ABDUL HAYEE QSARESHI J.--Appellants Shahoo and Usman along with acquitted accused Hussain Bux and Suleman were tried by the Additional Sessions Judge, Nawabshah for offences under sections 302/34, P. P. C. And 307/34, P. P. C. By a judgment dated 10-3-1972 appellant Shahoo was convicted under section 302, P. P. C. And sentenced to death subject to confirmation by this Court and appellant Usman was convicted under) sections 302/34 and 324, P. P. C., and awarded sentence of transportation for life and R. I. For one year respectively. The co-accused Hussain Bux and Sulaiman were acquitted. Appellant Shahoo and Usman have filed an appeal through Mr. Abdul Fateh Memon, who has appeared for them, whereas the State was represented before us by Mr. Murtaza Hussain. The Sessions Judge has also made a reference for confirmation of the death sentence passed on the appellant. Both the criminal appeal and the reference are being disposed of by this judgment.
2. The incident in this case bad taken place on 28-9-1969 at about 6 p.m. At village Nehhro in Deh 3 Dad, Taluka Nawabshah. The prosecution story is that appellant Shahoo is the maternal uncle of appellant Usman and uterine brother of acquitted accused Hussain Bux and Sulaiman. The appellant Shahoo owned some land which he had given on lease to one A.I Asghar Shah. This land although on lease with A.I Asghar Shah was being cultivated by deceased Ghulam Rasool arid his brother P. W. Ghulam Hussain, who are respectively deceased and injured in this case. It appears that the appellant did not reconcile himself with the deceased and his brother cultivating his land as Haris of A.I Asghar Shah and therefore appellants used to damage the crop of the deceased and big brother. For such mischief to the crop, the deceased and his brother had made a complaint to A.I Asghar Shah who bad fixed the day of this incident viz. 28-9-1969 for settlement of the dispute at his village Nebbro where this murder had taken place. On: this day deceased Ghulam Rasool and his brother Ghulam Hussain had gone to Nebbro village. A.I Asghar Shah was not available but there was a Kabadi match in the village and both Ghulam Rasool and Ghulam Hussain went to witness the match. All the accused were also there.
3. It is then the story of the prosecution that immediately after the match the two appellants along with their companions, the acquitted accused, came out of a Khabar tree. At that time appellant Shaboo was carrying a gun, appellant Usman had a hatchet and with regard to the acquitted accused the versions in the prosecution story are discrepant in regard to their weapons. While some witnesses state that both bad hatchets, some state that both were unarmed whereas injured Ghulam Hussain states that only Sulaiman had hatchet whereas Hussain had no weapon. However, the story is that since A.I Asghar Shah was not in the village, deceased Ghulam Rasool told Shahoo appellant that some other day will be fixed for this Faista (settlement). On this appellant Shahoo stated that he (Shahoo) was going to do the Faisla with his gun and so saying he fired a shot at Ghulam Rasool which hit him on the lateral side of the left side of chest leaving one injury of entry and one more of exit, After Ghulam Rasool fell down, acquitted accused Hussain instigated appellant Usman and acquitted accused Sulaiman by asking them to kill Ghulam Hussain also. On this Sulaiman caught hold of Ghulam Hussain - and Usman caused him injuries with a hatchet.
Ghulam Hussain on medical .Examination has been found to be having one incised injury -- ' x -- '.x skin deep over the vertebral column. Besides this incised injury Ghulam Hussain also had a contusion 2' x 1' on the left scapular region. This contusion is attributed by Ghulam Hussain to an injury with the back side of the hatchet. This incident had taken place at the ground where this Kabadi match was biting played and is said to have been witnessed by Sultan (P. W. 4); Ismail (P.
W. 6); Ghulam Hussain (P. W. 5), the injured in this case; Photo and several, others. In fact the prosecution story is, that about 50 or 60 persons were present at that time.
