' JAMALUDDIN H. ARMED, J.-The four appellants have been convicted by the Sessions Judge, Dadu, for offences under section 302/34, P. P. C. And each is sentenced to death. Appellant Suleman is further convicted under section 13-D, Arms Ordinance for going armed with a revolver without a licence and sentenced to three years' rigorous imprisonment while appellant Abdul Karim has also been convicted under section 13-D, Arms Ordinance and sentenced to one year rigorous imprisonment. They have filed their appeals to assail their conviction and sentences and the case is also otherwise referred to this Court for confirmation of death sentence.
2. The prosecution case is that on 22nd August, 197 3 at about 6-30 a. m. Four persons i. e.
Deceased Ali Bux, his two sons Umer and Sikandar and one Haji Habib were murdered by the four appellants on the katcha road going from village Khundi to Mehar, near the waveyaid of Pir Mohammad Shah. Appellants Suleman and Abdul Karim according to the F. I. R. Were armed with guns while appellants Piro alias Pir Bux and Shah Nawaz alias Shahan were armed with hatchets.
The gun used by a appellant Abdul Karim was however subsequently found to be a country-made pistol, while that of Suleman a rifle and were so described in evidence. The crime was witnessed by P. W. 7 Ali Sher, first informant, P. W. Hussain Bux, his nephew, and one Saffar his cousin who was not examined in Court. The motive of this crime as stated was to take revenge for the murder of one Haji brother of appellant Sulleman and cousin of Abdul Karim. He was related to appellants Pir Bux and Shah Nawaz. Appellant Pir Bux though belongs to a different caste i. e. Janwari but as stated by the complainant, is a relation of the other appellants. Appellant Shah Nawaz also admitted his relationship with him. Haji was murdered 5/6 months before this incident, and deceased Umer and Sikandar were accused in the case, but had been released on bail. On the night preceding the incident the parties had assembled in village Khundi as the Pir of Ranipur was scheduled to come and arbitrate. He did not come and in the morning two parties were proceeding to Meher to attend the date of hearing of the case in Court when the appellants committed these murders on the way.
3. The F. I. R. Of this crime was registered at Mehar Police Station at 7.
45. a. m. By A. S. I., P. W. Mohammad Moosa. He immediately proceeded to the place of incident and prepared mashirnama of the same as Exh. 20 in presence of mashirs P. W. 5 Bakhshal and one Jan Mohammad. Besides the four dead bodies, he found the bullock cart with a pair of bullocks near the dead body of Haji Habib. From near the dead body of deceased Umer be secured one empty shell of rifle bullet, one empty shell of 12 bore cartridges, one misfired rifle bullet of 303 and a blood- stained hatchet. From amongst the nearby bushes, 4-5 paces away from Umar's dead body he secured one empty shell of 303 rifle and two empty shells of 12 bore-gun cartridges. He seized the blood-stained earth, and the cartridges etc., and after preparing inquest reports sent the four dead bodies for post-mortem examination. He also examined witnesses Hussain Bux and Saffar at the wardat, whereafter he preceded to the village Khundi. He arrested appellant Suleman who appeared before him there and secured his shirt, loin cloth and turban which appeared to be stained with blood and were so found by the Chemical Analyser also. Appellant Suleman appeared to have some injuries on his person at the time of his arrest. He then volunteered to produce the rifle, and did so from the enclosure of his house where it was hidden. It bore No, 400800. This rifle was found to contain an empty bullet shell. Besides this, Suleman also produced one rifle bullet from the hedge. All these were sealed at the spot. Again on 28-3-1973 appellant Shah Nawaz alias Shahan appeared before him in the village. He had an injury on his head. He arrested him and secured his loin cloth and shirt which appeared to be blood stained which were washed. The Chemical Analyser did not find any blood marks on them. He also volunteered to produce a hatchet which he did from inside his house in the presence of mashirs. The hatchet appeared to be washed and had no apparent marks of blood, but as per report of the Chemical Analyser it was stained with human blood. On the same day the A. S. I. Also arrested appellant Pir Bux alias Piral and secured his shirt, loin cloth and the piece of cloth used as turban which had blood stains. This appellant had produced a hatchet before his arrest that was secured by the A. S. I. In the presence of mashirs. This hatchet also had no blood stains. A. S. I. Thereafter handed over the papers for further investigation to S. H. O. Allandino P. W. 10 who verified the investigation already done.
