IMDADALLY H. AQHA, J.---The respondents herein, namely Sujag, Mehar, Sawan, Murad , Wahid Bux and Zahro were tried by the learned Additional Sessions Judge, Sukkur and were acquitted of offences falling under sections 148, 302 read with 149 and 324 read with 149, P. P. C. For the murder of deceased Karamali and causing injuries to Amir Bux (P. W. 6), the brother of the deceased. The State has now filed an acquittal appeal against the said judgment of the Additional Sessions Judge and a criminal revision application has also been made for retrial of the respondents. This judgment will dispose of both the acquittal appeal and the criminal revision application.
2. The relevant facts of the prosecution case as disclosed in the First Information Report lodged by the complainant Allah Bux briefly were these. The complainant was the caste--fellow of deceased Karamali. They both lived in the same village. On the day of occurrence which took place on 2nd October 1965 at 9 a.m. The complainant went to the paddy cultivation at sun-rise time for the purpose of grass for his cattle. In the paddy cultivation deceased Karamali, Mitho (P. W. 7) and P. W.
Amirbux Kharos were ploughing the land and Dost Ali Kharos was standing there. At about 9 a.m.
The complainant saw that from the village of Gunjali Jatoi the present 6 respondents, namely, Sawan, Mehar, Sujag, Zahro, Murad , Wadho and another Murad all by caste Jatoi came there. Out of them Sawan, Zahro and Mehar had guns in their hands and the rest were armed with hatchets.
On their arrival Sawan fired a gunshot at Karamali deceased who fell down. Then Zahro and Mehar fired gunshots at him. P. W. Amir Bux and Mitho raised cries. Zahro then fired at P. W. Amir Bux which struck him in the leg then the rest of the accused gave hatchet blows to deceased Karamali. The complainant also raised cries. On their cries Wali Muhammad, Nawab and Khudabux (P. W. 5)
(uncle of the deceased) came running. Then within the sight of the above-mentioned witnesses Murad cut off the head of deceased Karamali. All the other accused were firing in the air and they took away the head of deceased Karamali to their village. The complainant then went to Bagerji Police Station which was only two miles away and lodged his First Information Report Exh. 20 there at 10 a.m. The motive as given in the F. I. R. Is that about 4 or 5 days before the F. I. R. Was lodged Bux Ali son of accused Sujag was murdered and complaint about it was filed .By accused Sujag against Shafi Muhammad and Milian, the cousins of Karamali deceased who was in jail. The murder of deceased Karamali is said to have been committed in order to avenge the murder of deceased Bux Ali son of accused Sujag.
3. The First Report was registerd by S. H. O Azizullah (P. W. 8). After recording it the S. H. O. Went to the scene of offence and in presence of mashirs Saeed Khan (P. W. 2) and Karamali prepared a mashirnama of the scene of offence which is Exh.8 on record. He found the dead body of deceased Kadamali lying at the scene and its head was missing. He also found Nawah, Amir Burr, Mitho, Khuda Bux, Wali Muhammad and Dost Ali sitting there. The S. H. O. Then prepared an inquest report of the dead body of the deceased Exh. 9 which was attested by the same mashirs. He then despatched the dead body of the deceased through Police Constable Ghazi (P. W. 3) for post- mortem examination. As P. W. Amir Bux had got injuries the S. H. O. Sent him for medical examination -to the doctor. The S. H. O. Also secured blood-stained earth from the scene of offence and then recorded the statements of the witnesses under section 161, Cr. P. C. On 5-10-1965 he arrested accused Wahid Bux. He arrested accused Zahro on (-10-1965. On, 9-10-1965 accused Sujag and Murad produced their blood-stained hatchets before him from their houses in presence of mashirs W. Saeed Khan and another. These hatchets were secured under mashirnamas Exhs. 10 and 11. After -the investigation was, the S. H. O. Challaned the six accused respondents herein to r committal Court. He also sent the earth and the two hatchets secured from the accused persons to the Chemical Analyser, whose report he produced as Exh.
