Muhammad Haleem, J.--Appellants Dilmurad, Jehangir, Kambir, Urs and Nek Muhammad were tried for the murders of Arz Muhammad and Soomar by the learned Sessions Judge, Larkana and convicted and sentenced vide judgment dated 16th March 1970 as under Under section 302 read with section 149, each of the two appellants Dilmurad and Urs were sentenced to death while appellants Jehangir, Kambir and Nek Muhammad to transportation for life ; under sections 326 and 325 read with section 149, each of them was sentenced to 7 years' rigorous imprisonment on each of these two counts ; under section 148, P. P. C. appellants Dilmurad, Urs, Jehangir and Kambir were each sentenced to rigorous imprisonment for two years ; under section 13 (d) of the Arms Ordinance only appellant Dilmurad was convicted and sentenced to rigorous imprisonment for two years ; under section 147 appellant Nek Muhammad was con victed and sentenced to rigorous imprisonment for one year. In the case of death sentence being commuted the sentence of imprisonment imposed on appellants Dilmurad and Urs were ordered to run concurrently while in the case of the other three, they were ordered to run as such. The learned Sessions Judge has referred the case of appellants Dilmurad and Urs for confirmation of their death sentence. They and the others have filed an appeal against their convictions. This judgment will dispose of both the reference and the appeal.
2. The prosecution case was that on 7th December 1968 between bipahri and tipahn time while Sohrab, Ghulam Umar and the two deceased were proceeding towards their land they were attacked by the appellants who emerged from the dera of Dilmurad which was on his land.
Appellant Dilmurad was armed with a gun while appellants Jehangir, Kambir and Urs with hatchets and appellant Nek Muhammad with a lathi. Appellant Dilmurad challenged them that they had come to take revenge of his brother and fired his gun at Arz Muhammad twice who fell down upon receiving the gunshot injuries. The others then raised cries which attracted Ali Bux and Laiq. The appellants continued their assault. Dilmurad again fired a third shot at Soomar and the pellets struck him on his face. Urs gave hatchet blows on his head and neck and he also fell down.
Appellants Jehangir and Kambir inflicted hatchet blows on Ghulam Umar which struck him on his head. Appellant Jehangir also gave hatchet blows to Sohrab which struck him on his right wrist and left ear. Appellant Nek Muhammad gave a lathi blow to him and also to Ghulam Muhammad who lay on the ground. The assailants then Bed away.
3. The motive alleged was that three years before, appellant Dilmurad's brother, Badar, was murdered and the two deceased were suspected for committing it but they were not sent up for trial. Appellant Dilmurad and others accordingly avenged themselves by killing them.
4. Appellants Jehangir, Kambir, Urs and Nek Muhammad were arrested on 8th December 1968 and appellant Dilmurad later on. Appellant Nek Muhammad produced from his house a lathi which was secured in the presence of Aiashir Muhammad Waris. This was not blood-stained. Appellant Jehangir produced a hatchet from the roof of his cattle-shed. This was also secured. Appellant Kambir produced a hatchet from a corn-bin in a room of his house. This was also secured.
Appellans Urs produced a hatchet from the roof of his house which was also secured. All the hatchets were sealed in the presence of the same mashir. No incriminating article was recovered from appellant Dilmurad.
5. The autopsy on the dead bodies was performed by Dr. Anwarul Haq. He was not available for examination and the post-mortem notes were proved through the evidence of Dr. Rafiq Ahmad.
Four gunshot injuries were noticed on the dead body of Arz Muhammad, out of which one was entrance wound and another exit wound and in the opinion of the doctor they were caused by some firearm missile and were responsible for his death. On Soomar, who was then alive, six injuries were noticed, out of which one was caused by hard and blunt substance. No opinion was expressed in regard to one injury, which on post-mortem examination was opined to be a gunshot while the others were by a sharp-cutting weapon, like a hatchet. Two injuries, one by a hatchet and the other by gunshot were, according to the doctor, sufficient individually to cause death in the ordinary course of nature. The two injured Sohrab and Ghulam Umar were also examined by the same doctor; Sohrab had two injuries while Ghulam Umar live. One injury on Sohrab was grievous and the other was simple and both of them were caused by hard and blunt weapon. One injury on Ghulam Umar was grievous while the others were simple. The grievous injury was caused by hatchet while the others by a blunt weapon.
6. The chemical analyser's report disclosed that the hatchet of appellant Kambir was not stained with blood while that of appellants Urs and Jehangir had human blood on them.
