1. The appellant was charged along with co-accused Ali Hassan, Dhani Bux and Ali Mohammad under section 302/34, P.P.C. For committing murder of one Dilbar, and was tried before the learned 1st Additional Sessions Judge, Nawabshah, who convicted him under section 302, P.P.C. And sentenced him to suffer imprisonment for life, and fine if Rs.5,000 or in default to suffer further R.I.
2. For six months. The fine if recovered, 50$ of the same had to be paid to the legal heirs of deceased Dilbar. He was also allowed concession under section 382(B), Cr.P.C., while co-accused Ali Mohammad and Ali Hassan were acquitted, vide order dated 27-11-1986. Accused Dhani Bux absconded during the trial, and therefore his case was kept on dormant file.
3. The brief facts of the prosecution case are that on 22-10-1975, one Achar Jatoi, lodged a report at police station Mohabatdero Jatoi, District Nawabshah, inter alia alleging therein that Mohammad Panah is the son of the sister of the complainant, while Dilbar is his relative. They- reside in separate houses in Belo Bhunar, and cultivate the land of Zamindar Ghulam Mustafa Dahraj in Belo Mohabatdero. Dhani Bux, Nawab, Ali Hassan and his father Ali Mohammad are their caste fellows.
4. Dhani Flux is resident of village Thariri, District Larkana, while Nawab Ali Hassan, and is father Ali Mohammad resided at their land in Deh Mooso Dero. Dhani Bux's people had taken the hand of a girl from Bahawai Jatoi, Dilber had also demanded the hand of same 'girl from Bahawa'. For his maternal uncle. Bahawal gave the hand of his daughter in marriage to Nadir maternal uncle of Dilbar. On account of this, Dhani Bux, Nawab, Ali Hassan and Ali Mohammad were displeased with Dilbar for having taken the girl for his maternal uncle. Dhani Bux, Nawab and his relations used to issue threats to Dilbar. Today, complainant Mohammad Panah and Dilbar were clearing the Jungle from their land and burning it when at about 1.00 p.m. Dhani Bux Jatoi, Nawab Jatoi armed with hatchets, Ali Hasan armed with the gun, Ali Mohammad empty handed came towards them. From the West, Dhani Bux and Nawab challenged and came running to him observing that they will not spare him today. Dhani Bux and Nawab immediately gave hatchet blows to Dilbar, while Ali Hassan and Ali Mohammad were watching the same nearby. The complainant Mohammad Panah did not come near them on account of fear, but they raised cries of 'murder, murder'. Within their sight Dhani Bux and Nawab killed Dilbar by giving, him sharp side hatchet blows. Thereafter, Dhani Bux and Nawab ran away towards western direction while Ali Hassan and Ali Mohammad ran away towards East. Thereafter, the complainant and Mohammad Panah saw Dilbar who had died as a result of hatchet injuries and his neck was separated from his body. Leaving Mohammad Pannah at the dead body of Dilbar, complainant went and lodged a report at 3.10 p.m. This report was recorded by Abdullah H.C. And the same was produced as Ex.15. He visited the Wardat and prepared Mashirnama of the same which was produced as Ex.20. He prepared inquest report of the dead body which was produced as Ex.21. He arrested accused Nawab and Dhani Bux and prepared such Mashirnama which has been produced as Ex.23. He secured the blood-stained shirt for accused Dhani Bux and prepared such Mashirnama which was produced as Ex.24. He had also secured the blood-stained shirt from accused Nawab and prepared such Mashirnama which was produced as Ex.25. Accused Dhani Bux produced blood--stained hatchet with blackish handle which was secured and such Mashirnama was prepared, the same was produced as Ex.26.
5. Accused Nawab had produced blood-stained hatchet which was secured and such Mashirnama was prepared and the same was produced as Ex.
27. On the following day, accused Ali Hassan was arrested and such Mashirnama was prepared, which was produced as Ex.28. After his arrest accused Ali Hassan had produced his licensed gun along with its licence which was secured and such Mashirnama was prepared, which was produced as Ex.29. Thereafter, accused Ali Mohammad was arrested and such Mashirnama was prepared, which was produced as Ex.30. The blood-stained articles were referred to the Chemical Examiner and report was produced by P w.
