' Z. A. CHANNA , J.-Appellant Allahwarayo and his brother Allahbachayo alias Bachal were tried by a learned Additional Sessions Judge, Nawabshah, in respect of an offence punishable under section 302, P. P. C. Read with section 34, P. P. C. For committing the murder of one Allanditto and while Bachal was acquitted, the learned Additional Sessions Judge, by his judgment delivered on 2-8- 1974, convicted the appellant of the murder of Allanditto and sentenced him for the said offence to imprisonment for life and also to pay a fine of Rs. 5,000 or in default to undergo R. I. For 2 years. The appellant was also convicted of an offence under section 13(d) of the Arms Ordinance, and sentence for the said offence to R. I. For 3 years, with the direction that the said sentence and the sentence in the murder case should run concurrently. The learned Additional Sessions Judge did not award capital sentence to the appellant as he was of the view that the appellant had committed the murder out of sense of honour and self respect, which had been outraged by the enticement of his sister by the deceased.
2. The incident occurred on 27-3-1973, at morning prayer time, on the Katcha road leading from Moro to Daur, at a distance of about 8 miles from Moro. The prosecution case is that on the night intervening between 26th and 27th of March, 1973, at about midnight time, deceased Allanditto accompanied by his wife, Mst. Rehmat Khatoon, his cousins, Azim and Pathan, and his nephew, Akbar, set out from their village in Deh Kot Satabo for Sahwari village, some 22 miles away, to see their Nekmard, Mohammad Ghulam Parhial, who was ailing. When they had covered a distance of some 14 or 15 miles from their village and had traversed some 7 to 8 miles from Moro, the appellant and the acquitted accused, Bachal, are said to have suddenly emerged from the bed of a watercourse, where they were hiding, and after giving a `Hakal' to deceased Allanditto, the appellant fired his pistol at him, hitting him in the region of the chest and right arm, in consequence of which Allanditto fell down. It is alleged that Allanditto's companions were deterred from going to his aid by acquitted accused Bachal, who was armed with a hatchet and who threatened them with the same. The appellant and the co-accused thereafter made good their escape. Leaving Pathan, Ghulam Akbar and Mst. Rehmat Khatoon with Allanditto, who was found to have succumbed to the fire-arm injuries, Azim repaired to Moro Police Station, 7 miles away, where his first information report was recorded at 11-30 a.m. By Writer Head constable Rasoolbux. The motive for the murder is said to be the fact the deceased, some 4 or 5 months before his murder, had eloped with Mst. Rehmat Khatoon, the sister of the appellant and married her and it was in retaliation for this outrage that the appellant and his brother had killed the deceased.
3. The investigation in the case was entrusted to A. S. I. Nabibux. He accompanied complainant Azim to the scene of offence where he found the dead body of Allanditto lying on the road. The A. S. I. Secured blood-stained earth from the vardat as also one empty cartridge which was lying at a short distance from the dead body. He also found a fully saddled mare standing near the dead body, on which mare Mst. Rehmat Khatoon is alleged to have been riding. The A. S. I. Next recorded at the scene of offence the statements of P. Ws. Akbar, Pathan and Mst. Rehmat Khatoon, as also of Ghulam Sarwar and Dhani Bux. On the following day, the A. S. I. Arrested the appellant from his house in Deh Dilchand. The appellant is alleged to have produced before the A. S. I. a country- made unlicensed pistol which was concealed under the eastern portion of the hedge of the appellant's house.
' The pistol is said to have been smelling of gun-power. The crime empty secured from the scene of offence and the pistol allegedly produced by the appellant was sent for examination to the Ballistic Expert, but his report indicates that no definite information can be expressed "due to lack of sufficient identifiable data".
4. The medical evidence is to injuries were found on the deceased.
(1) A lacerated punctured type blackening over the right side of entrance).
(2) Four lacerated punctured type of wounds about 1/8" in diameter over the right side chest laterally below the axill a, with blackening. (Wound of entrance).
