ASHIRUDDW AHMAD, J.-Two brothers, namely, Noora (24) and Shera (21) were tried for the murder of Moonda, in furtherance of their common intention, on November 4, 1966, in the area of village Bhabra., by the Additional Ses--sions Judge, Sargodha, who convicted them under section 302/34, P: P. C. And sentenced to suffer death.
2. The condemned persons appealed and the case is also before us on reference under section 374, Cr. P. C., for confirmation of the death sentence. We propose to dispose of the appeal and the reference by a single judgment.
3. The story of the prosecution, briefly narrated, is that on the fateful day, at degarwela, the deceased was returning with a donkey load of bajra from his field towards his house, when he was attacked, near the jhugi of Hasna Dindar, by the appellants with hatchets. He was pursued to some distance and eventually Noora appellant overtook him and gave a blow with the hatchet on the head of the deceased who fell to the ground. Thereafter, the appellants inflicted more injuries with their respective weapons. Malii, Mst. Naziran, Umra and Mst. Sardaran, who accompanied the deceased, raised an alarm. The occurrence was also witnessed by Ali Mochi. The appel--lant, fled and the companions of the deceased on going up to him found that Moonda had already succumbed to the injuries.
The motive for the murder was vendetta. Twenty years ago, Mirza, father of the appellants, was done to death and for the murder of said Mirza, Moonda deceased, his father Mutalli and his brother Dhuna were tried, but the law had failed to punish them.
4. Leaving Umra and others to guard the dead body, Malli proceeded to Kot Moman Police Station at 'a distance of 14 miles from the scene of the tradgedy and reaching there at 10-00 p.m. Lodged the report, Exh. P. E. After lodging the report, Malli went to fetch a truck. S. 1. Nazar Husain waited till 1- 00 a.m., for the return of the complainant, but when he failed to turn up, the S. I. Set out for the place of the occurrence in a tonga. He came across Malli at a distance of 11 miles and went to the spot in a truck and reached there at 4-00 in, the morning.
5. The investigating officer prepared the injury-sheet and the inquest report and then despatched the dead body for post-- mortem examination. Salehon (P. W. 10) and SaeeD (P. W. 11) were associated with the investigation. In their presence, the S. I. Took into possession blood-stained earth from the spot and sealed it into a parcel. The appellants were produced by F. C. Nadir Khan before the investigating officer on the following morning and were put under arrest. Noora appellant led to the recovery of hatchet, Exh. P. 1, from his kotha which was taken into possession and sealed into a parcel. Shera also led to the recovery of blood-stained hatchet Exh. P. 2 from a kotha in his house. It was taken into possession and was sealed into a parcel.
6. Dr. Khurshid Alam (P. W. 1) conducted the autopsy on the dead body of Moonda deceased on November 5, 1966 at 3-00 p.m. And found the following injuries.
(1) An incised wound 1 --" x 1" on the, right parietal region.
(2) An incised wound 3" x 1" x bone deep, --" above injury No. 1. Right parietal bone was cut.
(3) An incised wound 6" x 1--" x bone deep, on the right side of the neck. Right jaw and first and second cervical vertebrae were cut.
(4) An incised wound 7" x 1" x bone deep, 1--" below injury No. 3. Right jaw was cut. Fourth cervical vertebra was also cut,
(5) An incised wound 7" x --" x bone deep, J" below
(6) An incised wound 7' x 1" x bone deep, --" below injury No. 5. Fifth cervical vertebra was cut.
(7) An incised wound 6' x 1' x bone deep, 1" below injury No. 6. Cervical vertebra was cut.
(8) An incised wound 4" x 1" x muscle deep, 11' below injury No. 7.
(9) An incised wound 2" x 1/2' x muscle deep, I" below injury No. 8.
(10) An incised wound with amputation of the right thumb at the metacarpal phalangeal joint.
(11) An incised wound 2" x I Z" x on the inner side of right wrist. Ulna bone was cut.
(12) An incised wound 1-- x --" x bone deep, 1" above injury No. 11.
(13) An incised wound 2' x 1', between left index and middle finger.
In the opinion of the doctor, death was due to shock and haemorrhage following injuries Nos. 3, 4, 6 and 7 caused by sharp-edged weapon, which were sufficient in the ordinary course of nature to cause death.
