Muhammad Haleem, J.--Appellants Bagh Ali, Qalab Ali, Ghulam Nabi, Washlo and Ahmad Ali were tried for the murders of Ghulam Rasool and Jalal by the learned Additional Sessions Judge, Jacobabad, convicted under section 302 read with section 149, P. P. C. and each of them was sentenced to death and fine of Rs. 300 or in default to suffer rigorous imprisonment for one month vide judgment dated 29th February 1970. Appellants Qalab Ali, Washlo and Ahmad Ali were further convicted under section 13 (d) of the Arms Act and each of them sentenced to two years' rigorous imprisonment. The learned Additional Sessions Judge has referred their case for the confirmation of the death sentence while they have appealed against their conviction. This judgment will dispose of both the reference and the appeal.
2. The report of the incident was lodged by Shahmurad at 11 a.m. on 16th October 1967 at Police Outpost Dodapur, which is 4 miles away. According to the prosecution case while Ghulam Rasool and Jalal were ploughing survey No. 59, Shahmurad ploughing his own land 200 paces to the south of this survey number and Hadibux and Iqbal ploughing their land which was petty survey number of survey No. 59, they heard gunshots. The first to arrive was Shahmurad who saw appellants Ahmad Ali, Washlo and Qalab Ali armed with guns and Bagh Ali and Ghulam Nabi with hatchets and after bring shots at the two deceased those armed with hatchets inflicted blows with it on Ghulam Rasool. Hadibux and Iqbal also arrived there and saw the incident. The appellants then made good their escape. However, no motive was alleged and Shahmurad specifically stated that the appellants "had no revenge to take from us." He described the appellants to be his caste fellows and stated that they resided within the jurisdic tion of Police Station Dakhan in Garhi Yasin, about 24 miles away. After leaving Pir Khan, his father, at the place of inci dent he went to lodge the report.
3. Abdul Haq Head Constable after recording the report repaired to the place of incident and from there secured 12 crime empties (12 bore and '16 bore) and blood-stained earth. The two dead bodies were lying 10 feet apart and they were sent for post-mortem examination. He did not however record the statements of the witnesses and handed over the investiga tion to Mumtaz Ahmad S. H. O. on 17th October 1967. At 5 p.m. that day Mumtaz Ahmad examined Hadibux and Iqbal and arrested the appellants except Ahmad Ali on 18lh October 1967 and arrested Ahmad Ali on the following day.
4. The earth was sent for chemical analysis and it was found to be stained with human blood vide chemical analyser's report (Exh. 19). No incriminating article was recovered from the appellants.
5. The autopsy on the two dead bodies was performed by Dr. Bhiman Dass. On the body of deceased Ghulam Rasool he noticed the following injuries :--
(1) One incise would x 1" x mendible bone cut on face and neck below right pinna transversely.
(2) One incise wound 6" x 2* x chapping upper lower of right occipital bone on occipital region transversely.
(3) One incise wound 2Y x 1' x partially cutting fifth curvical vertibrae on back of neck transversely.
(4) One punctured gunshot wound 1 J* x in diameter and mouth cavity deep on right side of chest in posterior axillary line at the level of tenth and eleventh ribs edges invert ed. It was wound of entry.
Charring was present.
(5) One punctured gunshot wound 1" in diameter and mouth cavity deep at outer end of right eye charring was present, edges were inverted. It was wound of entry.
(6) One gunshot punctured wound 3" x 2" x mouth cavity deep on chin left side, fracturing left mendible bone edges were inverted. No charring was present. It was wound of exit.
(7) Six gunshot wounds each 1/3" in diameter of chest cavity on deep on left side of chest below axillary and edges they were wound of exit.
(8) Four gunshot wounds each 1 /3" in diameter and muscles deep on left deltoid region edges were everted, no charring was present, they were wounds of exit.
(9) One gunshot wound 1" in diameter into muscle deep on outer part of thigh upper and edges were everted. Charring was present. It was wound of entrance.
(10) Six gunshot wounds each 1/3" in diameter into muscle deep on outer part of left and glutal region and no charring was present. Edges were everted. They were wounds of exit.
(11) Three gunshot wound each 1/3'in diameter into muscle deep on left inginal edges were everted no charring was present. They were wound of exit.
(12) One gunshot wound 1/3' in diameter into abdominal cavity deep on lower abdomen leftside.
Edges were everted. No charring was present. It was wound of exit.
In his opinion injuries 1, 4, 5 and 9 individually and all collec tively were sufficient to cause death in the ordinary course of nature and out of them injuries 1, 2 and 3 were caused by sharp-edged heavy weapon, such as hatchet and the others by the discharge of a firearm from within one foot.