28. The report is the positive. The accused respondents were committed in the course to the Court of Session where they took their trial as already mentioned above with the result which too has also been given earlier.
4. All the respondents-accused when questioned under section 342, Cr. P. C. At the trial denied the prosecution allegations and professed innocence. Regarding the motive, however, respondent Sujag admitted that it was correct that son was killed and Shafoo and Milian were sent up for trial that case, He denied to have produced any hatchet before the Police. Regarding the question as to why the prosecution witnesses deposed against him he stated as under: "I had lodged a complaint about the murder of my son against Shafu and Milian. Accused Sawan and Haji brother of accused Zahro were my witnesses in the case against Shafu And Milian. I produce the certified copy of the deposition of P. W. Haji as Exh.
32. Shafu had committed murder of Ali Gohar earlier than this incident. I produce the certified copy of judgment in the S. C. No. 7 and 73/64 as Exh. 33."
He also stated that P. W. Saeed Khan mashir was maternal uncle Shafu and Millan,
5. Respondent Mehar stated that accused Sujhag was his other and he had been involved due to enmity.
6. Respondent Sawan stated that Sujhag was his brother d that he (Sawan) had given evidence in the case against Shafu d Milian about the murder of son of Sujhag.
7. Respondent Murad denied to have produced any hatchet fore the police. He stated that mashir Saeed Khan was the Eternal uncle of Milian and Shafu,
8. Respondent Wahid Bux stated that accused Sujhag was maternal uncle and he was involved on his account,
9. Respondent Zahro stated that Haji was his brother and that he himself was the prosecution witness against Shafu and Milian. He also added that he lived in Bagherji forest and produced the permit for grazing sheep and goats in the forest as Exh. 44.
10. None of the respondents led any evidence in defence.
11. The fact that the deceased Karamali was killed by means of gunshot and hatchet injuries and the fact that P. W. Allah Bux also sustained a gunshot injury on account of which he was injured do not admit of any doubt. The evidence of Dr. Dinal Shah and that of Dr. Khurshid Khan is conclusive on this point. The learned counsel for the respondents has also not disputed this point.
12. Dr. Dinal Shah conducted the post-mortem examination on the dead body of the deceased and he in his deposition in the committal Court which was brought on the record bf the trial. Court as Exh. 15 says that he observed the following external injuries on the dead body of the deceased: -
(1) Incised wound 8" x 3" x bones cut on right side front top of right shoulder going towards the vertebral column two inches away from the middle lines.
(2) Incised wound 8' x 3" x bones cut on left side starting from top of left shoulder towards the vertebral column.
(3) An incised wound 3" x 1 -- " x bones cut on right forearm posteriorly at its middle.
(4) Incised wound 3" x 1 --" x bones cut on posterior surface of the right wrist.
(5) Three incised wounds demarcating the injuries' around the neck (a portion of beard containing grey and black hair above the phomen oedomi) face and neck both missing from the body.
(6) Three punctured wounds 1--" in diameter over the left side of the leg (i) just above keen joint (ii) at left joint (ii) left leg at its middle laterally with charring.
(7) Three punctured wounds with charring left side of chest cavity deep -- in diameter.
(8) Punctured wound --" diameter at back of chest cavity deep with charring.
(9) A punctured wound --" in diameter over the right buttock.
(10) A punctured wound --" in diameter over right side of the chest cavity deep."
13. On the internal examination of the dead body of the deceased he found the following damage done to it: - "Pleurea punctured corresponding to the injuries on the chest. Larynx and Trechae found cut and healthy. Right lung punctured corresponding to injuries on chest.
