' JAMALUDDIN a AHMED, J.-Appellant tail and one Dino were tried for offences under section 302 read with section 34 and also under section 404 by an Additional Sessions Judge, Hyderabad, Dino was acquitted while the appellant was sentenced to death under section 302, P. P. C. He has now challenged the said conviction and sentence by this appeal and the matter is also sent for confirmation of the death sentence,
2. Briefly stated the case of the prosecution was that the land situated in Deh Bukerani and Wassanki, taluka Tando Allahyar, which belonged to Chajoo Khan was looked after by his son deceased Ghulam Hussain and his son-in-law, complainant Riaz Ahmad. There was dispute between the appellant and Chajoo over a piece of land in Deh Bukerani which was forcibly occupied by the appellant, On 23rd March 1973, the day of occurrence, while the complainant and P. W. Muharam, his Hari, were looking after the rotation of water in the morning, P. W. Ismail Shidi also joined them. The deceased also reached the place and leaving his horse with the witnesses proceeded to a distance of about two acres to see the flow of water when the appellant challenged him. The appellant and his brother Dino then attacked the deceased with their hatchets as a result of which he fell down. The complainant and the two witnesses ran towards then, whereupon Dino escaped and went towards the west while the appellant mounted the horse left by the deceased and went over towards the south. Leaving the witnesses at the `wardae Complainant Riaz Ahmed proceeded to Police Post Bukera where he lodged the first information report. The appellant and his borther according to the complainant had been in illegal possession of the land of Chajoo for 8/9 months and had refused to vacate the same. They had murdered the deceased as he happened to go over to that place on that day.
3. Muhammad Dawood, H. C. Registered the complaint of P. W. Riaz Ahmad and sent it to Chamber Police Station for incorporating the same in the 154-Cr. P. C. Book. He then immediately proceeded to the place of incident and prepared a mashirnama of the `Sarzamin' in the presence of Dilawar and Bachayo, mashirs. He sent the dead body of the deceased to Medical Officer, Tando Allahyar for post-mortem examination after preparing the inquest report. He recorded the statements of witnesses Muharam and Ismail, whereafter the further investigation in the case was carried out by Fateh Ali Shah. A. S. I. On 24th March 1973. He secured the horse from the `barseen' crop of Chajoo as it was found grazing there. He arrested the appellant on 25th March 1973, in the presence of mashirs Rahmat and Bundoo. His shirt and the trousers appeared to be blood-stained which were seized. The appellant led the mashirs and, the Investigating Officer and produced the hatchet from a room in Bukera village where he used to live. This was found to be blood-stained and was therefore seized. On 26th March 1973, he produced the appellant in the Court of Civil Judge & F. C.
M., Tando Allahyar, where he made his confession. Acquitted accused Dino was arrested on 29th March 1973, who also produced a hatchet from his house which was seized as it appeared to be blood-stained. These articles were forwarded by him to the chemical analyser, Karachi, whose report was positive with regard to the clothes as well as the two hatchets. He thereafter handed over the papers to the S. H.
0. Who challaned the case to the Court.
4. At the trial the eye-witnesses' account was furnished by P. W. 3 Raiz Ahmad ,who was also the complainant, P. W. 4 Muharam and P, W. 5 Muhammad Ismail. P. Ws. Riaz Ahmad and Muharam also gave evidence about the motive and deposed that the appellant had been asked to quit the disputed land but he had declined to do so and that the deceased had been attacked as he went over to watercourse No, 9-L which was in between the land of Chajoo and land under forcible occupation of the appellant. Besides this, prosecution examined P. W. 7 Abdul Hameed, Civil Judge & F. C. M., Tando Allahyar, who recorded the confession of the appellant. P. W. 8 Bundoo Khan was the mashir of the arrest of appellant and also of securing his clothes i. e. White `Shalwar' and white shirt. These clothes were blood-stained. The appellant also produced his hatchet from inside the room of his house, the blade of which was stained with blood. These articles were found to be stained with human blood even according to the report of the chemical analyser,
5. Dr. Ghulam Qadir, the then Medical Officer, Tando Allahyar, held the autopsy on the dead body of deceased Ghulam Hussain and he found the following injuries on his person:-
(1) An incised wound 6' x 2'x 1/2" deep on left mid forearm anteriorly.
(2) An incised wound 6" X 1" x meninges deep on right front parietal region.
(3) An incised wound 5' X 1" x scalp deep 1" lateral to injury No, 2.
(4) An incised wound 5" X x bone deep at mid occipital region.
' In his opinion the death was caused due to shock and hemorrhage while injury No, 2 was individually sufficient to case death in the ordinary course of nature and collectively all the injuries were so sufficient. The injuries, according to him, appeared to have been caused with some sharp cutting weapon such as a hatchet.
6. The case of the appellant at the trial was that of complete denial. He denied to have committed the murder of the deceased or even to have been present at the Wardar. He also denied that the blood-stained clothes or the hatchet were his or that the same had been secured from him. About the judicial confession he stated that it was under compulsion of police because the women-folk were detained at the police station. The witnesses were deposing against him as they were interested. He further stated that the land survey No, 26 Deh Bukerani had been allotted to Chajoo Khan but was in his occupation as a Hand. We had occupied a portion of vacant land near that survey number and had developed it. The complainant desired to have that for himself and as the appellant refused to part with it the complainant started troubling him and tried to evict him with the assistance of P. W. Muharam. He had made an application to the Mukhtiarkar in this regard Exh.
