ZIA-UL-HAQ CHANNA, J.-The above-named four appellants were tried by the learned Sessions Judge, Nawabshah, under section 302/34, P. P. C., for the murder of Haji Allah-Bachayo and each of them has been sentenced for the said offence to trans--portation for life. They have appealed against their conviction and sentence.
2. The prosecution case is that on 12-7-1970, at about 5 p. m., deceased Allah Bachayo's nephew Khair Mohammad accompanied by Mohammad Ismail and Mohammad Juman, who were co- sharers with him in a piece of land, were going to the dera, a short distance away from their village, as threshing operations were going on in the dera, when near the cattle-pen of one Mohammad Waris, at the outskirts of the village, they saw Haji Allah Bachayo come running towards the village, raising cries. He was pursued by the appellants, all of whom were armed with hatchets. It is alleged that the appellants caught up with the deceased and first appellant Rehmatullah gave him a hatchet blow, as a result of which he fell down, and then all the appellants gave him hatchet blows.
Khair Muhammad Juman and Ismail tried to prevent the appellants from killing the deceased but the appellants asked the witnesses to keep off as they were taking revenge from the deceased for the murder of Azizullah and threatened the witnesses that they would suffer if they came near. After the appellants had left, the witnesses found that the neck of the deceased had been severed from his body and he had numerous injuries on his person. Leaving P. Ws. Ismail and Juman with the dead body, Khair Mohammad went and reported the matter to Jungal Khan, the brother of the deceased, who after visiting the scene of offence, repaired to Sakrand Police Station, which is nine miles from the scene of offence, where he lodged his F. I. R. At 8-15 p. m. The motive for the murder is said to be the fact that about two and a half months before this murder one Azizullah, the brother of appellant Rahmatullah, was murdered, for which murder deceased's nephew, Haji Khan, was challaned, but the appellants, who are closely related inter se, suspected that deceased Haji Allah Bachayo was actually responsible for the murder.
3. After recording the F. I. R., A. S. I. Mohammed Yousuf accompanied complainant to the scene of offence where he, reached at about 10-30 p. m. The A. S. I. Found the dead body of Haji Allah Bachayo, with its head severed from the trunk, lying on the katcha road leading from Satpuri village to Ahmed Khan Chandio village. The ground near the dead body was stained with blood. At a distance of about 53 paces from the dead body, the A. S. I. Found a pair of shoes belonging to the deceased and a bundle of grass. The A. S. I. Secured the blood-stained earth as well as the grass and shoes of the deceased and prepared mashirnama Exh.
13. On the following day, the A. S. I. P.
Recorded the statements of Khair Mohammad, Ismail and Mohammad Juman. On that day, at about 12-00 noon, all the appellants appeared before the A. S. I. P. At the otak of Ghulam Jam in Satpuri village and each of them produced a blood-stained hatchet. Their clothes were found to be blood-stained. The A. S. I. P. Seized the hatchets and the blood-stained clothes in the presence of mashirs, Jawan and Chibur Khan, and prepared separate mashir, namas (Exhs. 15 to 18) of the recoveries from each appellant. The A. S. I. P. Found an injury on the person of appellant Allah Bachayo, and accordingly sent him to Sakrand Hospital for treatment.
4. The autopsy on the body of the deceased was performed by Dr. Jalilur Rehman, who found the following injuries on the deceased:-----
(1) An incised wound 6' x 1" cutting the scalp and bone curved on the right side of the skull, starting from the right frontal region going on the temporal region to the lower part of the right parietal region.
(2) An Incised wound 1--" x --" cutting the left clavical at the junction of the lateral one-third to the inner two-third.
(3) Incised would pencil-shaped oblique 1--" x --" x skin deep, over the dorsum of left hand between metacorpal of index finger and thumb.
(4) Incised wound on the medial aspect of the proximal phalanx adjoining dorsal surface of the matacarpol phalangial joint of left finger of left hand, chopping of the skin, measuring about 2' x --".
(5) Incised wound 1' x --"cutting the web for --" between index finger of the left hand mainly on the palmar surface.
(6) Incised wound cutting the neck whole, separating the head from the trunk above the larynx, cutting the main blood vessels of the neck and also cutting the medulla oblongata and servical vertebra. The servical vertebra was cut at two places. The first servical and second servical were separately cut, showing that probably the pock was cut as a whole in two attempt.