7. The appellants pleaded not guilty to the charge and denied the prosecution allegations against them. They ascribed the case to enmity. Elaborating the point, Noora made a state--ment which runs: - "Three brothers of Moonda deceased were murdered some time ago. Even then my real uncle Sajjawal and other near relations were falsely implicated by Mutalli, father of the deceased, but they were not challaned by the police. Even now we have been falsely implicated."
8. No evidence was produced in defence.
9. Direct evidence was furnished by Malli (P. W. 2).
Ali Mochi (P. W. 3) and hfst. Naziran (P. W. 4). The gist of their evidence is that the appellants attacked and injured the deceased by means of hatchets. Malli is the paternal uncle of Moonda deceased. Ali Mochi is in no way related to him. Mst. Naziran is the widow of Moonda. Malli and Mst.
Naziran alongwith two others, namely, Umra and Mst. Sardaran had gone with Moonda to his field of bajra. They were returning to the village with a donkey load of bajra fodder when the deceased was pursued and killed by the appellants. Ali Mochi had gone out for the purpose of nature and saw the appellants inflicting injuries on Moonda deceased who lay prone, Ali Mochi confirmed that Malli, Mst. Naziran, Umra and Msc. Sardaran were present near, the spot and after murdering Moonda deceased the appellants ran away taking the weapons of offence with them. Ali Mochi continued that after the assailants had left the spot, he went up to Moonda and found him dead.
10. There has been admitted enmity between the parties. Twenty years ago, Mirza, father of the appellants, was done to death. Moonda deceased, his father Mutalli and his brother Dhuna were tried in that connection, but got acquitted. Moonda deceased was a brother of Mst. Sardaran (Not produced), Mst. Naziran (P. W. 4) is the mother of Umra who remarried Moonda deceased after the death of previous husband Dhana. He was the nephew of Malli. It is in the statement of Malli that Mst. Rahmo is a daughter of his brother Lala and is married to Muhammad Khan son of Shera.
N4alli expressed ignorance if Manak is a first-cousin of aforesaid Shera. He also expressed ignorance if Shera, father of Muhammad Khan, is a son of Bahabi. He is contradicted on this point by Mst. Naziran (P. W.4), who admitted that Mst. Rahmo a daughter of Lala, paternal uncle of Moonda deceased, is the wife of Muhammad Khan son of Shera and that the said Shera is a son of Bahabi. Malli expressed ignorance if a daughter of one Manak, namely, Mst. Phapo, is married to Bati or that the said Bati is a brother's son of SaeeD (P. W. 11). He is contradicted on this point by SaeeD, who admitted that Bad is a son of his brother Mirza. SaeeD admitted further that Bati is married to Mst. Phapo, who is a daughter of Manak son of Allah Bakhsh. We have it further in the statement of Malli that SaeeD lives in village Bhabra and his lands adjoin that of SaeeD. Malli continued that his daughter Mst. Rasoolan is married to one Shera and that Mst. Daro, a sister of his son-in-law Shera, is married to, Lala, a brother of Malli. The witness continued that Msl. Rahmo, who is married to Muham--mad Khan, is the daughter of his brother Lala from Mst. Daro and that Salehon (P. W. 10) is a brother of aforesaid Shera. Malli had denied this relationship in the Court of the Committing Magistrate. Malli and Mst. Naziran, widow of Moonda, are definitely interested. They are also inimical. It is in the statement of Malli that one Mirza son of Samail was done to death.
Mutalli, a brother of Malli and two others were challaned for the said murder, but the accused in that case were ~ acquitted on appeal. Mehra and his sons were challaned for the murder of three sons of aforesaid Mutalli, We further find that the above-said Mirza was mur--dered, Moonda deceased, his father Mutalli, Gulla son of Malli and some others were challaned in that case. Later on, one Ahmad washer-man; who was a witness against the party of Malli in the earlier case, was also murdered alongwith Mirza. A year before the present occurrence, Mirza son of Ali was murdered. Moonda deceased alongwith others was challaned that connection.