He also opined that the gunshot injuries could be caused by three shots. On the body of deceased Jalal he noticed the following injuries :-- "(0 One punctured gunshot wound 2" in diameter x abdominal cavity right side at the leval of eleventh rib right side on anterior axillary bone. Charring was present and edges were inverted. It was wound of entry.
(2) One gunshot punctured wound 1" in diameter chest cavity deep on scapula right side edges were inverted. Charring was present. It was wound of entry.
(3) Five gunshot punctured wound Y in diameter and chest cavity on front of chest right side. No charring was present. Edges were everted. It was wound of exit."
In his opinion these injuries were caused by the discharge of a fiream such as gun and injuries 1 and 2 individually and all collectively were sufficient to cause death in the ordinary course of nature. He further opined that the injuries were the result of two shots.
6. The appellants denied the prosecution case, proclaimed their innocence and alleged that they were falsely implicated due to enmity. Appellant Bagh Ali pleaded that Moulabux Brohi was murdered and in that case Kandero Dehani, a close relation of the complainant and he and the other appellants were accused of murdering him and in that case Kandero had confessed and implicated him and the others. The case was referred to the Tribunal and it was Kandero alone who was convicted. He also alleged that Muhammad Hashim, a cousin of Shahmurad and Lakhmir were murdered about 3 years back and in that case Hakim Ali, his brother and Ghulant Murtaza, his cousin, were implicated but were acquitted, and it was because of these murders that they had been falsely implicated. He also pleaded that none of the prosecution witnesses owned any land in deh Saleh and they lived in village Shahoo which was 8 miles away. Appellant Qalab Ali stated that he was a cousin of Bagh Ali and adopted his defence. Appellant Ghulam Nabi alleged enmity and adopted the defence of appellant Bagh Ali. Washlo stated that he was a cousin of Bagh Ali and he too adopted his defence. Appellant Ahmad Ali stated that he was implicated because lie was a cousin of appellant Bagh Ali.
7. The conviction of the appellants rests on the ocular testimony furnished by Shahmurad, Hadibux and Iqbal. The trial Court accepted their evidence and observed :-- "The graphic description given by each one of them was quite eloquent upon the truth of their narrations and the minor contradictions here and there on the contrary gives me the impression of their being real and natural eye witnesses rather than tutored witnesses. The lengthy cross- examination by the defence Advocate Mr. Wajid Ali could not break through these witnesses and this thing along with the circumstances discussed above convinces me that these witnesses were very much there at the vardat and are giving the most true picture of the unhappy incident. The con tradictions between their depositions inter se as also between the deposition of each one of them in Court and their earlier statements are also of such less importance that they could be ignored altogether." loti........................................ .
8. We have ourselves appraised their evidence in the context of the criticism made by the learned counsel for the appellants. There is no dispute as to the place of occurrence which was in survey No. 59. From there, according to Tapedar Ghulam Mustafa, the village of Shahmurad is 538 feet.
There is no dispute about the residence of Shahmurad in this village. Jeeand, who was called to act as a mashir of the place of incident, stated that the bodies of the two deceased were lying 3 or 4 paces away from eaclt other and the land was ploughed. He also stated that Shahmurad's land was "just near the vardat. It was ploughed. Fladibux's land was also nearby. It was also ploughed".
