Imdadally H. Agha, J.--Appellants llaji, Qadir Bux, Kclimau Ali, Karatn Ali and Kechi were tried by the learned z\dditional Sessions Judge, Sukkur and convicted under sec tion 302 read with 149 and section 148, P. P. C. of them Haji Kadir Bux and Kechi have been sentenced to death under section 302 read with 149, P. P. C. and under section 148 all the appellants have been awarded one year's R.
1. The remaining HaJt two appellants, namely, Reham Ali and Karam Ali have been s',ate sentenced to transportation for life under sections 302 read with ___________ 149, P. P. C. All of them have now appealed against their lmdadally convictions and sentences, and the case is also before us by way H. Agha, I of confirmation of death sentences of appellants Haji, Kadir Bux and Kechi. This judgment will dispose of both the appeal by the appellants and the reference for confirmation of the death sentences under section 374, Cr. P. C.
2. The relevant facts are these. The two deceased persons in this case who are the victims of the offence, namely, Noor Muhammad and Ali Khan are related to the complainant Muhammad Bachal. Deceased Noor Muhammad was son-in-law and cousin of the complainant while deceased Ali Khan was the son of another cousin of his. They all resided in the same village called Hussain Kalwar and so also the appellants resided in that village. About 13 to 14 years before the complainant gave evidence at the trial Senwan the nephew of appellant Kadir Bux and brother of appellant Kechi as well as cousin to other three appellants was murdered and in that murder case deceased Noor Muhammad alongwith Muhammad Daud, Bhago and Ali Murad were sent up but Muhammad Daud and deceased Noor Muhammad were convicted and sentenced to transportation for life while the two other accused were acquitted. Both deceased Noor Muhammad and Muhammad Daud had served out their sentences and had come out of the jail about 12 months before the incident of this case which took place on 12th of September 1969 at about 6-30 a.in. Sardar Ali Mardan and Sardar Muham mad Hassan Khan (P. W. 5) had done a Faisla between the parties about 6 or 7 months prior to the present incident. In the Faisla the complainant was asked to pay Rs. 2,800 as compensation for the murder of deceased Senwan. The com plainant paid that money to appellant Kadir Bux through P. W. Sardar Muhammad Hassan Khan. Despite this compensation about two days prior to the incident appellant Kadir Bux met the complainant on the way and demanded a hand of some female as a compensation declaring that the compensation in the shape of money was much less. The complainant refused to give any female as compensation because the nek mards had not decided so. Appellant Kadir Bux then declared that he will take his revenge. One day prior to the incident the complainant went to Sardar Muhammad Hasan Khan and complained to him about the threats administered to him by appellant Kadir Bux. P. W. Sardar Muhammad Hassan Khan called appellants Kadir Bux and Haji. On enquiry they declared that without the hand of some female they do not consider themselves bound with the Faisla and they left with an angry mood.
3. On the next day, i.e., the day of the incident, a little earlier than sun-rise the deceased persons Noor Muhammad and Ali Khan had gone with their bullocks to the fields to plough them. After a shortwhile the complainant also wanted to go to Pano Akil and when he reached outside the village he heard gun reports and cries. The complainant rushed to that place and saw Mendhro (P. W. 3) and Abdul Karim (P. W. 2) crying, "Murder, Murder". The complainant than saw the deceased Noor Muhammad lying in a pool of his own blood. On enquiry by the complainant P. Ws. Mendhro and'|Abdul Karim told him that they had come for the purpose of wangar (gratis work) to work with the deceased and when they were bringing their bullocks under the yoke they saw appellants Kadir Bux, Haji, Kechi, Reham Ali and Karam Ali who came there from the Juwar cultivation of Ali Gul. Appellants Kechi, Haji and Kadir Bux had guns while the other two were armed with hatchets. They challenged deceased Noor Muhammad and appellant Haji fired his gun at Noor Muhammad who fell down. Ali Khan seeing this tried to escape and run towards the Jawar cultivation but appellants Kadir Bux and Kechi followed him with guns. Both of them fired their guns at him and he raised his cry and fell down in the Jawar cultivation. Bakhshan (P. W. 4), Muhbat and other villagers also arrived there. The complainant alongwith P. W. Bakhshan, Muhbat, P. W. Mendhro and Abdul Karim went towards the Jawar cultivation where they saw Ali Khan's body lying in a pool of blood with a gun shot injury. P. Ws. Mendhro and Abdul Karim further told the complainant that appellant Haji had fired his gun at deceased Noor Muhammad when he was lying injured on the ground. The appellants had fired a few shots in the air and made good their escape. P. W. Bakhshan and Muhbat also informed the complainant that they had seen all the five appellants running away towards the southern direction. They also ascribed the same weapons to the complainant as were mentioned by P. Ws. Mendhro and Abdul Karim. The complainant then leav ing others went to the Police Station Pano Akil.
