sent for chemical examination after a delay of 17 or 18 months which reflected on the bona fides of the investigation but as nothing was suggested to the S. H. O. In his cross-examination as to how it took such a long time to send the hatchet for examination nothing will turn on the delay simplicitor. As for F the crime empty and the gun, they were sent to the forensic laboratory by the S. P., Jacobabad, on 13th of January, 1977.
20. There is nothing on record to show as to when the S. H. O. Had sent these articles to the S. P. And as such it is not possible to accept that he was responsible for the delay in transmitting these articles.
21. The ocular testimony of Ali Nawaz, Mato, Allahando and Mevo, therefore, established the guilt of the appellants which was duly corroborated by the recovery of the gun which matched with the crime empty and the G hatchet which was found to be blood-stained. The Courts below have accepted these pieces of evidence, and having ourselves examined the evidence, we are satisfied that they were rightly accepted.
22. There is, therefore, no force in this appeal which is dismissed.
23. ABDUL KADIR SHEIKH, J.--I agree.
24. ZAFPAR HUSSAIN MIRZA, J.--I agree.