MUHAMMAD HALEEM, J.-Appellants Bhagto, Ranjho and Golo were tried for the murder of Diwan Bagri and convicted under section 302/149 and section 147, P. P. C. And sentenced to transportation for life and to fine of Rs. 1,800 or in default of payment to undergo six months rigorous imprisonment on the first count and to six months' rigorous imprisonment on the second count, Bhagto was further convicted under section 13-D of the Arms Act and sentenced to suffer rigorous imprisonment for six months. They were tried and convicted as afore stated by the learned Ses-- sions Judge, Jacobabad, vide judgment dated 18th Match 1970. Not only have they appealed from Jail but have also filed one through their counsel against their conviction.
2. According to the prosecution case, the deceased lived in village Diwan Bagri near Kandhkot and was the hari of Ghulam Yasin Khan, Advocate. He had cultivated water-melons and was on the land alongwith Guloo Sheikh some three days before the incident and while both of them were returning at 5 p.m. On 7February 1969 on a bicycle to their village, they saw at a place beyond village Haibat the three appellants and abs--conding accused Goro and one Syed, whose name was not known to them. Bhagto was armed with a pistol while Syed with a single-barrel gun and the rest had lathis. They told the deceased and his companion Guloo Sheikh that they had harassed them by filing cases and saying so, those armed with guns opened fire, whereupon Guloo Shaikh left the deceased and ran for his life. The deceased on receiving the gunshot injuries fell down. Thereafter the appellants and the other two carried the deceased to village Haibat. Guloo Sheikh disclosed the fact to one Bilawal Khan who advised him to lodge the report. He accordingly proceeded to Police Station Kandhkot, which is three miles away, and there at lodged the F. I. R. The same day at 9 p.m., which was recorded by Ghulam Muhammad S. H. O. After recording the reportth the S. H. O. Proceeded to the wardat and from there to village Haibat, which is about a mile away.
He saw the injured is the otak of Syed Murad Shah who was conscious. He recorded his statement and then sent him to the hospital for examination and treatment. He recovered the piece of mat on which the deceased lay which was blood--stained, in the presence of mashies, Ghulam Nabi and Mehar A.I. The same night the dying declaration was recorded by Mr. Vishindas, a III Class Magistrate, in the presence of Dr. Muhammad Alam at the hospital who certified that the deceased was conscious and in a fit condition to make a statement. On the next day, the S. H. O. Again inspected the wardat in the presence of Ghulam Hyder and Bahawal Din and from there secured the blood-stained earth, a cycle and an empty shell, vide Mashirnama (Exh. 19). He recorded the statement of Murad Shah and Din Muhammad and visited the houses of the appellants to secure them but they had absconded. He however arrested them on 9th February 1969 from the otak of Sher Muhammad Sunderani at Deh Daho. Appellant Bhagto volunteered to produce the crime weapon and from his "thatched but" he produced a pistol in the presence of mashirs which was loaded with three live bullets, which was secured vide Mashirnama (Exh. 21). The deceased expired on 9th February 1969 and the dead body was handed over for autopsy to Dr. Habibullah, Medical Officer, District Headquarter Hospital, Jacobabad.
3. The doctor noticed the following injuries.
(1) One oval punctured type of wound about ----- c.m. In diameter just above the umbilicus (wound of entrance).
(2) One wound of same type and size in the upper third of left arm on outer border," and in his opinion, they were caused by the discharge of a firearm, like gun and that injury No. 1 was individually sufficient in the ordinary course of nature to cause death. He also opined that "injury No. 1 was caused from front side while injury No. 2 from side." He extracted one pellet from the body, and what became of it is not known. Dr. Muhammad Alain AMO, Kandhkot, who had examined the deceased in the first instance, has spoken of these two injuries and has also opined that they were caused from different directions. Dr. Mahmud, Radiologist, has opined after examining the X-rays that "there was a shadow 2 milli--metres in diameter at the level of illiac crest which showed pellets of me--talic piece".
4. The crime weapon and the shell secured at the wardat were sent for matching to the forensic laboratory and, according to the testimony of Mukhtar Ahmad. Ballistic Expert, the shell matched with the weapon. The mat and the earth were reported to tie stained with human blood. Goro and the unnamed Syed are still absconding.
5. The appellants denied their involvement in the crime. Appellant Bhagto stated that he was implicated at the instance of Gul Muhammad who had illicit connection with his aunt and for that reason he had strained relations. Another reason that he assigned was that his cousin, Nand Lal.
Had lodged an F. I. R. On 5th July 1967 against the deceased, his brother and Guloo Shaikh under sections 382 and 363, P. P. C. And in support of it he filed a certified copy of the F. I. R. (Exh. 49). He further stated that Murad Shah and his nephew, Fateh Din, were arrested on suspicion in connection with this case but they were let off after a week and have now turned up as prosecution witnesses. As for the implication of the other two appellants he gave the reason that they were his cousins and therefore involved along--with him. Appellant Ranjho stated that he knew nothing about the murder of the deceased and that his defence is the same as that of appellant Bhagto and so did appellant Guloo. They led no evidence in defence.
