' ZAKAULLAH LODHI, J.-The appellants were tried under section 302/34, P. P. C. By the learned Additional Sessions Judge, Sukkur, who vide his judgment dated 31st August, 1974 convicted them and sentenced to death penalty under section 302, P. P. C. And to a further term of one year rigorous imprisonment under section 13-D of Arms Ordinance, 1965. The appellants have assailed their conviction and sentence through this appeal whereas the learned Additional Sessions Judge has referred the case for confirmation of death sentences. This judgment will dispose of the appeal as well as the reference.
2. The brief facts forming the background of this case are that appellants who are related inter se killed Kandero and Allah Warayo in Khairwah near Graveyard of Pir Qasim Shah, Deo Dodo, Taluka Garhi Yasin, and District Sukkur by means of shot-guns on 27th September, 1973 at 7-30 a.m. The first information report was lodged in Police Station Garhi Yasin which is at a distance of 2/3 miles from the vardat at 8-30 a.m. On the same day by complainant P. W. Bhai Khan who was nephew of deceased Kandero and cousin of deceased Allahwarayo. According to the F. I. R. About 1-1/4 years back one Allah Dino was murdered and among other deceased Allahwarayo was arrested on the murder charge and challaned under section 302, P. P. C. But 2/3 months before the incident he was acquitted. After the acquittal of Allahwarayo the appellants Hussain Bux and Shadu are said to have expressed openly that they would avenge the murder of Allandino. On the night preceding the murder deceased Allahwarayo and Kandero were sleeping in their house alongwith the complainant and others when at about mid-night time they heard the barking of dogs. They suspected the thieves outside the house and so they did not come out due to fear. They also did not come out because enmity between the appellants and the deceased already existed and the appellants Nos. 1 and 2 had earlier given out their mind openly that they would avenge the murder of Allandino. However, at the sunrise time both the deceased, the complainant, and P. Ws. Morio and Idan came out of the house. They found four shod-prints towards the East of their house. They suspected the prints to be those of thieves and tracked them. While tracking the foot-prints they reached near the vardat when all of a sudden the appellants emerged from behind the bushes and gave a "hackal" to the deceased and others. The deceased were ahead of the rest by a few paces. The appellants fired at the deceased persons. Appellant Shadu is said to have fired at deceased Allahwarayo who received injury on the leg and fell down while appellant Bachu also fired at Allahwarayo. Deceased Kandero tried to run away but the appellants Hussain Bux and Gambal fired their guns at him and he also fell down. After having shot at the deceased the appellants are said to have run away from the scene of offence saying that they have avenged the murder of Allandino by killing the deceased persons. The F. I. R. Was registered by P. W. Abdul Majid who was A. S. I. Of Police Station Garhi Yasin. He immediately reached the vardat which had been pointed out to him by the complainant. He found the dead bodies of the deceased persons lying at the varda to with gunshot injuries. The distance between the dead bodies was about 40 paces. He secured blood-stained earth from the vardat and prepared a mashirnama which was signed by P.
Ws. Dhani Bux and Afzal mashirs. He found four empty cartridges near the dead body of Kandero and seven empty cartridges near the dead body of Allahwarayo. He secured them and prepared a mashirnama of the same. He also prepared the inquest report of the dead bodies. Thereafter he recorded the statements of the witnesses. On 5th October, 1973 he arrested Hussain Bux and Gambal from Naushero village. Hussain Bux was in possession of a gun and three live cartridges which were secured, under a mashirnama. Since the gun was without licence therefore a case under section 13-D of Arms Ordinance was also registered against him. The mashirnama so prepared was signed by mashir P. Ws. Muhammad Ismail and Jalib. On 8th October, 1973, appellants Shadu and Bachu were also arrested and from their possession one unlicensed gun and some live cartridges were recovered. A mashirnama of the same was prepared which was signed by P. Ws. Mir Muhammad and Din Muhammad mashirs. A case under section 13-D of Arms Ordinance was also registered against these persons. The guns and empty cartridges were sent to the Ballistic Expert for examination.
