MUHAMMAD HALEEM, J.----Muhammad Hasan (22) and Sadhro (22) were tried for the murders of Muhammad Usman (45) and Natho (l7) by the II Additional Sessions Judge, Hyderabad and convicted on a charge under section 302 read with section 34, P. P. C. And each of them have been sentenced to death. They have appealed. The reference under section 374, Cr. P. C. For confirmation of their death sentence is also before us. This judgment will dispose of the appeal as well as the reference.
2. The incident occurred on 2nd March 1967 at 10-30 a.m. In the Shahi Bazar in Hala Town. The report (Exh. 14) of the incident was lodged by Noor Muhammad (P. W. 4) the same day at 11 a.m. At Police Station Hala, which is at a distance of 10 furlongs from the place of incident. This report was recorded by Qamardin A. S. I. (P. W. 12).
3. The facts of the prosecution case are these: While Noor Muhammad, Lakhano and Muhammad were in the Shahi Bazar they saw Usman coming in front of them from the south. He was being followed by appellants Muhammad Hasan and Dadhoro, the former had a double-barrel gun and the latter a hatchet. Within his sight Muhammad Hisan fired his gun at Usman from behind who fell down. He thereafter fired another shot and the pellets struck Natha, who was in the line of fire sitting in front of a shop. Sadhoro then struck hatchet blows on Usman with its sharp side. No one attempted to apprehend the appellants out of fear as Muhammad Hasan challenged the passersby not to come near them as they had come to take the revenge of his brother. They then ran towards the south from the main Bazar. Noor Muhammad, Lakhano and Muhammad perused the appellants and on the way a mounted constable, named Muhammad Maluk, also joined them in the chase. Muhammad Maluk had a rifle with him. The appellants then left the bazar side and went on running to the west towards the market street. The three witnesses followed the appellants up to the market and then gave up the chase. However, Muhammad Maluk continued following the appellants. They returned to the place of incident and from there Noor Muhammad proceeded towards the police station to lodge the report. On the way he met Haji Rahimdad S. H. O. And Qamardin A. S. I. In front of the office of the Deputy Superintendent of Police. Noor Muhammad then disclosed the facts of the incident to Haji Rahimdad, who deputed Qamardin A. S. I. To accompany Noor Muhammad to the police station and to record the report, while he himself went after the appellants. He had, however before leaving requisitioned police force from the police station to join him.
4. About three years before the present incident Raza Muhammad and A.I Muhammad, the brothers of the appellant Muhammad Hasan, were murdered. Ramzan, Haroon and Khabar, who are the sons of the brother of Usam and one Isso, his near relation, were tried for these two murders but acquitted by the Sessions Court. Appellants Muhammad Usman and Sadhoro had, therefore, killed Usman to avenge these murders.
5. Haji Rahimdad S. H. O. Met Muhammad Maluk at a place known as Bacha Bund. Muhammad Maluk thereafter returned as he had by then got tired. Haji Rahimdad saw the appellants running towards the west. They were about 2 or 2-- furlongs away from the Bond and thereafter they entered the Rajori Forest and the S.H.O. (Haji Rahimdad) lost sight of them. The police force had also come and joined him there. Haji Rahimdad then sent for mashirs Shafi Muhammad and Dhani Bux from their village which was at a distance of about 3 miles from Rajori Forest. Haji Rahimdad accompanied by the police force and the mashirs then tracked the prints of the appellants which were also lost in the forest. They then searched for them inside the forest and at about 5 p.m. They saw the appellants running towards the west. Haji Rahimdad with the aid of police force encircled the appellants and challenged them to drop their weapons which they did. They were then arrested. In the presence of mashirs Shafi Muhammad and Dhani Bux the gun containing two live cartridges in the chamber and the hatchet were secured. Appellant Muhammad Hasan had a khaki bag. This bag was also seized. It had in it 23 cartridges. Khaki Shalwar, shirt and Gidi (waist coat) of appellant Muhammad Hasan were seized from his person. Similarly, a trousers and shirt of appellant Sadhoro were also seized. All the above articles were taken into possession as per mashirnama (Exh. 23) in the presence of the above mashirs. The gun, the hatchet and the clothes were sealed into separate parcels.