6. Guloo Shaikh is the only eye-witness but while supporting the pro--secution case in the examination-in-chief he has said go-bye to it when cross-examined. It was, therefore, that he was declared hostile and cross-examined. While the deceased stated in his dying declaration that it was Bhagto who was armed with a pistol. Guloo Shaikh named absconding accused, Goro, to be armed with it. Again be admitted that when the incident occurred he was answering the call of nature in the bushes which were of the man's height; and it was only on hearing the gunshots that he got up and saw the appellants with their faces muffled running away and named them only on suspicion, He also admitted that "it was a little dark" and that the assailants were about 200 or 250 paces away from him when he saw them running away. He further admitted having stated in the lower Court that he was not sure about the identity of the appellants. Lastly, he stated that the appellants inflicted blows with lathis on the deceased although no such assertion is made by the deceased himself in the dying declaration, nor is there any medical evidence to justify it. From his cross-examination it is clear that what he stated in the trial Court is not his earlier version and cannot reflect a doubt in the concept, in which this word is understood. The witness was won over and has accordingly made dishonest admissions. The District Public Prosecutor elicited his relationship with appellant Bhagto through his wife, who is the sister of his father while the other two appellants are his cousins. The reason, therefore, is obvious as to why he has not stuck to his earlier version. It was to oblige the appellants that he prevaricated to minimise his evidence to a degree that their identity should become doubtful. His evidence accordingly cannot be relied on for any purposes whatsoever. There is then the corroborative evidence which is furnished by Murad Shah and Din Muhammad. According to Murad Shah, while sitting in his otak he heard cries coming from the eastern side, whereupon he went in that direc--petition and saw the deceased being carried by the appellants, absconding accused Goro, while the fifth one, he was unable to identify, but described him as a 'Bagri'. When asked to pick out the appellants he picked out Ranjho for Bhagto, Golo for Ranjho and Bhagto for Golo. Obviously he was tampered with, for he could not have made a mistake in picking them out if he knew them from before. This defect cannot also help the appellants, for we think that Murad Shah did not entertain any genuine doubt as to the identity of appellants, but deliberately picked out one appellant for the other. His evidence cannot, therefore, be used to doubt the identity of the appellants, for ought it be said that he is also a dishonest person. Next in this category is Din Muhammad. He deposes to having heard cries while sitting in the otak of Murad Shah and having gone alongwith him in that direction, he saw the deceased standing on the road who stated that he was injured by gunshots but did not name anyone as his assai--lant. He was then brought to the otak and made to sit there. He was also declared hostile and cross-examined. There can be no doubt that he has suppressed what he saw while accompanying Murad Shah and this was not without a purpose, for he had been won over.
Accordingly his evidence cannot be pressed into service to reflect doubt as to the identity of the appellant. Bilawal, munshi of Ghulam Yasin Khan, to whom Guloo Shaikh had narrated the Incident in the first instance, was examined. He has towed the same line and testified that Guloo Shaikh had not dis--closed to him the name of the assailants. This statement cannot be accepted on its face value, for Guloo Shaikh had himself disclosed the name of the assailants in his earlier version and it was natural for him to have given out those names to Bilawal. This witness has been tampered with and this feature again will not put the evidence in doubt. He too appears to us to be a dishonest witness. This is not all, for there is the dying declaration of the deceased implicating the appellants.
7. At two stages his statement was recorded: one at the otak of Murad Shah and the other in the hospital. It is beyond doubt that he was conscious. At this stage it will be of advantage to reproduce them: "I, Diwan s/o Kaloo, case Bagri r/o near Kandhkot state as under: That I have cultivated melons in the land of Ghulam Yasin Khan, Advocate, which land is near Lundo 'Band'. Today in the evening at about 5 p.m. After completing the work I was coming back to Kandhkot by a cycle alongwith Guloo s/o Sommar, case Shaikh r/o near Kandh--kot. When we reached on the road leading to Haibat on the other side of the Baigari canal, four Bagris, namely Bhagto s/o Kotharo, Ranjho s/o Lahino, Guloo s/o Wazir, Goro Bagri and one thin young-man Syed age about 30 years r/o Haibat, who were sitting con--cealed in the 'Sar' bushes emerged out suddenly on seeing me coming on cycle. Bhagto was armed with pistol, Syed armed with gun and remaining were armed with 'lathis'. As soon as we approached near, Bhagto abused me and fired a pistol shot at me. Syed also fired a gunshot at me. They had previous enmity with me. Prior to this certain cases are pending against each other at Kandhkot, Ghotki and at Sukkur. Ranjho also gave me a hakal to stop, else they will kill me. As a result of receiving fire-shots I fell down on the ground.
I have received a fire-shot on my stomatch at the navel. I have received another shot at the upper part of the left arm. On my cries and the cries of Guloo, other people came. I do not know them.
