MUHAMMAD HALEEM, J.-Appellants Anwar and Abdul Salam were tried for the murder of Haji Khadim A.I Arain, convicted under section 302/ 34, P. P. C. And while Anwar was sentenced to death, Abdul Salam was sentenced to transportation for life, by the learned Sessions Judge, Khairpur vide judgment dated 8th September 1971. The appellants have appealed to impugn their conviction and sentence while the learned Sessions Judge referred the case of Anwar for the confirmation of death sentence. Abdul Salam was separately convicted under section 13-D of the Arms Ordinance for being in possession of a pistol and sentenced to undergo rigorous imprisonment for one year by the same Sessions Judge vide judgment dated 7th September 1971. He has also appealed against that conviction. That appeal was ordered to be heard along with the main appeal. This judgment will dispose of all the three matters.
2. According to the prosecution case, the deceased, who was a zamindar, resided iii his village, about a mile from 'Pacca Chang' town. At I 1 a.m. He left in his car for the town in connection with his private work at the taluka office along with his sons, A.I Abid and Shabbir Hussain and his cousin, Azizuddin. Our reaching there, the deceased parked his car in front of the shop of Noor Muhammad Punjabi. He left to attend to his work. A.I Abid, Shabbir Hussain and Azizuddin after whiling away time in the town returned to the shop of Noor Muhammad, where the deceased also arrived fifteen minutes later at 17-30 hours. All the three sat on a bench while the deceased on a chair. Noor Muhammad also came out of his shop and joined theca. Suddenly Anwar armed with a hatchet arrived there with an unknown person and gave a hatchet blow on the head of Haji Khadim A.I who fell down. His companions stood up and attempted to capture Anwar, whereupon his companion aimed his pistol at A.I Abid and the others which deterred them from advancing to capture them. They then made good their escape. On cries, Shafi, also arrived there along with others. The deceased expired at the spot as a result of the injuries suffered by him. Some 6 years 'back one Pir Bux, a Shar and Akan Chang had trespassed into the house of Barkat, a hari of the deceased, for committing theft, and while making a bid to escape Pir Bux received injuries which later proved fatal and both he arse Akan Chang were captured. Akan Chang was tried for committing theft and convicted. From that time onwards it was alleged that Shar community, to which Anwar belongs, had a grievance against the deceased who was suspected of having a hand in tile murder of Pir Bux.
3. A.I Abid hastened to Police Station Faiz Gunj about a furlong away and lodged the F. R. R. At 6 p.m.
The same day. After recording the report Muhammad Aslam S. H. O. Repaired to the wardat. He saw the deceased lying dead and blood on the bench, chair and the ground. He secured the blood- stained earth and the other two articles vide mashirnama, Exh.
26. He recorded the statements of Azizuddin, Noor Muhammad and Shabbir Hussain. While the S. H. O. Stated that the dead body was sent for post-mortem examination yet, according to Dr. Abdul Karim, Medical Officer. Kandiaro, he performed autopsy at the spot. Be that as it may, the S. H. O. Went to village Khando Khan which is 2 miles away from Pacca Chang where the appellant Anwar resided and stayed for the night there.
Wadero Khando Khan produced appellant Anwar the next morning. He was arrested and from his person blood-stained shalwar and shirt were secured vide mashirnama, Exh. 28, in the presence of Mashir, Hasan Ahmad Arain. The appellant led the S. H. O. And the Mashir to his house and produced a blood-stained hatchet from a heap of manure lying in front of it. It was secured vide Mashirnama, Exh.
29. The name of appellant Abdul Slam transpired while interrogating appellant Anwar, and he was thereafter produced by Wadero Khando Khan. He was also arrested. He led the S. H. O. And the Mashir to his house and from the cornbin lying there pro--duced a country-made pistol (.12 bore) with one live cartridge in the barrel, which was secured vide mashirnama, Exh. 31.
