MUHAMMAD ALI SAYEED, J.--The appellant has been con--victed by the learned Additional Sessions .Fudge, Larkana under section 302, P. P. C. For having committed the murder or Murid and sentenced to death by his judgment dated 23-4-1970. This judgment of conviction and sentence has come up before us for confirmation. The appellant has also appealed against it:
2. Deceased Murid was a nephew of first informant Bux. Mst. Hawa, is the sister of deceased Murid and had been married to Mitho, uncle of the present appellant about 5 years before the incident.
Mitho is said to have been deaf and dumb. Mst. Hawa continued to live with Mitho for some Years after her marriage but eventually left him and began to live with her brother Murid at village Fatehpur. The appellant and the ether relations of Mitho had been persuading Mst. Hawa, to return to her husband but in vain. This estrangement. It would appear, had led to bitterness between the to Families with the result that deceased Murid and his sister Mst. Hawa left their village and took up residence in Gambit. Mst. Hawa, thereafter obtained divorce from Mitho through the Court of law and was marric6 to one Gullo Jagirani.
3. A day before the incident Murid came to see his uncle Ilahi Bux, first informant, at village Fatehpur. The same night Ilahi Bux and Murid accompanied by Rajib and Adho, P. Ws., went to attend a dance recital at the makan of. Faqir Varial in village Detal Abro. Appellant Rustam Jegirani also happened to be there and was carrying a hatchet with him: It is said that at about 1 a.m. In the night while the function was still on, deceased Murid got up and went towards the hedge surrounding the open space in order to pass urine. He went and sat on the ground at a distance of 7 or 8 paces from where Ilahi Bux and his company was seated. The prosecution version is that appellant Rustam also got up and followed Murid. The appellant questioned Murid as to why he had come there when he had not paid any compensation in connection with his aunt Mst. Hawa.
Saying this the appellant inflicted a sharp side hatchet injury on the left side of Murid's neck. Murid- fell to the blow and soon thereafter died. The incident was witnessed by P. Ws: Ilahi Bux, Rajib, Adho and Jan Muhammad, the last of whom has not been examined. These witnesses were able to identify the appellant in the light of the patromaxes which were burning at the place. The prosecution, witnesses reached the side of Mund and raised cries. The appellant, however, made good his escape carrying with himself the blood-stained hatchet. Leaving Rajib, Adho and others at the wardat of the crime P. W: Ilahi Bux went to Vadero Sher Muhammad, the nekmard of village Detal Abro and narrated to him the incident, giving him the name of the appellant as the culprit.
Vadero Sher Muhammad accompanied Ilahi Bux to the scene of the incident, and advised Ilahi Bux to go to the police station at Kambar and lodge the report.
4. Leaving others at the wardat to guard the dead body of Murid, Ilahi Bux repaired to the police station at Kambar, which was at a distance of six miles, on foot, and lodged the F. I. R. The F. I. R. Was recorded by S. H. Q. Muhammad Ashraf (P. W. 10). After recording the F. I. R. The S. H. O.
Accompanied Ilahi Bux to the scene of occurrence, reaching there at about 10-30 a.m. On the same day. He saw the dead body lying in a street, in front of the makan of Varial Faqir at village Detal Abro. It is not necessary to refer to the mashirnamas prepared by him at thus site as they are not material. The S. H. O. Sent the dead body of Murid to the medical officer at Kambar for post- mortem examination and report. He also recorded the statements of P. Ws: Rajib;, Adho, Jan Muhammad, Sher, Muhammad, Varial Faqir; Gul Mohd., Saeed Khan; Hassan Shah, Bakht Hussain and Muhammad Bux. He secured one patromax produced before him by Varial Faqir in the presence of Mashirs Nawab Shah and Ahmad Bux under mashirnarria Exh.16. He, thereafter, went to the house of the appellant lint the appellant was not found' there Nonetheless in the presence of the mashirs he searched the house of the appellant but could find nothing incriminating. Later in the day the appellant was produced before the S. H. O. By his relatives. The appellant conducted the S. H. O. To his house and from the hedged enclosure the appellant produced a hatchet; stained with blood. The hatchet was secured by the S. H. O. Under mashirnama Exh.
17. On the following day the S. H. O. Recorded the statements of Mahboob Shah, Arshad Ali, Haji Lal Shah, Haji Dadan Shah, Shahan, Faqir and Imam Dino. P. W. Mehboob Shah produced before the S. H. O. One more patromax which was secured by him in the presence of mashirs under mashirnama Exh.