4. Sultan after witnessing this incident went to village of Mevo, the father of deceased Ghulam Rasool and informed him about this incident. Mevo alongwith Hote Khan came to the scene of occurrence and saw Ghulam Rasool lying dead and Ghulam Hussain having injuries. It appears in the evidence of Mevo that he was informed about the circumstances of the transaction by Sultan as well as other persons who were available at the scene of occurrence. Mevo thereafter lodged the report at Police Station, Taluka Nawabshah at 1-30 a.m. On 29-9-1969. The F. I. R. Which is Exh. 9 was recorded by H. C. Ghulam Abbas (P. W. 8). The Police officer thereafter came to the scene of occurrence at 7 a.m. And in presence of Mashirs Jhando Khan (P. W. 7) and Yar Mohd. Prepared a Mashirnama of the scene (Exh. 14). The Police Officer also held an inquest on the dead body of Ghulam Rasool and prepared a Mashirnama of the injuries of Ghulam Hussain. This police officer also examined Ismail (P. W. 6), Photo, Hote, and A.I Asghar Shah. Of these witnesses Photo, Hote and Alt Asghar Shah have not been examined in Court. The police officer examined Sultan (P. W. 4) on 1- 10-1969 as the witness had gone away and was not available. On the next day viz. On 30-9-1969 the police officer arrested all the accused including the appellants. Appellant Shahoo produced a licensed gun, six live cartridges and one spent cartridge before police officer and the articles were seized by the police officer under a Mashirnama (Exh. 17) in presence of the same Mashirs Jhando Khan and Yar Mohd. Similarly appellant Usman also produced a hatchet from the roof of his but end the same was secured under a Mashirnama (Exh. 18). The hatchet had no blood stains on it.
The gun and the cartridges were sent by police officer to the ballistic expert who gave a report Exh.
22 stating that the empty cartridge recovered from appellant Shahoo bad been fired from, the gun produced by the appellant. However, the ballistic expert has not been examined in Court and, therefore, this report becomes inadmissible. The earth that bad been seized by police officer at the scene of occurrence was also sent to the chemical analyser who has given his report as Exh. 21 certifying that the earth was stained with human blood. The dead body of Ghulam Rasool was examined by Dr. Zahid Hussain and the injuries on the person of Ghulam Hussain were also examined by the same medical officer. After the usual investigation the present appellants alongwith two co-accused were sent-up to stand their trial which has resulted in the conviction and sentence of the appellants as stated above.
5. At the trial the prosecution examined Mevo, the first informant who is also the father of the deceased. This witness has proved the report and also deposed in regard to motive for the crime.
Besides Mevo, the prosecution examined Sultan, Ghulam Hussain and Ismail as eye-witnesses of the incident. H. C. Ghulam Hussain who had investigated the case also gave evidence and proved the F. I. R. And the various Mashirnamas relating to seizure of gun and hatchet etc. Jhando Khan, Mashir, who had assisted the police officer in his investigation also appeared to give evidence.
Mohd. Azim (P. W. 2), who is a Tapedar and had prepared the sketch of the scene of offence has also been examined. The evidence of Dr. Zahid Hussain given during the committal inquiry was brought 'on the record of the --Sessions Court as Exh. 23.
6. The appellants led no defence but in their statements denied the prosecution case. Appellant Shahoo admitted recovery of his licensed gun from his house and further stated that he had been implicated on account of enmity. Appellant Usman denied the recovery of any hatchet, but went on to state that the Police had- secured his licensed gun from his house. He adopted the statement of appellant Shahoo and stated that the latter was his maternal uncle. The acquitted accused Hussain Bux and Sulaiman also denied the prosecution case but however each of them stated that his licensed gun had also been seized by the Police. Asked to explain the reasons for their implication in this case, they stated that they had been involved because they are the uterine brothers of appellant Shahoo.
The enmity that was alleged by appellant Shahoo is that there had been previous case is relation to murder of A.I Muhammad, Idris and Haider. Deceased Ghulam Rasool was the son-in-law of A.I Muhammad whereas Muhammad A.I, a brother of Hussain Bux (acquitted accused) was accused in that case. Mohd. A.I had been acquitted. This allegation when analysed appears to be that the brother of Hussain Bux was accused in a case in which the father-in-law of deceased Ghulam Rasool had been murdered. It further implies that since the father-in-law of deceased Ghulam Rasool had been murdered by the brother of. Accused Hussain Bux, the prosecution lead implicated him in this case.