(3) Five lacerated punctured type of wounds in diameter with blackening over the right upper arm.
5. On internal examination, the Medical Officer found that the pleura of the deceased was lacerated, both his lungs were lacerated and punctured and his heart was punctured at three places. One metallic pellet was extracted from the body of the deceased.
6. The direct evidence in this case is furnished by complainant Azini, Akbar and Pathan. All 3 of them have testified that while they were going alongwith the deceased and his wife, Mst. Rehmat Khatoon, from their village to Sahwari village to see their relation and Nekmard Mohammad Ghulam Parhial, who was ailing, when on the Katcha road, at a distance of about 7 or 8 miles from Moro the appellant and his brother, Bachal, suddenly emerged from somewhere behind them and after challenging the deceased, the appellant fired his pistol at the deceased, who was hit and fell down. They have also deposed to the elopement by the deceased of Mat. Rehmat, sister of the appellant, and her subsequent marriage to deceased.
7. Mr. Mohammad Hayat Junejo, the learned counsel for the appellant, has assailed the evidence of these 3 eye-witnesses on the grounds, firstly, that their evidence that there was only one shot fired coupled with the admission of the complainant that the appellant did not open his pistol, is not only inconsistent with the finding of the crime empty at the scene of offence, but also with the medical evidence which suggests that the injuries on the deceased were the result of 2 fire-arm shots; secondly, that it was highly improbable that so many persons, including the wife of the deceased, would undertake the long journey of 22 miles, merely for the purposes of seeing their allegedly ailing Nekmard, whose nature of illness has not been disclosed by the witnesses thirdly, that since the appellant is admittedly not residing in the village of the complainant party, neither he nor his brother could have been in a position to learn about the projected visit of the complainant party to their Nekmard so as to waylay it, and that too after the complainant party had covered a distance of about 15 miles; and finally, since the learned Additional Sessions Judge has not believed the testimony of the eye-witnesses in respect to co-accused Bachal, their evidence in respect of the appellant also should not be relied upon.
8. An examination of the medical evidence shows that all the 3 injuries on the deceased were on the right side of the chest and the right upper arm and in each case there was blackening. Since the shot fired at the deceased was from a country-made pistol, in which a cartridge containing pellets is used, such a shot will cause a number of injuries on an area depending upon the distance from which the shot is fired. No doubt, the blackening around the injuries indicates that the shot was fired from a close distance, but even there is bound to be some spreading of the pellets and we find nothing improbable in all the injuries on the deceased having been caused with a single pistol shot. So far as the evidence of the Medical Officer is concerned, although he has stated that these injuries were the result of a discharge from a fire-arm, thereby presumably meaning a single shot from a fire-arm, he has merely opined that it is possible that the injuries may have been the result of more than one shot. This possibility, in our opinion, appears to be extremely remote not only by reason of the fact that all the injuries were on the right side of the chest and upper arm of the deceased but further 'blackening' was found at the region of the injuries, thereby indicating that the injuries were caused from the same distance. The learned counsel for the appellant sought to argue that the appellant may have fired 2 shots from his pistol at the deceased, but there is no evidence whatsoever in support of this contention. All the 3 eyewitnesses have categorically stated that only one shot was fired at the deceased So far as the presence of the crime empty at the scene of offence is concerned, it was apparently the result of the appellant re-loading his pistol, while attempting to escape, so that in case of an emergency he could use the same. Since his back would be turned to the witnesses while he was so re-loading, nothing would turn on the fact that the witnesses failed to see him doing so. The non-mention of a crime empty at the scene of offence also is not of much significance, inasmuch as the offence took place at morning prayer time, when there was not too much light, and further in his agitated 2nd confused state of mind, the complainant may not have either noticed the crime empty, or if he did so, thought it worthwhile to make mention of it in his first information report. In Hussain Ali v. State (1) their Lordships of the Supreme Court observed that omission of any reference to the empties in the F. I. R. And the inquest report, though the crime was committed during daylight, if considered in isolation would not be a very material and in fact could be explained away on one hypothesis or the other and might have been due to the agitated mind of the first informant. In the instant case, both the mashirnama of the scene of offence and the inquest report mention the presence and the recovery of the crime empty.