4. At the police station S. H. O. Zafar Ali (P. W. 10) recorded the First Report of the complainant at 8- 15 a.m. He then accompanied the complainant to the scene of offence where he saw the dead bodies of the two deceased lying there. The S. H. O., secured the gram as well as four empty cartridges from near the dead body of deceased Noor Muhammad and one empty cartridge from near the dead body of deceased Ali Khan. He sealed them into a parcel. He also saw yoke and bullocks for ploughing the land at the scene. A mashirnama to this effect was prepared in presence of mashirs Kalander Bux (P. W. 7) and the mashirnama has been produced as Exh. 15.
Inquest reports of the dead bodies of the two deceased Exhs. 16 and 17 were also prepared and then the dead bodies were despatched through constable Allah Wassayo to the Medical Officer for post-mortem examination. The S. H. O. then recorded statements of some witnesses under section 161, Cr. P. C. After that he arrested . the appellants Karam Ali, Reham Ali and Khuda Bux in the night from Hussain Kalwar village. They then returned to the Thana where appellant Haji was arrested. On 30th September 1969 appellant Haji volunteered to produce his licensed gun and, accordingly he took the S. H. O. and the mashirs Abdullah Khan (P. W. 8) and another towards a date tree two miles away from the scene of offence and by remov ing some bushes he produced his gun and license before the police which was secured under a mashirnarna Exh.
19. On 3- 10-1969 the S. H. O. went in the investigation of Crime Nos. 154/69 and 155/69. He took mashir Abdullah Khan (P. W. 8) and on the way they saw appellant Kechi coming. One constable who was in the jeep pointed out that it was appellant Kechi and he was arrested by the police. On interrogation he agreed to produce his gun and he took the police and the said mashirs to the well of Dil Murad where from a date tree he produced a gun which was secured under a mashirnarna Exh.
20. It might be mentioned that the gun produced by appellant Haji was double barrelled and the gun produced by Kechi was single barrelled. The gun of appellant Kechi was sealed into a parcel. The S. H. O. then finished the remaining investigation and he challaned all the appellants in Court on 14-12-69. He sent the guns and the empty cartridges in a sealed cover to the Ballistic Expert. He also sent blood stained earth to the Chemical Analyser whose report he produced as Exh.
24. The Ballistic Expert's report has been produced as Exh. 25 through the Ballistic Expert, namely, Mukhtar Ahmed, (P. W. 11).
5. After the appellants were committed to the Court of Sessions they were tried by the learned Additional Sessions Judge and convicted and sentenced as mentioned already.
6. The appellants when questioned at the trial denied the prosecution allegations and professed innocence. Their case is simply one of denial. Each one of them has said that the prosecution witnesses gave evidence against them due to enmity. But this enmity has not been specified.
7. The appellants did not lead any evidence in defence.
8. There can be no manner of doubt that both the deceased Noor Muhammad and Ali Khan were killed. The evidence of Dr. Nasir Ahmed, who conducted the post-mortem examination of both these deceased is conclusive on the point. Dr. Nasir Ahmed in his deposition in the committal Court which was brought on record of the trial Court as Exh. 28 has stated that he observed the following external injuries on the dead body of deceased Noor Muhammad :-- "(1) Eleven gun-shot wounds of entrance about 1/4* in diameter just behind and below the right interior superior iliac spine.
(2) Two gun-shot wounds of V x 1/2' and 1/2' x 1/3'on and below the inner third of the right clavical with fracture of the clavical and the first and second ribs.
(3) One gun-shot wound of entrance 2f x 1' on and about the inner can thus of the right eye.
Fracturing the right nasal and or bital bones.
(4) Two gun-shot wounds of entrance each of 1/4" in dia meter in front of the right deltoid muscles. . (5) Two gun-shot wounds of entrance 1/4' in diameter on the postoro lateral aspect of the right forearm. -
(6) One gun-shot wound of exit on the right side of the back at about the tenth rib."
9. All the above injuries according to the doctor appeared to have been caused by some fire-arm.
On the internal examination of the dead body he found the following damage done to it :-- "(1) Anterior fossa of the skull fractured 1* x 1' under injury No. 3 (external).
(2) Right first and second ribs fractured.
(3) Right lung hold in continuation with external injury No. 2.
(4) Both sides of the heart were empty of blood.
(5) Peritoneum was conjested.
(6) Stomach was pale and healthy and was empty.
(7) Small intestines were holed at places and were conjested.
(8) The large intestine was conjested.
(9) The liver was conjested.
(10) Spleen was healthy.
(11) Bladder was empty.
(12) Organs of regeneration were normal."
