Muhammad Ali Sayeed, J.--Appellants Shahan son of Sahib Khan Jatoi, Niaz Ali son of Shahan, Habibullah son of Mubarak Jatoi and Hote son of Mubarak Jatoi were all tried by the learned Sessions Judge, Larkana under section 302/34, P. P. C. for the murder of Abdul Kadir alias Kaloo.
Appellant Habibullah was further tried for an offence under section 323, P. P. C. for having caused an injury to P. W. Hadi Bux. All the appellants have been convicted under section 302/34, P. P. C , and sentenced to transportation for life. Appellant Habibullah has additionally been convicted for the offence under section 323, P. P. C. and sentenced to R. I. for one year and the last sentence is to run concurrently. The appellants have appealed against the said conviction and sentence.
2. The incident in the case is said to have occurred on the 30th of May 1966 at about 12-00 noon in the garden of one Khairal Bhutto near Gullan Bhutto Deh at a distance of two miles from Taluka Larkana Police Station.
3. The case against the' appellants is that on the 30th of May 1966 at about bipehri time P. W.
Mumtaz Bhutto was engaged in scaring away the birds in his garden when deceased Abdul Kadir alias Kaloo came to him and sat down for a chit chat. After a while P. W. Mumtaz left Kaloo and went a short distance away to scare away the birds. He soon heard cries of murder murder from deceased Kaloo and saw Kaloo running while raising cries towards Khair Muhammad's garden. He further saw that Kaloo was being chased by four persons armed with a hatchet and lathis. They soon overtook Kaloo in the garden of Khair Muhammad and began to belabour him with lathis and hatchet blows. On coming nearer P. W. Mumtaz Bhutto saw the present appellants giving blows to Kaloo. On the latter's cries Hadan Faqir came there and grappled with appellant Shahan at which appellant Habibullah gave him lathi blows which fell on his head and brought him down. P. W.
Mumtaz did not come near due to fear. After having done Kaloo to death the appellants ran away towards the north. Shahan is alleged to have been armed with a hatchet and the others had lathis.
Leaving Hadan Faqir at the scene of offence P. W. Mumtaz Bhutto went to Parial (P. W. 4), a cousin of Kaloo, who lived in village Dodai and informed him of the events that had happened. P. W.
Parial accom panied Mumtaz to the wardat, he saw Kaloo lying dead in Khair Muhammad's garden.
Hadan Faqir was also lying injured in the same garden. Hadan Faqir gave the same facts to Parial and named all the four appellants as culprits. Parial thereafter went to Taluka Larkana Police Station and lodged his report at 15-30 p.m. the same day. The report was recorded by A. S. I. Ata Muhammad (P. W. 7) who was then incharge of the police station. He immediately accompanied Parial to the wardat and found the dead body of Kaloo lying there in the garden of Khair Muhammad. He prepared a Mashirnama of the wardat (Exh. 19) and sent the dead body to the Medical Officer, Larkana for post-mortem examination. He recorded the statement of Hadi Bux and found that he had an injury on his head. Hadan was sent for treatment and certificate to the hospital. After recording the statements of other witnesses the A. S. I. arrested accused Shahan, Habibullah and Hote on 2nd of June 1966 and interrogated them. Appellant Shahan led the police party to his house and brought out a blood-stained hatchet from inside the hedge on the western side of his house. The hatchet was seized under a Mashirnama (Exh. 16). The A. S. I. also seized a turban from the person of appellant Shahan since it appeared to have indistinct marks of blood.
Thereafter appellant Habibullah volunteered to produce a dunda from his house. The dunda had, however, no marks of blood on it. Appellant Niaz Ali was produced before the A. S. T. at the thana on 6th of May 1966 when he was arrested. The blood-stained earth and the articles produced by appellants Shahan and Habibullah were sent for chemical analysis.