Appellant Abdul Salam was arrested on 20th April 1970, and on 25th April 1970, he was put to identification test at Police Station Faiz Gunj in the presence of Mr. Moula Bux Mirbahar, III Class Magistrate, and Mashir, Hasan Ahmed Arain and P. Ws. A.I Abid. Azizuddin and Noor Muhammad correctly picked him out. The earth, shirt, shalwar and the hatchet were sent for chemical analysis and all these articles were reported to be stained with human blood vide chemical analyser's report, Exh. 33.
4. The autopsy on the body of the deceased was performed by Dr. Abdul Karim, who noticed the following injury:- "(1) One incised wound 4' x -- ' x bone deep extending from the middle line of the vertax of frontal bone up to the right parietal bone, with the brain matter out of the scalp of the right side of head." which, in his opinion, was sufficient in the ordinary course of nature to cause death and that it was caused by some sharp cutting weapon, such as hatchet.
5. The appellants denied the prosecution case and proclaimed their innocence. Appellant Anwar denied the recovery of the shirt and the shalwar and also the production of the hatchet. He alleged that the witnesses were interested to implicate him because of their relationship inter se. He further pleaded that they had deposed against him at the instance of the police. In answer to the question as to what else he had to say, he stated:- "I am innocent. I have nothing to do with this murder. Haji Khadim A.I had so many enemies. He had filed false cases against various persons. Mst. Fatima was keep of the deceased. Ashiq son of Fateh Muhammad and Nazir son of Chiraghdin were after the deceased and were related to Mst. Fatima.
They were also interro--gated by the police and were challaned under session 109, EC, P. C. On 21st April 1970. I produce judgment copy as Exh. The deceased had got a criminal case filed through his hari Dhani Bux son of Pir Bux Machhi against Sachal and Idal and Safar Baladis. These were acquitted and made statements before the Court that the case was got filed by the deceased. I file the copy of the judgment as Exh. 40."
Appellant Abdul Salam alleged that be was implicated only because he is a case-fellow of Anwar and that he had nothing to do with the murder of Pir Bux, with whom he had no connection. He even did not know him and at the time of the murder, be was hardly 11 or 12 years old. Lastly he denied the production of the pistol.
6. The direct evidence is furnished by the testimony of A.I Abid, Aziz--uddin, Shabbir Hussain and Noor Muhammad. Noor Muhammad is a shop--keeper while A.I Abid is a graduate and Shabbir Hussain is a doctor, who was doing house job at the Liaquat Medical Hospital and had come to visit his father as there eras strike in the hospital. From the evidence it transpires that A.I Abid. Azizuddin and Shabbir Hussain had accompanied the deceased in the car which was driven by him. It was parked in front of the shop of Noor Muhammad, and while the deceased proceeded towards "Tehsil Mukhtiar kar's office" for some work, the other three went to the bazar to while away time. At 5 p.m.
They returned to the shop of Noor Muhammad and the deceased arrived there 10 minutes later.