In the opinion of the doctor the death of the deceased was due to shock and haemorrhage as a result of injuries shown above caused by some fire-arm. He also opined that all the injuries were anti-mortem and injuries Nos. 1 to 3 were sufficient in the ordinary course of nature both individually and collectively to cause death. The doctor also stated that the time that elapsed between the death and the post-mortem examination was within 18 hours,
10. This doctor on external examination of the dead body of deceased Ali Khan found the following injuries on it :-- "(1) Six gun-shot wounds of entrance measuring from l/3"x to 3/4" in diameter about 4" below the left axilla.
(2) Grazing wound 3" x 3" 1 /3" on the back of the left arm 6" below the head of the humerous.
(3) Three gun shot wounds of exit ' in diameter 7" below the right exilla." [12] In the opinion of the doctor the death of the deceased Ali Khan was caused by shock and heamorrhage as a result of injury No. 1 which was caused by some fire-arm. According to him all the injuries were anti-mortem and were sufficient collectively in the ordinary course of nature to cause death.- In this case also he stated that the time that elapsed between the death and the post-mortem examination was within 18 hours but he stated that there could be margin of error in this of four hours.
12. The evidence of the doctor has not been challenged even by the learned counsel for the appellants. We also see no reason not to rely on it. We, therefore, find that both the deceased Noor Muhammad and Ali Khan were killed by means of gun shot injuries.
13. The prosecution case rests on the ocular testimony of P. W. Abdul Karim and Mendhro as supported by Bakhshan, evidence regarding motive and Ballistic Expert's evidence against appellant Kechi as the empty cartridges secured from the scene of offence were found to have been fired by the Ballistic Expert from the gun of appellant Kechi.
14. Complainant Muhammad Bachal has deposed to the same facts as are detailed in the narrative of the prosecution story given in paras. 2 and 3 of this judgment above. Concisely stated he deposed that when he went to the scene of offence he found P. Ws. Abdul Karim and Mendhro there who informed him that the five appellants had come and those armed with the guns had killed both the deceased.
15. Eye-witness Abdul Karim deposes that early in the morning on the day of the incident he had gone to help deceased Noor Muhanjmad in ploughing his land. He was requested by him a day prior to the incident. Early in the morning taking his bullocks and yoke he proceeded to the lands of deceased Noor Muhammad . Mendhro also met him on the way and accom panied him. The deceased Noor Muhammad and Ali Khan were already in the lands. This witness was yoking the bullocks when it was sun-rise time. Ali Khan deceased was about 8 to 10 paces away from him and so also deceased Noor Muhammad. At that time all the present five appellants came out of Jawar cultivation. Appellants Haji, Khuda Bux and Kechi were armed with guns while appellants Raham Ali and Karam Ali had hatchets. Appellant Khuda Bux then gave challenge to the deceased Noor Muhammad and Haji appellant fired at him. The shot struck him and he fell down. The deceased Ali Khan ran towards Jawar cultivation. Appellant Kadir Bux and Kechi ran after him and fired at him.
He raised a cry and fell in the Jawar cultivation. This witness and Mendhro then raised alarm.
Appellant Haji then fired another shot at Noor Muham mad who was already lying down on the ground. The appellants then made good their escape while entering in the Jawar cultivation which was on the northern side of the scene of offence. They then fired two shots in the air. .On the cries of this witness, the complainant, P. W. Bakhshan and Muhbat came there and these witnesses and Mendhro narrated the facts of the incident to the complainant.
16. P. W. Mendhro has also deposed that deceased Noor Muhammad had asked him a day prior to the incident to help him in ploughing the lands. Early in the morning this witness was coming with yoke and bullocks and he met P. W. Abdul Karim on the way who was also going to the lands of Noor Muhammad. They both went there and saw Noor Muhammad and Ali Khan already in the land. Noor Muhammad was sowing his land. They were placing the yoke on the neck of the bullocks when from the southern side of the Jawar cultivation all the five appellants emerged. Appellants Haji, Kadir Bux and Kechi were armed with guns while their other two compa nions carried hatchets.
Appellant Haji then fired his gun at Noor Muhammad after giving him a challenge. Noor Muhammad fell down then and there. Ali Khan tried to run towards the south. Appellants Kechi and Kadir Bux followed him and fired guns at him. Ali Khan raised a cry and fell down in the Jawar cultivation. This witness and P. W. Abdul Karim then raised cries. Appellant Haji thereafter fired two gun-shots at Noor Muhammad who was lying on the ground. All the appellants then ran away towards the south making good their escape and they fired two shots in the air. The complainant came there and this witness as well as P. W. Abdul Karim narrated to him the facts of the incident.
