1. This appeal is directed against the judgment, dated 31-7-1984, passed by IIIrd Additional Sessions Judge, Hyderabad whereby the appellant was convicted under section 302, P.P.C. And sentenced to life imprisonment and fine--or Rs.5,000 as compensation to heirs under section 544-A, Cr.P.C. In default to suffer one year's R.I. Benefit of section 382-B, Cr.P.C. Was also given to him.
2. The facts in brief are that complainant Natho on 7-4-1976 at about 7.00 p.m. Lodged report at the Police Station Tando Muhammad Khan to the effect that he, his father and his brother deceased Khuman were residing in village Hakeeman. About 3-4 years back his brother Khuman was married with Shirimati Amri daughter of Bachoo by caste Menghwar. After about six months of marriage Shirimati Amri had committed suicide. The report was lodged to the police and dead body of Shirimati Amri was exhumed and post-mortem was conducted and according to the report of doctors Shirimati Amri had committed suicide. Thereafter Bachoo, his brother Hameero and his son Adho were not on talking terms with them. About two years back they had migrated to village Mir Murad Ali Talpur near Digh Mori. Complainant Natho, his brother Khuman anal his uncle Karo were doing tailoring work in a rented shop. The used to go for their work in the morning and return in the evening. On the day of incident at about 5.30 complainant Natho, deceased Khuman and Karo got up from the shop to take tea and deceased Kh4man got up from the shop to urinate behind the shop. From eastern side accused Adho armed with iron Rambi came and told the deceased that he had committed murder of Shirimati Amri and he had come to take revenge. Adho then gave blow on left side of abdomen to deceased Khuman and the Rambi was stuck in the stomach of deceased. Accused Adho then went towards west. They raised cries and chased the accused.
2. Jumo and Bachayo standing at the banana crop caught hold of accused Adho. They brought accused Adho to the shop and found Khuman lying unconscious with Rambi stuck in his stomach.
3. They took out the Rambi from the stomach of the deceased, who died after 15-20 minutes.
4. Thereafter, Jan Muhammad Wasan and other shopkeepers came there to whom the facts were narrated. P.W. 8 Abdul Rasool S.H.O. Recorded the first information report Exh.10. He then proceeded to the Wardat and inspected it which was shown by complainant Natho in presence of Mashirs Baharo and Qasim. The dead body of deceased was lying in shop of complainant Natha. The deceased had sharp-edged weapon injury on his abdomen. He secured blood from the shop where the dead body was lying and sealed the same and prepared Mashirnama Exh.22. He prepared inquest report of dead body of deceased Exh.25. He sent the dead body of deceased through police constable Jehangir to Medical Officer Tando Muhammad Khan for post-mortem examination. P.W. Karo produced Rambi which was blood--stained which was secured in presence of same Mashirs vide Mashirnama Exh.23. He then recorded statements of P.Ws. Karo, Jumo, Bachayo, Jamil, Muhammad Juman, Jan Muhammad and Sardar Khan. On the same day he arrested the accused in presence of same Mashirs vide Mashirnama Exh.24. Accused was apprehended by Karo Jumo and Bachayo and they had produced accused before him. On 8-4- 1978 police constable Jehangir produced clothes of deceased which were secured in presence of Mashirs Habibullah and Jehangir vide Exh.26. Rambi was not sent to the Chemical Analyser as office of Chemical Examiner was shifted and he submitted his report as Exh.28. He got recorded 164, Cr.P.C. Statements of P.Ws. Jumo and Bachayo before Civil Judge and First Class Magistrate Tando Muhammad Khan. After usual investigation the case was sent up for trial before the Additional Sessions Judge Hyderabad. The accused did not plead guilty to the charge.
5. At the trial the prosecution examined P.W.1 Mir Muhammad, Tapedar who produced sketch of Vardat as Exh.8, P.W.2 Natho is complainant, P.W.3 Dr. Ghulam Hyder produced post-mortem report Exh.12, P.W.4 Karo is eye-witness, P.W.5 Jehangir is police constable, P.W.6 Bachayo apprehend accused, P.W.7 Qasim who produced Mashirnama of Wardat Exh.22, Mashirnama of recovery of Rambi Exh.23, Mashirnama of arrest of accused Adho, recovery of blood-stained clothes of deceased Khuman Exh.26.
3. To bring home the charge against the accused there is ocular testimony of P.Ws. Natho and Karo.
6. Both these witnesses have stated the same facts as mentioned by the complainant in his F.I.R. They were standing near the cabin of Jumo Machi for purchasing cigarettes when they saw Adho accused coming armed with an iron Rambi (chisel). While Khuman after urinating stood, Adho accused asked him that he was taking the revenge of his cousin after which he gave Rambi blow to Khuman on his stomach. Rambi got stuck up in the stomach of Khuman thereafter accused started running towards west. Jumo and Bachayo were coming from the garden of bananas and they asked them to catch hold of running accused. They apprehended the accused and then they all brought accused to shop of Karo. On their return they found injured unconscious. They have corroborated each other. The witnesses have been cross examined but nothing has been brought out to impeach the testimony of the witnesses. The learned trial Judge has accepted their statements; and from perusing the record and going through their evidence, I am convinced that not only they are natural witnesses but they have given the true version of the incident. They stood the test of cross-examination.