Noor Muhammad came out of the shop and joined them. It was at this juncture that appellant Anwar suddenly approached the deceased and caused a hatchet blow on his head. He was known to the eye-witnesses while the other, who threatened the companions of the deceased with his pistol not to approach them, was unknown. The F. I. R. Was lodged by A.I Abid, half an hour after the incident, in which not only the name of Anwar transpired but that of the other prosecution witnesses as well. The incident occurred in broad day--light. The eye-witnesses were sitting close to him and there was no chance of any mistaken identity. Blood was found on the bench, chair and the ground and the dead body lay on the bench. It was urged that A.I Abid and others had not witnessed the incident but had come from Bhirya Road on being informed of the murder of the deceased. The argument rested on the premises that A.I Abid and Azizuddin were scheduled to go to Bhirya Road and since they had no particular business at Pacca Chang their presence there was improbable. As for Shabbir Hussain he had no business either at Bhirya Road or Pacca Chang and that, therefore, it was unlikely that he would have either accompanied the deceased or the other two. Examining the testimony of A.I Abed, Azizuddin and Shabbir Hussain in this light, it transpires that A.I Abid did say that he wanted to go to Bhirya Road as he was a commission agent and dealt in food-grains and cotton and had a shop at Bhirya Road and it was therefore that he had accom- -panied his father, who had some work for a while at Paces Chang, but would have taken him later on to Bhirya Road. Azizuddin also stated so, for he wanted to go to Bhirya Road to arrange for a wagon for transport--ing straw, while Shabbir Hussain had joined them apparently for company's sake. The witnesses are however unanimous on the point that they had wasted for the deceased who was held up and returned a few minutes after 5 and it was therefore that they could not go there. Viewed in the light that A.I Abid lodged the F. I. R. Half an hour after the incident, in which the names of the prosecution witnesses transpired, it is not possible to accept that if they were at Bhirya Road they could have been contacted within such a short time to enable them to traverse some distance and to make their presence obvious at the wardat. It was suggested in the cross- examina--petition of A.I Abid that it was one Salim who bad informed them of the murder of the deceased at Bhirya Road. A.I Abid denied having known Salim; who that person is and how he was contacted to inform them is not apparent from the record as the suggestion was not pursued any further. Again since the deceased had some work at Pacca Chang, it cannot be regarded as improbable that the witnesses would have taken a lift in the car from the village on the understanding that they would go from there after the deceased had finished his work. What is of significance is that their presence is confirmed by Noor Muhammad, who is a shopkeeper. It is true that he is .Of the same case and the deceased used to visit his shop 'often', but that would not make him an, interested witness. Since it was day time his presence in the shop was natural. It cannot be doubted merely because it was suggested to him that, he was not there, which he denied. Again Shafi, another witness, who had come at the wardat immediately after the occur-- rence, bad spoken of the presence of these witnesses. He is a Punjabi settler and lived some 2 miles away. Since he had to purchase seeds he left his house for Pacca Chang at 4 p.m. And arrived there at 5-15 p.m. When he heard cries and saw two persons running away from a distance of 36 paces but was unable to identify them. His name transpires in the F. I. R. He was a hari of the deceased and belonged to the same case as the deceased. Exception was taken to his evidence on this premises but if that was so, then he could have well named Anwar as one of the assailants running away, which he did not say so. He came to know of the name of appellant Anwar only when it was disclosed to him by A.I Abid. Azizud--din has said that he did not go to Bhirya Road as he had no conveyance. There is nothing in evidence to show that there was any urgency in the work so that they could not have waited for the deceased to finish his work. As the evidence shows, their time was spent in waiting for him. In the sequence of events, therefore, it is not possible to attribute improbability in their conduct even if transport was available to convey them to Bhirya Road, The presence of these witnesses, therefore, cannot be discounted for this reason.
7. It was next urged that it was Sunday and the deceased could not have gone to attend Court work at the Mukhtiar kar's office but was murdered elsewhere without indicating as to the place where he was killed. What transpires from the evidence is that he told A.I Abid and the other two that he had some work at the Mukhtiar kar's office for a while without disclosing its nature. None of the witnesses had enquired from him as tee what the nature of the work was nor did the deceased tell them. A.I Abid described it as "Court work" while Azizuddin stated that he went to the office.