5. The case of the appellants is one of total denial. Appellant Rehmatullah, in his statement in the committal Court stated that the complainant's party bear a long standing grudge against his people and, therefore, they have falsely deposed against them. In his statement in the Sessions Court, he stated that they had no reason to murder Allah Bachayo who had nothing to do with the murder of Azizullah; that he is a man of Bachal Jam, while the complainant's party are men of Ghulam Jam, who has got enmity and disputes with Bachal Jam and that Ghulam Jam has got them falsely implicated in this case. The other appellants adopted the statement of Rehmatullah.
Appellant Allah Rakhio, in his statement in the committal Court, denied that there was any injury on his person, but in the Sessions Court stated that he was working in his land along with others when a spade struckhim and hence he sustained the injuries.
6. The main evidence in the case is of P. Ws. Khair Mohammad, Mohammad Ismail and Mohammad Juman, all of whom have deposed to having seen, while on their way to the dera where their crop, was being threshed, the four appellants pursuing the deceased and killing him on the spot by giving him hatchet blows. P. W. Khair Mohammad is a nephew of the deceased.
Furthermore, he has admitted that his brother Haji Khan was involved in the murder of Azizullah, the brother of appellant Rehmatullah and cousin of appellants Allah Rakhio and Kadir Bux. His evidence would, therefore, be deemed to be interested and partisan. However, the same cannot be said in respect of the evidence of Muhammad Ismail and Mohammad Juman. It was suggested to P. W.
Khair Mohammad that P. W. Juman is related to him, being his cousin, but he denied having any relationship with him, other than being a co-sharer with him in some land. P. W. Juman like wise denied that he was related to P. W. Khair Mohammad. Similarly, it was suggested to P. W.
Mohammad Ismail that deceased Allah Bachayo was related to him, being his grand-father, but he denied having any relationship with the deceased. Both P. Ws. Juman and Mohammad Ismail, however, admitted that they are caste-fellows of the deceased and are co-sharers in land with P.
W. Khair Mohammad. It was contended by Mr. Murtaza, the learned counsel for the appellants, that these two circumstances not only indicate their being partisan but also interested. We are unable to find any substance in this contention. Mere membership of the same caste and partnership in land do not make the witnesses either partisan or interested. They have no dispute or quarrel with the appellants and it is wholly unlikely that they would give false testimony against them merely on account of the fact that they belong to the same caste as the complainant or are co-sharers in land with P. W. Khair Mohammad. It is usual for land-owners to supervise threshing operations.
There was thus nothing unusual in these witnesses, .Who reside in a village which according to tapedar Mohammad Hussain is only 300 paces from the scene of offence, going to their dera at the time when the incident occurred. The names of all these three witnesses transpire in the F.I. R, which was lodged after about three hours of the incident. Considering the fact that complainant Jhangul was not an eye-witness, that P. W. Khair Mohammad must have taken some time to contact him and report the facts to him and that the complainant had to traverse a distance of nine miles to reach the police station, the F. I. R. Appears to have been lodged without undue loss of time.
7. Assurance as to the truth of the testimony of the eye--witnesses is provided by the recovery from the possession of each appellant of a blood-stained hatchet and blood-stained clothes. S. H. O.
Mohammad Yousuf has deposed that on the day following the murder, at about 12-00 noon, all the four appellants had appeared before him at the otak of Ghulam Jam in Satpuri village, and each of them had produced a blood-stained hatchet before him and that further appellant Rehmatullah had produced before him a blood-stained shirt and salwar, appellant Allah Rakhio had produced one blood-stained loin cloth, appellant Kadir Bux had produced a blood-stained salwar and shirt and appellant Arif had produced a blood-stained loin cloth. The S. H. O. Is supported on the point of recoveries of the aforesaid articles from the appellants by mashir Chibhur. These articles were sent to the Chemical Examiner to Government, whose report (Exh.23) indicates that all of them were found stained with human blood. The appellants have not explained the production of blood- stained hatchets by them nor how their clothes came t0 be stained with human blood.
8. It was suggested to mashir Chibhur that he is related to P. W. Khair Mohammad but he denied the relationship while admitting that he was his caste-fellow. The mashir, in his cross-examination, admitted that second mashir Jewan was not present when the appellants had produced the hatchets and blood-- stained clothes before the police, but has stated that the mashirnama were prepared after Jewan had arrived. Nothing, therefore, turns on the fact that the production of the weapons and clothes by the appellants before the police was before the second mashir had arrived.