Left lung punctured. Heart empty. Liver and spleen punctured. Stomach containing semi-solid food of rice. Bladder empty-"
14. The doctor was of the opinion that the external injuries were all anti-mortem and the injuries Nos. 1 to 5 were caused by means of a sharp cutting weapon like a hatchet and injuries Nos. 6 to 12 were caused by fire-arm discharge. The doctor also opined that the injuries on the deceased were sufficient in the ordinary course of nature to cause death. Lastly, he said that the death of the deceased was due to shock and haemorrhage consequent upon injuries Nos. 6, 7, 8, 10 and 5 individually and collectively.
15. Dr. Khurshid Muhammad Khan examined the injured P. W. Amir Box and he observed the following injuries on his person: -- "(1) A lacerated wound --'x--" x muscle deep with diffused swelling over right knee-joint with no charring round the margin."
The doctor opined that the injury was simple in nature and was caused by a discharge from a fire- arm.
16. The prosecution case against the six respondents rests on the ocular testimony of complainant Allah Box and P. Ws. Khuda Bux, Amir Box and Mitho, the motive alleged for the offence which is admitted by the respondent Sujhag and production of blood-stained hatchets by respondents Sujhag and Murad before the police.
17. The complainant Allah Box in his deposition has supported the prosecution case fully against the respondents. In the trial Court he substantially deposed that he knew deceased Karamali, who was killed about 12 months before he gave evidence. It was breakfast time and he was cutting grass in the land of Karamali. Wali Muhammad and Dost Ali were also present there and Wali Muhammad was talking with him. Dost Ali was scaring the birds. The present six respondents and Murad son of Sadhayo came there. P. W. Mitho and Amir Box as well as deceased Karamali were ploughing the land. Accused Mehar, Zahro and Sawan were armed with guns while the remaining culprits carried hatchets. Sawan gave hakal (challenge) and fired the gun at Karamali. Zahro also fired the shot. Then the accused with the hatchets struck blows to deceased Karamali. The hatchet blows were given when Karamah had fallen on the ground. Zahro fired the gunshot at P. W. Amir Box and injured him. Then Murad son of Sadhayo cut off the head of Karamali and took it away. The complainant and others raised cries. Nawab and Khuda Box came on the cries. They also saw the accused who went to the South, The complainant knew all the seven culprits before the incident. He then stated about the motive for the present crime which need not be mentioned here. The other three eye-witnesses have also supported the complainant and substantially given the same account of the Incident as has been given by the complainant: P. W, KhudaBux has deposed that he knew all the six accused, since his lifetime. He also knew Murad . The deceased Karamali was his nephew. On the day of occurrence he was in his house and his brother Nawab was also with him.
He heard three gun reports. He and his brother Nawab then went out. They heard cries coming from the land which was about J furlong away from his house. While he and Nawab were running to the scene of offence they saw Murad , Wadho and another Murad as well as Sujhag striking hatchet blows to deceased Karamali. When they reached on the spot they saw that Murad son of Sadhayo cut off the head of Karamali. The accused then ran towards the South firing the guns (in the air). This witness saw that F'. W. Amir Bux had received the injuries and he was sitting on the Burid. He was crying. This witness also saw Wali Muhammad, complainant Allah Bux, P. W. Amir Bux and Dost Ali present there. Complainant Allah Bux then left for report. P. W. Amir Bux who is also an injured person has substantially deposed that he knew deceased Karamali who was his brother. He was killed about 12 months before this witness gave evidence. It was 8 or 9 a.m. When the deceased Karamali and Mitho were ploughing the land. The complainant Allah Bux, Wali Mohd and Dost Ali were present. Then all the persons came from the South. This witness knew all the seven persons before that day. Out of the seven, six were the present respondents while Murad son of Sodhayo was not before the trial Court. Sawan, Mehar and Zahro were armed with guns and the remaining culprits had hatchets. Sawan gave hakal and fired a gunshot at Karamali, who fell down, Zahro fired another shot at Khudabux. Mehar also fired the gunshot. The shots fired by Zahro and Mehar also hit Karam Ali. Then the persons with the hatchets tan away. This witness gave hakal and accused Zahro fired a shot at him which struck him on the knee. He sat down. Then Sujhag, Murad and Wadho struck