Shabbir Hussain also said so. It is also apparent from the testimony of Azizuddin that he had looked for the deceased at the "Collectorate" but was unable to find him there. Where else he went after separating from the others, is not apparent, but it may be that he might have visited, some one connected with the Mukhtiar kar's office as he was a "big zamindar" of the area and used to visit Pacca Chang "often", in connection with one of his problems, but that is also a surmise. What these witnesses have stated. Appears to be their own impression. In this context it would be of advantage to refer to the suggestion that he had immoral relations with list. Fatima which, of course, was denied. It was, however, not suggested whether she resided at Pacca Chang to- persuade us to believe even far argument's sake that he had' gone to visit her because he bad immoral relations with her; and it was therefore that the deceased had not given the real reason for his visit to Pacca Chang. The fact, however, remains that the deceased was away until 4 few-minutes after 5 when he returned to the shop of Noor Muhammad,. Where he was killed. It is not possible to speculate that the deceased was killed elsewhere and his body brought to Pacca Chang in the absence of any concrete material on record. It is also not possible to accept that he was killed earlier than the time stated as for that .Too there is no material for inference. Accordingly that is no reason to doubt his presence at Paces Chang even though the purpose of his visit is
8. A.I Abid has been cross-examined at great length but we have found nothing in it to doubt the participation of appellant Anwar. He knew him from before. There is material on record to point that Badruddin, brother of Fir Bux, had first lodged a report at the police station about the murder of his brother, but no action was taken on it. Subsequently he filed a direct complaint in the Court of Civil Judge & F. C. M., Mirwah, in which be accused the deceased as one of the assailants of Pir Bux, but that com--plaint was dismissed on 28th May 1965, after preliminary inquiry for the reason that there was "no sufficient ground to summon the accused". Pir Bux was the uncle of appellant Anwar and both of them belonged to the same Shar community. It was, therefore, to avenge that murder that appel--lant Anwar on finding an opportunity had killed the deceased. Appellant Anwar, however, alleged that the deceased had other enemies as well and that they might have killed him. In the context of the suggestion that the deceased was on illicit terms with Mst. Fatima he alleged that her relations, namely Ashiq and Nazir, might have killed him. He relied on Exh. 39 which is an order passed by the Mukhtiar kar & F. C. M., Faiz Gunj, dated 21st April 1970, by which they were ordered to furnish surety for good behaviour for a period of 12 months for not giving a satisfactory account of themselves when accosted at midnight by police on patrol duty. In the absence of any material to infer their relationship with Mst. Fatima or that she was on illicit intimacy with the deceased, it is not possible to accept that they had a grudge against the deceased. It is also not apparent as to how their prosecution is connected with the murder of the deceased. Again appellant Anwar relied on a judgment, Exh. 40, which was passed-on a complaint filed by Dhani Bux, a hart of the deceased, against Sachal, Idal and Safar. What appears from the judgment is that the complainant in that case informed the deceased who had advised him to lodge a complaint. Whether that reason could be sufficient for the accused in that case to bear. a grudge against the deceased, is hardly understandable for it is usual in this part of the country for the complainant to give such information to his 'nekmard' or a zamindar. In this context it will be relevant to state that Azizuddin has said that there was a dispute between these persons and the deceased. What is the nature of the dispute he has not stated; and if weight is given to it then we do not see why the eye-witnesses would leave them and substitute appellant Anwar and one unknown person, who was later identified to be Abdul Salam.
9. Azizuddin and Shabbir Hussain have also implicated appellant Anwar and so has Noor Muhammad, who had no grudge against the appellant and we see no reason why lie would tow the same line and implicate him if he had not caused the hatchet blow. All of them have been cross-examined and nothing of any consequence has emerged from their cross-examination to doubt their testimony. We would accordingly accept the ocular
10. The next piece of evidence is the seizure of blood-stained shirt and shalwar from the person of the appellant, and the production Of a hatchet by him which he took out from under the heap of manure lying 20 paces away front his house, of which he had exclusive knowledge. These articles were taken possession of in the presence of Mashir Hasan Ahmad Arain: According to his testimony he heard of the murder of the deceased in his village which was a mile away from Paces Chang and he hastened to the wardat on foot. He was made a Mashir of the wardat and remained there for about an hour, whereafter he left for his village. He was again called at the police station at 5 a.m. The next day from where he went to appellant Anwar's village, which is 1-- miles away and there witnessed the recoveries. Except for the suggestion that the incriminating articles were foisted on appellant Anwar, these is nothing in his evidence to persuade us to discredit his evidence. It was urged that he is of the same case as the deceased and that the deceased was his Qaumi Sardar and he was his raiyat and, therefore, he would go to any length to support the prosecution case as to the reco--veries of the incriminating articles. This feature by itself is of no conse--quence when no foundation is laid in his evidence to support the case of manipulation of Incriminating articles, particularly in the context of the pact that neither he knew appellant Anwar nor had he visited his village at any time before. Even to Muhammad Aslam S. H. O. a bare suggestion was put that be had foisted the incriminating articles, which he denied. Why would he plant the incriminating articles is not apparent. In the context of the evidence, therefore, the recoveries are established.