7. The prosecution case is mainly based on the ocular evidence of P. Ws Sultan, Ghulam Hussain and Ismail. The evidence is sought to be corroborated by motive that the appellants had on account of dispute over the land. The prosecution also relied on the recovery of weapon.
8. As far as eye-witness Sultan is concerned, he had been disbelieved by the trial Court. This witness according to the prosecution case was present at the time of the incident a, d informed complainant Mevo, the father of deceased Ghulam Rasool. In his evidence, Sultan had stated that police had examined him after three days of the incident and he had further admitted in the Sessions Court that in the committal Court had he stated that he had reached the scene of occurrence after one or one and a half hours of the incident This witness is admittedly a relative of the complainant and on account of his statement In the committal Court in regard to his doubtful presence at the scene at the time of occurrence he was disbelieved. I am also of the view that this witness was rightly dis--believed. However, although this witness was not present at the time of occurrence, the fact of his coming to the scene of occurrence after the incident is amply proved. It appears that he did not see the incident but having come to know about this occurrence he went and informed Mevo, the father of the complainant, who thereafter went and lodged the report. His presence at the scene of occurrence is spoken of by the other witnesses also but to that extent the other witnesses may or may not be speaking the truth or at least committing a mistake. However, as a matter of caution I agree with the observation of the learned Sessions Judge that this witness was not present at the time of occurrence.
9. The other eye-witnesses are Ghulam Hussain and Ismail, Ghulam Hussain is a brother of the deceased and as the circumstances disclose he may have gone with the deceased. His evidence gains considerable credibility on account of the fact that he received injuries. The fact of injuries having been received by Ghulam Hussain is disclosed in the F. I. R. And thereafter H. C. Ghulam Abbas also saw him in an injured condition and prepared a Mashirnarna of his injuries. This witness was also examined by Dr. Zahid Hussain who has given evidence to the effect that he had injuries on his person. There is nothing on the record to indicate that Ghulam Hussain did not receive injuries in the manner in which it is spoken of in the prosecution case. Ghulam Hussain has also stated that he received injuries both with the sharp and blunt side of the hatchet and such assertion is supported by the medical evidence, because one of the injuries is incised whereas the other is a contusion. Dr. Zahid Hussain has also stated in his evidence that the contused wound has been caused by a hard blunt substance such as lathi or back of hatchet. No doubt Ghulam Hussain has stated in his evidence that he was given two hatchet blows with the sharp side and two hatchet blows with the blunt side, but in my view this contradiction is not so material or substantial as to deprive the evidence of injuries on his person of its value.
The evidence of Ghulam Hussain has been read by me very carefully and I am of the view that his evidence is reliable although in some minor details in relation to motive and the emergence of the accused from a Khabar tree there appears to be embellishment. It is however the duty of the Court to sift the evidence and separate the grain from the chaff. When Ghulam Hussain's evidence is considered in the light of circumstances of the case 1 come to the conclusion that his presence at the scene was probable, his having received the injuries is established on the record. He was as much a target of the anger of the appellants as his brother deceased Ghulam Rasool. Besides, as far as the particulars of the case are concerned, there is nothing materially improbable or false in his evidence.
10. The other eye-witness in the case is Ismail. He is a Ghaloo by case whereas the complainant party is Mashori by case. Moreover, he belongs to Jatio village, different from the village of the deceased and his brother Ghulam Hussain. His evidence is substantially similar to the evidence of Ghulam Hussain. He has clearly stated that deceased Ghulam Rasool had asked appellant Shahoo to wait till the Faisla was made and the appellant Shahoo had fired the gun at Ghulam Rasool saying that this was his Faisla. He has further stated very clearly that appellant Usman gave hatchet blows to Ghulam Hussain. The evidence of this witness was challenged on the ground that he had been examined by the Police after three or four days. This criticism according to me is unfounded. H. C. Ghulam Abbas has clearly stated that this witness was examined on the very day on which the report was lodged. Moreover, the witness had stated that he had gone along with Sultan and Photo to the hospital to bring the dead body and had participated in the burial.