Karamali with hatchets. Nawab and Khudabux came running on the cries. Then Murad son of Sadhayo cut off the head of Karamali and took it away. Thereafter, the accused went away firing shots in the air. Complainant Allah Bux- then went for report. P. W. Mitho has testified substantially that he knew Karamali deceased and he also knows his brother P. W. Amir Bux. He (Mitho) had worked as a labourer with him about 12 months before he gave evidence. He used to plough their land. Karamali had been killed. This witness, deceased Karamali and p. W. Amir Bux had ploughed the land for this day. While they were ploughing the land 7 persons came. It was after breakfast. This witness knew all the seven persons before that date. Six out of those seven were the present six respondents and Murad son of Sadhayo was not before the trial Court. Sawan, Mehar and Zahro accused had got guns and the remaining four carried hatchets. Sawan gave hakal and fired a shot at deceased Karamali who fell down and then Mehar and Zahro also fired shots at karamali. Complainant Afahbux and Wali Muhammad were standing 10-15 paces from this witness. Dost Ali was standing nearby. The four persons with the hatchets went to karamali and gaveMhim batchel blows. P. W. Amir Bux gave a hakal and Zaliro fired a shot at him. P. W. Amirbux sat on the ground. Murad son of Sadhayo cut off the head of Karamali and took it away. Then all the accused went away to the south. This witness and others raised cries. Nawab and P. W.
Khudabux then came when the accused were going with the hatchets. Allahbux complainant then left for report.
18. It will be seen from the above depositions of all the four eye-witnesses that they have substantially deposed to the same facts of the incident and are unanimous in their allegations. Of course, there are a few contradictions between their evidence but these contradictions or omissions are very minor and it is only natural to find such contradictions and omissions between the real eye-witnesses otherwise if they were giving the same story parrot-like, it would have been argued that they are all tutored witnesses. It is only natural to find certain discrepancies among the witnesses who tell the truth as all of them cannot give the same story repeating it like a parrot.
19. Out of these four eye-witnesses we find that two of them, namely, P. Ws. Khudabux and Amir Bux are the near relatives of deceased Karamali whereas the other two namely, Allahbux and P. W.
Mitho are not in any way related or connected with the deceased. P. W. Khuda Bux is admittedly uncle of the deceased and P. W. Amir Bux is the brother of the deceased. It would appear therefore, that there are no reasons on the record of this case which go to show that the evidence of two independent witnesses namely, complainant Allahbux and Mitho should not be relied upon. The evidence of Khudabux and Amirbux, because they are related to deceased person and also there seems to be bad relation between the accused party and the deceased party on account of the motive that is alleged by the prosecution against the respondents, cannot be relied upon without some corroboration in the case. This corroboration it will appear is furnished by the evidence of the other two eye-witnesses, namely, the complainant and P. W. Mitho who are independent witnesses and there is other circumstantial evidence also corroborating the ocular version that is the production of blood-stained hatchets by respondents Sujhag and Murad , so far these two respondents only are concerned. We would have relied upon the ocular evidence which consists of the testimony of at least two independent eye--witnesses to be sufficient against the respondents but since the number of respondents is large, therefore, in our opinion unless this ocular evidence is independently corroborated by some other testimony the same ought not to be relied upon. This corroboration it will be found is available only in respect of respondent Sujhag and Murad . On this view of the matter then we are prepared to give the benefit of doubt to the remaining six respondents. As it is our common experience in this part of the country which is to our knowledge that when large number of accused are involved in a case usually some innocent persons along with them are also roped-in. This may well have happened in the present case in which considering the number of injuries caused to the deceased Karamali and P. W.
Amir Bux it may well have been the work of accused persons less than six. Even four accused persons variously armed with guns and hatchets could have achieved the same purpose. The other respondents, therefore, than respondents Sujhag and Murad we feel are entitled to the benefit of doubt.