6. Mohammad Mithan as Ex.40. After necessary investigations the accused were challaned.
7. A formal charge was framed against the appellant and co-accused to which they pleaded not guilty.
8. At the trial, prosecution examined complainant Achar P.W.1, Mohammad Panah and eye-witness P.W.2, Inayat P.W.3, Dur Mohammad Mashir-P.W.4, Sain Dad, mashir P.W.5, Lal Khan Tappedar P.W. 6, he had prepared the sketch and the same was produced as Ex.32, Abdullah P.C. P.W.7 and Dr. Jamilur-Rahman P.W., who had carried on post-mortem of deceased Dilbar. The post-mortem report has been produced as Ex. 37, Mohammad Mithan S.H.0. P.W.9, he had produced the Chemical report as Ex.40, and Muhammad Bashir H.C.
5. After the close of prosecution case statements of the appellant and co-accused were recorded in which they denied the allegations but did not examine any witness in their defence.
6. The learned trial Judge while relying upon ocular evidence, recovery of blood-stained hatchet and clothes from appellant Nawab, and motive, convicted the appellant as described above, while co-accused were acquitted. This appeal is directed against the said judgment of conviction.
9. The complainant Achar has supported the contents of F.I.R. And has produced the F.I.R. As Ex.15. He has further deposed that he had shown the place of incident to the Police. In cross-examination he has deposed that accused Ali Hassan is son of accused Ali Mohammad. Accused Nawab and Ali Mohammad are closely related interse. Accused Ali Hassan and Ali Mohammad are not related to Dhani Bux and Nawab. He had not seen accused Ali Hassan and Ali Mohammad coming together with Dhani Bux and Nawab. Ali Mohammad and Ali Hassan accused had neither given any Hakal nor caused any injury to deceased Dilbar. He has further deposed that accused Dhani Bux and Nawab had not issued any threats to Dilbar in his presence, but he had heard about the same.
10. Their houses were about 1 or 1/2 miles away from the place of incident. There were no houses near the place of incident. P.W. Inayat Ali was available therewith P.W. Mohammad Panah. He had reached the Police Station at 2 or 3.00 P.M. He and the police had reached the place of incident at about 4.00 or 5.00 P.M. Police Station will be about 2/3 miles away from the place of incident. When the dead body of deceased was taken by Police from the Wardat. He, Mohammad Panah, and Inayat Ali had gone with them. The dead body was taken to the P.S. First, and then to Kandiaro Hospital. The name of the father of deceased Dilbar is Sardar. He did not see if Sardar had come at the place of incident or Police Station or even at hospital. He had not stated in the FIR that all the four accused had come together. He had not stated in the FIR that accused Ali Hassan and Ali Mohammad had also gone together with accused Dhani Bux and Nawab after the incident. He had not stated in the FIR that Dhani Bux and Nawab had killed Dilbar at their instance. Accused had also shifted to District Larkana after the incident. Before the incident accused Nawab and Ali Hassan were residing in Mooso Dero about 2 miles away from their houses. He voluntarily stated that on the day of incident little after the lodging of FIR accused Dhani Bux and Nawab themselves had appeared along with the hatchets before the Police. The police arrested them and secured the hatchets and thereafter proceeded to the place of incident. Police had put accused Dhani Bux and Nawab in Lock-up. Police had prepared the Mashirnama of arrest and recovery at P.S. And then the accused were put in Lock-up. Fazil and Sain Dad acted as Mashirs to this Mashirnama. They were not related to them, but were their caste fellows. They were residing in Moosa Dero. Their village is at calls distance from their village. The houses of accused persons except Dhani Bux were about 2/3 miles away from the village of the Mashirs. He did not see whether the Mashirs had come themselves at P.S. Or they were called by police. Voluntarily stated that he thinks that they might have come themselves after hearing of incident.
11. Muhammad Panah P.W. 2 has supported the story of the complainant, and has deposed that about 10 years back he, Dilbar and complainant were working in the land. Dilbar was related to him, complainant Achar is his maternal uncle. At about 1.00 P.M. All of sudden they saw accused Dhani Bux and Nawab coming to them from the West giving Hakals. They had hatchets in their hands.
12. They called Dilbar that they will not spare him and will kill. They came near and started giving sharp side hatchet blows to Dilbar. He and complainant requested them in the name of Allah that they should not kill Dilbar but they did not listen. Dilbar tried to run away. But the accused gave him hatchet blows and separated his neck from the body. He and the complainant had raised cries.