11. The learned counsel for the appellants urged that the F. I. R. War not recorded at the time stated but sometime later on, which is apparent from the fact that the copy of the F. I. R. Was received by the Court on 25th April 1970, and such endorsement appears an the F. I. R. On record. The S. H. O.
Has explained it saying that after the cast was registered its handed over a copy of the F. I. R. To the Moharrir for being transmitted tax the Court but that he did not know whether it was sent to the Court or not. He also stated that the date i.e. 25th April 1970 on the F. I. R. Is doubtful. The defence did not summon the 154 book to show any manipulation. It is, therefore, not possible to conclude from such delay that the F. I. R. Was not recorded on the date stated, whatever may have been the reason for not sending it earlier. It cannot also be assumed from this feature that it was only after the names of the assailants were known that the F. I. R. Was recorded, for that would be a matter of mere speculation.
12. There is inconsistency as to where the post-mortem of the deceased was performed. The S. H. O.
Has said that he had sent the dead body through Abdul Rahman, Head Constable, for post- mortem while Dr. Abdul Karim has stated that he was sent a letter calling him at the spot to perform the autopsy since the doctor at the Mufassil Headquarter was not available, it being a Sunday. This discrepancy is because of some confusion. It may be that a letter was sent and it was wrongly stated that the constable had also taken the dead body. Abdul Rahman who, according to the S. H. O., had taken the dead body, was not examined. Be that as it may, nothing turns on this discrepancy in the absence of anything to infer that Dr. Abdul Karim was specially called to give a wrong opinion. What we find from his evidence is that no question was put to doubt the presence of the injury except the one whether it was caused from In front to which he replied in the affirmative.
13. The case of appellant Abdul Salam is, however, on a different footing. His name transpired when appellant Anwar was interrogated. His description was not given in the F. I. R., it is, therefore, doubtful whether they were able to observe his physical stature with any certainty since only Due hatchet blow was given whereafter they hastened to escape. In view it there is possibility of a mistaken identity even though A.I Abid, Azizuddin and Noor Muhammad hart picked him out at the identification parade The possibility of the witness having seen him earlier before the parade as also alit excluded, for he was put to identification test in, the police lock--up which, according tai Mr. Moula Bux, III Class Magistrate, was visible from the door of the room where the witnesses were made to sit. The dummy---s were also from Pacca Chang and in the circumstances the identifica- -petition of appellant Abdul Salam lacks assurance. Even otherwise we do not see how he can be in to have shared common intention to kill the deceased. There is nothing can record to suggest that they had knowledge that she deceased would visit Pacca Chang shad would be there at that time. It was by chance that appellant Anwar, whom Abdul Salam had accompanied saw him and finding an opportunity, inflicted a hatchet blow while, according to Noor Muhammad, Abdul Salam stood on the other side of the road. It was only when the witness attempted to catch appellant Anwar that he showed his pistol while escaping. What appears to us likely, is that whit they were together appellant Anwar suddenly rushed and caused the blow on the head of the deceased which killed him without Abdul Salam even gaining knowledge as to what is companion was about to do. If at all Abdul Salam had shared the common intention he would have tired a shot without appellant Anwar having to go near the deceased with a view to cause a blow tit him. The learned counsel; for the State also fairly conceded that his case is doubtful.
14. In the result, we are of the view that the prosecution has establish its case against appellant Anwar beyond reasonable doubt. We would accordingly uphold his conviction and confirm the death sentence. While accepting the, reference we dismiss his appeal. We would give the benefit of doubt to appellant Abdul Salam and acquit him and allow the appeal qua this appellant. He shall be released forthwith kinless required in some other case. Criminal Appeal No. 3-52/71 is not pressed on the ground that appellant Abdul Salam had already undergone the sentence. In the circumstances it stands dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.