20. The learned trial Judge has disbelieved all the four eye--witnesses mainly on the ground that they are on inimical to the respondents, some of them are related inter se with the deceased and that therefore, they are all interested. We do not agree with this observation as we find that the witnesses complainant Allah Bux and P. W. Mitho are independent witnesses and they have no connection with the complainant and the deceased party altogether. Both these witnesses, therefore, cannot be described as interested nor they are inimical to the accused party. If there is a grudge against the accused it is the deceased and his relatives who would have it and not these two independent eye-witnesses. The learned trial Judge has held that the complainant Allah Bux and P. W. Mitho are chance witnesses. So far Allah Bux is concerned he states that Allah Bux in his evidence deposed that he went to the land of deceased Karamali in order to cut grass which reason, according to him, does not appeal to him when the complainant admits in his cross- examination that he has got his own land where he should have gone for cutting grass rather than be present at the scene of offence. This reason also does not appeal to us because this point has not been clarified by the complainant Allah Bux who if he had been asked might have stated that in his land there was no grass and it was in the land of the deceased, therefore, he went there. On this score alone, therefore, it cannot be held that the complainant is a chance witness. So far holding P. W. Mitho as a chance witness is concerned the learned Judge does not assign any reasons whatever to come to that conclusion. We, accordingly, hold that the finding of the trial Court that P. W. Mitho was a chance witness is not based on sufficient evidence. In fact Mitho, as he says in his evidence, was present at the scene of offence, ploughing the land as he was a labourer employed by the brother of the deceased to help them in cultivating the land. His presence, therefore, at the scene appears to be quite probably. The learned trial Judge has then emphasised the facts that all the four eye-witnesses and mashir P. W. Saeed Khan are of the same caste, therefore they are supporting each other cut this reason does not appeal to us as it is only natural to find witnesses of the same caste coming from the prosecution side as people of the same caste are likely to help each other in each other's affairs. The trial Judge has also referred to some contradictions of the eye-witnesses but these contradictions we find are of minor character and are likely to appear in the evidence of truthful witnesses. Because of these sight contradictions it cannot be said that the entire testimony of the four eye: witnesses is unreliable. The trial Judge has also observed that deceased Karamali and P. W. Allah Bux and Mitho according to the prosecution were standing close and although a shot was fired at Karamati from dose range the same did not bit the other two witnesses. In our opinion, this conclusion is also wrong because it may well be that the witnesses Allah Bux and Mitho may be standing in different directions from the deceased in which the shots were fired at him. In fact from the evidence we find that it not conclusively proved as to on what spot every witness was standing at the time of the occurrence. The trial Judge has also observed that the S. H. O. P. W. Azizullah does not in his evidence say that three ploughs and three bullocks were seen at the scene of offence when he went there while the mashirnama speaks about them a5 such according to the trial Judge the bullocks and the ploughs could not be present at the scene, therefore, the allegations of the prosecution witnesses that they were ploughing the land is not correct. This reasoning also does not appear to us to be sought because S. H. O. P. W. Azizullah has not been questioned on this aspect of the case if he had been specifically asked about this matter he might have come out with it. The mashir P. W. Saeed Khan has clearly stated that he saw three pairs of bullocks and three ploughs at the scene of offence when he had been called there by the police. This evidence appears to be reliable and it shows that certain prosecution witnesses were ploughing the land at the time of the occurrence. The trial Judge has also observed that it is strange that when three or four shots were fired by the culprits none of bullocks got injured. Again we like to point out that the bullocks may not be standing in the line of fire of the gun-shots and obviously, therefore, these animals were not injured. The learned trial Judge has also by referring to the evidence of the complainant shown that according to complainant Wali Muhammad was talking to him at the time of the incident but by contradictions the learned Judge has shown that Wali Muhammad had come on cries therefore, according to him, the complainant is not reliable. This observation also does not appeal to us because it may be that Wali Muhammad subsequently came on cries and was not talking with the complainant at the time of the incident but this minor contradiction will not render the evidence of the complainant entirely unreliable. Furthermore, Wali Mohd has not been examined as a witness so his presence at the scene of offence for our purpose in this case is of no consequence. We, therefore, find that the reasoning of the trial Judge in rejecting the evidence of the eye-witnesses does not appear to us to be sound and correct.
