MUHAMMAD HALEEM, J.---Appellant Beekho, Bacho and Raheemoo, all by caste Shar, stand convicted under section 302 read with section 34, P. P. C. For the murder of Wahid Bux, by caste Mirbahar, and while Beekho was awarded the death penalty the other two were sentenced to transportation for life. They were, however, not convicted under section 201 read with section 34, P.
P. C. Appellant Beekho was also acquitted of the charge under section 13-E of the Arms Act. They were tried and convicted as above by the learned Sessions Judge, Jacobabad, vide Judgment dated 3rd June 1971. The appellants have appealed against their conviction while the learned Sessions Judge has made a reference for the confirmation of the death sentence imposed on appellant Beekho. This Judgment will dispose of both the appeal and the reference.
2. According to the prosecution case, while Loung and his brother Wahid Bux were sitting in the house a day before the, incident which occurred on 17th July 1969, the appellants came to their house, to which they objected, which annoyed the appellants and while leaving the house they administered a threat in 'the following words: "You are Mirbahar by caste and prevent us from the house; it will not be better". On the day of incident, i. e. 17th July 1969, Loung and Wahid Bux were proceeding a little before sunrise on their bullock cart for cutting grass and as they reached the uncultivated land of Khair Muhammad Shar, the appellants emerged from a jungle, of whom Beekho was armed with a gun while the others had hatchets. They came infront of the bullock-cart.
Appellant Beekho after challenging them fired his gun at Wahid Bux, who fell down from the cart and some stray pellets also struck one of the bullocks. Loung thereupon raised cries which attracted Gullan and Kaim, who were working in the nearby fields. Appellant Beekho fired another shot at the deceased where after the other two appellants, who were armed with hatchets, severed his head from the trunk and carried it away along with them. Leaving Gullan at the wardat Loung proceeded to Police Station Kashmore, which is 10 miles away and there lodged his first information report the same day, which was recorded by Eran Khan Afridi, S. H. O.
3. Eran Khan next repaired to the wardat along with Loung where he saw the headless body of deceased Wahid Bux and a crime empty lying nearby. He secured the blood-stained earth and the crime empty in the presence of mashie Moula Bux sealed them into separate parcels. He also noticed a bullock cart and a pair of bullocks, of which one was injured. He after sending the body for post-mortem examination recorded the statements of Gullan and Kaim at the wardat and searched for the appellants in their houses the same day but they were not found. Appellants Raheemoo and Bacho were arrested at 2 p. m. On 21st July 1969, while appellant Beekho was produced at 4 p.m. The same day by Chakar and he was arrested accordingly. Appellant Beekho volunteered to produce his unlicensed gun on 31st July 1969, and took it out from the heap of manure lying in his house which was taken possession of in the presence of mashie Moula Bux and sealed into a parcel. The gun and the crime empty were sent to the forensic laboratory for matching and, according to the testimony of the ballistic expert, Mukhtar Ahmad Qureshi, the crime empty matched with the gun. The blood-stained earth was sent for chemical analysis which was also found to be stained with human blood.
4. The autopsy on the dead body was performed by Dr. Muhammad Ali, who noticed the following injuries:- "(1) Two punctured lacerated wounds of entrance each 1 cent. In diameter on the upper and middle 1/3rd right side chest in mid axillary line. Charring present.
(2) One oval punctured lacerated wound 1" x 1--" x cent in diameter in the front left side chest in the middle wound of exit.
(3) One oval punctured lacerated wound of exit 1--" cent in diameter on the left side chest on the upper 1/3rd along the lateral border.
(4) 3 oval punctured lacerated wound of entrance each 1 cent. In diameter. Charring present on the posterior aspect of right shoulder each --" apart.
(5) 2 oval punctured lacerated wounds of exit each one inch apart from each other on the anterior aspect of right shoulder each 1--" cent. In diameter.
(6) 3 incise wounds in circling the neck separated by bony cuts and edges at the level of the 4th and 6th vertebrae. All organs were cut and the head was missing."
In his view, injuries 1 to 5 were ante-mortem while injury No. 6 was post-mortem and that further the former were caused by the discharge of afire-arm and were the result of two shots and fired from within 12 feet. He further opined that injuries 1 and 4 were individually sufficient to cause death in the ordinary course of nature.
5. The appellants when examined denied their involvement in the crime. Appellant Beekho denied the ownership of the gun and its production, and stated that it was foisted on him. He imputed matrimonial dispute with Wadero Khair Muhammad Khan and alleged his implication in the case due to him. As to the prosecution witnesses, he stated that they "are men of Wadero Khair Muhammad" and were set up against him. He also alleged dispute over land with him. Appellant Raheemoo adopted the defence of Beekho and so did Bacho. The appellants denied their absence in the house but admitted the date of their arrest. They led no evidence in defence.
6. The trial Court did not place reliance on the testimony of Gullan and so also on the matching of the crime empty with the gun. However, he placed implicit reliance on the ocular testimony of Loung and Kaim to rest conviction of the appellant on it. It also accepted the motive as one impelling the appellants to commit this gruesome murder.