6. Qamardin A. S. I. After recording the report went to the place of incident which was in front of the shop of Allahbachayo in Shahi Bazar. He secured two crime empties of .12 bore lying near the dead body of Usman as well as blood--stained earth from the places where deceased Usman and Natho had fallen down, as per Mashirnama (Exh. 9) in the presence of mashir Muhammad Hashim.
Natho had been taken to the hospital before the arrival of Qamardin A. S. I., where he expired. He then sent the dead body of Usman for pest-mortem examina--petition and himself went to the hospital where he learnt about the death of Natho. He inspected the injuries on the dead body of Natho and prepared the inquest report and sent the dead body to the medical officer for post- mortem examination. From the hospital Qamardin A. S. I. Went to the police station and recorded the statement of mounted constable Muhammad Maluk, who had by then returned. The statement of Allahbachayo, in front of whose shop the incident had occurred, was recorded the following day as he had gone to his house and was not available that day. The statements of Lakhano and Muhammad were also recorded the following day as, according to Qamardin A. S. I. They were not available at the place of incident as they had also gone that day to their villages to give the information about these murders. Haji Rahimdad S. H. O. Returned that day at 7 p.m. To the police station after apprehending the appellants. Qamardin A. S. I. Then gave the papers relating to the investiga--petition conducted by him till that time to Haji Rahimdad.
7. The appellants were put to identification test in Sub--Jail Hala on 13th March 1967 in the presence of Mr. Misbahuddin, a III Class Magistrate. Allahbachayo correctly picked out both the appellants.
8. The crime empties and the gun were sent to the Forensic Laboratory for matching and according to the report of the Ballistic Expert, M. Z. Iqbal, the crime empties were fired from the licensed gun of appellant Muhammad Hasan. The blood--stained clothes secured from the person of the appellants, the blood-stained earth and the hatchet secured from appellant Sadhoro sent for chemical analysis and, according to the report (Exh. 26) of the chemical analyser, the hatchet and shalwar of appellant Sadhoro and the shirt, shalwar and gidi of appellant Muhammad Hasan had human blood on them. Blood on the shirt of appellant Sadhoro was disintegrated; hence its origin could not be determined.
9. The autopsy on the dead bodies of Muhammad Usman and Natho was performed by Dr. Muhammad Hashim. He noticed two gunshot injuries on the dead body of Natho. In his opinion these injuries appeared to have been caused by discharge from a fire-arm, such as a gun and further that both the injuries were as a result of one shot; the injury on the, front side was the entrance wound while the injury on the back side was the exit wound. Both the injuries were sufficient to cause death in the ordinary course of nature. The dead body of Usman had some eight incised and seven gunshot injuries caused by a hatchet and a fire-arm. In the opinion of the doctor, the injuries were individually and collectively sufficient to cause death in the ordinary course of nature.
10. In defence both the appellants denied the prosecution case. Appellant Muhammad Hasan also denied enmity because of the murders of his brothers, A.I Muhammad and Raza Muhammad. He stated that the differences were patched up sometime before the incident on account of the intervention of Makhdoom Sahib. He denied his apprehension from Rajori Forest and further stated that the gun was recovered from his house and that he was also arrested from there. Against Muhammad he stated that he had fought with his brother 3 or 4 days before the incident. He has, therefore, given evidence due to that reason. He also stated that Muhammad was a cousin of Noor Muhammad. Against Muhammad Maluk no enmity was suggested, but it was stated by Muhammad Hasan that he had given false evidence at the instance of Rahimdad S. H. O. Against Lakhano it was alleged that his father and uncle had stood sureties for deceased Usman in a case against him under section 110, Cr. P. C. It was, therefore, that Lakhano had deposed against him.