49.
' As deceased Ghulam Hussain started coming to the land of Chajoo, complainant Riaz resented the same. Riaz had settled one Imam Khan on the land and that he had illicit connections with his wife. Subsequently Imam Khan killed his wife on this account and was tried and Riaz and others were witnesses against him. Deceased Ghulam Hussain had a grudge against Riaz on that account.
' In the committal Court he said in his statement as under:- "I was a Hari of Chajoo Khan. He wanted me to leave his land which I refused. He wanted to oust me. 1, therefore, had made an application to the Mukhtiarkar, Tando Allahyar who did not decide the matter. On my return Muharam, Shidi, prosecution witness, who found ploughing my land wherein rapeseed crop was cultivated. In the evening it was my turn of water but I was not allowed to take my brother Bachayo was allowed to use it. I was told to come in the following day morning.
Accordingly I went there and was again refused to get water hence 1 went to Jumo Khan to complain about this fact. In the evening I returned and heard that Riaz had got one man murdered in order to get the property as the deceased was his brother-in-law, I then again went to Junto Khan and informed him about the incident and told to make faisla lest I may be dragged. He then directed his munshi to accompany me to the police station. I was then brought to the police station. The Inspector of Police took me to one side and induced to confess promising that he would leave other persons who were my relatives detained at the police station. First of all I denied it but then on the following morning I was produced before this Court for confession."
' Although the appellant had retracted from his judicial confession but in his own statement at the trial he admitted that there was a dispute over possession of land which was allotted to Chajoo and which he did not want to part with. To that extent, therefore, his confession is obviously admitted. In his confession he described the incident saying that his turn of water was fixed from 8 p.m. That day but Chajoo and Muharam were not allowing him to take the turn. He still diverted the water to his field when Riaz cried and told Muharam to bring the hatchets and divert the water and on that they all came running armed with hatchets. Deceased Ghulam Hussain was the first to reach him who showed the five fingers saying that previously also they had blackened his face.
Now also they will do the same. As the deceased raised his hatchet the appellant thought they would kill him. He, therefore, gave him a hatchet blow on his head and deceased Ghulam Hussain fell down. The appellant rushed to others but they ran away. He then returned to the deceased who was still trembling. He, therefore, geve him 2/3 blows and killed him. Thereafter he rode away on the horse standing nearby. On the next day he went to Jumo Bozdar who sent bim to the police station and then he produced his bloodstained clothes and the hatchet before the Sub-Inspector.
' The confession of the appellant is thus in conformity with the evidence of the three eye-witnesses i. e. Complainant Riaz, Ismail and Muharam. Obviously these three witnesses are connected with each other as complainant Riaz is the son-in-law of Chajoo, the allotted of the land in dispute and Muharam is a Hari on the same. Isma il is a nephew of Muharam. But this connection in spite of the ill-feelings in between the appellant and Chajoo, is not shown to be of a nature so as to taint their evidence as biased and therefore unreliable. Deceased Ghulam Hussain being of young age, it is quite possible that he might have shown some zeal and gone over to the appellant in the land that he admittedly occupied; but the eye-witnesses who seem to be the natural witnesses of the incident do not appear to have such an enmity with the appellant so as to falsely implicate him in the murder of Ghulam Hussain. The appellant in his confession admitted the presence of witnesses Riaz and Muharam. Besides this, in spite of quite lengthy cross-examination of the witnesses no material has been brought on record to throw doubt on the credibility of these witnesses. A few discrepancies in their evidence do exist but they are not such as to devalue the worth of their evidence.
8. The evidence of the three eye-witnesses as discussed above is natural and believable even if assessed on its own value. But in this case it stands corroborated by a further piece of evidence which is of securing the clothes i,e, shirt and trousers from the person of the appellant at the time of his arrest and also his producing a hatchet from inside the room where he lived. P. W. 8 Bundoo Khan acted as a mashir of his arrest and securing of the above articles and he is an independent witness and also supported by the Investigating Officer Fateh Ali Shah in this behalf. The clothes as well as hatchet were sent to the chemical examiner who found them all to be stained with human blood.
' Besides this, the evidence of the eye-witnesses gains further support from the medical evidence in this case.
' So far as the judicial confession is concerned, the same was recorded by the Civil Judge & F. C. M., Tando Allahyar, before whom the appellant was produced for that purpose within 24 hours of his arrest. He was examined in Court. He took all the necessary precautions to see that the confession was made voluntarily and has given his reasons for holding the same to be not only voluntary but also true. Even otherwise, the confession stands substantially corroborated by the other evidence on record and there A seems to be no reason to disbelieve this evidence.
9. In view of the above, there is evidence of reliable eye-witnesses against the appellant which is supported by the judicial confession and recovery of incriminating articles and thus there is no merit in this appeal, which is hereby dismissed and the reference is accepted.
' AGHA ALI HYDER, J.-I agree.