However, the learned Advocate for the appellants has invited our attention to a portion of his evidence which reads as follows:- "When Police came to the Wardar I was there. Police had recorded my statement at the Wardat. I have not stated in the Lower Court that I was examined at the Police Station three or four days after the incident. I, Photo and Sultan were examined by Police at the Police Station at the same time (confronted so stated).
Since the above passage from the evidence of Ismail related to his evidence in the Committal Court, we had examined the Committal Court record also. In fact it was the duty of the trial Court to have exhibited such portions of the evidence as proved the contradiction (if any), but all that the trial Court had stated was that the witness on confrontation was found to have stated that he had been examined by the Police at the Police Station at tile same time. On examination of the deposition of this witness in the Committal Court I find that in his examination-in-chief, the witness has stated that the Police came on the following day (the day on which the report was lodged) and examined him. In cross-examination he has stated that he was present at the scene of occurrence when Police had come. In the next sentence he stated as follows:- "I was examined at the Police Station on 3rd or 4th day of the incident. I, Photo and Sultan were examined by Police at the Police Station at the same time."
It seems that the witness was slightly confused. He had clearly stated that he way examined by the Police on the day following the incident when he was at the scene of offence but in cross- examination he went on to say that he was again examined at the Police Station. However, the witness had also stated that Photo and Sultan were examined by the Police at the same time. The evidence of H. C. Ghulam Abbas clearly shows that he had examined this witness after, sending P.
W. Ghulam Hussain to the hospital. Moreover, the Investigation Officer was not cross-examined on that point at all. If this witness had been examined after a delay of three or four days the copy of his Police statement, supplied to the appellant, should have borne the said date and it should not have been difficult for the appellant to have confronted the Investigating Officer with the said statement.
This has not been done: Moreover, the name of this witness appears in the F. I. R., and it therefore, became a duty of the Investigating Officer to have examined him without any delay. The Investigating Officer stated that he did examine the witness on the very day and I have no doubt that he was examined on the very first day.
The evidence of P. W. Ismail is also criticised by the learned Advocate for the appellants on the basis of a statement in cross-examination wherein the witness has stated as follows:- "We reached there when Ghulam Hussain fell down."
This sentence cannot be read in isolation so as to give it a meaning detached from the rest of the narration. He had earlier stated in his evidence and that too in cross-examination, that he noticed the accused when the incident took place. The two statements can be easily reconciled and when read together clearly mean that he had seen the accused at the time of incident, but reached the place, where Ghulam Hussain had fallen down, after be had actually fallen down. This appears to be the only reasonable interpretation of his evidence.
11. The evidence of this witness is also sought to be discredited on the ground that he bad admitted that he was from latoi Group whereas the appellants are of Syed Group and these two groups were rivals in the Elections. According to me such criticism is absolutely unjustified. It would be very far- fetched to infer that a person will falsely implicate another on a charge of murder solely because he is supporting the rival candidate with his vote in Elections. On a very close scrutiny of the evidence of this witness I have come to the conclusion that his evidence is reliable and true. His evidence is also consistent with the other established circumstances of the case and his name appears in the F. I. R. He is thoroughly dis--interested. In fact in regard to his being an interested witness all that is stated by the learned Advocate for the appellant was that he had attended the burial of the deceased. To my mind attendance of a witness at the burial is not by itself sufficient to discredit him and to brand him as an interested witness.
12. The learned Advocate for the appellants bas, however, argued that the incident had taken place in the presence of 50 or 60 persons and that Photo, a witness named in the F. I. R. Had not been examined. These according to the are not good reasons for rejecting the remaining evidence on the record nor is the prosecution bound to examine every witness. It cannot be overlooked that the prosecution has examined three eye-witnesses and the law is that no particular number of witnesses are required to prove a fact. If the evidence of such witnesses who have been examined is believed, a conviction can be sustained.