19. On the 22nd of October 1969 the S. H. O. Recorded the statement of Mst. Hawa in village Kaiser Khan Jagerani. Eventually on the 31st of October 1969, the appellant was challaned in the Court of the Resident Magistrate, Kambar for an offence. Under section 302, P. P. C:
5. In his statement under section 342, Cr. P. C. The appellant denied being connected in any way with the murder of deceased Murid. He contended that the prosecution witnesses were deposing against him because they were inimical towards him and their testimony was interested. He characterised the evidence of the mashir Nawab Shah as untrue.
6. The evidence against the appellant mainly consists of the ocular testimony of Ilahi Bux (P. W. 3), Rajib (P. W. 4) and Adho (P. W. 5), corroborated by Wadero Sher Mohd. P. W.
6. This evidence is, further reinforced by production by the appellant of a blood-stained hatchet from the hedge enclosing his house. The motive for the murder is also fairly well established and is refer--able to the appellant's uncle Mitho having unceremoniously been deprived of his wife Mst. Hawa by the deceased. The deposition of all the eye-witnesses is substantially the same and is on the lines indicated in the narration of facts given by us earlier. It is, therefore, not necessary to cover the ground once again.
7. Mr. A. S. Pirzada the learned counsel for the appellant argued that the presence of petromaxes at the scene of offence was doubtful. Support for this contention was sought from an admission made in the cross-examination of first informant, Ilahi Bux, that lie had not stated in the F. I. R. That any petromax was burning at the wardat at that the. We do not, however, see how the omission in the F. I. R. Of any mention about the petromaxes could lead to a necessary inference that there were in fact no petromaxes burning at the site. There is unimpeachable evidence that the prosecution witnesses had assembled at a dance and music function held on an open space outside the makan of Varial Faqir. One could hardly imagine that such a function would be held in the dark of night without the aid of petromaxes or other light. Mr. Abdul Sattar Pirzada then contended that even if the prosecution version with regard to the presence of petromaxes was to be believed there was evidence of only a single petromax which only could have been at point 'E' of the sketch Exh.
6. This point 'E' is, almost in the middle of the open space at which the function was held. It was contended that a petro--max at about 'E' could not throw any light at point 'A' which was the actual scene of the murder. The distance between point A & E is 65 ft and between A & E intervenes a part of the hedge of the open space. According, however, to the evidence of Ilahi Bux, P. W. 3, there were. About 120 persons-present at the occasion and there were to petromax burning.
Considering the size of the gathering we have no difficulty in believing the evidence of Ilahi Bux that there were to petromaxes present at the the. Ilahi Bux is corroborated in this respect both by Rajib (P. W. 4) as well as by Adho (P. W. 5). If the version of the prosecution witnesses is to be believed the second petromax was at point 'D' in the sketch which is at a distance of 28 feet from the scene of offence and is in direct line of light. We do not find any good. Reason to disbelieve the prosecution witnesses on this aspect.
8. The learned counsel for the appellant then contended that there was no mention in the F. I. R.
About Murid leaving to case himself. This is so. According to the F. I. R. "at about 1 a.m. Suddenly Rustam gave 'hakal' to my sister's son Murid. He said in presence of Adho, Rajib and Jan Muhammad that Murid had taken his aunt and he will not spare Murid. On our seeing he gave hatchet blow with sharp side of hatchet on his neck". Nonetheless this omission in the F. I. R. Will also make little difference to the prosecution case since the body of Murid was found on the street in front of the makan of Varial Faqir. There was abundance of blood at the spot. There is no evidence that blood was discovered at any other place. If we are indeed to believe the case of the prosecution that the deceased was in the company of the prosecution witnesses enjoying the performance, his body being found beyond the hedge and in the street could only be explained by accepting the prosecution version that he had gone there to ease himself. Thus the omission of this aspect in the F. I. R. Cannot by itself demolish the prosecution case.
9. Mr. Pirzada further argued that the identification of the appellant was based only on suspicion.
Elaborating this con--tention he referred to the evidence of Sher Muhammad (P. W. 5); who is the nekmard and zamindar of village Detal Abro. It was to him that P. W. Ilahi Bux first went after the incident and informed him about it. This was at about 1-30 a.m. When. Sher Muhammad was asleep in his house. On being told about the incident Sher Muhammad accompanied Ilahi Bux to the scene of occurrence and saw the dead body. He states that he made inquiries from Rajib who informed him that he had a very strong suspicion that the fatal blow on deceased Murid was inflicted by accused Rustam. On the basis of this statement of Sher Muhammad the learned counsel for the appellant would like us to believe that the entire case against the appellant was founded on suspicion. We, however, see no justification for drawing this conclusion. Rajib (P. W. 4) in his own deposition has given a vivid account of the incident and has armed "we saw clearly and distinctly the accused present in Court in the light of the petro--maxes which were burning there".