9. We find equally no force in the next contention of the learned counsel for the appellant in respect of the visit of the deceased and his companions to their nekmard. It is true that the nekmard himself has not been examined but all the eye-witnesses have deposed about his illness and the fact that they had set out from the village to see him. In the rural areas of Sind, it is a common practice for relatives, Murids and other persons interested in the welfare of an ailing person, to pay a visit to him, usually with their families, even though the ailing person, might be living at a considerable distance and the journey may involve some difficulties, expenses or hardships.
Furthermore, though the eyewitnesses have been subjected to extremely lengthy cross- examination, there has been no suggestion made to any one of them that there was any other purpose for the journey undertaken by the deceased and his companions. Though the exact nature of the illness of the nekmard has not been indicated by the witnesses, the very fact that they were undertaking a journey of over 22 to 23 miles to see him clearly suggests the fact that the nekmard must have been quite unwell. {{FOOT NOTE}}
(1) 1977 SCM R 161 {{FOOT NOTE}}
10. As to the criticism of the learned counsel of the appellant that since the appellant and Bachal do not reside in the village of the complainant party, they were unlikely to have come to know about the proposed visit by the deceased to the nekmard so as to either follow him or lie in ambush for him, we may only remark that a fairly long journey by such a large party could not have remained a secret and must have been the common talk not only in the village of the complainant party but also among their relatives and friends. We have it from the evidence of complainant Azim that the appellant is related to the deceased, as the grandfather of the deceased was married from the family of the appellant, and furthermore deceased himself had married the sister of the appellant. Even the previous husband of Mst. Rehmat was closely related to the deceased, being his cousin. It is thus quite possible that either Mst. Rehmat herself or some other relatives of the deceased may have conveyed information, perhaps quite innocently, to the appellant about the projected visit of the deceased to their nekmard.
11. We also find no force in the contention of the learned counsel for the appellant that the ocular evidence having not been believed in respect of acquitted accused Bachal should not have been relied upon against the appellant. A perusal of the impugned judgment shows that the learned trial Court did not disbelieve the ocular evidence as to the presence of co-accused Bachal, but acquitted him on the grounds that though he is said to have been armed with a hatchet, he admittedly did not use the same, nor did the witnesses in their 164 statements, allege that he had threatened them or taken any specific part in the transaction. 'The learned trial Court accordingly held that there was no positive evidence that Bachal shared a common intention with the appellant to kill the deceased, and accordingly gave him the benefit of doubt. Even if the learned trial Court had not relied upon the ocular evidence with regard to the presence of co-accused Bachal at the scene of offence, then also the ocular evidence in respect of the appellant could not have been discarded or disbelieved on that account. It was the duty of the trial Court to carefully analyse the ocular evidence against the accused, to separate the wheat from the chaff, and if on such an examination, it came' to the conclusion that the crime was perpetrated by the appellant, and furthermore there was corroborative evidence in support of the ocular testimony, which evidence we will presently discuss, no fault with its finding can b found. In the case of Bakka v. State
(1) it has been held by their Lordships of the Supreme Court that "the principle of maxim falsus in uno falsus in omnibus (false in one false in all) has long since ceased to be applied by the Courts in this country, and they have always endeavoured to separate the grain from the chaff'. The learned trial Court thus, in our opinion, very rightly distinguished the case of the appellant from that the co- accused.
12. The learned counsel for the appellant also referred to the non-examination of Mst. Rehmat and suggested that the suppression of her evidence was probably due to the fact that she may have given a different version of the incident or at least may have given evidence which would have exonerated the appellant. There is no doubt that Mst. Rehmat was with the deceased at the time of the incident. At the same time we must not lose right of the fact that she was the real sister of the appellant and at the time of the trial she was not only residing with co-accused Bachal but had been attending the Court with him, as deposed to by P. W. Pathan in his replies to questions by the Court. There was thus a valid and cogent reason for {{FOOT NOTE}}
(1) PLD 1977 SC 150 {{FOOT NOTE}} not examining her as it was most unlikely that she would implicate her real brothers.