17. P. W. Bakhshan has deposed that at about sun-rise time he alongwith Muhbat was ploughing the land of Dil Murad. They then heard gun reports and they rushed to that side. When they were going towards the scene they saw all the five present appellants coming towards them from Jawar cultivation. Appellants Kechi, Kadir Bux and Haji had guns while appel lants Karam Ali and Raham Ali had hatchets. They were running away towards the south. On reaching the wardat they saw P. Ws.
Abdul Karim and Mendhro and complainant Bachal standing. They also saw the dead body of deceased Noor Muhammad lying in a pool of blood at that place. This witness and Muhbat were given the names of the present appellants as the murderers of the two deceased persons. They also in turn informed the complainant and the witness that they had met the appellants face to face and had identified them while they were running away.
18. It will be seen that the ocular testimony of the two witnesses P. Ws. Abdul Karim and Mendhro is quite reliable and worthy of belief. They are supported by P. W. Bakhshan as well as the complainant who was given the names of the appellants and the story of the whole crime. The learned counsel for the appellants has challenged their evidence on two grounds. Firstly, that P. W.
Mendhro has admitted in his cross-examination that Noor Muhammad was about one or two paces away from appellant Haji when he fired his gun at him which means that charring marks would have been present on the body of deceased Noor Muhammad but they had not been noticed by the doctor. But in our opinion this distance of one or two paces given by Mendhro may not be exactly as much as that and it may well be more, therefore, no charring marks are found on the dead body of deceased Noor Muhammad. P. W. Mendhro has roughly given the distance without giving its exact measurements. The second point raised by the learned counsel for the appellants is that the doctor who conducted the post-mortem examination of the dead bodies of the two deceased did so at 3-30 p.m. on his own showing and he stated that the time between the death and post-mortem examination was within 18 hours but he has allowed a margin of error of four hours which means according to counsel that 14 hours earlier the death has resulted. In other words, the death of the two deceased was caused somewhere at 1-30 a.m. in the night. Relying on this ground the learned counsel for the appellants wants us to hold that the ocular testimony is unreliable. But we are not impressed with this arguments as the time of death given by the doctor is only conjectural and where can be possi bility of a greater error as such we are of the opinion that the time given by the doctor would not be conclusive on this point. For these reasons then we find that the ocular testimony is reliable and worthy of credence.
19. The ocular testimony is also corroborated by the motive as stated by the complainant and P. W.
Sardar Muhammad Hassan Khan, who had done the Faisla between the parties. The complainant says regarding the motive that about 13 or 14 years before he gave evidence Sanwan, nephew of appellant Kadir Bux and brother of appellant Kechi as well as cousin to the other three appellants was murdered and in that murder case deceased Noor Muhammad, Muhammad Daud, Bhago and Ali Muhammad were tried. Deceased Noor Muhammad and Muhammad Daud were convicted and sentenced to transportation for life while the other two accused were acquitted. Both the convicted accused have served out the sentence about 12 months before this incident. Sardar Ali Mardan and P. W. Sardar Muhammad Hassan Khan had done a Faisla about six months or 7 months prior to the present incident between the parties. The complainant was asked to pay Rs.
2,800 as compensation for the murder of deceased Senwan. The com plainant paid that money to appellant Kadir Bux through Sardar Muhammad Flassan Khan. About two days prior to the incident Kadir Bux met him on the way and demanded the hand of some female as a compensation declaring that compensation in shape of money was much less. The complainant refused to give any female in compensation because the nek mards had not decided so. Appellant Kadir Bux then declared that he will have a revenge. One day prior to the incident the complainant went to Sardar Muhammad Hassan and complained to him about the threats administered to him by appellant Kadir Bux. P. W. Sardar Muhammad Hasan Khan called appellants Kadir Bux and Haji. On enquiry they declared that without the hand of some female they do not consider themselves to be bound with the Faisla. Then they left in an angry mood.
20. P. W. Muhammad Hassan Khan has also spoken to the Fttisla as stated by the complainant and he supports him. It will therefore, be seen that the appellants had motive to commit the present murders. All this evidence is sufficient to bring home the guilt to the appellants but against appellant Kechi there is an additional piece of evidence which is that three out of five crime empties secured from the scene of offence were found to be llred from his gun which he had produced before the police. The Ballistic Expert Mr. Mukhtar Ahmed (P. W. 11) opines to this effect and, therefore, this evidence also goes against appellant Kechi and connects him with the crime.
21. In view of the above evidence it is quite clear that the appellants have been rightly convicted of the offences with which they were charged. We also see no reason to interfere with their sentences.
22. For the foregoing reasons the appeal of appellants is dismissed and their sentences are maintained. The death sentences of appellants Haji, Kadir Bux and Kechi arc confirmed. The reference is, accordingly, accepted. .