3. Dr. Ghaus Bux conducted the autopsy on the dead body of deceased Kandero on 27th September, 1973 and found the following injuries on his person: "(1) A firearm wound 1' in dia. With lacerated inverted, scorched ages on back of chest just below left scapula, communicated with wounds on front of chest (some sustain pellets).
(2) A firearm wound in dia., with inverted edge scorched edges on back of chest, communicate with wounds on left acilla (Exit of the discharge)."
' In the opinion of the doctor the death had occurred due to shock and haemorrhage consequent upon the above-noted injuries. The injuries were caused by discharge from firearm.
' He also conducted autopsy on the dead body of deceased Allahwarayo and found following injuries on his person: "(1) A firearm wound 2" x 2' with scratched edges, a cottonwood on lateral aspect of right thigh, communicate with wound on interior aspect of right thigh.
(2)A lacerated firearm wound 1/3 in dia.
(3)A wound with lacerated edges 1/2" in dia. On back of left thigh.
(4)A lacerated edges firearm wound 1' in dia. On back of chest.
(5)A firearm wound with lacerated edges 2' in dia. On right temporal region. Communicate with wound 3" x 2" with averted edges on left temporal region."
' In the opinion of the doctor the death of Allahwarayo had also occurred due to shock and haemorrhage consequent upon the injuries mentioned above. The injuries were caused by discharge from firearm such as shot-gun.
4. The appellants have denied having committed the offence and stated that the witnesses were inimical towards them and that they had falsely implicated them. The prosecution has in order to establish their case against the appellants furnished occular testimony of P. Ws. Bhai Khan (complainant) Morio and Idan. These witnesses have stated in their statements that about one year prior to this incident one Allandino who was brother of appellant Shadu had been murdered.
Deceased Allahwarayo had been charged of the murder but he was acquitted about 3/4 months before this incident. After acquittal of deceased Allahwarayo the appellants used to threaten the deceased that they would avenge the murder of Alladdino by killing them. The deceased persons as well as witnesses were confident that the appellants would avenge the murder of Allandino and therefore when on the night preceding the day of incident they heard the barking of the dogs they did not come out of the house thinking that the appellants might have come to take their revenge.
However, in the morning they came out of their house and found foot-prints of four persons near their house. Believing that the thieves had come to their house they started tracking the foot-prints.
When they had covered a distance of half a mile and reached the Graveyard of Pir Qasim Shah, the two deceased persons were a little ahead of the witnesses. At that time all of a sudden the appellants emerged from behind the bushes, gave "hakal" to these persons and shot at the deceased who died at the spot. The testimony of the eye-witnesses is worthy of credence because they are consistent in their statements and they have given account of the entire happening in a categorical fashion. There is no ambiguity in their statements and we do not find any contradictions also which would create any doubt in our mind about the veracity of their testimony. It has been emphasised that the witnesses are related to the deceased and therefore they should not be believed. But, unless their statements suggest of partiality or interestedness their statements cannot be kept aside from consideration. P. W. Morio is a cousin of the deceased.
P. W. Idan is brother of deceased Allahwarayo, Morio is also cousin of the complainant Bhai Khan, who is in turn nephew of deceased Kandero and cousin of Allahwarayo. However, despite this relationship the witnesses have not shown any such signs which could suggest that they were interested witnesses and were trying to falsely implicate the appellants in the offence. The prosecution has also provided the motive. In this respect the witnesses have stated that the murder in question took place because earlier Allandino brother of appellant Shadu had been murdered and the appellants suspected Allahwarayo to be involved in it. He was also challaned under section 302, P. P. C. But was acquitted subsequently. Thus it is evident that the deceased had been killed by the appellants in order to avenge the murder of Allahdino. The learned counsel for the defence has further argued that since nothing was stolen from the house of the deceased, therefore, it seems to be very unnatural that the deceased and the eye-witnesses would track the foot-prints and that the appellants would wait for the deceased and eye-witnesses from mid- night till morning at a distance of half a mile from the vardat to kill the deceased. We are not the least surprised on the conduct of the deceased and eye-witnesses because it is usual to track the foot-prints of the thieves and since the deceased and the eye-witnesses believed that the thieves had come to their house therefore they tracked their foot-prints. Similarly, the appellants' stay at a distance of half a mile from the vardat from mid-night till morning is also not a thing which may be said as unexpected. Since during the night the dogs started barking and there was likelihood of attracting the attention of other villagers and also because the appellants could not expect that the deceased would come out of the house they returned from the vardat and stayed at a distance of half a mile in order to go in the morning to settle the account with the deceased. This argument has therefore no force.
