MUHAMMAD HALEEM, J.-Appellants Umar, Uris, Hasan, Khudabux and Punhal alias Jumo were tried for the murder of Mushtaq; convicted under sections 302/149, 364 and 148, P. P. C. And sentenced on the first count to transportation for life, on the second to 10 years regorous imprison--ment and on the third, to 2 years rigorous imprisonment. Appellant Punhal was further convicted under section 13(d) of the Arms Act and sentenced to two years rigorous imprisonment. They were tried and convict--ed as above by the learned Additional Sessions Judge, Larkana, vide judgment dated 1st August 1970. They have appealed to impugn their conviction.
2. According to the prosecution case, the incident occurred at sunset time on 26th January 1970 at a place on the inspection path of Gharho Wah, north of village Nandha Phul in taluka Larkana. On tee morning of 26th January 1970 the deceased accompanied by Roshan A.I came to Larkana on some private errand from their village, Muhammad Machi. They met Allahdino and at 'bipahri' time all the three left for their village. Allahdino accompanied them because he wanted to visit his sister who was married to Sultan and lived in the same village. At the stated time while they were near the garden of Akkan, they saw the appellants. Except Punhal, who was armed with a pistol, the others had hatchets. Umar proclaimed that the deceased cannot escape as he was 'karo' with his wife, Mst. Hakimzadi and, therefore, he would be killed. They warned his companions not to come near the deceased who nevertheless raised cries which attracted Akkan to the wardat. In the meantime, the appellants overpowered the deceased rind carried him bodily to the house of appellant Umar which was on the other side of the 'wah'. The -deceased, however, raised cries of 'murder, murder'. At this juncture, Rosban A.I alongwith Allahdino pro--ceeded to police station taluka Larkana, which is 2-- miles away, and lodged the F.I. R. The same evening at 8 p.m.
3. After recording the F. I. R. Ziauddin S. H. O. Also recorded the statement of Allahdino and then went to the house of Umar in a jeep which is in village Nandha Phul. Near his house he saw appellants Umar, Hasan and Uris. Appellant Hasan and Umar had injuries on their person and the clothes of the three appellants were soiled with blood. He arrested them. From the person of Umar he secured a shirt, loin cloth and turban vide mashirnama Exh. 12, in the presence of mashir, Suleman. From the person of appellant Hasan be secured a blood-staved shirt, loin cloth and turban ride mashirnama, Exh.
13. Again be secured a blood-stained shirt from. The person of appellant Uris vide mashirnama, Exh.
14. He then went inside the house of Umar where he found the deceased lying dead on the ground with hatchet injuries on his person. One hatchet with a broken handle was lying on his stomach and the other on the ground and near his body also lay a loaded pistol ('12- bore). He secured blood-stained earth and the other articles vide mashirnama, Exh.
9. He next inspected the place where the deceased was overpowered and bodily lifted, which was at a distance of about half a call from the house of Umar and by the side of the land of Akkan. After inspection of the place he sent the dead body to the Civil Hospital Larkana for post-mortem examination. He sent appellants Hasan and Umar for examination end treatment to the some hospital; thereafter he recorded the statement of Akkan. Appellant Khudabux voluntarily surrendered himself at the police station on 27th January 1970, but nothing was secured from him.
Appellant Punhal was arrested from his own village on 3rd February 1970 and from him also nothing was secured. The seized articles, except the pistol, were sent for chemical analysis and all of them were reported to be stained with human blood.
4. Dr. Wahid Bux performed autopsy on the dead body and observed the following injuries:-- "(1) One oblique incised wound 4--' x --' bone deep present on the upper part of front of neck below the chin extending from upper part of right side of neck towards the upper part of left side of neck below the angle of left mandible crossing below the chin cutting through skin muscles great blood vessels trachea, oesophagus, first cervical vertebrae and spinal cord.
(2) One oblique incised wound 4' x --' x bone deep present on the upper part of the left side of the neck -- below the injury No. 1 cutting through skin muscles great blood vessels second cervical vertibrae and spinal cord.
(3) One oblique incised wound 4--' x --' x bone deep present on -the middle of left side of neck cutting through the muscles great blood vessels and third cervical vertibrae and spinal cord.
(4) One oblique incised wound 4-- x --' x bone deep present on the left side of face and extending towards the front of chin below the lower lip cutting through the alveolar process of the mandible.