Muhammad Hashim was also said to be man of the police and for that reason it was alleged that he had deposed against the appellants. Shafi Muhammad was also described as a police witness; besides the father-in-law of appellant Sadhoro was his hart and that he owed him Rs. 500 or Rs.
700. It was for this reason that he had deposed. Enmity was alleged against Noor Muhammad also because this appellant's father had given protection to Bidoo Bhambro, who had enticed away his mother. Appellant Sadhoro stated that the witnesses were inimical towards Muhammad Hasan, his maternal uncle and that he was falsely implicated due to that reason. He denied his apprehension from Rajori Forest and stated that he was arrested from his house.
11. At the trial, the direct evidence was furnished by the testimony of Noor Muhammad (P. W. 4), Lakhano (P. W. 5), Muhammad (P. W. 6) and Allahbachayo (P. W. 7). Muhammad Maluk (P. W. 9) was also examined because he had taken part in the-chase and had followed the appellants to a sizable distance. The trial Court while convicting the appellants believed the evidence of the three eye-witnesses, namely, Noor Muhammad, Lakbano and Muhammad. As for Allahbachayo, the trial Court held that he had made an obliging admission in favour of the appellant and, therefore, accepted his earlier statement which was transferred to the file of the Sessions Court under section 288, Cr. P. C. The testimony of Muhammad Maluk was also accepted as a circumstantial piece of evidence. The evidence relating to the securing of crime empties from the place of incident and the securing of the gun; hatchet and the clothes from the person of the appellants was also accepted and relied on as corroborating the ocular evidence. In the result the trial Court convicted the appellants.
12. Mr. Ghulam Nabi Memon appeared for appellant Muhammad Hasan while Syed Nasiruddin appeared for appellant Sadhoro. We have examined the record of the case with their assistance and that of the State counsel. Mr. Ghulam Nabi Menton contended before us that the three eye- witnesses, namely, Noor Muhammad, Lakhano and Muhammad lived at villages away from Hala town and that it was unlikely that they would have met by chance at the gate of the Dargah in Shahi Bazar and thus witness the incident as claimed by them. It is true that Noor Muhammad resided in a village 2 miles away but his presence had been established beyond any doubt by the links in the case. He had lodged the F. I. R. Half an hour after the incident and his presence was confirmed not only by Rahimdad S. H. O. And Qamardin A.S.I. But also by Muhammad Maluk, the mounted constable, who had also joined this witness in the chase shortly after the incident. His presence, therefore, cannot be discounted on a supposed improbability and we have, therefore, no hesitation in holding that this witness was in the bazar at the relevant time and had seen the incident. The next criticism against the evidence of this witness is that he should not be believed because he was well connected with deceased Usman as he had been visiting him for the last 20 or 25 years. This can hardly be a reason for discarding the evidence of this witness. He is not related to deceased Usman and apart from visiting the deceased no other interest has come out to make him an interested witness. Even the purpose for which he had visited the deceased is not apparent. It is, therefore, impossible to draw any conclusion that he was an interested witness. He had also denied the suggestion that his mother was enticed away by Bidoo Bhambro, who was given protection by the father of appellant Muhammad Hasan. We are, therefore, not inclined to accept the enmity suggested against this witness. He cannot be said to be inimical towards appellant Muhammad Hasan. Appellant Sadhoro has not alleged any enmity against this witness.
He has merely stated that he has been implicated because of his relationship with appellant Muhammad Hasan. There is, therefore, no basis for any false implication of either of the two appellants and we are convinced that this witness had seen them following deceased Usman and then killing him in the main Shahi Bazar. On conclusion is further strengthened by the fact that this witness was subjected to a lengthy cross-examination and nothing has come out to effect his credibility as a witness to the occurrence. We would, therefore, accept his evidence.