Thereafter he arrested appellant Abdul Karim from village Kundi who volunteered to produce a pistol which he did from the refuse in the hedge of his house where it was lying buried. Two live cartridges were also found buried along with the pistol and were secured. On opening the pistol was found to contain an empty shell of '12 bore cartridge of Shaheen Company. The S. H. O. Seized all these articles whereafter he got the 164 statements of Saffar and Hussain Bux recorded and on 17-9-1973 submitted the challan of the case. Appellants Suleman and Abdul Karim had no licences for arms and the S. H. O. Therefore lodged F. I. Rs, for the said offences against them.
4. At the trial, prosecution examined the two eye-witnesses. Ali Sher and Hussain Bux who bad witnessed the crime and seen the appellants committing the murders. Excepting some minor discrepancies the evidence of both of them seems to be consistent with regard to the arms carried by the appellants and the manner in which they caused injuries to the deceased. Both of them also stated that deceased timer was armed with a hatchet with which he had caused injuries to appellant Suleman. Their evidence is sufficiently corroborated by the F. I. R. Which mentioned the names of all the four appellants and had been filed without loss of time. They further stand corroborated by the medical evidence of Dr. Ghulam Mustafa who examined the dead bodies and held the post-mortem. He had also examined the appellant Suleman with regard to injuries on his person. The injuries as found by the medical officer are as under:- "Deceased Haji Habib.-(1) Circular wound of 2 dia with black margins on interior lower 1/3 of right forearm with fracture of right ulna and right radius., and rupture of ulnar and radial blood vessels.
This injury was entry wound.
(2) Circular wound with 2-1/2 x dia. Without black margin on lower 1/3 of right forearm on its posterior aspect. It has exit wound of injury No, 1.
(3) Eighty-four circular lacerated wounds with black margin each with dia of 1/6' scattered on right lateral chest. The pellets were removed from some of the wounds. Which were skin deep and intercostal muscles?
(4) Five circular lacerated wounds with black margins each with 1/6' dia. On medial side of right upper arm.
' In the opinion of the doctor all the external injuries appeared to have been caused by some fire arm like a gun except for 1 and 2 could have been caused by a rifle. The injuries Nos. 1 and 2 may or may not have been caused by rifle and therefore no definite opinion could be given by him. The injury No, 1 was sufficient in an ordinary course of nature to cause death of the deceased. The death was caused due to shock and haemorrhage as a result of injury No, 3.
' Deceased Umer.-(1) Circular lacerated wound with black margins with 4' dia. Deep to bones causing fracture of upper end of right humerous and right scapula situated on right shoulder region pellets and wads were recovered from the wounds.
42) Circular lacerated wound with black margins with dia. 2' and deep to left lung on left back lower thoracic region.
(3) Incised wound 1/ ss x skin deep on right forehead.
(4) Incised wound 1' x x muscles deep on upper back.
(5) Incised wound 3/4' x 1/4 muscles deep left scapular region.
' In the opinion of the doctor injuries Nos. 1 and 2 appeared to have been caused by some fire-arms like shot-gun while Nos. 3, 4 and 5 by sharp-cutting weapon such as hatchet. Injury No, 2 could not have been caused by rifle. Injury No, 2 was sufficient in an ordinary course of nature to cause death of the deceased, and all the injuries collectively were also sufficient to cause death in the ordinary course of nature. Death was due to shock and haemorrhage as a result of injury No, 2.
' Deceased Sikanlar.-(1) Inched wound 6' x i* x bone deep with fracture of second cervical vertebrae on upper neck.
(2) Incised wound 4' x x bone deep with fracture of 5th vertebrae on lower neck.
(3) Twenty-one circular lacerated wounds with black margins with dia. Of 1/6' deep to the skin and muscles, scattered on right shoulder region posteriorly.
(4) Eight circular lacerated wounds with black margins each with dia. Of 1/6" scattered on right neck.
' In his opinion injuries No, 1 and 2 appeared to have been caused with some sharp-cutting weapon like hatchet while Nos. 3 and 4 with some hre-arm like gun. The injuries Nos. 1 and 2 individually were sufficient in ordinary course of nature to cause death of deceased. Death was due to shock and haemorrhage as a result of injuries Nos. 1 and 2.