21. We further have the evidence of production of hatchets by the two respondents Sujhag and Murad before the police from their houses which were found to be stained with human blood, according to the Chemical Analyser's report Exh. 28 on record S. H. O. P. W. Azizullah and mashir P.
W. Saeed Khan clearly say that these respondents produced a hatchet each which were Mood- stained from the hedges of their houses. We do not see any reason not to rely on this evidence. This evidence has However, been not accepted by the trial Judge mainly on the ground that the hatchets were produced by the two respondents mentioned above 7 days after their arrest as such there was delay in producing them which generated a doubt in the mind of the trial judge. We would like to express here that mere delay in production of crime weapons by the culprits only of 7 days would not be such as would render the testimony of the production of weapon as unreliable because it may well be that the crime weapons have been produced after some delay as the culprits who produced them agreed to produce them after some delay due to the reason known to them. The learned trial Judge has also said that both the respondents who produced the hatchets were present at the time when each of them produced a hatchet from his house, therefore, it is difficult in these circumstances to say that each of the accused had produced a hatchet independently of others as such their joint production has no meaning. We are unable to see how when the two respondents produced their hatchets separately they could be said to have been produced jointly. There is no joint production of the crime weapon by the two respondents together.
As such this finding also does not appeal to us to be sound and correct. On the contrary we find that the production of hatchet by the respondents Sujhag and Murad brings home the guilt of these appellants and we find that at least these two have been wrongly acquitted by the learned trial Judge.
22. Lastly, there is the motive which may be referred to. This motive as stated by the complainant is that son of the respondent Sujhag had been killed about 15 days before this incident in which Shaffu and Millan had been prosecuted. Shaffu and Millan were cousins and brother-in-law of deceased Karamali respectively. It is, therefore, suggested that in order to take revenge of the murder of the son of respondent Sujhag the murder of deceased Karamali has been committed. It has been admitted by respondent Sujhag in his statement under section 342, Cr. P. C. That his son has been murdered and for which murder Millan and Shaffu were challaned. Thus, it will appear that the motive is more or less admitted by the respondent Sujhag. This also seems to us to be the reason why the murder of deceased Karamali was committed. It was, however, argued by the learned counsel for the respondent that there were two other brothers of Shaffu and Millan available as admitted in evidence and why is it that the respondents chose to murder deceased Karamali, their cousin and bother-in-law leaving two brothers of Suaffu and Millan. This argument does not impress us because it is left to the accused persons to choose whosoever they wish to kill and it cannot be said that merely because others were available for killing by them, therefore, the present murder also cannot be connected to 'them. The other arguments by the learned counsel for the respondents are practically the same as those advanced by the learned trial Judge in his judgment which have been already dealt with by me above while discussing the ocular evidence.
23. For the foregoing reasons, therefore, we find that the guilt of respondents Sujhag and Murad is proved beyond all reasonable doubts and they have been wrongly acquitted for the present crime.
We, therefore, accordingly convict both of them under section 302 read with section 34, P. P. C. For the murder of deceased Karamali and under section 324 read with section 34, P. P. C. For causing injuries in furtherance of their common intention to P. W. Amir Bux. For the former offence we sentence them each to transportation for life and for the later offence we sentence them each to two years' R. I. The sentences are ordered to run concurrently. We have awarded transportation for life to these two respondents because this is an acquittal appeal and the offence took place more than 3 years ago.
24. So far the four respondents Mehar, Sawan, Wahid Bux and Zahro are concerned their acquittal is not set aside. They are on bail and their bail bonds shall stand discharged. The respondents Sujhag and Murad shall be arrested on non--bailable warrants and be remanded to custody to serve out the sentences imposed upon them.