13. The presence of Lakhano is not only confirmed by Noor Muhammad and Muhammad but also by Muhammad Maluk. His name transpired in the F. I. R. And we have also no reason to doubt his presence. According to Noor Muhammad, Lakhano resided 6/7 miles away from the place of incident while Lakhano himself estimates the distance at 14 miles. The distance is either under estimated or over-estimated; in any case, the distance will not make any difference if he had come to Hala Town for a set purpose. He is neither a case-fellow nor a relation of deceased Usman.
He bad left his village at 7 a.m. That morning for Hala Town to get the sale deed of his land registered and had met Noor Muhammad and Muhammad near the gate of the Dargah in the Shahi Bazar. It was from there that he had proceeded along with these two witnesses and had thus witnessed the incident. The criticism against this witness is that his presence was improbable because he lived at a considerable distance away from the place of incident and it was unlikely that he would have met the other two witnesses by chance alone. One more circumstance relied on for his absence is that when Qamardin A. S. I. Came from the police station accompanied by Noor Muhammad he was not found near the dead body of deceased Usman. From this it is suggested that if he had been there it was unlikely that he would have left the dead body. Lakhano had given a reason for coming to Hala town that day. He had also stated that after Noor Muhammad had left to lodge the report he remained at the place of incident for about 5 minutes and then went to the Sub---Registrar's office to get the deed registered. From there he went to inform the relations of deceased Usma n about his murder. There is nothing on record to suggest any improbability in the explanation given by this witness. No one from the Registrar's office has been examined in defence to challenge his claim that he was in the Sub-Registrar's office that day in connection with the registration of the sale deed. We are, therefore, unable to conclude that the explanation was a false one and that this witness had not seen the incident. It is also not possible to accept that Noor Muhammad would have mentioned his name in the F. I. R. In the hope that he would support the prosecution case even though, according to the learned counsel, he had not witnessed the crime. There is no evidence of any consultation immediately after the occurrence between Noor Muhammad and anyone else and it is, therefore, too far-fetched to suggest that he could figure as an eye-witness in the F. I. R. Even his interest in deceased Usman is not apparent from the evidence of Noor Muhammad; it is, therefore, not possible to accept that Noor Muhammad would have still mentioned the name of Lakhano in the F. I. R. In the belief that he had an interest in the deceased and that in any event he would support the prosecution case. Lakhano has given an explanation forgoing away from the place of incident. We have no reason to doubt it, for if he had to get the sale deed registered he would have, in all probability, gone for that purpose to the office of the Sub-Registrar. Besides other persons bad also collected at the place of incident; therefore, there was no point for him to remain with the dead body as he was neither a relation of the deceased nor in any way connected with him. He had his own work to do, and if he had left the place of incident his absence from there was not of any significance. We, therefore, attach no significance to the contention of the learned counsel for the appellants that if this witness had seen the incident he would not have left the place of occurrence. We would, therefore, accept the evidence of this witness as well. He had no enmity against the appellants. The allegation is against his father and uncle that they had stood sureties for deceased Usman. We do not think that this could be a reason for the false implication of the appellants. If his father and uncle had stood sureties that cannot be a ground of enmity between him and the appellants. Besides, there is nothing on the record to indicate any interest of this witness in the deceased. It is, therefore, not possible to conclude that he would have falsely implicated the appellants at the behest of Noor Muhammad.
14. The third eye-witness is Muhammad. He resided in the same village as Noor Muhammad and bad met him near the gate of the Dargah in the Shahi Bazar. The reason fox his visit was that he wanted to purchase cloth that day. His name also transpired in the F. I. R. Muhammad Maluk had also confirmed his presence along with Noor Muhammad while they were chasing the appellant. It is, therefore, not possible to discard his evidence on the bare criticism that he was not found near the dead body when Noor Muhammad had returned along with Qamardin A.S.I. It frequently happens that villagers of nearby villages go to town to buy the necessities of life. This witness's visit was not an exception to it. If this witness had stated that he had purchased the cloth that day front the shop of a Muhammad had left the place of incident because he wanted to inform the relations of the deceased about his murder, the reason cannot be described as improbable and we are, therefore, not inclined to accept the criticism of the learned counsel for the appellant to this effect.