He also has sworn to have heard the words uttered by appellant Rustam before he inflicted the death dealing blow. This facet of Rajib's evidence stands unchallenged and no contradiction has been proved that his version was any different when the police first recorded his state--ment under section 161 or 164, P. P. C. The case set up by prosecution witness, Sher Muhammad of Rajib informed him that he had a strong suspicion that the assailant was appellant Rustam, appears to us to be an obliging one.
10. Counsel then argued that the evidence relating to recovery of, hatchet from the hedge surrounding the house of the appellant was uninspiring. It was firstly contended that the mashir of recovery, namely, Nawab Shah (P. W. 7) had admitted to have acted as a mashir in at least 20 cases in which the Sessions Court counsel of the appellant had appeared. It was thus argued that the mashir of recovery was a professional person and a police tout. With regard to this contention we would observe that mere previous instances of acting as a mashir will not disqualify his evidence from being considered provided it is otherwise cogent and inspires confidence. We have seen the evidence of Nawab Shah and we find it to be but natural. Some of his answers to ques-- tions in cross-examination are meant to help the appellant apart from admitting that he had acted as a mashir in 20, previous cases defended by Mr. Mumtaz Ali Jaffery. He has further said that any person standing outside the hedge surrounding the appellant's house could very easily place a hatchet in that hedge. Although this admission does not once again affect the prosecution case yet it tends to show that P. W. Nawab Shah was not forsworn to procure a conviction but spoke the truth. Even while referring to the blood-stains on the hatchet the mashir was careful enough -to say that the hatchet had reddish marks on its blade but that he could not- say whether these reddish marks were of blood.
11. It was then argued by the learned counsel for the appel--lant that the hatchet in question could have been planted by any one at the place where it was found. Particular emphasis was laid on the circumstance that in the search of the house made by the police on its first visit the result was negative. It was urged that the hatchet lying on the hedge of the house, exposed as it was to public view, could not have been but noticed in the first visit of 'the S. H. O. Here again we do not find it possible to attach much weight to the argument of the learned counsel. We are not aware of the extent of the search, carried out in the first instance. The appellant was at liberty to elicit an explanation from the S. H. O. On this aspect in his cross-examination but preferred not to seek it.
Even so, one could at most conceive of an ordinary hatchet being planted in the above circumstances, but the hatchet in the case before us had human blood on its blade. The chemical analyser's report in this respect-is Exh. 23 on the record before us. We find it difficult to believe that the police or the relatives of the deceased would go to the extent of planting a hatchet stained with human blood. The enmity, if any, of the appellant was with deceased Murid. There was no direct enmity between the prosecution witnesses and the appellant which would justify the former in concocting a wholly untrue under case against him and of planting a hatchet stained with. Human blood.
12. The last contention of the learned counsel was that the investigating' officer had recorded the statement of numerous witnesses as deposed by him in the trial Court; yet only 3 witnesses were examined in Court and even these three witnesses were related to the deceased and were relations inter se. The answer to this contention lies in the fact that although there were a number of persons assembled at the function to watch the performance they could not have been interested in a single person moving away from the crowd. As regards P: Ws. Ilahi Bux, Rajib and Adho they were aware of the presence of the appellant in the gathering and had seen him being armed with a hatchet. When the appellant arose to follow deceased Murid they naturally must have become apprehensive of some danger in the background of the bitterness that existed between Murid and the appellant. It is, therefore, quite understandable that their attention was focussed in the direction of Murid. Apart from the above aspect the encounter between the appellant and the deceased was an extremely short and swift one. The appellant delivered only a single blow to the deceased and made good his escape. It is unlikely that persons whose attention was rivetted to the song and dance performance before them could have either heard the few words uttered by the appellant in the din of the noise or to have witnessed a single swift delivery of the hatchet blow.
13. Taking into consideration the ocular testimony of the prosecution witnesses, Illahi Bux, Rajib and Adho, corroborated by the evidence of Sher Muhammad (P. W. 6) and the recovery of the blood- stained hatchet and the existence of a reasonable motive, we are convinced that the appellant is guilty of the offence he was charged with. We, therefore, dismiss his appeal and confirm the sentence of death. This reference is accordingly disposed of.