KHUDA BAKHSH MARRI, J.--The appellant was convicted and sentenced under section 302, P. P. C.
To transportation for life by Ex Officio Additional Sessions Judge, Hyderabad by a judgment dated 25th January 1969.
2. Brief facts of the case are that on 20th November 1967 at about 21 hours a First Information Report was lodged by one Dodo son of Waloo Police Station Sakhat, District Hyderabad, to the effect that "his father---in-law Nimro who suspected his wife to be having illicit relations with Fazlullah appellant, came to his house in the afternoon in search of his wife. Upon my telling that she has not come to his house Nimro requested, she might be in the house of appellant arid requested me to accompany him. It is stated that at about sunset time, when complainant and Nimro reached in the street in front of appellant's house, on calling, the appellant came out from his house armed with a hatchet. Nimro asked the appellant that his wife Khatoo was in his house, he should send her outside. On hearing this, the appellant abused him and asked him that why he has come at his door. On this commotion Phul and Mitho Khyber came running there. It is alleged that in presence of complainant and the above two persons, the appellant gave sharp side hatchet blows to Nimro on his neck, as a result of which he fell down and died on the spot. The complainant party attempted to rescue Nimro but they were threatened by the appellant to keep away otherwise they will be killed. After giving the blows he is alleged to have gone inside his house with the hatchet. The complainant thereafter informed his B. D. Member Haji Ahmed Khyber who advised to file a report with the police. He then went to the police station which is at a distance of about 2 miles from his village Sehyo Khyber Deh Khyberani. S. H. O. Samandar Khan after taking down the F. I. R. Proceeded to the scene of offence where he found the dead body of Nimro lying. He prepared the mashirnama of the injuries, secured blood-stained earth from the wardat and after preparing the inquest report sent the dead body to Matiari Dispensary. Thereafter, he arrested tire appellant from his house, shalwar which appeared to have blood stains. On appellant's showing, in presence of the mashirs, the police party recovered be blood-stained hatchet from his house. The hatchet, shirt and shalwar were packed and sent to Chemical Examiner for report.
The prosecution based its case on the evidence of three eye--witnesses, complainant Dodo, who incidentally is a distant cousin of the appellant as well, P. W. 4 Mitho, and P. W. 5 Phul. These witnesses are corroborated by the report of the Doctor who examined the dead body, by recoveries of incriminating articles in presence of mashirs Amir Shah P. W. 7 and Haji Ahmad P. W, 6, the Investigating Officer Samandar Khan also and by the report of the Chemical Examiner. The appellant on his part denied to have committed the offence. He produced D. W. Soomar in his defence and also in his statement he alleged enmity on the part of the complainant party and other witnesses.
4. P. W. 4 Mitho, who is paternal uncle of deceased Nimro, and also related to the appellant, who is son of his father's 'Masat", stated that at about sunset time on the day of incident when he was returning from his land; he called on P. W. Phul at his house for the purpose of taking bullocks from him for the next day: Phul came out, while he was talking with him, deceased Nimro and complainant Dodo passed by them beading towards the house of accused. They called Rahmatullah (a brother of appellant). Soon after the appellant came out from the house armed with a hatchet and started giving hatchet blows to Nimro. Dodo raised cries that "he was killing him". It is stated by the witness that he and Phul tried to approach but were threatened by the appellant to keep away. The appellant after felling the deceased on the ground, gave him hatchet blows and thereafter went into his house. Nimro died on the spot. It is further stated that besides him, Phul arid Dodo, other people of the village assembled there. The complainant then went to file the report and the police arrived at 9 or 10 P.M. And he was examined by the police and his statement under section 164, Cr. P. C. Was also recorded. A suggestion was made by the defence to this witness in cross-examination that his father-in-law Bachal has filed a Civil Suit against Haji Ahmad, brother of appellant regarding land, the existence of the pending Civil Suit he admitted.
The other suggestion of the defence that one Mst. Zebu said to be a grand daughter of his father- in-law Bachal, was married to appellant Fazlullah and there existed a dispute between them, this witness however, showed his ignorance about this affair.
5. The next eye-witness is P. W. 5 Phul. He is a co-villager and lives next door to the appellant. He fully supports the statement of P. W. Mitho as regards of his having conversation with him at the time of incident in front of his house when complainant and Nimro passed by them and went to the house of appellant. This witness is little more elaborate with regards to the happening. He stated that complainant Dodo stood at some distance, while Nimro called Rahmatullah brother of the appellant. All of a sudden he heard thud of blows and Dodo called them for help and to see that Nimro was being hit. He, and Phul went to the wardat and found the appellant Fazlullah going into his house with his hatchet and Nimro lying on the ground bleeding. He went on to state that the appellant gave Nimro 4 or, 5 blows of who fell down and died. This witness admits the correctness of his statement made under section 164, Cr. P. C. During the examination-in-chief ;of' this witness an application was made by A. P. P. That as, this witness was changing his statement from that made in then lower Court, his statement of the lower Court should be brought on record under section 288, Cr. P. C. And should be treated as substantive piece of evidence. This request was granted by the learned trial Court. However, he was not declared hostile and this witness admitted the correctness of his previous statement. In cross-examination he denied the suggestion that P.