(5) One oblique incised wound 4-- x --' x bone deep present on the middle one third of left cheek and extending towards upper lip' of right side cutting skin muscles, blood vessels, mendable and maxila.
(6) One oblique incised wound 6' x --' x bone deep present on the upper part of left cheek and extending towards left parietal region crossing through the left ear and cutting through the left zygomatic bone, temporal, parietal bone and also left ear.
(7) One oblique incised wound 2' x --' present on the upper part' of left side of face below the injury No. 6 and extending towards left ear, and also cutting it.
(8) One curved incised wound 4' x 1' x bone deep present on the middle part of left parietal region - -' above the injury No. 8 cutting scalp left parietal bone and also part of brain.
(9) One vertical contused wound 2' x --' x scalp deep present on interior part of right parietal region.
(10) One vertical contused wound 1--' x --' scalp deep present on the left side of forehead.
(11) One curved incised wound 3--' x --' x skin deep present on the dorsum of left hand.
(12) One contused wound --' x --' x --' present on the upper one-third left leg on its extensor surface."
"(I) One oblique contused wound 1--' x 1/3` present on the middle one---third of right little finger on palmer surface."
"(I) One irregular contused wound 2--' x --' x --' present on the right cheek near nose.
(2) One abrasion 1--' x --' present on right side of nose.
(3) One abrasion --' x --' present on right also of nose."
According to him, injuries 1, 2 and 3 were caused by some hard blunt sub--stance, such as described above. As for injury No. 1 he reserved his opinion as to its nature till such time as he was able to see the X-ray report but none was produced.
5. When the appellants were called upon to enter their defence, except appellant Umar, all others proclaimed their innocence. Appellant Umar pleaded grave and sudden provocation in the following words: "The story as alleged by the prosecution is false. At the time of the incident I had returned after selling milk. I did not find my wife in the courtyard. Therefore I went inside. I found my wife Hakimzadi in compromising position with deceased Mushtaq. Deceased Mushtaq attacked me and I due to grave and sudden provocation gave him hatchet blows whit Mst. Hakimaadi ran away."
While explaining blood on his clothes he stated that lip, caused injuries to the deceased, who also caused injuries to him and it was therefore that leis cloths were soiled with blood, About the articles seized from his room, he stated that one hatchet and the pistol belonged to the deceased while the other was his. He described the witnesses as interested and hostile and lastly pleaded that he went to police station taluka Larkana alongwith the hatchet for lodging the report, but the S. H. O.
Did not record it and arrested him and secured his hatchet and the blood-stained clothes.
Appellant Hasan denied the seizure of blood-stained clothes from his person and explained his injuries for the reason that he was maltreated by the police. He also denied suspicion of illicit intimacy of the deceased with Mst. Hakimzadi. Appellant Uris denied the seizure of blood-stained shirt from his person and pleaded his implication at the instance of witnesses who were interested and hostile. Appellant Khuda Bux denied his partici--pation in the crime and alleged the same reason for his implication. He pro--duced copies of judgment (Exh. 31) in support of the plea of enmity with the deceased. Appellant Punhal denied his involvement in the crime and gave the same reason for his false implication.