13. They had also seen Ali Mohammad and Ali Hassan standing at the distance of one Survey number from them. Ali Hassan had a gun. Whereas Ali Mohammad was empty handed. They were standing silent. They did not try to rescue Dilbar. Accused Dhani Bux and Nawab caused many sharp side hatchet injuries to deceased and then went to East. Thereafter, they saw that Dilbar had died. He has also supported the complainant on the point of motive. He has further deposed that when the complainant had gone for lodging the report leaving him over the body PW Inayat had come there on cries. He was informed about the incident. Inayat also told him that he had seen accused Dhani Bux and Nawab going, he further told him that clothes of these accused and their hatchets were also blood-stained. In cross-examination he has deposed that PW Inayat is his brother. Sister of deceased Dilbar is his wife. PW Sain Dad is related to them. He did not know if Sain Dad is son of niece of complainant. There was no village or house near the incident. None had arrived on their cries at the time of incident. PW Inayat had come there at the place of incident. Some time after the incident many persons had collected at the place of incident. He will not be able to give their names. Immediately after the departure of the complainant for Police Station PW Inayat had come.
14. He might have come within -- an hour. Police had arrived at the place of incident at about 4.00 p.m. Dead body was directly taken away to Kandiaro. He and complainant had gone with the dead body, but could not say if PW Inayat was also with them. He had not stated before the police that all the four accused had come from the West. He had not stated before the police that Inayat had told him that he had also seen all the accused going together. Police had come to the place of incident in Tanga. It was incorrect that he had falsely deposed against the accused and had falsely implicated them.
15. P.W. 3 Inayat Ali has deposed that on the day of incident he was returning from village Bhounr after purchasing some household articles and when he reached at 'Bachao Bund' he heard slogans. He saw accused Dhani Bux and Nawab going raising slogans. They were saying that they had killed their enemy. They had blood-stained hatchets with them, and their clothes were also blood- stained. He had also seen accused Ali Mohammad and Ali Hassan on the North-West of Bund. He had heard the cries of murder, murder from North-West direction, on which he went there and found deceased Dilbar lying dead, his head was separated from his other body. Mohammad Panah was raising cries. On inquiry, he informed him that at 1.00 p.m. While the deceased was working in the field, he and complainant Achar were also working in the field, when accused Nawab and Dhani Bux came and told Dilbar that they will not spare him. He further informed him that Dilbar tried to escape but the accused immediately started giving hatchet blows. He further informed him that he and the complainant Achar requested the accused in the name of Allah that they should not kill Dilbar but the accused did not listen to them. That after, the departure of the accused, Achar had gone to lodge report. In cross-examination, he has deposed that the place of incident was at calls distance from the place where he had seen accused Dhani Bux and Nawab, and the cries were being heard from that place. He had heard the slogans of the accused first, and then the cries of P.W. Mohammad Panah. Some persons had come there after sometime. His statement was recorded on the following day.
16. Mashir Gul Mohammad P.W. 4 has deposed, that he was made as Mashir of Wardat in this case about ten years back. The Wardat was in the leased land of Ghulam Mustafa Dehraj. The dead body of Dilbar was lying there. There was blood on the Wardat. Such Mashirnama was prepared which was produced by him as Ex.2G. Police had also prepared inquest report of the dead body and the same was produced as Ex.21.
17. Mashir Sain Dad P.W.4 has deposed that accused Nawab and Dhani Bux were arrested in his presence at P.S. Mohabatdero Jatoi where the accused had themselves appeared. Mashirnama was produced by him as Ex.23. The shirt of accused Dhani Bux was stained with blood which was secured by police under Mashirnama, which was produced by him as Ex.
24. The police had also secured blood-stained shirt from the person of accused Nawab and sealed, which was of yellow colour, such mashirnama was prepared, which was produced by him as Ex.25. Accused Dhani Bux had also produced blood-stained hatchet with blackish handle, which was secured and such mashirnama was prepared in his presence. The mashirnama was produced as Ex.
26. That accused Nawab had produced blood-stained hatchet before the police, and the police had prepared such mashirnama in his presence which was produced as Ex.
27. Accused Ali Hassan was arrested in his presence and he had produced his licensed gun before the police which was also secured. Mashirnamas have been produced as Exhs. 28 and 29. That two days thereafter, accused Ali Mohammad was also arrested, such Mashirnama was prepared by the police and the same was produced as Ex.
30. In cross-examination, he has deposed that his village will be about one or one and half mile away from the house of deceased Dilbar. Distance between his village and place of incident will be about two miles. On the day of incident he was at Mohabatdero Jatoi Town.