13. The ocular evidence finds strong support from the evidence of motive, to which we have referred, and the recovery of an unlicensed country-made pistol from the possession of the appellant. A. S. I. Nabibux has deposed that on the day following the incident, he had gone to the village of the appellant, where the appellant was produced before him and Mashirs, Arbab and Urs, and on interrogation the appellant led him and the Mashirs to his house from inside the hedge of the house he took out an unlicensed pistol and produced the same before him. The A. S. I. Is supported by Mashir Arbab. This evidence has been relied upon by the learned Sessions Judge and we find no reason to differ with his assessment.
14. The evidence of Mashir Arbab was assailed by the learned counsel for the appellant on the grounds that he is not the resident of the locality, as admittedly his village is 22 miles from the scene of offence; that he is interested in the deceased as he is related to the nekmard of the deceased, namely, Ghulam Parhial, and that further he is a caste-fellow of the complainant if not actually related to him. No doubt, the Mashir has admitted that his village is 22 miles from Moro town, but he added that he runs a hotel in Moro town, which, as pointed out earlier, is only 7 to 8 miles from the scene of offence. His place of work thus is not far from the scene of offence.
Furthermore, according to the witness, which statement of his there is no reason to doubt, he was going from his village to Moro town to his hotel, when on the way, near the scene of offence, he was stopped by the police and made Mashir of the scene of offence and later of the recovery from the appellant. As pointed out by Tufail Ali A. Rehman, C. J. In Abdul Rashid v. State (1) the respectability of the witnesses of recovery is more important than the nearness of their residence to the place of search. The mashir is a hotel-keeper and as held in the case of Abdul Wahab v. State (2) shopkeepers and business-men (which would also include hotel-keepers) are respectable enough to be witnesses of recovery. The witness, while denying that he is in any way related to the complainant, has frankly admitted that he is not only the caste fellow of the complainant but further that Ghulam Parhial, the nekmard of the deceased, is his father-in-law and also otherwise related to him. These circumstances, in our opinion, do not make him an interested witness nor can they be considered to cast any shadow of suspicion or doubt on his testimony. The witness was put to a searching cross-examination but nothing has been elicited from him which would entitle us to treat his evidence with suspicion. The witness has frankly admitted that Ramzan, the brother of the appellant and the acquitted accused, Allahbachayo, reside with the appellant in a common house.
But, since the pistol was concealed in the hedge of the house and only the appellant had knowledge of its place of concealment, the recovery of the pistol, in our opinion, rightly provides strong corroboration to the ocular evidence against the appellant. The witness has further stated that the pistol was found to be smelling of fresh firing, which fact provides further corroboration to the evidence of the eyewitnesses.
In Bakka's case, to which we have already referred, a spear was recovered at the pointation of the accused from under a stack of Bhoosa. It was con- c tended before their Lordships of the Supreme Court that since the recovery was made from a room situated in the compound of the acquitted accused, it {{FOOT NOTE}}
(1) 1975 P Cr. L J 565 (2) PLD 1977 Quetta 58 {{FOOT NOTE}} could not provide corroboration as against the appellant. Repelling this argument, it was held by their Lordships of the Supreme Court that "this argument overlooks the fact that the spear was lying concealed under a stack of Bhoosa of which only the appellant had peculiar knowledge" and in these circumstances, "the Courts below were right in regarding this recovery as providing corroboration against the appellant". Thus, the fact that acquitted accused Bachal as well as Ramzan were residing with the appellant is of no significance in the instant case, since the appellant alone had peculiar knowledge of the place where the pistol was concealed.
15. We have given very careful consideration to the entire evidence of the case and are satisfied that the guilt of the appellant has been established beyond any reasonable doubt and that the learned trial Court rightly convicted him. We accordingly find no substance in the appeal and would dismiss the same.