4. The evidence against the appellant consists of the ocular testimony of eye-witnesses Mumtaz (P.
W. 2) and Hadi Bux (P. W. 7). This evidence is corroborated by the production of blood-stained hatchet by appellant Shahan. Appellant Habibullah also produced a lathi as mentioned earlier. The Chemical Analyser's report, Exh. 23, revealed the presence of human-blood on the hatchet produced by appellant Shahan. The blood on the turban was found to have been disintegrated and it was not possible to ascertain its origin. The motive for the crime is revealed in the deposition of Parial (P. W. 4), the second cousin of deceased Kaloo. He states that Kaloo originally resided in village Dodan but had migrated to Sadiq Junejo village about a month before his murder. He had left the village because he was afraid of appellant Shaban who had threatened'him. It would appear that Shaitan's bullocks had been stolen and Shahan had suspected Kaloo with the theft.
Kaloo had, however, returned the bullocks to Shahan about 2-3 years before the murder.
Nonetheless Shahan nursed a grievance against Kaloo and had continued to threaten him. P. W.
Parial states that Kaloo had told him several times about Shahan's threats and ultimately left his village due to fear.
5. Reverting now to the ocular testimony of the eye witnesses, the first witness is Mumtaz (P. W. 2).
On the day of the incident at about 12-00 noon he was in his garden scaring away the birds when Kaloo went to him. Kaloo, it would seem, had been to some court in Larkana in connection with a case and had come to Mumtaz to inform hint about the proceedings as Mumtaz was his friend. Mumtaz had a chat with Kaloo for a short while and then went to the other side of his garden for scaring away the birds. Soon he heard cries of murder murder coming from Kaloo and he saw the four appellants chasing Kaloo towards the garden of Khair Muhammad. Appellant Shahan was armed with a hatchet while the others had lathis. All the four appellants arc alleged to have caused injuries to Kaloo. The incident was witnessed by Mumtaz from a distance of 25 paces. Hadi Bux alias Hadan Faqir had also come on the cries. He caught hold of appellant Shahan but appellant Habibullah gave him a lathi blow which felled him down. Kaloo was killed by the appellants on the spot. Leaving Hadan at the wardat Mumtaz went to Dodai village to inform Parial to whom he gave the names of all the appellants. Parial accompanied him to the wardat and gathered the same facts from Hadan whereafter he went to Larkana and lodged the F. I. R. Even this witness stated that Kaloo originally belonged to Dodai village but had migrated to Meero Khan Taluka about two months before the incident. In his cross-examina tion this witness admitted that Muhammad Ali and Muhammad Murad were his relations, that Muhammad Murad had been killed about 15 or 16 years ago and that Muhammad Hassan who was Shahan's sister's husband and some others were sent up for the murder of Muhammad Murad. He also admitted that the Bhutto's had long standing enmity with Jatois. He further stated that Hadan was his close relation. The other admission made by him on which reliance has been placed by the appellants is that there were 10 or 15 trees between Mumtaz and the deceased at the time of the incident. The next witness is Hadi Bux (P. W.
3). He is also a Bhutto by caste and had his garden adjacent to the garden of Khair Muhammad in the same survey number. At the time of the incident he was sitting in his garden when he heard cries from Khair Muhammad's garden. On going there he saw that four persons were chasing Kaloo from the side of Mumtaz's garden. He identified the assailants to be Shahan, Habibullah Hote and Nazoo. They overtook Kaloo in Khair Muhammad's garden and all of them belaboured him. Hadi Bux ventured forward and caught hold of Shahan in an attempt to rescue the deceased. One of the persons armed with a lathi gave him a blow on his head and he fell down. Nothing of importance has been brought out in his cross-examination excepting the admission that he could not say which of the accused gave him the lathi blow.