18. Accused Dhani Bux and Nawab had themselves appeared before police Mohabatd'ero Jatoi P.S. At 3-00 or 4-00 p. m. Since the accused had entered into Police Station raising slogans and having blood-stained clothes and weapons many persons had collected at P.S. He had also gone to the P.S. He had a Kiryana--shop near the P.S. He had stopped that business before the incident, but staff of the police was knowing him. He had acted as Mashir in the case of Mohabatdero Jatoi P.S. Before this case, but he did not remember the number of such cases, such case might be one or two.
19. Lai Khan, Tapedar, P.W.6, had prepared sketch of the Wardat and has produced the same as Ex.32.
20. P.C. Abdullah P.W. 7 was serving as police constable at police station Mohabatdero Jatoi, on the day of incident. He had carried the dead body of deceased Dilbar to Medical Officer, Kandiaro, for post-mortem and hand over the sane to Medical Officer in the same condition. After completing the post-mortem, the dead body was given to him and he delivered the same to its relatives. The Medical Officer had given him the clothes of the deceased which were deposited by him at the P.S. Mithal P.W.9 was S.H.O. Of P.S. Mohabatdero Jatoi. According to him, the present case was investigated by H.C. Abdullah Khan, who was dead. According to him, F.I.R. Ex. 15, Mashirnama of Wardat and arrest Exs. 20, 23, 24 and 25, inquest report Ex.
21. Mashirnama of securing of clothes of accused Ex. 26, recovery of blood-stained hatchet Exs. 27 and 28 and Mashirnama of arrest of accused, recovery of gun Exs. 29 and 30 were .In handwriting of late Abdullah Khan H.C. He had produced the Chemical Report as Ex. 40.
21. Mohammad Bashir H.C., P.W.10 has deposed that Abdullah Khan H.C. Was dead. He had worked with him for a long time, and he was conversant with his signatures and handwriting. F.I.R. Ex. 15, Mashirnama Exs. 20, 24 and 23 to 30 bear his signatures.
22. Dr. Jamil-ur-Rehman P.W. 8 had conducted post-mortem on deceased Dilbar on 22-10-1975.
23. According to him on external examination of the dead body, he found the following injuries on his person:-
(1) Incised wound 6" x 1" x cutting the scalp and bone vertical on the frontal bone and forehead.
(2) Incised wound 2" x ----- x muscle deep on the left side of nose.
(3) Incised wound 10" x 2" x cutting the muscle on the back of the neck, medilla oblougata and upper cervical vertebrae, going into the mouth, and cutting the tongue. This wound is also going to the left check into the mouth.
(4) Incised wound 10" x 2" x cutting the scalp and bone oblique on the right parietal bone going cross the occipital bone to the left occipital bone oblique in direction.
(5) Incised wound 8" x 1" x cutting the scalp bone starting from the left parietal region and crossing the injury No.4 going to the lower end of left occipital. The wound crosses with the above injury, the brain matter is coming put of the wound.
(6) Incised wound 6" x 2" x cutting the muscle, blood vessels on the right side of neck 5" deep.
(7) Incised wound 6" x 2" x cutting the muscles, blood vessles on the left side of neck.
(8) Incised wound 6" x 4" x chapping the muscles, and head of humorous on the back of left shoulder.
24. On internal examination of the dead body he found the following damages:- "Brain matter congested. Membrance was cut and congested. Paricardium and heart was empty.
25. Stomach contained paste. Small intestine also contains paste. Large intestine contains gasses and fatal. The other organs were normal."
26. From the external as well as internal examination of the deceased he was of the opinion that the cause of death of deceased was shock and haemorrhage as the result of injuries mentioned above. The injuries were ante-mortem in nature and appeared to have been caused by sharp- cutting weapon such as hatchet. The probable time between the injuries and death was immediate and the time between death and post-mortem was about six hours. Injuries Nos. 3, 4 and 5 were individually sufficient to caused death in ordinary course of nature. He issued such post mortem-report which he produced as Ex. 37.
27. After close of the prosecution case the statement of the appellant and the co-accused were recorded in which they denied the allegations, but no evidence was led by them in their defence.
28. The learned trial Judge, while relying upon the ocular evidence, motive, recoveries, and subsequent conduct of appellant, convicted the appellant as described above, while the two co-accused were acquitted. That the present appeal is directed against the above judgment of conviction.
29. I have heard Mr. Mohammad Hayat Junejo, learned counsel for the appellant and Mr. Rashid Akhund, learned counsel appearing for the State.
30. It was contended by Mr. Mohammad Hayat Junejo learned counsel appearing for the appellant that the enmity between the parties was admitted, and that the witnesses were interested and unreliable. That the Mashirs appear to be a professional Mashris, and although other independent persons were available yet these Mashirs were selected to act as Mashirs, and every time they were made as Mashirs in this case. That the mashirnama of Wardat does not show correct facts, and, therefore, it is a case in which the appellant is entitled to benefit of doubt.
