' MUHAMMAD HALEEM, J.-Appellants Imam Ali, Mugheem, Khiyali and Bangui were tried for the murder of Jounsel and of attempted murder of Din Muhammad, convicted under sections 302, 149, 307/149, 147 and 148, P. P. C. And each of them was sentenced to death on the first count and fined Rs, 5,000 or in default to undergo three years rigorous imprisonment; on the second count to 7 years rigorous imprisonment and fined Rs, 2,000 or in default to undergo rigorous imprisonment for 1 years; on the third count to two years rigorous imprisonment and on the fourth, to two and a half years rigorous imprisonment by the learned Additional Sessions Judge, Jacobabad. Vide judgment dated 19th September 1970. Appellants Khiyali and Bangui were further convicted under section 13- D of the Arms Act and sentenced to two years rigorous imprisonment. The learned Additional Sessions Judge has referred their case for the confirmation of death sentence while they have preferred an appeal against their conviction. This judgment will dispose of the reference and the appeal.
2. According to the prosecution case, the parties were not on good terms. About a year and a half before the present incident, Maihu, nephew of Din Muhammad, eloped with Mst. Panahi and to avenge it about a year after, Sathi, Karimdad, Bhagio and Mangal killed his brother, Sheroo, whereupon a report was lodged at police station Usta Muhammad. These persons were arrested and the case is at the enquiry stage before the First Class Magistrate, Garhi Knairo. Again about a week and a half before the present incident Maihu and Zangi son of Jounsel retaliated by killing Suwali and that case is also at the enquiry stage before the same Magistrate. Kabil belonging to the appellants party lodged a complaint at police station Bodapur against Jounsel, Nourez, Zangi, Maihu and Sukhio for setting his house on fire and they have been booked for trial in the same Court. The hearing of this case was on 21st July 1969. Din Muhammad, Jounsel and Sukhio, who were on bail, proceeded to attend the hearing by the morning train and detrained at railway station Garhi Khairo on that date. Alongwith them Mst. Shanul als.) went to meet her son Maihu as he and Zangi were in Jail. From the railway station they started for their destination and while they were at the Mehrabpur railway crossing six persons, namely Khiyali, Gublo son of Kabil, Bangui, Imam Ali, Mugheem and Gul emerged from the side of a wall, of whom the first three were armed with guns and the other three with hatchets and those armed with guns fired at them which hit Din Muhammad, and Jounsel, who fell down. To save themselves Din Muhammad, Naurez and Sukhio ran and concealed themselves in a ditch from where they saw Gul and Imam All giving hatchet blows to Jounsel who lay on the ground. Thereafter the appellants effected their escape towards the east, firing guns in the air. The gunshots attracted the people present in the vicinity who also came to the wardat. Din Muhammad and others then went to the place where the deceased lay and found him dead. Naurez and Mst. Shanul sat near the dead body while Sukhio went to inform the relatives. Din Muhammad himself went to police station Garhi Khairo which was three furlongs away and lodged the F. I. R. At 6 a. m.
3. Mir Muhammad, Head Constable, after recording the report repaired to the wardat from where he secured blood-stained earth and three crime empties C12 bore) and sealed theca into separate parcels vide mashitnama (Exh. 12). He sent the dead body for post-mortem examination, and later the investigation was taken over by Fazal Muhammad S. H.
0. He examined Mst. Shanul and Naurez at the wardat and on 22nd July 1969 he arrested appellant Imam Ali and Mugheem from their houses in village Zore Garh, and from the person of Imam All he secured one blood-stained shirt in the presence of mashirs, Bachal and Piero, vide Mashirnama (Exh. 25). He searched the house of Imam Ali and from its roof secured a blood-stained hatchet vide Mashirnama (Exh. 27). Again he recovered a hatchet from the "reed" wall of the house of appellant Mugheem vide mashirnama (Exh. 26) which was not blood-stained. On 23rd July 1969 he received spy information that appellants Bangui and Khiyali were to pass by the "Kandri Shah", where he posted a police party; and at about 3-15 p.m. On 24th July 1969 he saw these appellants passing that side whereupon he arrested them and secured one single-barrel gun and five cartridges from Khiyali vide mashirnama (Exh. 28) and another single-barrel gun and four live cartridges from appellant Mugheem vide Mashirnama (Exh. 29). He sent the three crime empties and the two guns for matching to the forensic laboratory and according to the testimony of the ballistic expert, Mukhtar Ahmad, two of the crime empties were fired from the gun of Khiyali while the third from that of Bangui. The shirt and hatchet of Imam Ali and the blood-stained earth were sent for analysis and, according to the report of the chemical analyser, they were found to be stained with human blood, Gublo and Gul are still absconding.