' Deceased Ali Bux. -(1) Incised wound 2' x bone deep with fracture of right scapula on right scapular region.
(2) Incised wound 1" x 1/4' x scalp deep on right occipital region.
(3), Oval lacerated wound 3/4' x bone deep with the black margins on right occipital region and extending on back of right ear.
(4) Three circular lacerated wounds with black margins with dia. Of 1/6' deep to the right lung and fracture of right clavicle bone.
' In his opinion the injuries Nos. 3 and 4 appeared to have been caused by some fire arm like a gun and the rest by some sharp-cutting weapon like a hatchet. The injuries Nos. 3 and 4 individually were sufficient in ordinary course of nature to cause death of deceased. The death, of the deceased was due to shock and haemorrhage and intracranniel haemorrhage due to injuries Nos.
3 and 4.
' Appellant Suleman.-(1) Incised wound 1-1/2 x x skin deep on left forehead.
(2) Incised wound w x x bone deep with suspected fracture of left parietal region.
(3) Incised wound 1" x x muscles deep on left lateral chest.
(4) (4) Incised wound 1' x r skin deep on back of left elbow joint.
' All the injuries appeared to have been caused with some sharp-cutting weapon such as hatchet and were about 12 hours old at the time of ,examination. Injuries Nos. 1 and 4 were simple in nature and 2 and '3 were also simple.
' Appellant Shah Nawaz.-(1) Incised wound 3/4' x 1/12' x 1/2 scalp with extension of liner superficial incision on each side of the wound.
(2) Linear incision superficial r adjacent to injury No,
1. Both injuries were simple in nature and were caused by some sharp-cutting weapon like blade or knife.
' These injuries could not have been caused by the hatchet and appeared io be self-suffered."
' Besides the above, P. W. 5 Bakhshal deposed about the recoveries made from the place of incident by P. W. 9 A. S. I. Mohammad Moosa. The presence of a bullock cart with the pair of bullocks at the place of incident also corroborates the version of the two eye-witnesses that deceased Haji Habib had brought the cart which has been given in charge of child Ghulam Hussain. Additionally the presence of a hatchet by the side of dead body of Umer, corroborated the version of the eye- witnesses that appellant Suleman had been injured by deceased Umer. Toe re is no material on record to give any substantial reason for disbelieving the evidence and the trial Court rightly came to this conclusion that the two eye-witnesses, appear to be true witnesses of the occurrence.
' These witnesses also deposed to the existence of motive for the murders which was not challenged in cross-examination. The murder of Haji Rahim and the pendency of a case against deceased Sikandar and Umer for that murder was even admitted.
5. So far as recoveries made from the four appellants are concerned.. P. W. 5; Bakhshal, the mashie and P. W. 9 A. S. I. Mohammad Moosa were examined. They deposed about the arrest for appellant Suleman whose clothes were secured and they appeared to be blood-stained. But as appellant Suleman was himself injured the trial Court rightly held that these blood stains on his clothes had little value as corroborative evidence against him. Similarly appellant Shah Nawaz alias Shaho had also two injuries on his person at the time of arrest and the blood stains on clothes secured from him at the time of arrest were therefore not of much significance. But appellant Shah Nawaz had produced a hatchet from his house which as per Chemical Analyser's report was found to be stained with human blood and was positive evidence against him, which supports the eye- witnesses' account.
' Appellant trial had produced a hatchet in the presence of the same witness, but before his arrest, and according to the witness it was not blood-stained. The Chemical Analyser reported the blood on this hatchet as disintegrated, and thus its origin could not be determined. When arrested his clothes were secured but they were also of not much corroborative value as although according to the witness they were blood-stained, the Chemical Analyser's report showed that the shirt and the loin cloth had no blood stains while the blood on the silken head cover had disintegrated.
5. From appellant Abdul Karim a country-made pistol and a live cartridge were secured which he produced after his arrest, in presence of P. W. 4 Mohammad Qasim, mashir and P. W. 10 Allandino, S. H. O. This pistol also contained an empty shell of a cartridge. He had no licence for any of these aims. The pistol was a country-made one. P. W. I Mukhtar Ahmed, the Ballistic Expert was examined, as he had given his opinion that one empty had been fired from each of the arms sent to him i. e.