31. Mr. Rashid A. Akhund, learned counsel appearing for the prosecution has supported the conviction of the appellant. According to him, the complainant and P. Ws., had no enmity with the appellant and the prosecution had proved it's case beyond reasonable doubt.
32. I have considered the contentions of the learned counsel and have also gone through the R & P of the case. So far the first contention of Mr. Mohammad Hayat Junejo, learned counsel appearing for the appellant was concerned, the statement of the appellant is a mere denial of the allegations. He has further stated that he was implicated due to enmity, but has not mentioned the nature of enmity with the complainant or the P.Ws. No question regarding enmity was suggested to the complainant as well as to the witnesses. No evidence was led in defence. Even the appellant did not examine himself on oath in order to rebut the allegations levelled against him by the prosecution. Therefore, in view of the above circumstances, it is clear that the complainant, P.Ws.
33. Mohammad Panah and Inayat Ali had no enmity with the present appellant so as to falsely implicate him. It is a broad daylight incident and the evidence of complainant Achar and P.W.
34. Mohammad Panah appears to be natural, straight--forward and reliable, except for minor contradictions which were natural, because the incident took place in the year 1975, while the witnesses were examined in the year 1985. Moreover, there was no reason for these witnesses to leave the actual culprits and to falsely implicate the present appellant. So far the evidence of P.W.
35. Inayat Ali is concerned, he is not an eye-witness in the strict sense, but his evidence is corroborative in nature, inasmuch as according to him, while he was returning from the village after purchasing the house-hold articles, he saw accused Dhani Bux and Nawab going with blood- stained hatchets and clothes. He had also heard the slogans of accused expressing that they had killed their enemy. He had also heard the cries of P.W. Panah and, therefore, he had gone to the place of Wardat where he was given facts about the incident. The evidence of P.W. Inayat appears to be trustworthy inasmuch as the fact that he does not claim to have seen the incident with his own eyes, but claims that he came later, shows that he is an honest and reliable witness, otherwise he could say that he had seen the accused causing injuries to the deceased. Mere fact' that his name does not transpire in the F.I.R. Will have no effect on his evidence because the complainant had immediately left for police station after the incident, and P.W. Inayat Ali reached at the wardat later. He is not related to the deceased. Therefore, I am convinced that the evidence of complainant Achar, P.W. Mohammad Panah and Inayat is confident inspiring and does not suffer from any infirmity which could cause doubt regarding their evidence. Mere relationship of complainant Achar and P.W. Panah with deceased will not affect their evidence, as they had no reason to implicate the appellant falsely.
36. So far as the evidence of motive is concerned, same is furnished by complainant Mohammad Achar, and P.W. Mohammad Panah. The evidence of Mohammad Panah was not challenged in cross-examination on the point of motive, and not a single question was put to him in cross- examination on the point of motive, therefore, the presumption under the law is that the same was admitted or accepted by the appellant. As far as the evidence of complainant was concerned except 2/3 questions, no material question was put to him on the point of motive, and therefore, the evidence of motive stands proved through complainant Mohammad Achar and P.W. Mohammad Panah. There were two more important pieces of evidence available against the appellant, firstly, the appellant and co-accused Dhani Bux voluntarily appeared at the Police Station, Mohabatdero immediately after the incident with blood-stained hatchets and clothes, and they were arrested at 3-45 p.m. In presence of Mashir Saindad and Vakeel Ahmed and that the police had secured their blood-stained clothes and hatchets in presence of the same Mashirs.
37. The evidence of appearance of appellant and absconding accused Dhani Bux at Police Station, their arrest and recovery of blood-stained hatchets and clothes is fully supported by Mashir Saindad, and the same has not been shaken in any way in cross-examination. He had also produced Mashirnamas of arrest and recoveries as Ex. 23 to Ex.
27. Even the complainant Achar had deposed that while he was still at Police Station, the two accused had appeared at Police Station along with hatchets and they were arrested at the P.S. But he was not cross-examined on this point.
38. The chemical report produced al the trial clearly shows that the hatchets and shirts recovered from the appellant Nawab and co-accused Dhani Bux were stained with human blood.
39. From the above discussion I am of considered view that the prosecution had proved it's case against the appellant beyond reasonable doubt and the judgment of the learned trial Judge does not call for interference. The appeal is accordingly dismissed.