Thereafter all of them were taking away me by holding me with my arms and legs when they reached near the village Haibat, one old Syed and two other persons gave them hakal and they ran away leaving me. He took me to his otak and laid me down on the mat and gave me refuge.
The police had taken me from there to the hospital at Kandhkot. I have been given blows as a result of old enmity. I already knew these `Bagris' as they are my relatives.
I do not know the name of Syed. This Bhagto has fired pistol shots at me."
"Question : What is your name?
Answer: Diwan.
Question: What is your father's name?
Answer: Kalu.
Question: Where you are sleeping?
Answer: At doctor.
Question: Are you sleeping on the ground or on the cot?
Answer: On the ground."
(From the answers of the above questions, it is made out that the in--jured is in his senses). The statement given by him is as under:- "Today in the evening at about 5 o'clock, after doing the work at the land of Advocate Ghulam Yasin, which is near Lundo `Band', I was coming by a cycle to my house towards Kandhkot. Guloo s/o Sommar Shaikh r/o Kandhkot was with me. When we reached near Haibat road, on the other side of Begaray, four 'Bagris' namely Bhagto s/o Kotano Bagri, Ranjho s/o Lahino Bagri, Guloo s/o Wazir Bagri, and one Bagri of Ghotki, whose name I do not remember and a slim young boy, who will be aged about 30 years, Syed arid is residing at Haibat, came out from the bushes where they were sitting concealed. Bhagto was armed with a pistol. Syed was armed with a gun and the rest were armed with lathis. Bhagto fired pistol shot at me and Syed fired gunshot at me. They had enmity over the cow and previously the cases are filed at Kandhkot, Ghotki and Sukkur. Ranjho gave me hakal to stop there else they will kill me. On receiving the injuries I fell down. On account of mine and Guloo's cries, other people arrived whom T do not know. Thereafter all of them took me to an aged man, Haibat, the father of Syed who has fired a gunshot at me. Thereafter police took me from there, to Kandhkot hospital. They have given me injuries due to the old enmity, with intention to kill me. These Bagris are previously known to me as they are my relative.
Question: What more do you want to say?
Answer: No Sir."
The latter statement is not consistent in two respects: the first is that the name of Goro is not disclosed while it is stated that he did not remember his name. This variation could be because he may not have recollected his name then, but certainly it cannot be ascribed to his not identifying him, for he has definitely stated that he knew him as he was his relative. This non-disclosure will not, in any way, detract from the truthfulness of the statement. The second is as to the place where he was taken. In the earlier statement he stated that be was left by the appellants and the absconding accused "when one old Syed and two other persons gave him hakal, while in the latter he stated that he was taken to an aged man, Haibat, the father of Syed who had fired a gunshot at him. There is unequivocal evidence that he was seen lying in the otak of Murad Shah in Haibat village who is also a Syed and has been examined in the case, before his removal to the hospital.
The mat on which he lays was also secured and was reported to be blood-stained. What he stated in the former statement is duly corroborated. As to his assertion that he was taken to an aged man, Haibat, we feel that this was out of confusion, as he got mixed up for Haibat was the name of the village; and even otherwise nothing turns on it. Accordingly these variations cannot come in the way of accepting the dying declaration qua the participation of the appellants. The medical evidence also points to two firearms having been fired from different directions, which necessarily connotes that two of the assailant, A were armed with firearms. The deceased has ascribed the pistol shot to appellant Bhagto, and the shell recovered from the wardat also matched with the pistol produced by him. The radiological report assures the pre--sence of the metallic piece in the body which gives further support to the firing of the pistol by appellant Bhagto. A pellet was also recovered, which necessarily shows that it was fired from a gun and to this extent, the deceased's assertion, that it was fired by the unnamed Syed, receives corroboration. There is circumstantial evidence that the bicycle was also recovered from the wardat, which cannot be disputed even though the mashir has turned hostile. Even to the recovery of the pistol, the mashir has not supported the prosecution case. There is, however, unequivocal evidence of Ghulam Muhammad S. H. O. Who has testified to its production by appel--lant Bhagto. There is nothing on record to suggest that it could be foisted. Moreover, the shell was recovered earlier in point of time and it is not 6 possible to foist a weapon of that calibre. It cannot also be a coincidence that the crime weapon, if foisted, would match with the shell. This gives an added assurance to the production of the pistol and we have no reason to doubt it. We have observed that the witnesses have been won over with a view to cause miscarriage of justice. In the circumstances, we would accept the dying declaration of the deceased implicating the three appellants.
8. The motive for false implication has not appealed to us as there is no possibility of substitution or naming the appellants on suspicion since the incident occurred in day light when there was sufficient opportunity of identifying the appellants. In our view, the dying declaration is thus duly corroborated by the circumstantial evidence and the conviction can be founded on it beyond reasonable doubt. We would accordingly main--tain their convictions and sentences and dismiss the appeals.