' AGHA ALI HYDER, J.-The appellants and four other persons, namely, Shanu, Ramzan, Khan Muhammad and Salahu, were sent up by the Ponce to face trial for various offences. Salahu remained an absconder, while Shanu, Raman and Khan Muhammad were acquitted by the learned Sessions Judge, Sanghar. The present appellants were convicted under sections 148, 302, 307/149 and 436, P. P. C. The appellant, Allan, was further convicted under section 404, P. P. C. For the offences under section 302/149, they were all sentenced to death, while for offences under sections 148, 307/149 and 436, P. P. C., they were sentenced to suffer R. I. For two years, ten years and ten years respectively, the sentences being concurrent. For the offence under-section 404, P. P. C., the appellant, Allan, was further awarded R. I. For two years. The convicts have preferred an Appeal, and there is a reference made by the learned Sessions Judge, as required under the law. The appeal and the reference will be disposed of by this common judgment.
2. The appellants, Mastoo and Allan, are brothers inter se, and the appellant, Bakhtiar, is their cousin. The prosecution story, succinctly stated, is that, some fourteen/fifteen years before the incident, P. W. Haji Ali Gohar had enticed away Mst. Janul the sister of Mastoo and Allan, and married her. There were a number of children from the said Union. The appellants and their family members are stated to have been nursing a grudge, against Haji Ali Gohar, and wanted to wipe off this dishonour to their family's name. It is alleged that, on the night between the 30th and 31st of August 1968, the appellants, accompanied by four other confederates, all armed with fire arms, had turned up at the house of Haji Ali Gohar in Deh Kharho, Taluka Sinjhoro in the district of Sanghar. They had mowed down nine people to death, and caused injuries to four persons, namely, Habibullah, Mst. Sahiban, Mst. Nawab and Himmat Ali. The house also was put on fire, as a result of which the household effects, grain and two bullocks were engulfed in the flames. In this very context, it might be mentioned that Habibullah also succumbed to his injuries at the hospital in the course of the day.
3.It is alleged that Haji Ali Gohar was away from the house on the the night in question. He is stated to have gone to Kandhkot a few days earlier, and returned to the house on the morning of the 31st of October 1968, when he learnt of the gruesome tragedy that had befallen his family. Bajhi, his cousin, who was present in the house and had escaped death, proceeded to the Sinjhoro Police Station, and lodged the First Information Report at 4-00 a.m. A. S. I. Muhammad Hussain proceeded to the Wardat, which was five/six miles away.. Reaching there at about 4-45 a.m. He prepared the mashirnama of the injuries on the persons of Habibullah, Mst. Sahiban, Mst. Nawab and Himmat Ali, and made enquiries from Punhoon, Mst. Sahiban and Mst. Nawab but Habibullah was unconscious, and Himmat All was of too tender an age. They were all referred to the hospital. The A. S. I. Found nine empty cartridges lying at the Wardat and secured them. As some foot prints were found at the Wardat, a Peri was sent for, who tracked the same. Then, he prepared the inquest reports, and sent for a doctor at the Wardat, as proper arrangements could not be made to send the dead bodies to the hospital. Thereafter, the A. S. I. Examined Haji Ali Gohar, Muhammad Saleh, Mst. Bibul and two other persons, including the 'Peri' by the name of Mataro. Habibullah succumbed to his injuries at the Saughar Hospital, as referred to earlier on 31-8-1966.
4. On getting this information, A. S. I. Abdul Hakeem had gone to the hospital, and prepared the inquest report. The Wardat was later visited by the Deputy Superintendent of Police, Sardar A.
Qader, who verified the investigation carried on till that day. He arrested the appellant Mastoo, from a village near Nara Canal on 1-9-1968, and a mashirnama was prepared. On 4-9-1968, he proceeded to Dadu, and raided the house of the appellant, Bakhtiar. The appellant was arrested and produced a gun, having a license in the name of Khan Muhammad, a co-accused. The gun and the licence were secured under a mashirnama. There were ten live cartridges with Bakhtiar, which came also to be secured, along with the licence and some other articles. S. H.
0. Muhammad Siddiq had arrested the appellant, Allan, near Ratodero on 12-9-1968 and produced him before Sardar A. Qadar. On 13-9-1968, Allan produced the gun of his own. The gun was secured and sealed. On 14-9-1968, Allan produced another gun, alleged to be owned by Haji All Gohar, after digging out the same from under the ground. The gun came to be secured and sealed. On 16-9- 1968, the Deputy Superintendent of Police arranged the foot print test and the identification test of the present appellants and some others, which was supervised by a Magistrate. The empties and the guns secured during the investigation were sent to the Ballistic Expert, while the blood-stained earth was sent t3 the Chemical Examiner. After due investigation, the case came to be challenged.