4. The autopsy on the dead body was performed by Mr. Muhammad Abdul Hakim, who noticed the following injuries:- "(l) A gunshot injury 1r in diameter with a blackening of its margin on the lower aspect of the left eye and fracture of lower orbital margin and left lateral nasal bone, with destruction of the eye ball.
(2) Incised wound 7' x 4" x longitudinally commending from the outer angle of the right eye, cutting the maxilla, frontal temporal and parietal bones and the brain substance.
(3) Lacerated wound i" x ?-,"x skin deep obliquely on the right eye brow.
(4) Incised wound 21" x IV obliquely on the angle of the right inaudible cutting the skin.
(5) Gunshot injury 1' x 1" on the left side of the lower end of the sternum with blackening of its margins. It was wound of entrance.
(6) Incised wound 2i x 4" x skin deep obliquely on the upper part of the left shoulder blade.
(7) Incised wound 4' x 4" x i` obliquely on the middle of the left side of back."
' And in his opinion, injuries 1 and 5 were caused by gunshot while injuries 2, 4, 6 and 7 were caused by a sharp cutting weapon such as hatchet and injury No, 3 by a hard and blunt substance like a lathi or the back side of a hatchet and that injuries 1, 2 and 5 were individually sufficient to cause death in the ordinary course of nature. He also examined Din Muhammad on whom he noticed three injuries caused by a gunshot. According to him, the injuries on the deceased and Din Muhammad were caused by three shots.
5. The appellants denied the prosecution case but admitted that there were cases against each other and that the deceased and the prosecution witnesses were accused in the arson case pending in the Court at Garhi Khairo. Appellant Imam Ali denied the recovery of the hatchet and the seizure of the shirt and pleaded that they were foisted on him. Appellant Khiyali denied the recovery of the gun from his person and so did appellant Bangul.
6. The direct evidence at the trial was furnished by the testimony of Din Muhammad, Sukbio and Naurez of whom Din Muhammad was himself injured by pellets. He is the brother of the deceased while Sukhio and Naurez are the nephew and son of the deceased. The hearing of the arson case was on 21st July 1969, for this is not only established by the ocular testimony but also by the evidence of Taj Muhammad, who was Reader to the Joint Civil Judge. Accordingly this fact stands beyond dispute. The deceased, Din Muhammad and Naurez were admittedly accused in that case and they had to appear in the Court on that date. The presence, therefore, of Din Muhammad and Naurez alongwith the deceased cannot be doubted. As for Sukhio, he was not an accused in that case but also accompanied the deceased and the prosecution witnesses. The learned counsel has disputed his presence but not that of the other two. According to him, he was not at the wardat when Fazal Muhammad S. H. O. Arrived there at 3-15 p. m. And was also not available for examination until 23rd July 1969 and, therefore, his presence at the wardat is doubtful. On the other hand Din Muhammad states that he sent Sukhio to inform his relatives before he went to lodge the F. I. R. And that he went by "taxi jeep" and returned at 12 noon the same day after informing the relatives and this is what Sukhio also states; and that further that his statement was recorded at the wardat by the S. H. O. Which is not correct. It is not possible to construe from his absence at the wardat that he was not present at the time of the incident, for his name transpires in the F. I. R.
Which was lodged within a few moments after the incident when there was hardly any time for deliberation, much less to falsely mention the name of a person who had not witnessed the incident. The doubt can only be entertained in case of a person who is discovered after some delay, which consideration cannot be extended to a person who is mentioned in the F. I. R. Having regard to the testimony of the Investigating Officer that Sukhio was not at the wardat, it can only fit in with the explanation that he had not returned by 3-15 p. m. And it was, therefore, that his statement was not recorded, and whatever Din Muhammad and Sukhio have stated is apparently out of confusion and nothing turns on it. All the witnesses are agreed that they nad arrived by the morning train and detrained at Garhi Khairo railway station from where they straightaway proceeded on-foot towards the Court and on the way near Mehrabpur railway crossing the appellants and the two absconders emerged from the side of a wall and attacked them as a result of which Din Muhammad and the deceased suffered gunshot injuries, who fell down, while Din Muhammad and the others ran and jumped into a ditch, 25 paces away and from there they saw hatchet blows being inflicted on the deceased. It was, however, urged that the time at which the witnesses got down from the train there was darkness and it was, therefore, not possible to identify the appellants. There is nothing in the cross-examination of these witnesses to show at what time the train reached Garhi Kbairo railway station. The witnesses, however claim that they had identified the appellants and the absconders, for it was 6 a. m. Here it is of relevance to mention that the time of lodging the F. I. R. Is also 6 a. m. However, the overlapping of time is explainable on the short ground that the time may not have been given by the watch and it could be 15 to 20 minutes earlier. But this will not make any difference, for being the month of July the sun would have arisen a couple of minutes after five and it would be daylight. This objection, therefore, has no substance.