This witness had no interest in the deceased; his name is also mentioned in the F.I.R. And we have found no inherent improbability in his evidence either. This witness had admitted having exchanged hot words with Muhammad, the brother of appellant Muhammad Hasan, but this cannot, in our view, be a reason of enmity against appellant Muhammad Hasan. This witness had, therefore, no reason to falsely implicate the appellants. We have, therefore, no hesitation in believing this witness as well.
15. As for Allahbachayo, it is true that he had not identified the appellants in the trial Court and that his statement before the committal Court was brought on record. We are, however, not inclined to accept the identification of the appellants by him, for there is no explanation as to the delay in holding the identification test. The appellants were arrested on 2nd March 1967 and the identification parade was held on 13th March 1967. Besides, there is indication in the evidence that the identifying witness had seen the appellants before the parade. Misbahuddin, a III Class Magistrate, in whose presence the test was held, had admitted in his statement that "if one enters the compound of Sub-Jail, Hala, he can see the prisoner inside the lock-up". The identification test was held in the Sub-Jail, Hala and the appellants were in the lock-up at that time. The impression that one has is that there could be a chance of the appellants being seen by the identifying witness before the parade while entering the compound of the Sub-Jail. In this context it may be recalled that the appellants were arrested on 2nd March 1967 and were in the police lockup. On the following day this witness was called at the police station where his statement was recorded. The probability of this witness seeing the appellants in the lock-up cannot be ruled out. Allahabachayo had also admitted in his evidence before the trial Court that he had seen the appellants at the police station the next day when he had gone to give his statement and on one other occasion before the identification test at the police station. No weight can, therefore, be attached to the identification of the appellants by this witness in the committal Court. As far as the actual occurrence is concerned, it is confirmed by the ocular evidence and we would accept his evidence to that extent. The trial Court relied on the committal Court's statement of this witness because he bad failed to identify the appellants at the trial; we have, however, attached no weight to that identification as well. There is, therefore, nothing to choose between the two statements, as in each of them this witness has stated about the actual occurrence. Nothing turns on the acceptance of the statement made by this witness in the committal Court and even if we were to prefer it to that made in the trial Court his evidence would not advance the case of the prosecution any further. It is, therefore, not necessary here to discuss the cases cited by Mr. Ghulam Nabi Memon on the question whether circumstances existed for preferring the statement of the committal Court to that of the trial Court as in our view this discussion is merely academic now as the case entirely hinges on the evidence of the other three eye-witnesses and the circumstantial evidence.
16. Muhammad Maluk, mounted constable, was attached to Police Station Sekhat. He had come to Hala town at about 9-15 a.m. By bus in search of one Khiali, an accused in Crime No. 3/67. His departure from police station Sakhat was noted in the diary of that police station. While he was coming from Muhajir Chowk towards the Dargah and was at the crossing of the road going towards the market that he saw the appellants being followed by Noor Muhammad and others. He bad then also joined the pursuit and followed the appellants up to Bacha Bund in Old Hala where he met Haji Rahimdad S. H. O. Who had also come there by then and from there he returned to Hala town and at the police station his statement was recorded. The criticism against his evidence was that his statement could not have been recorded at 11-30 a.m. That day as by that time he could not have returned from the chase of the appellants. The statement of this witness was recorded by Qamardin A. S. I. No question has been put to him at - what time be examined Muhammad Maluk, but from his evidence it appears that after recording the F. I. R. At 11 a.m. He must have taken 2 to 3 hours thereafter in the investigation at the spot and at the Civil Hospital before he returned to the police station. The time then must have been 1-0 or 1-30 p.m. When he had recorded the statement of Muhammad Maluk. It was, therefore, quite possible for him to have returned from Bacha Bund in Old Hala which was at a distance of about 4 miles. The time of 11-30 given by Muhammad Maluk must have been because of lapse of memory, for he was examined in Court after about a year and it is likely that he may not have remembered the actual time at which he came to the police station.