6. The direct evidence is furnished by the testimony of P. Ws. Roshan A.I, Allahdino and Akkan Kichi.
While Roshan A.I and Allahdino are the cousins of the deceased, Akkan is of a different case. It was near his garden where he was then working that the incident took place and he came on cries. The presence of Roshan A.I and Allahdino at the time of occurrence cannot be in doubt. Immediately after the abduction of the deceased they hastened to lodge the report. The statement of Allahdino was recorded immediately after the F. I. R. Was lodged at the police station. Within such a short time, it was not possible that Roshan A.I would have taken Allahdino front his house which was in the locality called Kafla Sarai in the city of Larkana. It was also impossible for these witnesses to have speculat--ed about one of the appellants being armed with a pistol which was, in fact, recovered from the room of the house of appellant Umar, where the dead body lay. Roshan A.I has given a plausible reason for accompanying the deceased to Larkana. It was to visit a boy relative, Mazhar, who had met with an accident and was lying injured in Civil Hospital Larkana. Similarly, Allahdino had given a plausible reason for having accompanied the deceased and Roshan A.I as he wanted to visit his sister, who lived in the same village. He was cross-examined at length and nothing of and consequence has emerged to show bias against any of the appellants. Roshan A.I was cross-examined on the question of enmity of the deceased with the appellants. He admitted that appellant Khuda Bux had instituted a criminal case against hint for committing dacoity and enticing away his wife, but he was acquitted in that case and that was about 5 or 6 years back. He also admitted that Gulan Kichi, Gullo and Shafz Muhammad were tried for causing injuries to appellant Umar and that Shafi Muhammad is related to P. W. Allahdino and Minhoon, brother of Gullo, is the son-in---law of P. W. Akkan. The relationship of these two witnesses with those who were implicated for causing the injuries to Umar is far too remote to be takers into consideration as a feature which could prompt other Allahdino or. Akkan to falsely implicate not only Umar but the other appellants as well. Akkan was on his land where he had cultivated vegetables, about 12 paces away when the appellants overpowered the deceased. He is related to appellant Hasan as his `marot'. Mst. Bachan, is married to him. In that event, it is not possible that he would implicate him with the others, if he was not amongst them. He is a disinterested witness as he is not related to either the deceased or the prosecution witnesses. We see no reason to doubt his presence on the land at that time. He was cross---examined at length and except for the feature that he has spoken about hearing a pistol shot, nothing of any consequence has emerged to doubt his credibility. The other two witnesses have not spoken about the pistol shot. At what stage it was fired is not clear from his evidence. One of the appellants was armed with a pistol and there is evidence that people had gathered outside the house of Umar. It is, therefore, likely that he would have fired a shot to scare them away. In any case, this feature is hardly of any consequence. It is true that the deceased was bound down in 110 proceedings and that a theft case was pending against him in a Court at Larkana. That may reflect on his character but it has no bearing on the culpability of the appellants. Roshan A.I has admitted that there was a lurking suspicion about the illicit intimacy of the deceased with Mst. Hakimzadi, but in the context of the circumstances pleaded by appellant Umar, it is impossible for the deceased to have gone at that time of the day to commit intercourse with Mst. Hakimzadi, particularly when their relationship was suspected. It is also surprising that Mst.
Hakimzadi was not touched although she had not disappeared from the village and her statement was recorded the same evening by the police. If at all the deceased wanted to have liaison with her it was more likely that he would have called her at a lonely place rather than to visit her in the house knowing fully well that he was liable to be detected by her husband any moment. The deceased was found clothed, which circumstance again weighs against this plea. It is again improbable that in view of the hostile atmos--phere he would be so fool-hardly as to visit the village for committing intercourse with Mst. Hakimzadi., Accordingly, on the face of the circumstances pleaded the plea of grave and sudden provocation appears to be absurd. It was urged that the deceased could not be carried bodily across the Minor on a log of palm. This contention was advanced because Roshan A.I had said so. While the S. H. O. Has said that the width of the Minor was 3 to 4 feet, and one could easily walk across it as there was little water in it, the tapedar has said that it was 10 feet wide and that there was a log on it for going across. How the appellants managed to take the deceased forcibly across, is not something impossible; the fact none the-loss remains that his body was found in the room of the house of appellant Umar and it could not be there unless ho was subdued in a way that he could not offer resistance while being taken across on the log. Accordingly we entertain no doubt on this aspect of the case. It was again urged that no independent witness was examined though in the evidence it has come that several persons had come at the wardat. This is also without substance, for the S. H. O. Has stated that no one was willing to give a statement. It is not for us to speculate the reason why they abstained from volunteering to give a statement. There is, therefore, not only ocular testimony against the appellants but also corroborative evidence against three of the appellants, namely Umar. Hasan and Uris, inasmuch as blood--stained clothes were seized from their person. There is no evidence as to how Umar and Hasan had received injuries but, in our view, it must be as a result of the struggle and resistance offered by the deceased which corroborates their participation. It is also not possible to explain the defence plea as to why the deceased would carry a hatchet and a pistol and if at all .He did so, why would he not use his pistol to kill Umar 1f it was lying loaded. As is held by the trial Court, there is, also no truth in the assertion that Umar had gone to the police station where he was arrested but his report was not recorded for there is nothing on record to sustain it.
7. In conclusion, for the foregoing reasons, we have no doubt that all the appellants had participated in the crime and they were rightly con--victed. While upholding their conviction and the sentence we dismiss the appeal.