5. The appellants in their statements at the Court of Enquiry as well as at the trial denied the various allegations made against them, and protested their innocence. It was also said by Mastoo that he had also enmity with the appellant Bakhtiar, and another co-accused, who need not be mentioned, as they had been responsible for the murder of his uncle and cousin, wherein his father was the complainant, and the appellants, Allan, was a witness. The stand was adopted by Allan, who had some other reasons of his own to add for his involvement.
6. The death of ten persons, namely, Mst. Janul, Mst. Lalan. Mst. Gul -Bibi, Madadali, Nazar Muhammad, Ghulam Rasool, Mst. Zainab, Ganhwar, Manjhi and Habibullah, as a result of the fire opened on them, is not under ,dispute. It is not necessary to refer to the details of the multiple gunshot injuries sustained by each and every one of them, as the range, from which -the shots had been fired, was not gone into, and nothing will turn, therefore, on the same. As referred to earlier, nine out of these victims had died at the spot, while Habibullah also had breathed his last in the hospital in the evening. The three other victims had been examined by Dr, Keshivlal, Medical Officer, Sinjhoro on 31-8-1968. Himmat All had the following injuries on his person :
(1) Gunshot wound of entrance 5 mm. x 3 mm. x through and through on the internal part of the dorsum of the left foot over the 5th matatar. Bone. i,2) Gun shot wound of exit 7 mm. x mm. x through and through on the medial part of the sole of toe left foot over the 2nd matatarsal bone.
' Mst. Sahibah had only one injury, viz to Gunshot wound 5 mm. x 3 mm. x 7 mm. With swelling on the back of left hand in the inter space between the metacarpal bone of left index finger and left middle finger.
' She also was referred to the G. H. Q. Hospital, and he has stated that he had not received the Report.
Mst. Nawab had two injuries : (1)Gunshot wound of entrance 3 mm. x 5 mm. x muscle deep on the medial aspect of left thigh 8' above left knee.
(2)Gunshot wound of exit 8 mm. x 1 mm. x muscle deep on the lateral aspect of left thigh 8' above left knee.
' The injuries were simple. The probable age of the injuries in all these cases was mentioned as five to six hours.
7. There are different pieces of evidence forthcoming against the appellants. We will first advert to the eye-witness account. This has been A furnished by three witnesses, namely, Bajhi, the complainant, his wife Mst. Bibul and Muhammad Saleh. On the showing of these witnesses, they remained totally unharmed. Muhammad Saleh has deposed that he had sought safety in a nearby cotton field, but his evidence has not been relied won by the trial Judge, and we agree with the appraisement of his evidence. He can be left alone for the while. The first attack on the presence of Bajhi and lust. Bibul is, that these witnesses, with some variations, but on their own showing, admit to have been residing earlier in village Batter Shah, which is situated in Taluka Garhi Yaseen of District Sukkur, and if they were at the house of Haji Ali Gohar, how come it, that they were spared, when nine persons, including children, were done to death, and four others received injuries, one out of whom, died later on. What is more is, that they do not allege that even a drop of blood had stained their clothes. I am afraid this argument will not stay out, because, among the persons' killed were two brothers of Bajhi, namely, Manjhi and Ganwhar, and also Mst. Lalan, wife of Manabi. Bathe has also deposed that Puncheon was his uncle, and among the injured were included also the wife and the mother of Puncheon. This statement was gone unchallenged. When there were so many relations of his living at the house of Haji Ali Gohar, eye-brows need scarily be raised at their presence, all the more, when the First Information Report was lodged by Bajhi as early as 4-00 a.m.
We can also take judicial notice of the fact that Garhi Yaseen Taluka of Sukkur District is far away from the Wardat. Almost the entire family of Haji Ali Gohar had been wiped out, and it is not suggested as to who could carry the news, and that too so' promptly. After all, the parties are not strangers to each other. As to their! Survival they have stated that, once the attack had been let loose, they had run inside the room, and hidden themselves behind a mud bed-stand. Bajhi could not give the proper height, but Mst Bibul has deposed that it was knee high, and some eight beddings were kept thereon. It is also stated by these witnesses that there was no light inside the room. Nor there was any torch with the culprits. It is lucky that they escaped, but there is nothing improbable in their version. I am of the opinion that they were very much inside the house, and saw the very happenings for themselves. There are no inconsistencies, worth the name, in their versions.