9. The learned counsel for the appellants has tried to show that there is conflict between the testimony of S. H. O. Mohammad Yousuf and P. W. Mohammad Juman as to the time when the appellants were arrested 'and are said to have produced the incriminating articles and on the basis of this alleged contradiction has invited us to hold that the incriminating articles were planted on the appellants or at any rate the recoveries are suspicious. According to S. I. P.
Mohammad Yousuf, as already stated, the appellants had appeared before him at 12 noon of the day following the murder and produced the incriminating articles. Mashir Chibhur has also supported the S. I. P. In this behalf. P. W. 30 Juman, however, has stated in his cross-examination that the appellants were arrested at 10 p m. On the very day of the murder, and it was then that they produced the incriminating articles. He, however, was unable to remember if he was present when the recoveries were made from the appellants. It is not unlikely that either the witness was not present when the recoveries were made from the appellants or because of lapse of time he was unable to recollect when the appellants had appeared before the police and the recoveries were made. The witness, however, has supported the S. H. O. And mashir Chibhur that the recoveries from the appellants were made at the otak of Gullan Jam.
10. We also find no substance in the allegation made by appellant Rehmatullah that Ghulam Jam has got them falsely implicated in this case. In the first place, this allegation was made for the first time in the Sessions Court. In the Committal Court, neither this appellant nor any other appellant made this allegation. In the second place, there is no evidence to indicate the existence of any enmity between Bachal Jam and Gullan Jam. Complainant Jangal Khan has specifically denied the existence of any enmity between them and on the contrary has asserted that . . . They are in good books of each other. This plea appears to have been taken simply because the recoveries from the appellants were made at the otak of Gullan Jam. Even if there had been any enmity between Bachal Jam and Gullan Jam, as alleged by appellant Rehmatullah, it is highly improbable that on that account the complainant's party would have exonerated the real culprits, who could not but have been seen and identified since the incident occurred in broad daylight and at a short distance from a populated village, and instead falsely implicated the appellants, against whom at least P. Ws. Mohammad Ismail and Juman have no enmity whatsoever.
11. Against appellant Allah Phayo there is the further evidence that at the time of his arrest he was found to have injuries on his person. Dr. Jamilur-Rehman has deposed that he had examined this appellant and found the following injuries on his person, which according to him appeared to have been caused by a sharp-cutting weapon, such as a hatchet:-----
(1) Incised wound horizontal 2' x--" muscle deep from the back of the left wrist-joint.
(2) Incised wound horizontal 1' x --" x scalp deep, on the right temporal region.
12. Although no eye-witness has deposed to having seen any injury being caused to any appellant, it is not unlikely that .In the attack by the four appellants on deceased Allah Bachayo, appellant Allah Rakhio sustained these injuries from the weapons of his companions. The explanation given by him in the Sessions Court that injuries were caused with a spade while working on his lands appears be palpably false. No question was put to Dr. Jamilur Rehman whether these injuries could have been caused with a spade. It is highly unlikely that the appellant could have sustain--ed two injuries with a spade, one of which was on the head, while working on his land. Furthermore, the time estimated by the doctor when the injuries were sustained is about the same when deceased Allah Bachayo was killed. We are therefore inclined to the view that this appellant sustained the injuries in the incident in which Allah Bachayo was murdered.
13. It is an admitted position that Azizullah, the brother of appellant Rehmatullah and the close relation of the other appellants, was murdered a few months prior to the murder of Allah Bachayo.
Although for the murder of Azizullah, Haji Khan, the brother of P. W. Khair Mohammad, was challaned, this fact by itself would not exclude the possibility that the appellants suspected that Allah Bachayo had a hand in Azizullah's murder. The fact that the appellants suspected the deceased of having a hand in the murder of Azizullah finds mention in the F. I. R., which, as already pointed out, was lodged without any loss of time.
14. We have been taken through the entire evidence in the case and on careful examination thereof, we are of the opinion that all the four appellants have been rightly convicted under section 302 read with section 34, P. P. C. And that there is no merit in this appeal. We would accordingly maintain the conviction and sentence of the four appellants and dismiss their appeal. Appellant Kadir Bux is on bail, which was granted to him by this Court on 3-8-1972. He should surrender to his bail and serve out the remaining portion of his sentence.