The defence was unable to controvert his assertion. One suggestive question put to him in effect assumed that Shahmurad had land but the distance was only disputed. The answer to it that "1 cannot say if that land was 200 paces away from the place of vardat", clearly supports the above inference. The place of incident was inspected by Ghulam Mustafa Tapedar, almost a year after the incident and, accord ing to him, the uncultivated survey number to the south of point-A where the deceased were shot, was (ghairabad\ The learned counsel for the appellants criticised the evidence of Shahmurad upon the ground that if this was so, it could not have been ploughed and accordingly the reason advanced for being present by Shahmurad was false. We cannot attach weight to what the Tapedar has said. He had inspected the land at a time when it may not have been cultivated and probably for this reason he may have said so. The defence has not produced any document to show that this land was entered as 'ghairabad' in the Revenue Records. Moreover, there is speci fic evidence of Jeeand that it was ploughed and we have no reason to disbelieve him even though he was related to Shah murad. Abdul Haq, who had prepared the mashirnama, was not even cross-examined on this aspect of the case. In the circum stances this plea is of no avail, and the presence of Shah murad cannot be discounted. In the F. I. R. Shahmurad has not alleged any enmity and has stated that "the accused had no revenge to take from us". He could not think of any reason why the two deceased were killed at that time. However, at the trial, this witness gave out that one Hakim Ali, brother of appellants Washlo and Qalab Ali, was murdered about 2 years before the present incident and Allahrakhio, Raham Ali, Ghulam Hyder and Jumo were challaned in that case and while Jumo was acquitted the others were convicted. This Jumo was related to deceased Ghulam Kasool and the appellants to avenge themselves had murdered him. According to him, "Jalal was murdered innocently", and in his case he was unable to give any reason. He denied his relationship with those persons who were implicated in the murder of Hakim Ali. Deceased Ghulam Rasool was the son of his maternal uncle while Jalal was his cousin and brother-in-law. No specific enmity of the appellants. was alleged against this witness but it was alleged that he had implicated the appellants because of Hashim's murder. Hashim, brother of Jumo, was killed before the murder of Hakim Ali and Hakim Ali and Ghulam Murtaza were implicated in that case but they were acquitted. This Ghulam Murtuza is a brother of appellant Ghulam Nabi. However, this enmity does not have a direct bearing and even otherwise if this was the cause of their false implication then Ghulam Murtaza, who was one of the two accused, in that case, should also have been implicated, which was not done. A third reason was also pleaded in their defence and that was to the effect that Kandero, a close relation of Shahmurad, had implicated the appellants in his confession and it might be that Shahmurad had falsely implicated them. Shahmurad has denied his relationship with Kandero but stated that he belongs to his community. He denied the relationship that his mother was his wife's sister though Jeeand has so stated. It is too far-fetched to assume that while giving out the names of the appellants in the F. I. R. he would have been conscious of Kandero's confession in which he had implicated the appellants.
Shahmurad was cross-examined at length but nothing helpful has come out to affect his credibility. There are minor contradictions here and there which do not affect the merits of the case. His version finds assurance from the injuries found on the two deceased, which were both by fire-arm and hatchets. The three incise injuries could be caused by the two appellents armed with hatchets and the five gunshot injuries could also be caused by the number of the appellants who were armed with guns ( 12 bore and '16 bore). The reason for the presence of the two deceased and Shahmurad is also duly corroborated by the fact that their land was recently ploughed.
Moreover, it was a sowing season and (heir presence was likely on their land in that connection.
There is also no evidence to suggest that there was any consultation before the F. I. R. was lodged and the non-mention of the motive in it also negatives any such possibility. If he had wanted to bring in witnesses who had not witnessed the incident he could have at least named his father, Pir Khan, who was admittedly residing with him in the village and had come on commotion.
9. The other two eye-witnesses are Hadibux and Iqbal. Both these witnesses live in village Sliahoo and had come to the village of Shahmurad to cultivate the Rabi crop. That village was 5 miles away. Hadibux has stated that he cultivated the lands of others jointly with Iqbal though he himself owned land in deh Saleh. He is a cousin of Shahmurad and deceased Jalal. According to him, survey No. 59 was in the name of a Katohar and he, Shahmurad and Jalal had purchased the land from him but mutation was not affected. The purchase was oral some 15 or 16 years before, according to the Sindhi version, though in the English version 50 or 60 years are mentioned, which appears to us to be a typographical error and the land revenue was paid by Shahmurad. Only three pieces of it were cultivated out of 100 fabeebs. Iqbal was joint with him in cultivation of the portion of the land he was ploughing that day and Iqbal was also with him.
10. The learned counsel for the appellants contended that the presence of Hadibux and Iqbal was doubtful as they did not own any land in deh Saleh. In support of this plea he relied on the testimony of the Tapedar who has stated that their names are not entered into as Khatedar in deh Saleh and that he cannot say as to who owns survey No. 59 or who was its hari. This material was brought out in cross-examination and the Tapedar admitted that what he had said was not after seeing the record but on the basis of the revenue receipts, which were not in their names. The defence did not summon the revenue record to deny the claim of Hadibux and what has been stated by the Tapedar was not sufficient to throw doubt upon the claim of Hadibux that survey No. 59 was culti vated by him jointly with Iqbal, Shahmurad and Jalal particu larly when the revenue receipts were not even exhibited. Hadibux has stated that he cultivated the lands of others. This does not necessarily mean that the land revenue receipts would be in his name and this assertion is also not improbable, for many agriculturists are engaged in this way. His name and that of Iqbal transpire in the F. I. R. and it is not possible to assume that Shahmurad would have mentioned their names on the assumption that they would support the prosecution case as contended by the learned counsel for the appellants. The appellants have not alleged any direct enmity against these two witnesses and the only ground urged is that relations have been named to support the prosecution case. This is again a stereotype contention and it is not possible to give weight to it merely for the saying unless other features are present, which show selection with a motive.