11. Learned counsel, in the circumstances, contended that the conviction was improper inasmuch as it is based on evidence which is inimical and also interested. He contended further that the deceased, in the present case, had a number of enemies and the possibility of his having been put to death after night-fall by some other person or persons having enmity with him, could not be ruled out. We have already come to the conclusion that the evidence of Malli and Mst. Naziran is of highly interested in character. There has been background of enmity, between the parties. The evidence of Malli and Mst. Naziran is, however, sufficiently corroborated by Ali Mochi. He belongs to village Dhabra where the occurrence took place and claimed to have seen the appellants inflict-- ing injuries on Moonda deceased with hatchets. Ali Mochil confirmed that he saw Malli, Mst. Naziran, Sardaran and Umra present near the spot at the time of the occurrence. He was named in the first information report as a witness. He is a non proprietor being a kamin. The parties are Jats. He is in no way inimical to the appellants. He is not shown to be an interested witness. It was put to Malli if Ali Mochi has constructed a kotha on a piece of land given to him by the complainant, but he repelled the suggestion. No such question was put to Ali Mochi.
12. Counsel for the appellants criticised the evidence of Ali Mochi on the ground that he was a chance witness and did not disclose in his earlier statements the reason for his presence near about the place of occurrence. He belongs to the village where the occurrence took place. He cannot, there--fore, be held, to be a chance witness. Ali Mochi says that had gone out of his house at degarwela to the fields for the, purpose of nature. There is village abadi up to 2 or 22 killas towards the place of occurrence. He was towards the west of the place of occurrence at a distance of two kfllas when he heard the alarm. He went to the spot and saw the fatal assault on Moonda.
Undoubtedly, the witness did not remain on the spot for the night and appeared before the police the next morning, but that by it self is not sufficient to disbelieve him. The police arrived at the spot at 4-00 a.m. And if Ali Mochi appeared and made the statement at 8-00 a.m. It cannot reasonably be held that he was a chance witness or that he did not see the occurrence. He had no motive what--soever to depose falsely and see the appellants walk to the gallows.
13. We are not impressed with the argument that the occurrence took place after night-fall when the deceased was going to his field and that nobody saw the occurrence. The autopsy on the deceased's dead body was conducted at 3-00 p.m. On November 5, 1966. The stomach was full.
The urinary bladder was also full. The doctor was of the opinion that the time which elapsed between the death and post-mortem exa--mination could be between 20 to 22 hours, which fits in with the prosecution version. The medical witness was, firmly of the view that the time between death and post-mortem examination could not be 14 hours. The mere fact that the stomach of the deceased was full does not necessarily go to prove that he had taken the evening meal immediately before he was done to death. There is evidence that the deceased I took his meal at degarwela after he had finished cutting bajra fodder and before he started for the village. It explains why the stomach was full.
14. The evidence regarding the recovery of weapons of offence at the instance of the appellants is not only interest--ed, but is also inconsistent on material points. Salehon admitted that his sister is married to Lala; an uncle of the deceased. Mst. Rahmo, a daughter of his sister from the said Lala, was married to Moonda deceased. SaeeD is also related to the deceased, Salehon deposed that there were a few women present in the kotha of the accused. He stated to the Com--mitting Magistrate that no one was present there. SaeeD stated to the contrary. He said in his statement that when they went to the house of the accused, they found the door locked. He was unable to say who supplied the key. The investigating officer would have us believe that the kotha from which the recoveries were effected was simply chained and not locked. In this state of evidence, we do not rely on the recoveries. Besides, there are six B. D. Members and three Larnbardar, in village Bhabra, but the investigating officer, for the reasons best known to him, decided to effect the recoveries in the presence of Salehon and SaeeD, who are proved to be interested.
15. There was no undue delay in making a report to .The police. The occurrence took place at degarwela. The report way, lodged at 10-00 p.m. At the police station, which is 14 miles away. The complainant had no means of transport. In the absence of material on the record, we are not prepared to hold that correct time of the report was not given by the scribe.
16. For reasons given above, we have decided to accept the evidence of Ali Mochi and act on it. We have examined his evidence in the light of the observations by the Supreme Court about Muhammad Ramzan in Sikandar v. The State (1) but find the same to be inapplicable to the evidence o Ali Mochi in the instant case. The circumstance that no bundle of bajra fodder was seen, on the spot by him I wholly insufficient to throw the case out. We uphold the convic--tion and maintain the sentence of death imposed on Noora appellant by the trial Judge as the murder was committed in cold blood. The sentence of death in the case of Noora is confirmed and his appeal is dismissed.
17. The case of Shera stands on a different footing. He acted under the evil influence of his elder brother. In his case, the sentence of death is replaced with imprisonment for life. The appeal of Shera is accepted to this extent only. The death sentence in his case is not confirmed.
(1)PLD1963SC 17