W. Mitho never came to him for borrowing the bullocks. He also refuted the allegation of defence that he was not there by stating "we were standing near our house when the blows were being given". The defence failed to bring any material contradiction in his cross-examination of this witness, hence no enmity either has been attributed to him by the defence during the cross- examination. These two witnesses fully supported the statement of first informant Dodo, as regards to the time and place of incident, the conversation between the deceased Nimro and the appellant, coming out of the appellant from his house armed with a hatchet, and the subsequent giving of blows to him and bi- consequent death on the spot. No material contradiction with regards to the event between the statements of any of the three eye-witnesses appears to us and we do not see any reason that these witnesses are making any false statements. A forthright explanation of the incident runs through their statements. We are therefore, of the opinion that these witnesses are truthful, they were present at the time of incident and they have witnessed the appellant giving hatchet blows to the deceased. The result is we believe the statements of these witnesses.
6. These witnesses are further corroborated by the evidence of the Doctor Kirshin Lal, Medical Officer, Matiari Dispensary who performed the post-mortem, examination and found the following injuries on the deceased: "(1) A transverse incised would 7' x 3' x underlying vertebrae fractured deep on the right side extending from just below the right ear running outward to the back of the neck.
(2) Oblique incised wound 3' x 1' x underlying bone fractured deep extending from Y lateral to outer and left eye-brows running outwards obliquely to the left 'ear and cutting it.
(3) Incised wound 5' x 3' x underlying bone fractured deep extending from the left ear running downwards obliquely backwards to the back of the neck.
(4) An abrasion 3' x 1' x skin deep on the right supra scapular region."
All these injuries according to the Doctor appear to have been caused by sharp cutting weapon such as a hatchet: The injuries were 15-16 hours old at the time of holding post-mortem examination. The post-mortem examination was performed on 21st November 1967 at 9-50 a. m.
This witness opined that deceased appeared to have died due to shock and haemorrhage as a result of above-mentioned injuries caused by sharp cutting weapon, death was instantaneous.
7. Then we have the statements of mashirs Amir Shah who testified that in presence of S. H. O.
Samandar Khan the appellant produced the hatchet lying concealed in the reeds wall at western side of the raised platform from inside of his house and the hatchet when examined was stained with human blood. He also is a witness of the recovery of the blood-stained clothes of the accused.
8. The appellant produced D: W. 1 Muhammad Soomar only defence witness, who is a police constable of Police Station, Sakhat. This witness produced before the Court a register maintained at the police station under section 154, Cr. P. C. And he exhibited entries to Crime No. 39 of 1962 filed by Allah Shah against Allahdino and others under section 430/324, P. P. C. Which is Exh. 36 and he brought also the challan in respect of the same case in the Court of Resident Magistrate, Hala on 18-11-1962. It is also stated by this witness that P. W: Amir Shah the mashir, has also acted as witnesses in other two or three cases of that police station and he is said to be not doing any other work and is a professional mashir. However, in cross-examination this witness had to admit that this Amir Shah is not paid by the police although he assisted police in that case. The statement of this witness to us in no way supports the plea of innocence of the appellant because here only an attempt has been made to show that Amir Shah is a professional mashir but at the same time it has been admitted by this witness that he has not been paid by the police. The investigating agency has to seek the help of some respectable persons of the area while investigating an offence. If Amir Shah acted as a mashir in some cases, it does not in our opinion, make him a witness not to be relied upon particularly when he is not being paid by the police as admitted by this witness. Apart from this, Amir Shah is only a mashir of recovery of thehatchet and clothes and if for a moment we may not believe him, yet there is other sufficient circumstantial and ocular evidence to implicate the appellant in the offence.
9. We have heard Mr. Aftab Akhund, Advocate for the appellant and Mr. Murtaza Hussain, Advocate for the State. Counsel for the appellant vehemently argued that P. Ws. Phul and Mitho have not seen the appellant giving hatchet blows to the deceased. They may have come later on because according to him it does not look logical that Mitho must go to the house of Phul for the purpose of borrowing the bullocks on the day and exact time of incident. He next argued that these witnesses are on inimical terms with the appellant. He next contended that even it the presence of Phil and Mitho is admitted for a while, they could not have been in a position to witness the offence at a spot where they were standing, because according to the sketch made by the Tapedar, these witnesses would have been unable to see the alleged fight in the street from over the hedge of Dino son of Walo Khaiber. It was also contended that there is a serious discrepancy with regards to the identification of the clothes of the appellant in the statement of the witness and he also urged that the recovery of hatchet from the appellant is doubtful in nature because the mashir Amir Shah is not only a professional Mashir of the police but also on inimical terms with the appellant. He further urged that as it had become dark by then the appellant could not be identified by the eye-- witnesses and also that it was a big village and the prosecution failed to examine disinterested eye-witnesses which would have been available had the prosecution done so.