6. The learned counsel for the appellants attacked the evidence of the above witness as false and perjured. He charac terised both the witnesses as the enemies of Shahan and referred to the cross- examination of P. W. Mumtaz who had admitted that Muhammad Murad was his relation, that Muham mad Murad was killed about 15 or 16 years back and amongst the persons tried for his murder was Muhammad Hassan the husband of Shahan's sister. We are, however, not at all impressed with the defence of enmity. There seems to be no reason why Mumtaz should go the length of involving Shahan in a murder case for the acquittal of his brother- in-law on a charge of murdering a relation of Mumtaz. Even this acquittal had taken place about 15 or 16 years before the incident. The enmity suggested by the appellants is not only remote in relationship but also in point of time. It is true that Mumtaz admitted that Bhuttos had long standing enmity with Jatois but if Mumtaz was indeed giving false evidence trig gered by enmity, he would certainly not have made such an admission. On the other hand it seems to us that both Mumtaz and Hadan did attempt to oblige the appellants by making a few helpful admissions. Even Hadi Bux, went to the extent of saying in the trial Court that he could not say which of the accused gave him the lathi blow, despite the fact that his injury was on the frontal region of his head. We may state that there is a mistake in the typed record which describes the injury as being on the parietal region.
7. More important is the evidence of Hadi Bux himself whose presence at the scene of offence could not be disputed on account of the injury received by him. He also gives a description of the events that happened and has named all the four appellants as the persons who participated in the crime. There could be no mistake as to his identity of the appellants since he was himself involved in the affray. His cross-exami nation is inconsequential and his evidence generally has remained unscathed.
8. We now come to the circumstantial evidence in the case. As against Shahan there is the evidence of the recovery of his blood-stained hatchet which was produced by him from the western side hedge of his own house, in the presence of Mashir Niaz Hussain (P. W. 5). Niaz Hussain states that Shahan volunteered to produce a blood-stained hatchet and led them to his house and brought forth a hatchet from under neath a hedge from the western side of his house. The hatchet was concealed in the hedge. The police recovered it, under a Mashirnama Exh. 16.
Chemical analyser in his report which is Exh. 23 has certified that the hatchet had human blood on it. We do not find it necessary to refer to the evidence of the turban recovered from the person of appellant Shahan since the blood thereon had disintegrated. Even so the stains were indistinct even at the time of seizure.
9. As against appellant Habibullah, there is evidence of his leading the mashirs and the police to his house from where he brought out a lathi from underneath the hedge. The lathi had been concealed there. The mashir is the same. Although Hadi Bux hitnself does not claim to have seen who gave him the lathi blow yet Mumtaz in his deposition has clearly averred that accused Habibullah gave a lathi blow to Hadi Bux. We have no reason to reject his testimony, as this part of the evidence is also fully corroborated by the F. I. R, itself.
10. The nature of injuries on the person of deceased Kaloo also indicate the employment of a hatchet and a lathi in the assault on Kaloo. The deceased had multiple lacerated wounds over face and forehead and the head with fracture of ace to bone of cranium with distortion of the various pieces of bones. He also had an incise wound 2' x 3" muscle deep on the front left upper arm.
Evidently the first set of his injuries was caused by use of a lathi and the second by a hatchet.
11. We are now left with the cases of appellants Hoteand Niaz Ali. Beyond the ocular testimony of the two witnesses there is no other corroborative evidence against them. In the face of P. W. Mumtaz's admission that there is old enmity between Bhuttos and Jatois we cannot entirely rule out the possibility of the prosecution witnesses adding to the number of persons accused in the murder.
Appellant Niaz Ali is the son of Shahan and appellant Hote is the brother of Habibullah. It is possible that their names were also mentioned with a view to involve as many members of the family as could be involved. The medical evidence speaks of two injuries the first one by a lathi and the second by a hatchet. The medical officer has not thrown light on the number of blows which could have caused the lacerated wound. It may be, that this injury was caused by a single blow or by multiple blows. In the absence, however, of any evidence on the subject, we would draw an inference which is advantageous to the accused persons and hold that there was a single injury which caused all the damage to the skull of the deceased. In this view of the matter we feel pursuaded to give the benefit of doubt to appellants Niaz Ali and Hote.
12. In the result the appeals of Shahan and Habibullah are dismissed and their conviction and sentence maintained. Appellants Niaz Ali and Hote are given the benefit of doubt and they arc acquitted. The shall be released forthwith if not wanted in any other case. .