13. The next point of criticism by the Advocate for the appellants is that motive in this case is not proved. He has argued that it bas not been established that the land of Shahoo appellant is on lease with A.I Asghar Shah or that any complaint had been made by the deceased to A.I Asghar Shah. He has developed this argument on the premises that A.I Asghar Shah has not been examined and further that two Kamdars of A.I Asghar Shah namely Allah Bux and Sabto, who according to some prosecution witnesses were also present at the match have not been examined. No doubt these witnesses have not been examined but the question is as to what is the effect. The adequacy or otherwise of motive is never of much importance in a criminal case. A person may have a motive and still not commit a crime and a person is likely to commit a murder on the slightest provocation. However, in this case there is a back--ground of enmity as between the deceased and the appellant on account of previous murders. Moreover, the prosecution case is that there was a dispute in regard to damage caused to the crops of the deceased by the appellant Shahoo. In any case although it has not been established on record that the land of appellant Shahoo was in possession of deceased Ghulam Rasool, still it is amply proved that the relations between the parties were far from cordial. This is not a case where the motive alleged by prosecution is found to be false. There were several reasons for the appellants to commit this crime and if one out of those reasons have been found to be established on record, the significance of that piece of evidence cannot be overlooked. In any case if direct evidence establishes the guilt of an accused person, the presence or absence, adequacy or otherwise, of motive loses much of its significance. To state the case in relation to motive at the highest, I would say that even in such cases where motive is alleged but is disproved or found to be absent, the Courts have only to be on guard in regard to acceptance of evidence of witnesses. That would require deeper scrutiny into their evidence. In the present case the accused did have cause to commit a murder and on a scrutiny of the evidence of the witnesses particularly Ismail and injured Ghulam Hussain I have no doubt that the witnesses are speaking the truth.
14. This now brings me to the question of determination of the guilt of each one of the two appellants. The question is whether both the appellants can safely be convicted under section 302 by aid of section 34, P. P. C. As regards appellant Shaboo, the evidence clearly and convincing establishes that he fired the fatal shot which resulted in death of Ghulam Rasool. Coming to the case of appellant Usman, I will analyse the evidence of the witnesses. Ghulam Hussain, the injured witness in this case has stated that when he and deceased Ghulam Rasool were standing they suddenly saw all the four accused emerging from a Khabar tree. He has further gone on to say that deceased Ghulam Rasool requested Shahoo to wait for Faisla, whereupon the latter fired a gun at him (Ghulam Rasool). It was thereafter that acquitted accused Hussain Bux instigated appellant Usman and acquitted accused Sulaiman to kill Ghulam Hussain. It would clearly seem that appellant Usman did no act in the matter of the murder of Ghulam Rasool. In fact Usman caused injuries to Ghulam Hussain after Shaboo had killed Ghulam Rasool. Even the evidence of Ismail is to the same effect. It would seem that the act of killing Ghulam Rasool was the individual act of Shaboo and for that reason the prosecution witnesses have perhaps stated and for the first time in Sessions Court that all the four accused including the two appellants emerged suddenly from a Khabar tree. This appears to be a belated attempt on the part of the prosecution to attract the provisions of section 34, P. P. C. This was no the prosecution case in the F. I. R. And even the Investigating Officer clearly stated that no prosecution witnesses had spoken of the emergence of the accused out of a Khabar tree in their police statements. Even Tapedar Mohd. Azim, who had drawn the sketch of the scene of occurrence was not shown this Khabar tree, as otherwise the location of this tree would have been mentioned by Tapedar in the sketch. Under these circumstances I am of the view that it is not necessary to draw an inference of common intention against appellant Usman in so far as the murder of Ghulam Rasool is concerned. It is possible that Usman may have come ready for a quarrel or an altercation, but there being total absence of any evidence showing pre-concert or conspiracy to murder; coupled with the fact that Usman did not act to cause the death of Ghulam Rasool, I will hold that Usman is not guilty under section 302/34, P. P. C. He is acquitted on that count but his conviction and sentence under section 324, P. P. C. Is maintained. The conviction of appellant Shahoo is maintained and sentence of death is confirmed.
DORAB PATEL, J.---I agree.