It is true that Bajhi improved upon his version, as to be found in the First Information Report, naming more men than he had seen. Mst. Bibul also had tried to involve more people, and she had some grudge against the accused, as some of them had been resporsible for the murder of her father earlier, but that would not be enough to discard their evidence totally. The appellants were specifically mentioned in the First Information Report lodged by Bajhi, and there is nothing to indicate that Mst. Bibul had omitted their names in her statement to the police. I am of the opinion that it is safe to rely on their testimony so far as the appellants are concerned.
8. P. W. Muhammad Saleh is the 'Kamdar' of Muhammad Shah, whose lands were under the cultivation of Haji Ali Gohar and other members his family. He states to have been staying as a guest for the night. He is a man with some past, and unsavoury one at that. He was a history sheeter, and, even when he came for evidence, he was in custody for some offence under the Arms Ordinance. That, by itself, is not enough to disbelieve him. However, he did not know the accused, and that necessitated the identification test. Other solecisms involved in the parade apart, his evidence is to be discarded on the ground that he admits that the accused had been shown to him by the police before the parade. The evidence of Haji Ali Gohar is only derivative and need not detain us.
9. The next piece of evidence has been furnished by H. C. Mohiuddin and Altaf Hussain. The former was, at the time of the incident, a constable at Jbol, and Altaf Hussain plied a taxi. They state to have seen the appellants travelling with them in the taxi, but these is nothing to show as to how many days before the incident. They are supremely indifferent about the time factor. Apart from some variations in their statements, as to how many were carrying guns, it is remarkable that they had recollected the physical features of the appellants, while they did not care to remember the other passengers. It is also not known as to how their seeing the appellants-and their companions came to be known to the Investigating Officer. Altaf Hussain has also stated that he had been detained by the police for fifteen to twenty days after the incident, and was released when the test was held. He also could not point the accused before the trial Court. Otherwise too, there were only sixteen dummies with six accused persons, and their number would be insufficient. Obviously, they were speak-easy witnesses, and their evidence was properly discarded by the trial Court.
10. The next piece of evidence has been furnished by P. W. Rakhial: Khan, the mashir of the Wardat.
He is the Nekmard of the locality, and owns 4C0'acres of land. He states to have seen nine empties lying at the Wardat which were secured by the police, and then sealed. Nothing smacks of any partisanship in him. All that could be elicited from him was, that he had served as a Mashir once before. He will not be the worsen for it. He was called upon by the custodians of law and order to perform a duty, and he had done it. The number of the empties would also be commensurate with the firing indulged in, and the damage done. Then, there Is the evidence or Mashir Muhammad Safar in regard to the production of a gun by Bakhtiar. He states that he had gone to the Khairpur Nathan Shah Police Station, as a case had been registered against his Haris, when he was asked to accompany the police party. He has further added that, when he had come back, after the mission was over, his Haris were let off. We do not know, as to what the case was, and, whether the police had done something more than what they could really do. Apart from this, there is nothing which could be had from him. He is totally disinterested witness, having nothing to do with the complainant's party, and it is safe to rely on his statement, as was dote by the trial Court.
11. Then, there is the evidence of Mashir Jaffar in regard to the production of the gun by Allan, which belonged to his father. It was from Taluka Rohri in the District of Sukkur. It is true that he trial to be somewhat obliging in the cross-examination, saying that he was not present when the gun was produced, but that was obviously in contradiction to what he had stated in the examination-in- chief. He is also free from all partisanship, and there is no reason to distrust this piece of evidence.
12. Fir Bakhsh is the Mashir of the production of the second gun by the said appellant the next day.
This was some twelve miles away from Sanghar. The gun was produced after being dug out from the sand dunes. The only thing, which could be had from the witness, was that he had acted as a Mashir in some other cases earlier. That does not detract from his veracity. There were no other insinuations made against him. The delay of one day in the production of this gun is easy to understand, as it was in Sanghar district, very far from Taluka Rohri, the place from where the earlier gun had been produced. The guns, produced by Allan and Bakhtiar, had been sent to the Ballistic Expert, along with the empties, and he has deposed that the empties had been shot by these guns. No fault was found to the evidence of Mr. Mukhtiar Maud, the Ballistic Expert. All that was contended by Mr. Muhammad Hayat Junejo, learned counsel for the appellants, was that the culprits could not have used the gun of Haji Ali Gohar during the firing. However Bajhi has clearly stated that the said gun had been taken by his brother Manjhi, when he had gone out of the house to repel the attack, and the same had heen snatched from him by Allan, after the former had been fired upon. There is a mention about it also in the First Information Report. This fact has also been deposed to by 41st. Bibul. Under the circumstances, the contention is devoid of any merit. That will be a confirmatory circumstance against the appellants, Allan an I Bakhtiar.