7. The dying declaration of deceased Soomar was recorded in the hospital by Arz Muhammad S. H.
O. on 31st December 1968 and he died thereafter on 6th January 1969.
8. The appellants in defence alleged their false implication in the crime because of a dispute over land. Appellant Jehangir denied the production of the hatchet and so did appellants Kambir and Urs. The last two appellants further alleged that these hatchets did not belong'tolthem.
Dit Murad v.
State Muhammad Haleem, J
10. Appellants Jehangir and Kambir are brothers inter se while appellants Dilmurad and Nek Muhammad are cousins and appellants Urs is the nephew of appellant Nek Muhammad.
Appellant Dilmurad is married to a cousin of Sohrab while appellant Urs is the son-in-law of deceased Arz Muhammad.
Deceased Arz Muhammad was a cousin of Sohrab and deceased Soomar his nephew. Ghulam Umar is the brother of deceased Soomar. Ali Bux is the brother-in-law of appellant Dilmurad while appellant Nek Muhammad is his paternal uncle and the remaining appellants are his cousins.
Deceased Arz Muhammad was his nephew. Appellant Dilmurad is also a cousin of Sohrab.
It is thus clear that the appellants, the deceased and the prosecu tion witnesses were all related to each other.
11. Sohrab and Ghulam Umar had accompanied the two deceased while they were going towards their land. Both these witnesses were injured and in the circumstances their presence cannot be doubted. The incident occurred on Jumo's land and the appellants had come from the dera of Dilmurad, which was on the border separating Jumo's land with that of Dilmurad a hundred paces away from the place of incident. They have implicated all the appellants and have assigned to them various parts from the earliest stage. The injuries found on the two deceased and the injured witnesses are consistent with the kind of weapons alleged to have been used in the attack. We have also noticed from the evidence on record that there is no attempt to falsely implicate anyone else from the side of the appellants and the number of injuries are consistent with the participation of the persons implicated in the crime. The version of the two witnesses thus receives ample support from the above circum stances.
12. The learned counsel for the appellants criticised the evidence of Sohrab and Ghulam Umar upon the ground that each of them has ascribed two blows on Ghulam Umar, one each caused by appellants Jehangir and Kambir, which is not consistent with the medical evidence as only one incised injury was found on him. According to him, their evidence was not thus credible.
We fail to understand how is it possible to count with certainty the number of blows inflicted by various persons with precision in a situation like this when persons are faced with fatal conse - quences. This criticism can hardly be of any weight when the defence has failed to show in any other respect that their evidence was incredible.
13. In the cross-examination of Sohrab, it was suggested _ that deceased Soomar's mother, Mst.
Gullan, was suspected of illicit intimacy with deceased Arz Muhammad and it was on that account that a fight had taken place. This was denied by him Buridi taluka Kamber emerged all of a sudden from the paddy heap of Dil Murad. Out of them Dil Murad was armed with a gun. Nek Muhammad was armed with a lathi. Uris, Jehangir, Kambir were armed with hatchets. Dil Murad gave us 'hakeT and said that he has to take revenge from us. On saying so he fired the direct gunshot at Arz Muhammad which hit him on his left hank. He hred other gunshot which hit Arz Muhammad on the upper part of his left arm as a result of which he fell down. We raised cries of murder-- murder. On our cries Laik son of Rawat and Ali Bux son of Shahan came running. When Dil Murad fired third gun shot which hit me on my face as a result of which I became unconscious when Uris gave me hatchet blows which hit me on my neck. Jehangir and Kambir gave hatchet blows with sharp-side to my brother Ghulam Umer which hit on his head.
Jehangir gave blows to Sohrab and Nek Muhammad gave 'Lathi' blows to Sohrab and my brother.
Thereafter my brother Ghulam Umer fell down. I became unconscious and fell down. My uncle Arz Muhammad died as a result of gun shot injuries. Laik and Ali Bux remained at the place of occurrence with us. The accused persons have given us hatchet blows and fired gunshots at us because brother of Dil Murad was murdered about two-three years back and he suspected us for that murder."