17. There is yet another criticism of his evidence. In his cross-examination he had admitted having said :- ---It had stated before the police that the two accused present at the police station were running away.--- The suggestion of the learned counsel is that the story that he had chased the appellants was false as they were arrested from their houses and were at the police station when his statement was recorded. According to the learned counsel the word "present" in the above sentence gives this positive indication. We feel that this sense is not conveyed by the use of the word `present' for the words "running away" follow it. If the appellants had been arrested from their houses and this witness had not chased them, he would not have obviously used the words "running away". His statement was recorded by Qamardin A. S. I. And we feel that the manner in which the sentence was recorded by him was defective. There can be no doubt that the appellants were arrested after a chase from Rajori Forest. There is overwhelming evidence on this aspect of the case which is furnished not only by Muhammad Maluk but by Shafi Muhammad (P. W. 10) and Haji Rahimdad S. H. O. (P. W. 11). There is also the ocular evidence which is to the effect that the appellants were chased by Muhammad Maluk. We have, therefore, no doubt that the appellants were arrested after the chase and that they could not have been at the police station at the time at which the statement or Muhammad Maluk was recorded. The time at which the appellants were brought to the police station from Rajori Forest was 7 p.m. And it is, therefore, impossible that the appellants could have been at the police station at the time the statement of Muhammad Maluk was recorded. Muhammad Maluk himself was in the chase and had followed the appellants up to Old Hala. There he had met Haji Rahimdad S. H. O. By then the appellants were not arrested. He had then returned and his statement was recorded at the police station. It is, therefore, impossible to believe that he would have said about the presence of the appellants in the lock-up at that time when they had yet to be apprehended. We would, therefore, repel this criticism of the learned counsel for the appellant Muhammad Hasan.
18. There now remains the evidence of the securing of the incriminating articles and the apprehension of the appellants from the Rajori Forest. It may be recalled that the appellants were followed inside the Rajori Forest. The final link in this chain is furnished by the evidence of Shafi Muhammad and Haji Rahimdad. Shafi Muhammad is a disinterested witness and was called from his village to accompany the police party. There is nothing in his evidence which can render his evidence doubtful. Even the enmity alleged against him by appellant Muhammad Hasan has not been established. We cannot reject his evidence merely on the suggestion that he had acted as a mashir in 70 or 80 cases and had signed the mashirnama at the instance of Haji Rahimdad S. H. O.
At the police station as he was under the influence of the police, which suggestion was also denied by this witness. The evidence of Rahimdad S. H. O. Is also consistent with that of the mashir and we have no reason to disbelieve him. We would, therefore, accept the evidence of the securing of the incriminating articles as well as the apprehension of the appellants from the Rajori Forest.
19. The learned counsel for the appellants, however, urged that if the statement of Rahimdad is accepted then he would have had no time to collect the sealing material from the police station and it is surprising how he was able to seal the articles in the forest. Neither any question was put to the mashir nor the investigating officer as to from where the sealing material was procured for sealing the articles in the forest. It may be that if a question had been put to Haji Rahimdad he would have given the explanation about it. In the absence, therefore, of such explanation and any material on the record it cannot be urged that it could not have been possible to seal the articles in the forest. The learned counsel for appellant Muhammad Hasan also urged on the basis of the admission of Tapedar, Muhammad Khan, that Rajori Forest is on the western bank of river Indus and Hala town is on the eastern bank and that therefore it was not possible to cross the river without being ferried across it. According to him, there is no evidence on record to establish that the appellants had crossed the river in a boat. The story, therefore, that they were followed up to Rajori Forest is not conceivable. There is the evidence of Haji Rahimdad S. H. O. And mashir Shafi Muhammad that they had tracked the foot-prints from the Bund up to the forest. The foot-prints were however lost in the forest. No question was put either to Rahimdad S. H. O. Or Shafi Muhammad that they could not have followed the foot-prints up to the forest as there was the river in between and that they could have only entered the forest after being ferried across the river.
