DORAB PATEL, J.------The appellants Shafi Muhammad is the father of the other .Three appellants.
All the appellants have been convicted under section 302/34, P.. P. C. For the murder of Kamal Amal deceased by the Additional Sessions Judge, Hyderbad and the appellant Yaqoob has been sentenced to death whilst the other appellants have been sentenced to transportation for life and afine of Rs 1,000 each to be paid as compensation to the heirs of Kamal deceased and in default one year---s R.I. All the appellants have also been convicted under section 307/34P.P.C. And sentenced to seven years R.I. They have filed appeals against their conviction and sentence which have come up before us for hearing and the case of appellant Yaqoob is also before us for confirmation of the sentence, of: death ,passed against him therefore we shall dispose of the appeals and the confirmation case by this judgment.
2. According to the prosecution the material facts areas follows:--- The appellant Yaqoob wanted to marry the daughter of P.W. Umar but P.W. Umar wanted the hand of a girl in exchange as the appellant rejected this proposal P.W. Umar refused to give his daughter in marriage to him therefore there was enmity between P.W. Umar and him. Kamal deceased was the son in law of P.W Umar and he the appellant Yaqoob suspected that Kamal deceased was responsible for preventing his marriage to P.-W. Umar's daughter. P. W. Ahmed was a hari of Taj Muhammad Hakro, and a distant relation of Kamal deceased. On the evening of 30th October 1966, Kamal deceased had gone with P.W Ahmad to take some seed from Taj Muhammad Hakro's house were both sitting on a raised platform outside the house said Taj Muhammad, Hakrb. Suddenly the abused them and said that they had been interfering in matrimonial affairs- long enough. The appellant armed with a spear whilst the other appellants had hatchets appellant Yaqoob gave a hatchet blow to Kamal on his then the appellant Ghulam Hussain gave Kamal further hatchet blows. P.W. Ahmad tried to save Kamalbut the appellant Rabdino gave him a spear blow on his abdomen, then appellant Yaqblob gave him a hatchets blow on his arm after which he fell down.
Meanwhile on the cries raised by Feroze and Abdul Hassan came to the vardat .Appellants ran away with their weapon Kamaldied after a little the and P. We Baradi went to inform P.W. Ahmad's father Ghulam Hyder about, the occurrence. P.W. Ghulam Hyder came to the wardat andsaw that big scan had beet, injured and he also saw the dead body of Kamal.He then went to loge the F.I.R.
At Oderolal Police Outpost which was recorded at 8-30 p.m. Jamilur Rahman A.S.I. Meanwhile the appellants had also come to the police station and logged a counter F.I.R. And the appellant Ghulam Hussain had produced a hatchet which P.W.Jamilur Rahman A.S.I. Recovered vide mashirmania (Exh. 24) the clothes of appellant Yaqoob were blood-stain therefore P.W. Wali Muhammad P.W. Jamilur Rehman A.S.I. Sent the appellants to the local hospital at Matiari for examination and then he went to the wardat. He saw the dead body of the deceased which he forwarded for post-mortem examination and after recording the statement of P.W. Ahmed who was lying injured he sent him for examination to the Matiari hospital He commenced investigations and on the next day he arrested the appellant from their houses in Arzi Hakro village.The appellant Yaqoob produced a blood-stained hatchet which he secured vide Mashirnama (Exh. 20) the appellant Rabdino a blood gained spear, Which he secured vide Mashirnama (Exh. 21)He also recovered blood-stained clothes from the appellants but unfortunately no -proper, evidence has been given of this recovery. The blood-stained weapons and blond-stained clothes of all the appellants were forwarded in due course to the Chemical Analyser for his report, and according to the report of the Chemical Analyser (Exh.30) the hatchets spear and all the clothes sent to him were found to be stained with human blood.
3. In their statement under section 342 Cr: P.C. Both the appellant Shafi Muhammad and Yaqoob denied having asked for the hand of P.W. Umar---s daughter in marriage They also denied having lodged a counter F I.R and so to the irinjuries they stated that they have been beaten by the police.
The appellant Shafi Muhammad further stated that Ghulam Hyder the father of P.W. Ahmad who had lodged F.I.R. Of the occurrence had a land dispute with him therefore he had been falsely implicated and the appellant Yaqoob stated that'. P.W. Umar had filed a false case of the theft against him and his brother the appellant Rabdino.He further stated that the prosecution witnesses and the mashir P.W. Ali Muhammad were related to P.W. Ghulam Hyder therefore they had given false evidence against him. The appellants Rabdino and Ghulam Hussain stated that they had been' falsely implicated and said that the statement of the appellant Yaqoob was correct.. The `appellants did not produce-any evidence in their defence: ` . .
P.W. Ahmad has said in his evidence that on the evening of the occurrence he and kamal deceased were silting on a raised plat-form outside the house of his employer Taj Muhammad 1- lakro, when the appellants suddenly appeared and abused them and said that they had interfered long enough in their matrimonial affairs. . The appellant Rabdino had a spear, whilst the other applicants were armed With- hatchets. The appellants Yaqoob and Shafi Muhammad gave hatchet blows to Kamal on his head and back, respectively and as he triedto save Kamalthe appellant Yaqoob gave him a spear blow on his abdomen whilst the appellant Yaqoob gave a hatchet blow on his arm after he had fallen down. Mean while on the alarm raised by them P. Ws.
