' MUHAMMAD HAMM, J.-Appellants Ali and Muhammad were tried for the murder of Aliahrakhio, convicted under section 302/34, P. P. C. And sentenced to transportation for life and to pay a fine of Rs, 1,000 or in default to suffer rigorous imprisonment for months, by the learned Sessions Judge, Jacobadad, vide judgment dated 17th June 1970. They have appealed to impugne their conviction,
2. The facts are these:-Sadho had two wives. From the first wife Mst. Lalan, he had three sons, named Muhammad, Mehar and Ali. Muhammad and Ali are the present appellants while Mehar is still absconding. From the second wife, Mst. Khan Zadi, he had three sons, named Aliahrakhio, who is the deceased in the present case, Bakbsho and Nazar Muhammad. Saba Ali, who had absconded but was killed a month-after the present incident, is the cousin of the appellants and lived in village, Pirbux Shujura, in Taluka Shikarpur, 10 or 11 miles from the wardat, which is on the bank of Saital minor, near the land of the deceased in deh Saital, taluka Kaudkot. The incident occurred at past 'tipahri' time on 15th March, 1968. It is said that the deceased and his son, Ramzan, were grazing cattle on the bank of Saital minor, while Bakhsho was cutting grass and Sadho was looking after the cultivation. They saw the appellants, Sabz Ali and Mehar coming from the west along the Saifal minor, Except Saba Ali, who had a pistol (12 bore), Mehar and Ali had guns while Muhammad had a hatchet. As they came near the deceased, Muhammad instigated the other not to spare him, whereupon Sabz Ali fired his pistol at the deceased, on which the deceased fell down.
Mehar next fired his gun at him. Ali also wanted to fire his gun but Muhammad said that it was better to run away to save themselves. Aliahrakhio expired at the spot. It was alleged that the deceased was shot because Mehar and Ali were asking for their share of the land which was purchased jointly by Sadho, Bakhsho, Nazar Muhammad, the deceased and Muhammad from their own earnings, but they had refused to part with it for this reason. It may also be stated here that the deceased, Bakhsho, Nazar Muhammad and Sadho lived jointly in village Sadho Jafri while Muhammad resided in that village but in a separate house. Ali and Mehar lived separately in a village about a call's distance from their house.
3. Bakhsho lodged the F. I. R. At 11 p.m. The same night. Appellant Ali was arrested on 31st August 1968 by Mumtaz Ahmed S. H.
0. Who had succeeded Hafiz Ghulam Hussain, from nearabout Tangwani minor, some 2 or 3 furlongs away from the police station. He was sent up to face the committal inquiry. Muhammad was declared an absconder in that proceedings as he could not be arrested and the non-bailable warrant was returned unnerved. Proclamation was issued under section 87, Cr. P. C, and his property was ordered to be attached under section 88, Cr. P. C. Evidence was recorded in his absence under section 512, Cr. P. C. Appellant Muhammad was arrested on 24-11-69 and by a separate committal order he was sent up to face his trial.
4. Dr. Muhammad Alam performed autopsy on the dead body and he observed the following injuries:- "(I ) One oval punctured lacerated gunshot wound on entrance 3/4' in diameter, charring present with 20 pea size wound of entrance all round on the antero lateral aspect of the left inguinal region.
The 2d openings are wounds exit of injury No, 2.
(2) One oval punctured lacerated gunshot wound of entrance in diameter on the antero medial aspect of inguinal region. Charring present, near testicles with 28 exit wound all round in bunches as a result of injury No, 1.
(3) Four abraded contusions each 1/3' x 1/6' on the left testicles. No charring. Wound of exit injury No, 1." ' which, in his opinion, were caused by the discharge of firearm and that it was the result of two shots. According to him, the deceased died due to shock and haemorrhage as a result of the above injuries.
5. The appellant denied their involvement in the crime. Appellant Ali pleaded that because Mehar had refused to give his daughters in marriage to Ramzan, son of the deceased and Jiand, another grandson of his father, their relations were not happy and it was for this reason that they had falsele deposed against them. Muhammad denied any dispute over land and so also did Ali.
Muhammad gave the same reason for his false implication in the crime.
6. The conviction of the appellants rests on the ocular testimony of Bhkhsho, Rarrizan, and Sadho.
Sadho was not examined at the trial as Mehar killed him after his evidence w is recorded in the lower Court on 27th November 196a. It was transferred and read in evidence under section 512, Cr.
P. C. As aginst appellant Ali as well. Their relationship is not disputed. Examining the ocular testimony we find no reason why Sadho would falsely implicate his own sons. Similarly there is no reason why the step brother, Baksho, and Ramzan son of the deceased, would falsely implicate their own near and dear ones. The murder was committed in broad daylight and the ocular version that two shots were fired is consistent with the medical evidence. We have Lund nothing in the testimony of these witnesses to create a doubt as to the presence of me witness at the time of the occurrence. It was at a call's distance from their village. Bakhsho has said that he was cutting grass while Sadho was looking after the cultivation. Ramzan was with the deceased grazing the cattle. No improbability can be imputed to exclude their presence. While in their statements the appellants have imputed enmity because Mehar had refused to give his daughters in marriage to Ramzan and hand, but the trend of cross-examination is on a different, footing. It was suggested that Sabaz Ali's daughter was married to Bakhsho and in exchange for it he was demanding the hand of deceased's daughter, Mst. Kima Khatoon, but he refused. Bakhsho denied this suggestion and stated that his father had compensated by paying in cash and that there was no arrangement for giving the hand of the daughter of the deceased, to Ali Nawaz son of Sabz Ali. He also denied the suggestion that they had agreed to give two daughters of Nazar Muhammad in marriage to the members of Sabz Ali's family, in exchange for the marriage of Sabz Ali's sister with Nazar Muhammad. According to him, there was no reason for this exchange because his father had given their sister in marriage to Bijar to compensate for the marriage of Sabz Ali's sister to Muhammad Nawaz. Accordingly the defence is not consistent. There is nothing on record to suggest that there could be a grievance for the reason pleaded by the appellants. It is probable that Mehar and Ali may have demanded the share of their father, Sadho, and that could be the only motive for the murder of the deceased as he may have been instrumental in persuading Sadho not to part with his share in the land.
7. Again Sabz Ali and Sadho had been murdered after the present incident. There was no reason to kill Sadho or Subz Ali in retaliation having regard to the relationship between them, Mehar, who has absconded, is accused of murder of his own father, which circumstance weighs in favour of the culpability of the appellants, for it was because of the murder of Aliahrakhio and of Sadho having given evidence against the appellants that he was killed. The learned counsel for the appellants has not taken exception to the admissibility of the evidence of Sadho on record but only pleaded that he has not alleged instigation by Muhammad. Even if he had not given any hatchet injury and, according to Sadho, had prevented Ali from firing his gun after the deceased was hit and had fallen down, it would not be a circumstance to negative common intention. Sadho has stated that he had come along with the others armed with a hatchet which, in no manner, excludes his participation in the crime. The learned counsel contended that the deceased had abraded contusions and those could not be caused by gunshot. However, no question was put to the doctor and his unequivocal opinion is that all the injuries were caused by the discharge of a firearm. In the circumstances, it is not possible to assume that he was caused these injuries by some other weapon. Finding no substance in the appeal we dismiss it.