Even to Muhammad Maluk no such question was put though it was in his evidence that he had gone up to Bacha Bund in Old Hala. It is, therefore not possible to disbelieve these two witnesses on this point. The tapedar had not visited the place on the Bund from where prints were tracked up to the forest. If there was a river in between, the prints would have been interrupted and Haji Rahimdad or Shafi Muhammad would not have said that the prints went right up to the forest without indicating their interruption. We are, also, not prepared to give credit to the tapedar of the knowledge of knowing the forest intricately which extends in an area of about 4 or 5 miles. It is very likely that a portion of the forest may be on the eastern bank as well and for that reason the two witnesses had not referred to the river in their evidence. We would, therefore, attach no significance to this criticism as well.
20. It was next urged that the clothes of appellant Muhammad Hasan could not be blood-stained, for he had fired his gun from a distance and it was impossible therefore that he could have had the stains on his clothes, The gunshot injuries show the presence of charring and inverted margins. The closeness with which the shot was fired may account for the presence of blood-stains on his clothes. It is not possible to believe that appellant Muhammad Hasan would have remained at a distance and only Sadhoro would have gone near him to inflict the hatchet blows. Their presence together is more plausible in the circumstances of the case. There is also the fact that appellant Muhammad Hasan was arrested after the chase and from his person blood-stained clothes were seized. His closeness, therefore, to deceased Usman is confirmed. There is also no challenge to the evidence with regard to the recovery of his blood-stained clothes. This criticism, therefore is also of no substance.
21. The learned counsel also emphasized before us that the crime empties were not recovered at the spot but that they were fired from the gun later on and foisted. This criticism is also without any substance as there is no material for us to come to any such conclusion. There is the testimony of mashir Hashm, in whose presence the crime empties were secured from the wardat and his evidence has gone unchallenged. We are, therefore, unable to see any substance in this criticism.
22. The last objection is with regard to the delay that ensued in sending the parcels of the incriminating articles to the Chemical Analyser for analysis. The articles were dispatched on the 4th of May and were received on 6th May 1967 by the Chemical Analyser, West Pakistan, Karachi. The delay, according to the learned counsel for the appellant, was sufficient to throw away the evidence with regard to the presence of human blood on them. The learned counsel also cited decisions where there was delay and the Court did not consider the evidence of blood-stains or the clothes. We, however, feel that the observations in those cases can have no universal application. There can be no hard and fast rule that in every case, where there is delay this evidence should be discarded. If the suggestion is that the clothes can later be smeared with blood by keeping them for a long time; the articles can still be tampered even if there was no delay, the delay, therefore, by itself can give no indication of any foul play, though at times the prosecution can lose material evidence if the stains are disintegrated because of lapse of time.
Something has to be alleged and at least shown before the unexplained delay can be regarded as sufficient to throw away this piece of evidence. No such suggestion has been made to this effect in the evidence and we are not, therefore, inclined to agree with the learned counsel that because of the delay this evidence should not be con--sidered.
23. Mr. Nasiruddin, the learned counsel or appellant Sadhoro, adopted the arguments of Mr. Ghulam Nabi Memon and in addition urged that the reason given by Lakhano for coming to Hala town was specially selected for giving evidence as an eyewit--ness and that it was not true. There is no material on record from which it can be said that this reason was selected for giving evidence in Court. We have already considered and accepted his evidence for the reasons given in the earlier part of this judgment. The criticism is hypothetical and we would not attach any significance to it.
24. Syed Nasiruddin next urged that the story of the witnesses chasing the appellants is also false as the appellants were armed and it was not possible for the witnesses to go near them. According to him the witnesses could neither have gone near them nor followed them. The evidence is that the incident had taken place in the main Shahi Bazar and the appellants had then run away towards the market. It would not, therefore, be difficult to follow them by keeping a respectable distance. There is then also the urge on the part of the appellants to make good heir escape. They would, therefore, concentrate more on escaping rather than watching the persons following them.