10. We are afraid we are not impressed by these pleas of the learned counsel for the appellant.
There is no delay in filing of F. I. R. Investi--gation was taken up by the police quite promptly due to proximity of the police station at a distance of only two miles. A far-fetched story of enmity is woven by the appellant himself in his statement before the trial Court when he was asked as to why P. Ws. Dodo, Mitho, Phul, Amir Shah, S. H. O. And Medical Officer were giving evidence against him to the effect that Mitho and Dodo are related to deceased. Mitho has enmity with him on account of Sangabandi as Yaqoob's daughter was promised .To be given in marriage to him and in exchange he had given his sister to Yaqoob's son. Subsequently Yaqoob changed his mind and his mother made apple--cations to the Deputy Commissioner, Hyderabad in that connection. The statement of bachal brother of Yaqoob was recorded. This he produced as Exh. 31 which is dated 11- 4-1967. He also produced an affidavit in the nature of agreement between Yaqoob and himself which is Exh. 32 dates .28th January 1957, and also another agreement executed by Yaqoob in his favour regarding exchange of marriages. Bachal is father-in-law of P. W. Mitho. After his arrest the alleged Yaqoob's daughter Mst. Zebu has been married to Sadiq Khaibar a relation of Bachal. He also alleged that he has -enmity with Ahmad and his wife over the share of his property from his father's estate. His brother Ahmad had filed a Civil Suit against Bachal in the Court of Civil Judge, Hala, regarding immovable property prior to the incident. He went on to state that the deceased was his uncle and his wife is just like his mother. The deceased never suspected him with illicit intimacy with his wife. It is quite clear that this story is an afterthought, disputes between the villagers and near relations are a common feature everywhere but nobody takes the life of another person on the petty disputes as has been urged here. In any case these agreements or affidavits dating from 1957 to 1965 have not been moved by the executants therefore any reference to these is not strictly relevant at all. Besides no agreement has been shown between the appellant Fazlullah and deceased Nimro which may have been violated by the deceased to give cause to the appellant to take his life. One agreement is between appellant and Yaqoob dated 28th January 1957, wherein certain arrangement of marriages between their relations are promised. Now even this agreement has no meaning whatsoever in law. In any case it does not relate to the deceased Nimro. There is another agreement between Yaqoob and Fazlullah dated 25th January 1957, with regards to the same arrangement that Yaqoob will give his daughter Mst. Zebu to appellant in compensation of his sister Mariam at Murree and also promised bar Yaqoob that he will marry his sister with Allah Dino son of the claimant within two of three months. It is further agreed that it the marriages could not take place, Yaqoob shall be liable for prosecution. Much has been made by the learned counsel for the appellant that these agreements go to show that due to some disagreement later on some enmity must have dropped between the deceased and the appellant.
We are afraid we do not see at all much force in this argument particularly as stated earlier when Nimro deceased is nowhere shown to be a party in any of the so-called agreements. The plain truth as it appears to us is that deceased Nimro suspected his wife to be on illicit terms as stated by P. W. Dodo with appellant Fazlullah. When deceased Nimro went to retrieve his wife from the house of appellant, he was offended and it is on record that he opposed the deceased anal P. W.
Dodo acid consequently gave hatchet blows which caused his death.
11. The learned counsel for the appellant attempted to raise an argu--ment that the P. Ws. Phul and Mitho could not see the appellant giving hatchet blows to the deceased because as per sketch of P. W. 1 Tapedar, due to intervening hedge because from point `D' where the above P. Ws. Were standing, point "A" was not visible. Now point "A" is shownby the Tapedar, the place where allegedly the dead body of the deceased was shown to him, to have been lying. This argument has no substance whatsoever because the Tapedar made the sketch on 28-11-1967 while the deceased was murdered on the 21st of November, 1967 and the Tapedar admittedly visited the site after one week and he had not seen the dead body himself lying at point "A". We cannot disbelieve, the ocular evidence of the eye--witnesses P. Ws. Phul and Mitho who stated categorically that the deceased met his death at the door of appellant's house which is shown at point "C" by the Tapedar, and his also stated by the Tapedar that point "C" the door of the appellant's house is visible from point "D". We therefore, attach no value to this sketch at all. It appears to us that a clever although unsuccessful attempt has been made by the Tapedar to negative the evidence of eye-witnesses Phul and Mitho by introducing the hedge and also by removing the dead body from point "C" to point "A". This was apparently done to save the skin of the appellant by the Tapedar. The result is we disbelieve this statement of the Tapedar and the factum of the dead body supposedly lying at point "A" and not point "C", particularly when all the three eye-witnesses stated above that the deceased met his death right in front of the door of the appellant's house.
12. We are of the opinion therefore, for the reasons knee above, that P. Ws. Dodo and Phul Mitho are truthful witnesses and they have seen the appellant giving hatchet blows to the deceased and these witnesses are fully corroborated by other witnesses and the circumstances of the case. We therefore, uphold the judgment of the learned Ex Officio Additional Sessions Judge, Hyderabad dated 25th January 1969, and dismiss this appeal. The appellant must serve his sentence awarded to him by the trial Court.