In this connection we have noticed from the testimony of Sohrab, Ghulam Umar and Ali Bux, that the deceased had become unconscious on receiving the injuries. Ghulam Umar has further stated that Soomar continued to remain unconscious and in his statement before the committal Court, which was brought on record as a contradiction, he stated that the deceased was unconscious throughout in the hospital till his death. However, in his cross-examination in order to support the case he admitted that the deceased "sometimes used to speak and sometimes could not in the hospital". Even from this it cannot be deduced that he was in his senses to give such a detailed statement. Manzoor Husain, the Head Constable, has admitted that he had gone to record the statement of the deceased on 10th December 1968 but he was unconscious. The doctor has not b$en examined to say about his condition. Arz Muhammad S. H. O., who had recorded the dying declaration, also admitted that in reply to his letter dated 24th December 1968, the doctor stated that the deceased was not able to give a statement. Again he wrote another letter on 30th December 1968, and in reply to this letter the doctor stated that he was in a position to give a statement. The earlier letter has been brought on record as Exh. 26 and though Arz Muhammad has produced his own letter dated 30th December 1968 yet the reply of the doctor has not been brought on record. Even at the time of recording the statement he did not get an endorsement of the doctor on the dying declaration that the deceased was in his senses and able to make a statement. When cross-examined, this is what Arz Muhammad has stated :-- "I do not remember if the Medical Officer was present when I recorded the statement of Soomar. I did not take any fresh authority from Medical Officer on 31st December 1969 before recording the statement of Soomar. I only inquired from him. I do not remember that if I had made a note in my diary that I had orally inquired from the doctor. (At the request of Mr. Jafri the witness seen the diary). I see the diary and say that there is no such note. I did not obtain the signature of Medical Officer on the dying declaration."
We are not satisfied with the evidence of Arz Muhammad as to the recording of the dying declaration by him in the absence of any confirmation by the doctor in this behalf that he had regained his senses on 31st December 1968. Even other wise he had suffered serious head injuries and indeed without any doubt he was unconscious from the moment he received the injuries. How could he then make such a detailed statement as the one recorded by Arz Muhammad. Even otherwise, on its face the statement appears to be suspicious. In this context we may mention that after having stated that he had become unconscious he goes on narrating what happened subsequently, which was an impossibility. We would accordingly reject this piece of evidence. We are unable to agree with the erroneous reasoning advanced by the trial Court that "if the police wanted to play dirty they could have as well recorded the dying declaration on the very first day and not after 23 days". In reaching this conclusion the trial Court has not weighed the evidence in this behalf and upon a flimsy ground has taken it into consideration.
17. We have observed from the evidence of Sohrab that he admitted enmity in his cross- examination in the plural that "we were called by the police and interrogated for the murder of Sherdil for 7 days. My cattle was taken away by the police and my female folk were also humiliated, although our names did not appear in the first report. They are not connected to us. 10 or 15 days after the murder of Badal alias Sherdil, accused started suspecting us for having committed that murder. I cannot say why they suspected us. The matter was referred to some Nekmards but still they were not satisfied and, therefore, they avenged the murder of Badal in this manner." This witness thus not only included himself but also the two deceased and Ghulam Umar. It is also an admitted position that appellant Dilmurad had filed the first information report. There is, however, nothing to show from the testimony of Ghulam Umar whether he was one of the suspected persons. Ali Bux has denied the suggestion that the appellants had suspected him as one of the culprits. In this context the learned counsel for the appellants argued that the evidence was interested and should not be acted upon without corroboration. He further emphasised that there was no confirmation as against the participation of appellants Nek Muhammad and Kambir in that the weapons recovered at their instance were not blood-stained. No gun was recovered from appellant Dilmurad. There is thus no confirmation againsf him. The learned counsel also urged that appellant Nek Muhammad was an old man of 65 years and could not have participated in the crime. Our appraisal of the evidence on record shows that though Ali Bux was related to Sohrab and the deceased, he was also equally related to appellant Dilmurad as his sister was married to him. In the absence of any enmity against him, his evidence stands on the same footing as that of a disinterested witness. It goes to corroborate the ocular testimony of Sohrab and Ghulam Umar, whose presence cannot be doubted because of the injuries sustained by them. Moreover, their evidence is consistent with the circumstances established on record and we see no reason to distinguish the cases of the appellants who had not produced the crime weapons. The learned counsel urged that even Ali Bux could not be treated as a disinterested witness as his name could not have been given in the F. I. R. if he was not willing to support the prosecution and further his inclination towards the complainant-party was obvious from the fact that he was made to sit near the dead body. This is merely a surmise and we cannot gather any such inclination from these circumstances. Even the age of appellant Nek Muhammad would not stand in his way in committing the crime as that was not a physical disability of such a nature to conclude that he could not have acted in the manner stated by the witnesses.
18. In the result we are of the view that the prosecution has established its case beyond reasonable doubt against the appellants. We would accordingly uphold their convictions and the sentences imposed therefore. The death sentence passed on appellants Dilmurad and Urs are confirmed and the reference is accordingly accepted. The appeal of the appellants stands dismissed. .