7. In the F. I. R. Din Muhammad ascribed hatchet blows to the absconder, Gul, but in his deposition he, in addition to Gul, also ascribed hatchet blows to appellant Imam Ali. It was accordingly urged that having ascribed the part of causing hatchet blows to Gul in the F. I. R. The participation of Imam Ali is excluded. This is not so, for there are as many as four incised injuries on the deceased and moze than one person could have caused them. What Din Muhammad has mentioned in the F. I R. Is his own observation, but that by no means excludes the causing of the hatchet blows by Imam Ali, which is deposed to by Din Muhammad and Sukhio.
8. Next it was urged that having concealed themselves in the ditch which was 4 or 5 feet deep and 20 to 25 paces away, it could not have been possible for the witnesses to see the incident. What could prevent them from doing so is not apparent from the record and merely because they hid themselves from the view of the appellants it cannot be inferred that they were not in a position to witness the incident.
9 We have not observed from the record anything to suggest false implication of any person as is contended by the learned counsel for the appellants. The F. I. R. Was lodged immediately after the incident and it is not possible to conceive that in such a short time, persons who had not participated would be mentioned in the F. I. R. And if there had been a false implication in the case then it was Kabil who was the most likely person to be named therein as at his instance the arson case was registered and the deceased and the witnesses had come to attend the hearing of that case, but that is not so. The injuries on the deceased are by two types of weapon and the ocular version accordingly gets support from it. Further, according to the medical evidence, the injuries on the deceased and Din Muhammad were caused by three gunshots which is consistent with the participation of three persons armed with guns as each had fired one shot, as is stated by Din Muhammad. Similarly the hatchet injuries could he consistent with those armed with hatchets. No question was suggested to Din Muhammad, Sukhio and Naurez to doubt the participation of anyone of the appellants. It is, therefore, not possible to hold merely on a hypothetical place that there was possibility of false implication.
10 As against appellant Imam Ali there is the seizure of his bloodstained shirt and the recovery of the blood-stained hatchet from his house which corroborate his participation in the crime. No enmity appears from the evidence of mashie, Piaro, and he has to the hilt supported the recovery of these articles. His own admission that he had acted as mashfr two or three times before would not be sufficient to brush aside his evidence on the ground that he was under the influence of police. It is unfortunate that the evidence of matching of the crime empties was not put to either appellant Khiyali or Bangui when being examined under section 342, Cr. P. C. And in its absence, therefore, the evidence of matching of the crime empties with the guns recovered from them cannot he used as incriminating evidence; nevertheless their participation is established by C the ocular testimony and by the circumstance that three days after they were captured with unlicensed guns. They were the likely weapons from which the crime empties could have been fired. The learned counsel attacked the evidence of mashir, Piaro, because he incorrectly described in the examination-in-chief that Bangui was arrested I hours after the arrest of Imam Ali; and further that the police had se.;ured a hatchet from him. This statement is apparently due to some confusion, for earlier in his examination-in-chief to had specifically mentioned about Bangui and Khiyali being apprehended with the guns and in that context this statement does not fit in. Even otherwise he corrected himself while replying to a Court question that the guns were recovered from appellants Khiyali and Bangui. The learned counsel for the appellants in the trial Court moved an application (Exh. 31) after the mashir was examined that he should be put to identification test with a view to finding out as to whether he could identify appellant Khiyali, which was rejected on 8th August 1970. Clearly the idea was an afterthought with some design to do away with the evidence of the mashir. Not having availed the opportunity to allow Piaro to pick out appellant Khiyali while he was being examined there was no justification to seek an opportunity afterwards.
There is also no evidence to lay a foundation for the foisting. Of guns on appellants Khiyali and Bangui. Accordingly it is not possible to doubt the recovery of the guns from these two appellants as is urged by their learned counsel.
11. There is no defect in the ocular testimony which could make it doubtful as to the participation of anyone of the appellants. Under the circumstances, it can be acted upon for sustaining the conviction of the appellants. There is also no doubt that Jounsel was killed to avenge the murder of appellant Khiyali's brother, Suwali. Under the circumstances his murder was preplanned and the sentence does not call for any lenient treatment. Accordingly while upholding the conviction and the sentence imposed therefor, we would confirm the death sentence passed on the appellants and accept the reference. The appeal is dismissed.