Baradi Umar Peroze and Abdul Hassan arrived and tried to a intercede with the appellants on their behalf but were unsuccessful. The appellants then went away with their weapons and Kamal died shortly afterwards. P. W. Baradi then went to inform his (P. W. Ahmed's father) who arrived and he told his father what had happened. His father also saw the other prosecution witnesses at the wardat who also confirmed to him what had happened. Leaving them at the wardat he went and lodged the F. I. R. At the Oderolal Police Station Outpost.
5. The evidence of P. W. Ahmed is fully supported by that of his father P. W. Ghulam Hyder. However, according to the appellants, they had a land dispute with P. W. Ghulam Hyder. P. W. Ghulam Hyder has denied this allegation and no evidence whatsoever has been given by the appellants of their alleged dispute with him, therefore we see no reason to disbelieve his evidence which corroborates that of his son. Additionally, the evidence of P. W. Ahmed is supported by that of the other eye-- witnesses. Thus P. W. Umer has said that he saw the occurrence, as he was returning home from his fields, and he also said that the appellant Yaqoob had enmity with him because he had refused to give Yaqoob his daughter in marriage. However, P. V., Umar has admitted that he had lodged a complaint of theft against the appellant Yaqoob who was not challaned. Further, although he supported the description of the occurrence in his evidence in the Sessions Court, he did not state in his lower Court statement that the appellant Yaqoob had given a hatchet blow to P. W. Ahmed.
In the circumstances we shall not rely on his evidence and examine that of P. Ws. Abdul Hassan, Peroze and Baradi who have fully supported the evidence of P. W. Ahmed. P. W. Abul Hassan was a Hakro by caste and was not related to any of the prosecution witnesses. The appellants have challenged his evidence on the ground that there was litigation between his nephew and the appellant Yaqoob. P. W. Abdul Hassan professed ignorance of this litigation but P. W. Ali Muhammad has admitted that there Was. Litigation between P. W. Abdul Hassan's nephew and the appellant Yaqoob. It is therefore not possible for us to believe that P. W. Abul Hassan was not aware of the litigation between his nephew and the appellant Yaqoob. He has tried to pass of as a totally independent witness and this casts some doubt on his veracity, therefore, it would not be safe to rely on his evidence unless it is supported by other independent evidence, but we find it is fully supported by that of P. Ws. Peroze and Baradi. P. W. Peroze lived in the same village and he has said in his evidence that on the day of the occurrence he had gone to draw water from the otaq of Ali Muhammad when he saw the entire occur--rence from beginning to end. The otaq of Ali Muhammad is only about 20 paces from the wardat, therefore, the witness was a natural witness.
No enmity has been alleged against this witness nor has it been shown that be was related in any way to Kamal deceased or to P. W. Ahmed. It is true that he was a Khokhar like P. Ws. Ghulam Hyder and Umar, but merely because he belonged to the same caste as these witnesses, we cannot accept learned counsel's argument that he would give false evidence. Additionally, P. W. Baradi is not even a Khokhar by caste but a Hakro. He. Has said in evidence that on the evening of the occurrence he had gone to see his friend Nasir Hakro who was a neighbour of Taj Muhammad Hakro, therefore, he was able to see the entire occurrence because the sun had not yet set. He is a zamindar and his evidence fully supports that of P. W. Peroze. Absolutely no enmity has been alleged against him, therefore we have no hesitation in accepting his evidence as totally disinterested and reliable.
6. The ocular evidence is also supported by the evidence of the recoveries. As we have observed`, all the recoveries; includ--ing the hatchets secured from the appellants Yaqoob and Ghulam Hussain the spear secured from the appellant Rabdino, and the clothes of these appellants were found to be stained with human blood by the Chemical Analyser vide his report Exh.
30. We have observed that the appellants Yaqoob and Ghulam Hussain had lodged a counter F. I. R. Even before P: W. Ghulam Ryder had lodged his F. I. R. As P. W. Jamilur Rehman A. S. I. Who recorded this counter F. I. R. Found that the clothes worn by the appellant Yaqoob were blood-stained, he secured them vide Mashirnama (Exh. 25-A). The mashir for this recovery was P. W. Wali Muhammad. Even the appellant Yaqoob has not alleged any enmity against P. W. Wali Muhammad nor contended that he was related to the prosecution witnesses. P. W. Wali Muhammad has also not been cross- examined on these pleas, therefore, he appears to us to be a totally disinterested witness, and we accept his evidence which proves the recovery of blood-stained clothes from the appellant Yaqoob: P. W. Jamilur Rehman A. S. I. Has also said in his evidence that the day after the occurrence this appel--lant had produced a blood-stained hatchet. The mashir for the recovery for this hatchet was. P. W. Ali Muhammad. The appellant Yaqoob alleged in his statement that P. W. Ali Muhammad was related to P. W. Abdul Hassan with whose nephew he had litigation, but neither P.