7. The next piece of evidence against the accused is the apprehension of the accused by P.W.
8. Bachayo. According to this witness, he alongwith Jumo was coming from banana cultivation. They saw one person coming running towards them who was followed by Natho and Karo. Natho and Karo told them that accused Adho had caused injury to Khuman and asked them to catch hold of the accused. They caught hold of accused Adho and brought him at the shop of deceased Khuman where they saw deceased lying unconscious with iron Rambi stuck on his stomach on left side. Complainant Natho removed the Rambi and deceased died due to injury after about 10-12 minutes. The statement of this witness corroborated the two eye-witnesses who had seen the incident. He also corroborated them that after apprehending the accused they all brought him to the tailoring shop of the deceased where the deceased was lying unconscious and the Rambi was stuck in his abdomen. He also corroborated the P.Ws. That Rambi was removed from the abdomen of the deceased and deceased died after 15.20 minutes. The statement of the two eye-witnesses and the statement of Bachayo would reveal about the actual incident, apprehension of the accused, removal of Rambi from the abdomen of the deceased and his death. There is nothing unusual in the statement of these witnesses. There is no padding and thus the apprehension of the accused by P.W. Bachayo is a corroborative piece of evidence which was rightly used by the learned trial Judge.
9. The next piece of evidence against the accused is motive as alleged by P.Ws. Natho and Karo, they have stated that Shirimati Amri was married to the deceased, who committed suicide but the parents of Shirimati Amri suspected that the deceased had murdered her. The witnesses have given the facts which have not been challenged by the defence. Thus the prosecution has been able to prove that the relations of Mst. Amri nursed a grudge against the deceased on account of death of Shirimati Amri. The P.Ws. Have deposed that the accused before attacking the deceased had told him that he would take the revenge of the death of Shirimati Amri. The witnesses are consistent on this point also. Thus there was motive for the commission of the crime. Three pieces of evidence namely, ocular testimony, apprehension of the accused and the motive have been established beyond all reasonable doubt. The two witnesses have seen the accused inflicting Rambi blow and that Rambi was removed from his person and produced before the police. The I.O.
10. Has admitted that blood-stained Rambi was secured by him. This further goes to prove the case of the prosecution. P.W. Qasim has also supported the recovery of Rambi which according to him was blood-stained and was produced by P.W. Karo before the police. No doubt Rambi was not produced at the trial but the evidence of the Mashir coupled with the statements of the eye- witnesses, and the opinion of the doctor would prove the fact that deceased had received Rambi injury. The ocular testimony is supported by the medical evidence. Dr. Ghulam Haider examined the dead body of the deceased who found an stab wound 2 --" x 1" x deep underlying origin on the front of left hypochondrin 3" letter to the mid umbical line. From the examination the doctor was of the opinion that death was due to shock and haemorrhage as a result of injury which in the ordinary course of nature was sufficient to cause death. The injury was caused by sharp cutting weapon such as knife, or screw driver or Ramba or any weapon with sharp blade. Therefore the medical evidence corresponds to the ocular testimony. It has been stated by the witnesses that Rambi was stained with blood. I.O. Has also stated that blood was secured from the shop of the complainant where the dead body was lying. No doubt the police did not send the blood-stained Rambi to the Chemical Examiner. Explanation has been given that the office of the Chemical Examiner was shifted. I.O. Has produced his report Exh.28-A. The S.P. Hyderabad had ordered that the property be sent to the Chemical Examiner for examination. The S.H.O. In his report stated that period of one year had elapsed and he had been transferred on 20-12-1978, the present S.H.O. Has not sent the property due to the lapse of one year period. Rambi was not sent to the Chemical Examiner due to negligence but the statement of witnesses examined at the trial clearly show that the Rambi was the weapon of offence in this case. Therefore, in spite of the negligence of the police who failed to send the Rambi to Chemical Examiner the prosecution does not suffer in any way.
4. Learned counsel for the appellant has challenged the conviction on the ground that the incident would have been witnessed by many persons including Jumo, cabin-holder but the prosecution failed to produce any other independent witness. The two witnesses were standing near the cabin of P.W. Jumo and it cannot be said that P.W. Jumo would be in a position to see the incident. The two P.Ws. Who had witnessed the incident were standing outside the cabin and they were naturally looking towards the deceased who had come alongwith them from the shop and went to urinate.