Hadibux has stated that he had no personal knowledge of the motive and he has been cross- examined at length but nothing has come out to cast doubt either on his presence or the version given by him. Iqbal's evidence is also on the same footing. He is the brother of deceased Ghulam Rasool, and has taken the stand that he resided in the village of Shahmurad during the sowing season. He has also claimed to be the hari of the land in the context of the assertion of Hadibux and nothing has come out in his cross- examination to doubt his presence. Mere, non-mention of the fact in his police statement that "he was also living in Pir Jan's village, which is the village of Shahmurad known by the name of his father, would not cast suspicion on his presence for it could have been an honest omission. The learned counsel, however, invited our attention to the testimony of Abdul Haq, Head Constable, to show that he had not seen Iqbal and Hadibux on his arrival at the place of incident. We may point out here that his evidence on this point is uncertain and from it this conclusion cannot be reached. In the first place, he stated that he cannot say whether Iqbal and Hadi bux were there but all that be knew was that the persons present there had gone with the dead bodies. He had not recorded the statement of any witness as they were not available at that time. He then stated that he did not see Iqbal and Hadibux at the place of incident as they had not come there. It is not possible to reconcile this statement with the state ment first made. The defence, however, cross-examined Jeeand on this point and he admitted that Iqbal and Hadibux were there. Jeeand was called to act as a mathir and was with Abdul Haq. The defence thus demolished its own case by putting this question in cross- examination to Jeeand. According to them, they had gone to Shahoo village to inform the relations and had returned from there in the afternoon and in this context they may have been temporarily absent and no weight can thus be attached to what Abdul Haq has stated, particularly when Jeeand had admitted their presence. Mumtaz Ahmad who had taken over the investigation had arrived there on the evening of 17th October 1967 and it was at that time that he had recorded their statements. The plea that these two witnesses had not seen the occurrence is thus of no substance.
11. The learned counsel urged that Shahmurad had not given details of the parts played by each of the appellants and on this ground his version should not be accepted. Our examination of the F. I. R. shows that it is a straightforward and short account of the incident without any attempt to exaggerate or assign any false part to anyone of the appellants. The F. I. R. does mention the role played by the appellants and we fail to see what further details could be given. The injuries are consistent with what is alleged against them. In this context we find no infirmity in the F. I. R.
12. The learned counsel for the appellants also cited a number of decisions to show that it was not safe to rely on the partisan evidence in the absence of its corroboration. This rule has been evolved by way of abundant caution and it is 4 only the assurance from the evidence furnished by the facts and circumstances of the case that can form the guideline whether such evidence should be accepted. Their Lordships of the Supreme Court in the case of Mst. Hamida Bano v. Ashiq Husain and others (1) while considering the applicability of the observations in one criminal case as a precedent in another observ ed at page 123 of the repoit :-- "Everything said by this Court in a judgment, and more particularly, in a judgment in a criminal case, must be understood with great particularity as having been said with reference to the facts of that particular case."
The efficacy of the precedents thus can hardly be of anyl assistance. Again in the case of Tawaib Khan and another v.| The State (2) their Lordships of the Supreme Court at page 17 observed :-- "But, I consider that in the matter of the administration of criminal justice, taking in view the present state of our
(2) PL D 1970 SC 13 society, the assessm ent of evidence, whether it is the state ment of a witness or the statement of a person who is dead, is essentially an exercise of human judgment to evaluate the evidence so as to find out what is true and what is false therein. In this effort, the case has to be considered in all its physical environments and circumstances to find out how far the evidence or its different parts fit in with the circumstances and possibilities that can be safely deduced in the case.................. The injuries suffered by the deceased in relation to the roles which he has ascribed to his assailants, furnish the best test to find out as to what is the truth, or at least to discover what is doubtful."
12. These weighty observations also refer to the assurance provided to evidence by the circumstances of the case which can form the basis of conviction. In the instant case, no direct enmity has been established and motive has been suggested, of which Shahmurad was not even conscious at the time he lodged the F, I. R. On this view of the matter, it is not possible to say that he would pick out the appellants and falsely implicate them in the crime. We entirely agree with the appraisal of the evidence which forms the basis of the observations of the trial Court recalled above. The trial Court has further followed the same guideline which is evidenced from the following observations:-- "I have, however, already remarked above that the factum of murder being established by direct evidence and corroborated in material particulars by very strong circumstances, the question of motive should not be of much importance,"
13. In the result we are of the view that the prosecution has established its case beyond reasonable doubt and while upholding their conviction and sentence we would confirm the death sentence.
The reference is accordingly accepted and the appeal stands dismissed. .