Ws. Ali Muhammad and Abdul Hassan have been cross-examined on this allegation, there is therefore no evidence whatever to show that P. W. Ali Muhammad was related to any of the prosecution witnesses. Additionally, although P. W. Abdul Hassan had said that he was not aware whether there was any litigation between his nephew and the appellant Yaqoob, P. W. Ali Muhammad has said that there were cases between the nephew of P. W. Abdul Hassan and the appellant Yaqoob due to disputes about land. From this candid admission, the witness appears to be a witness of truth, therefore, we accept his evidence as reliable ; his evidence establishes the recovery from the appellant Yaqoob of a hatchet stained with human blood. Similarly, the appellant Ghulam Hussain had produced a hatchet before P. W. Jamilur Rahman A. S. I. The recovery of which had been witnessed by P. W. Wali Muhammad, while the appellant Rabdino had produced a spear, the recovery of which had been witnessed by P. W. Ali Muhammad. Both these mashirs were disinterested witnesses therefore, we accept these recoveries as genuine and they provide very strong corroboration of the ocular evidence.
7. The only other evidence available is the medical evidence. P. W. Dr. Ghulam Qadir carried out the post-mortem of the body of Kamal deceased and also examined and treated P.W. Ahmad According to P. W. Dr. Ghulam Qadir the deceased had seven incised wounds and one stabbing wound whilst P.W. Ahmad had an incised wounds had been caused by a weapon such as a spear.
This fully corroborates the evidence of the prosecution witnesses that they had seen the appellants inflicting hatchet blows on the deceased and on P. W. Kamal and that the appellant Rabdino had given a spear blow both to the deceased and to P.W. Ahmad. In the result the ocular evidence has impressed us as very reliable.
8. Learned counsel for the appellantsthere fore advanced the plea that the death of Kamal deceased and the injuries to P. W. Ahmad had been inflicted by the appellant in self defence in the course of a fight with Kamal deceased and the appellants. At the outset we have to observe that none of the prosecution witnesses, including P., W. Ahmad have been cross-examined on this plea.
However the plea was advanced on the basis of the evidence of P. W: Dr Ghulam who had examined all the appellants. According to P.W. Dr. Ghulam Qadir the appellant Yaqoob had an incised wound and an abrasion the appellant Rabdino had a lacerated wound which was skin deep the appellant Ghulam Hussain had a slight abrasion whilst the appellant Shafi Muhammad had a contusion and a slight abrasion Except the incised wound to the appellant Yaqoob the other injuries were trivial Further, as to the incised wound to the appellant Yaqoob P.W. Dr. Ghulam Qadir has stated in his evidence this injury could not have been caused without consent of injured Yaqoob. The medical evidence is therefore totally inconsistent with the plea of self defence.
Additional we may observe here that even in their section 342 PCr. L.J statement the appellants had not advanced this plea and on the contrary had attributed their injuries to beatings by the police. The plea of self is also inconsistent with the disproportionate injuries inflicted by the appellants on their victims therefore in the circumstances discussed we are of opinion that the Plea is frivolous.
9. Finally learned counsel for the appellants argued that the prosecution witnesses had exaggerated the number of assailants and that the appellant Shafi Muhammad who was an old man of70 years could not possibly have taken part in the occurrence because in his age According to learned counsel this argument was supported by the medical evidence. We have already referred to be large number of injuries inflicted by the assailants on the deceased and on P. W.
Ahmad therefore it is clear that the attack on them had been made by several persons and not by one or to persons as contended by learned counsel. Additionally, the recovery of the hatchets stained with human blood from the -- appellants. Rabdino prove beyond reasonable doubt their complicity in the occurrence it is true that no recovery was made from the appellant Shafi Muhammad but we have found the ocular evidence reliable therefore we see no reason to doubt the statement of the prosecution witnesses that this appellant had also participated in the occurrence.
10. The prosecution have therefore proved beyond reason-- able doubt that the appellants.
Murdered Kamal deceased and inflicted grievous injuries on P.W. Ahmed therefore they have been rightly convicted under sections 302/34, P. P:' C. And 307134, P.P.C. All the prosecution eyewitnesses have said that the appellant Yaqoob had given a hatchet blow to carnal deceased on his head and according to P.W. Ghulam Qadir the consequent injury was sufficient to cause his death in the ordinary course of nature. There are absolutely no mitigating circumstances in favour of the appellant Yaqoob therefore he has rightly been sentenced to death. As we have observed, Kamal deceased had seven other injuries and according to P. W. Dr. Ghulam Qadir, five of these injuries might have not been fatal if they had been properly treated. Even if the injury inflicted by any particular appellant might not have, been, fatal by itself, we have no doubt that the appellan tintended to kill Kamal deceased, therefore, we have observed they have been rightly convicted under section 302, P.P.C As they have been sentenced to transportation for life, there is nomerit, what so ever in their appeals. The appeals are dismissed and we accept the reference of the learned Additional Sessions Judge and confirm the sentence of death against the appellant Yaqoob.