6. The ocular testimony of complainant Bhai Khan, Morio and Idan is further supported by the recovery of the guns from the possession of appellants Hussain Bux, Shadu and Bachu which provides a confirmatory circumstance. According to the evidence of the Ballistic Expert the empty cartridges found at the vardat were fired from the guns subsequently recovered from the appellants Hussain Bux, Shadu and Bachu. No recovery witness has been examined in this case.
The Assistant Public Prosecutor had made an application on 31st August 1974 that the recovery witnesses had been tampered with and therefore they were not likely to support the prosecution case. However, the A. S. I. P. Who had conducted the investigation in the case appeared as a witness and stated on oath that the recovery had been made by him in the presence of mashirs who had signed the mashirnamas which have been produced in the case. There is no reason why the statement of A. S. I. P. Should not be believed so far as recoveries are concerned. In this connection our attention was invited to Muhammad Khan v. Dost Muhammad and 17 others (1). In this case the recovery memos. Were held to have been properly proved through the evidence of the Sub-Inspector of Police. The observations of their Lordships may be reproduced below for convenience of reference:- "The recovery memoranda Exhs. P. J., P. K., P. L., P. M., P. N., P.
0., P. Q. And P. S. Had been duly proved by the evidence of the S. I. P. (P. W. 16). These also bear the signatures of attesting witnesses namely Sarwar and Yaqub Lumbardars, the former of the village of the parties and the latter of a neighbouring village. The S. I. P. However stated on oath that the two witnesses have not been produced because they have been "won over by the defence." This part of his statement has gone unchallenged and therefore there is no reason to doubt its veracity.
This evidence when read with the contents of the various recovery memorandum, leaves no manner of doubt that the requirements of section 103, Cr. P. C. Were duly complied with. However, it must be conceded that provisions of section 103, Cr. P. C. Are mandatory and are designed to guard against possible chicanery {{FOOT NOTE}}
(1) PLD 1975 SC 607 {{FOOT NOTE}} ' and concoction. But the argument is not that the requirement had not been complied with in this case; the argument on the other hand, is, that no credible evidence has been produced in proof of due compliance with the above requirement. The fact that the recoveries of incriminating articles were made in the presence of two respectable witnesses of the locality is amply proved by the oral testimony of the S. I. P. Read with the recovery memoranda and failure to produce the best evidence has been amply explained."
' Keeping in view what has been held in the precedent case, we are of the opinion that the testimony of the Sub-Inspector of police that the recoveries had been made in the presence of respectable persons and placement of the mashirnamas on the record is sufficient for the proof of the recoveries. The oral testimony of eye-witnesses thus stands corroborated by the recovery of the guns from the possession of appellants Hussain Bux, Shadu and Bachu and evidence of the Ballistic Expert. So far as appellant Gambal is concerned, since no recovery was made from his possession, his case stands on different footings than that of the other appellants. Since in this case the ocular testimony has not received support from any confirmatory circumstance therefore he is entitled to benefit of doubt.
8. For the foregoing reasons we dismiss the appeal and confirm the death sentence of appellants Hussain Bux, Shadu and Bachu. Their conviction under section 13-D is also maintained. As far as appellant Gambal is concerned, he is entitled to benefit of doubt and is acquitted. Appellant Gambal shall be released from the custody forthwith unless required in connection with any other case.