11. There was not a least suggestion that Jumo was in a position to see the incident.
12. The next contention made by the learned counsel for the appellant is that it was not possible for the witnesses to hear the talk between the deceased and the accused. The distance between the deceased and the P.Ws. Was about 33 feet which is not a long distance. It, therefore, cannot be said that witnesses were not in a position to hear what the accused had told to the deceased. It is stated by the learned counsel that if they heard the talk they would have prevented the accused from attacking the deceased. This contention is without substance because only one blow was given by the accused to the deceased and before their arrival at that place the accused had already started running. He was chased and apprehended by another witness.
13. Learned counsel for the appellant next stated that according to the prosecution a boy Patho was working at the shop and he was left by the P.Ws. At the shop before they went out of the shop but this witness was not examined. Non-examination of Patho is immaterial because at the most he could say that he had seen the deceased coming to the shop in injured condition. He was not an eye-witness and as such there is no infirmity in the case of the prosecution due to this fact.
14. It is next contended that the incident took place in a busy centre but none of the independent witnesses have been examined. The site plan shows that there is no shop in between the place where the deceased was attacked and where the witnesses were standing. There are many shops but they were not near the place of incident, and therefore it cannot be said that incident took place in busy shopping centre but no independent witness has been examined. According to the witnesses when they brought the accused to the shop certain shopkeepers had collected there and they were informed about the incident. Even if those witnesses were examined their statements were of no effect as they had no themselves witnessed the incident.
15. The next objection raised by the learned counsel is that P.W. Jumo was given up on behalf of the State on the ground that he had been won over by the accused. P.W. Jumo is stated to be another person who apprehended the accused. On this point one witness was examined and it is not necessary for the prosecution to produce all the witnesses on one point. If the accused wanted to examine him, he could examine him in defence or he could have requested the Court to examine him as the Court witness but as no objection was taken by the defence when P.W. Jumo was dropped it cannot be argued that as Jumo and Dayo had not been examined therefore the prosecution story is totally unbelievable.
16. The next objection raised by the learned counsel is that the witnesses are not independent as they are related to the deceased and therefore their evidence must be read with care and caution.
17. These witnesses are natural witnesses and their presence at the spot cannot be doubted and mere relationship with the deceased is no ground for disbelieving this. The learned counsel made emphasis that they were inimical to the accused. In fact they are independent witnesses and they have no ill-will or grudge against the accused. On the contrary the accused had a motive for the commission of offence. The enmity was one sided. The accused had a motive to attack the deceased as he suspected that deceased had murdered Shirimati Amri. The enmity was one- sided affair and therefore the evidence of these witnesses cannot be attacked on the ground that they were inimical. In fact P.Ws. Are not inimical to the accused. Moreover P.W. Bachayo who apprehended the accused had no enmity with the accused and his evidence is not only material but corroborated the prosecution case in material particulars.
18. The learned counsel has stated that some witnesses were examined by the Investigating Officer but they have not been produced and therefore adverse inference may be drawn against the prosecution. The I.O. Has stated that he recorded the statements of Jamil, Muhammad Juman, Jan Muhammad and Sardar Khan but except Jan Muhammad none of the other witnesses have been made in the list of witnesses filed alongwith the challan. In cross-examination the S.H.O. Has stated that he recorded statements of 4-5 persons from adjoining shops. The position is therefore clear that those persons were those who came after the incident to the shop of the complainant; because, as stated above the incident had not been witnessed by any other person and no question was put to the I.O. That these witnesses had readily seen the incident. According to P.W.
19. Natho only Jan Muhammad attracted to the cries and therefore according to this statement no other shopkeeper was attracted to the scene and Jan Muhammad has not been examined but no objection can be taken if Jan Muhammad was not examined. At the most adverse inference may be drawn against the prosecution that if Jan Muhammad had been examined he would not have supported the prosecution. It is also not clear if Jan Muhammad had really seen the incident because only one blow was caused to the deceased and thereafter accused started running. The defence did not make any attempt to examine Jan Muhammad in defence to contradict the prosecution case.
20. The learned counsel for the appellant has referred to the cases of Abdul Ahad Khan v. The State reported in 1980 P Cr. L J 864, Muhammad Sharif v. Tahirur Rehman's and 3 others reported in 1972 SCM R 144, Fatta etc. v. The State reported in 1978 P Cr. L J 414 and Dalmir and another v. The State 1970 SCMR 840. In the first case it has been observed that witnesses inimical or interested, their testimony cannot be accepted without corroboration but in the present case the witnesses are not inimical to the accused. In this case ocular testimony was not corroborated by medical evidence, therefore, benefit of doubt was given to the accused. The authority is not applicable to the instant case.
21. The Lahore case is also inapt as the ocular evidence of inimical witnesses had been discarded. The appeal of some of the appellants was accepted and the appeal of the remaining appellants was dismissed The last case cited by the learned counsel is also in applicable as in this case also evidence of interested, and inimical witnesses was discarded and benefit of doubt was giver to the accused.
22. There is no force in this appeal and the same is consequently dismissed.