13. The evidence of foot print test has been discarded by the trial Court, and for good reasons.
There is the additional fact that there were only five dummies to walk with the six accused. There were three tests with two accused each, but the dummies had remained common in all. The test, therefore, was extremely unsatisfactory.
14. The motive has been deposed to by Haji Ali Gohar, Bajhi and Met. Bibul, and there can be no matter of doubt that this dishonour to the family was rankling in the mind of the appellants. True that, at one stage, there was some bad blood between Bakhtiar and the other two appellants, but it has been stated by Bajhi that the parties had compromised the .Dispute. Bakhtiar is a cousin of rtis.
Janul, and it is not difficult to imagine that his feelings on the subject were as strong as that of Mastoo and Allan.
15. Mr. Muhammad Hayat Junejo, learned counsel for the appellants referred to the cases of Saba and others v. The State (1) and Jabal v. The State (2), but they will be of no assistance so far as Allan and Bakhtiar are concerned. I am, therefore, of the opinion that the case under sections 302/149, 148 and 436, P. P. C. Against Allan and Bakhtiar has been established beyond reasonable doubt. I will, therefore, confirm their death sentences on the first count, and affirm their sentences on the last two counts. The reference by the learned Sessions Judge is accepted. Looking to the nature of the injuries alleged to have been received by Mst. Nawabi, Mst. Sahiban and Himmat Ali, the offence made out against them would fall under section 324, P. P. C. And the sentences of R. I.
For ten years' awarded to them under section 3G7/149, is reduced to period of three years R. L each.
Allan has also been convicted for an offence under section 404, P. P. C. But that section refers to dishonest misappropriation of property possessed by deceased person at the time of his death.
Haji Ali Goh sr, the owner of the gun, was not among the victims. Otherwise too, as held In re : Snag pilli Yerranna and others (3), "in a case of murder, it is not a desirable procedure, and not within the experience of this Court", charging the accused with misappropriation of articles of the deceased. I will, therefore, set aside the conviction and sentence awarded to him for the offence under section 404, P. P. C.
16. There is no confirmatory circumstance forthcoming against Mastoo. It is true that be had as much a motive as the others, but motive would no be a corroboration, as held in Ashraf and others v. Crown (4). In Wasiullah v. Mirza All and others (5), special leave was granted to consider Inter alia, the question, whether corroboration was at all necessary, if the results produced were commensurate with the number of persons charged with. Ultimately, the appeal was dismissed, as, on further examination, it appeared to their Lordships, that the case was not free from doubts of a general nature, and one of them being the false inclusion of an accused at the outset. Their Lordships went on to observe, "when such be the case, and the main direct evidence be that of interested persons, that is, enemies of the person charged, it is proper to ask that the evidence in corroboration should be exceptionally strong almost, if not quite, sufficient by itself, to establish the guilt of in dividable accused persons beyond reasonable doubt." In Thoba and another v. The Sate (6), their Lordships observed: "This was pre-eminently a case where, in the total absence of physical circumstances to connect the two accused persons with the crime, and there being no proximate motive for the attack, the existence of feud-based on enmity operated as strongly to explain the implication of the two accused persons, as it did to support the allegation of an unprovoked attack by them upon a feudal enemy. In that situation, ocular evidence, to carry conviction on a capital charge must come from an unimpeachable source, or if such a source be not available it must be supported by some strong circumstance, such as might serve to overcome the inherent doubt by which such evidence is necessarily affected". To the same effects were the observations of their Lordships in Bagh Ali and others v. The State (7). I am, therefore, of the opinion that the case against the appellant, Mastoo, is not free from doubt, and the benefit thereof must accrue to him. I will, therefore, not accept the reference, and set aside the conviction and sentence awarded
(1) PLD 1966 Kar. 637 (2) PLD 1973 Kar. 643
(3) AIR 1941 Mad. 306 (4) PLD 1956 FC 86
(5) PLD 1963 SC 25 (6) PLD 1963 SC 40
(7) PLD 1973 SC 321 ' to him. He is in custody, and will be released forthwith, unless wanted in connection with some other case.
' With these modifications, the appeal stands dismissed.