The rifle and the country-made pistol. But_ as rightly concluded by the trial Court, the prosecution failed to establish that the empties actually secured from the vardat has been so fired, this evidence was not sufficient to connect the arms with the occurrence. As both the pistol and the rifle are alleged to have contained one empty each, at the time of production by the appellants, it was necessary to prove the above fact with clarity and beyond doubt.
6. The case set up by the appellants was that of denial about anything to do with the occurrence.
They denied having produced any arms and even the securing of the clothes from these persons.
Although each one of them admitted the fact of murder of Haji and the case in the Court at Mehar, they denied that they had any motive to commit the murders. It was alleged that they had been falsely implicated due to enmity, but the details of the said enmity were not disclosed. Appellant Fir Bux stated that Ali Sher complainant suspected him of illicit intimacy with his wife and he had therefore been implicated by Ali Sher. No such question was put to Ali Sher in cross-examination.
Appellant Shah Nawaz claimed to be a relation of Pir Bux and said that he was implicated falsely by Ali Sher. He also claimed to be an enemy of the appellants Suleman and Abdul Karim as his relation Sidik Janwari had filed a case against them.
7. Obviously in this case in corroborative evidence, examined by the prosecution relating to recoveries of clothes and arms is not of much value. The hatchet produced by appellant Shah Nawaz alone could be used as an incriminating piece of evidence against him. However, the account given by the two eye-witnesses does show that they are the real witnesses of the occurrence. The appellants were previously known to these witnesses and belong to the same village. They are not shown to be interested so as to falsely implicate them for murder. The F. I. R.
Was promptly filed, giving names of all the appellants. The medical evidence and other circumstances fully support them. In this state of evidence, and also for the conclusion reached by the trial Court, that the four murders were committed by these four appellants in furtherance of their common intention, the learned counsel for the appellants attempted to demolish the effect of this evidence, by pointing out the discrepancies therein and contended that they may not be believed on that account. These discrepancies are with regard to the number of blows inflicted and the manner of causing injuries by the accused, which do not appear to be so material as to make the witnesses discreditable. Four persons were murdered in an attack which was unexpected and in which fire-arms were used. This must have caused excitement and at such times witnesses are not expected to count the blows with accuracy; nor can they give a detailed and the accurate account of the manner of causing such blows.
' The next submission of the learned counsel for the appellants was that although in the F. I. R. It was stated that a gun was used by appellant Abdul Karim, the witnesses in Court changed their description of the same, as a pistol only to fall in line with the discoveries made during subsequent investigation. It is true that the pistol used by appellant Abdul Karim was mentioned as a gun by the complainant in the F. I. R. But his explanation in Court seems quite plausible and acceptable, when he stated that it was a country-made pistol and rustic people can make no difference between them.
' The learned counsel for the appellants then made a feeble attempt to distinguish the case of appellant Pir Bur on the ground that he was of a different caste than the other appellants and because there had been a case against appellant Suleman under sections 450, 511 and 307, P. P. C.
For having injured Siddik, the cousin of appellant Peral in which appellant Suleman was actually convicted by judgment of Sessions Court dated 7-2-1970 produced as Exh. 58, there could be no possibility of appellant Piral joining appellant Suleman to commit these murders. In the first place it has not been brought on record that the relations between the appellant Suleman and Piral were not cordial or continued to be inimical after the said case, and on the other hand P. W. All Sher deposed at the trial that Haji son of Bakhir was also related to appellant Piral. This statement remained unchallenged. The complainant thus had clearly pointed out that appellant had a common motive, and in the circumstances, it cannot be said that appellant Piral could not possibly have any common intention with others in committing this crime.
8. Although the arms secured from the possession of appellants Suleman and Abdul Karim have not been successively proved to have been used for the commission of the offence, their possession without licence stands proved. The conviction of the two appellants under section 13-D of Arms Act and also the respective sentences are therefore proper and are upheld.
9. This upshot of the above discussion is that in the circumstances of the case, the two eye- witnesses appear to be the true and natural witnesses of the murders and their evidence is proved to be believable. This appeal is 4 therefore dismissed and the conviction and sentences passed against the appellants are upheld The reference is also accepted accordingly and the sentence of death is confirmed.