7. We have examined the evidence with the assistance of the learned counsel for the parties.
Except for what is stated as the background of this murder, no direct enmity is suggested against Loung. It is true that he is a hari of Khair Muhammad Khan and the deceased was employed by him as his personal servant yet this reason is wholly insufficient to doubt his credibility. He was subjected to lengthy cross-examination, but nothing of any consequence has emerged to doubt his presence or veracity. He has supported the prosecution case to the hilt and his evidence stands corroborated by ' the ocular testimony of Kaim, who is a disinterested witness. It was faintly suggested in his cross--examination that it could be the abductor of the wife of Pandhi who may have killed the deceased but the petitioner denied not only this suggestion but also that he is a nephew of Pandhi. He also denied ttie suggestion that Khair Muhammad was annoyed with the appellants over matrimonial disputes. When asked whether Sohrab Khan is the father-in-law of Khair Muhammad, he denied knowledge of it and also of Sohrab Khan's relationship with appellant Beekho. The trial Court fairly appraised his evidence and nothing substantial was suggested as to why we should disbelieve him. It is true that no reason was assigned as to why he and the deceased took exception to the visit of the appellant but it appears to us that they had objected to it because o. Likely mis-behaviour with their women-folk. Even otherwise the, visit of strangers is taken as violating privacy and it cannot, therefore, be considered unusual if the deceased aid Loung had objected. The next witness is Kaim. Although die is a hari of Khair Muhammad yet that circuirstance by itself will not affect his credibility. No attempt was made in the cross-examination to show that his field was not nearby to doubt his presence. He has spoken of the distance as 40 to 60 paces from where he witnessed the occurrence. It was broad daylight and he could have with certainty seen the appellants from there. He also came to the warder on hearing the cries and his presence is spoken of by the Investigating Officer who had repaired to the warrant immediately after recording the F. I. R. There is nothing on record to suggest that he was under the influence of Loung and for that matter was so interested to support the case of the prosecution. In this view of the matter, it is too far-fetched to assume that even if he had not witnessed the incident still his game would be mentioned in the F. I. R. In the hope that he would support the prosecution we. A suggestion was made in the cross-examination that his father-in-law, Hasul Khan, is the real uncle of Wadero Khair Muhammad, which he denied. The link, therefore, suggested in defence also did not have any support. The learned counsel for the appellants was also unable to advance any reason why his presence should be doubted. We may refer here to an application Exh. 20) which was filed in the trial Court by which it was desired that the following question be put to him:-- "Q. Did you state in your 164, Cr. P. C. Statement recorded on 4th August 1969, by learned Mukhtiarkar and F. C. M., Kandhkot, that when you came at the spot, you saw Wahid Bux Mirbahar (deceased) was lying on the ground and bullocks in cart were running away. We came upon Wahid Bux. He had gun and hatchet injuries and was dead, and also that after Loung went away, he went home ?"
This question was not allowed to be put to the witness as the original 164 statement was missing from the record. Whether such a statement was made is not established. A simple copy of the statement was available with the prosecution but that was not allowed to be produced. In the circumstances, it is not possible for us to appraise the effect of the question disallowed. The witness was examined by the Inquiry Magistrate and till then there was no grievance that such statement was missing. If at all his version was different from the 164 statement he could have been cross-examined in that light. At this stage, however, we are unable to conclude any prejudice for this reason. The trial Court also accepted his evidence and we have no reason either to out it.
There is, therefore, ocular testimony to implicate the appellants beyond doubt.
8. Gullan's evidence has not been relied on. We however find that he was present in the field and had come with Kaim and remained at the wardat till after the arrival of the Investigating Officer and his statement was recorded thereat. It is true that he has obliged the appellants by admitting that he could not identify the appellants because he saw their backs while they were running away; nevertheless he has stated that the names of the appellants were disclosed to him by Loung. This was immediately after the occurrence and we see no reason why we should not accept his evidence to this extent.
9. As for the matching of the crime empty with the gun, the trial Court has not placed any reliance on this piece of evidence for good reasons, which are as under;"
"According to prosecution case, the crime empty was secured on the first day and put into sealed parcel. The gun was secured subsequently and was put into a sealed parcel. Then how both gun and crime empty were sent to the Ballistic Expert in one sealed parcel. This shows that the sealed parcels were tempered with during the investigation and there is every possibility that some cartridge was used in the gun and sent to the Laboratory as crime empty. The evidence of the Ballistic Expert and the recovery of the incriminating articles is therefore tainted with doubt and I do not propose to rely upon it;" and we agree with it. Additionally, we may observe that the prosecution did not attempt to clarify as to how the crime empty was sent in one parcel along with the gun when the two were seized separately and recovered at different times. The possibility of that crime empty not being sent has not been excluded.
10. Lastly Eran Khan, S. H. O. Has testified to the fact that he had looked for the appellants in their houses but they were not available there. They were arrested on 21st July 1969, after having absconded for four days and their explanation is that they were in their houses during this period.
Apart from their bare words there is nothing to support their stand, and if that was so they would have been secured that very day. This conduct also weighs in favour of the guilt. The prosecution has accordingly established its case beyond reasonable doubt and the appellants were rightly convicted.
11. The sentence imposed on appellant Beekho also does not require any lenient treatment, for it was he who had fired the gun and the deceased was killed as a result of the gunshot injuries; and" it was a gruesome murder committed with premeditation. While' rejecting the appeal of the appellants we would confirm the death sentence imposed on appellant Beekho and accept the reference.