Moreover, this contention is also hypothetical. Culprits are chased and apprehended even when they are armed. It will, therefore, not render the story of the prosecution witnesses improbable if they had said they had followed the appellants. Syed Nasiruddin also urged before us that Muhammad Maluk was not in Hala town and had not taken part in the chase, for if, according to him, he was there and armed, he would have certainly fired at the appellants. There is evidence to confirm that Muhammad Maluk had gone after the appellants up to Old Hala. Why he did not fire at the appellants, has not been made clear from any question in the cross-examination. If questioned he would have given an explanation for it. In the absence of any such question it is not possible to conclude that he could have established his presence only by firing his rifle at the appellants. Besides, this is also a hypothetical criticism. There might have been difficulties in the way of firing at the appellants either because of distance or obstructions and nothing can be built on it.
25. Syed Nasiruddin then urged that Allahbachayo's evidence should be ignored. We have already rejected his evidence so far as the identification of the appellants in Court is concerned. In other respects his evidence is confirmed by the other ocular evidence which we have accepted. There is no reason for us to discard that evidence as he was a shop-keeper and the incident occurred in front of his shop.
26. Syed Nasiruddin next urged that the evidence of Noor Muhammad should not be accepted because deceased Usman was his cousin and that this witness had also not given any substantial reason for his presence in Hala town. However, we may add here that Noor Muhammad had denied his relation--ship with deceased Usman and it was only appellant Muhammad Hasan who had alleged his relationship with the deceased, which was not established by any material on record. His evidence cannot, therefore, be appraised on the basis that he was a relation of the deceased and yeas thus interested in him. We have already considered and accepted the evidence of this witness and we feel that this criticism is of no substance and needs no separate consideration.
27. Lastly, Syed Nasiruddin urged that the sealed parcels were not signed by the mashir; hence the possibility of tampering cannot be ruled out. The possibility according to the learned counsel could be true also in the case of the gun which was sent for matching after 27 days. In the absence of any material on record to suggest the tampering of the articles, we are unable to agree with him.
We would, therefore, repel this criticism of the learned counsel.
28. There is, therefore, the ocular evidence of Noor Muhammad, Lakhano and Muhammad against the appellants. They have all implicated the appellants. Their ocular evidence is corroborated not only by the circumstantial evidence of Muhammad Maluk who had himself chased the appellants along with these witnesses but also of mashir Shafi Muhammad and Rahimdad S.H.O. Who had followed the prints into the forest, from where the appellants were arrested. There is also the evidence of the recoveries of incriminating articles against each of the two appellants. We have, therefore, no hesitation in coming to the conclusion that they are the assailants of deceased Usman and Natho. The other deceased Natho, however, was killed because he happened to be in the line of fire when appellant Muhammad Hasan fired his gun at deceased Usman. The appellants are, therefore, liable for the commission of his murder as well. There is, however, no material to indicate any connection of deceased Natho with either the appellants or the deceased. It cannot, therefore, be said that the appellants must have come to kill him. There is thus overwhelming evidence against the appel--lants which proves their guilt beyond a reasonable doubt. In the result we are of the view that they were rightly convicted under section 302 read with section 34, P.
P. C.
29. Lastly Mr. Ghulam Nabi Memon urged for the reduction of the sentence. We are of the view that there is no mitigating circumstance to justify the reduction of their sentence. Appellant Muhammad Hasan had come along with appellant Sadhoro to take revenge of his brothers who had earlier bees killed by the relations of deceased Usman. There was, therefore, premedita-- petition. We are, therefore, not inclined to reduce the sentence as it k was a brutal attack on the deceased. Appellant Muhammad Has3n even did not care to spare an innocent person (Natho) who was sitting in front of the shop while firing at deceased Usman and thus caused his death.
30. We would, therefore, reject their appeal and confirm the sentence of death imposed on appellants 'Muhammad Hasan and Sadhoro. The reference is accordingly accepted.