Z. A CHANNA , J; The three appellants were tried by the learned Sessions Judge, Nawabshab, in respect of an offence under section 302 read with section 34, P. P. C., for committing the murder of Muhammad Hassan Baladi. Appellants Ghulam Rasool and Isso were further tried in respect of an offence under section 13(d) of the West Pakistan Arms Ordinance, 1965, for being in possession of unlicensed fire-arms and ammunition. The learned Sessions Judge, by hl$ Judgment delivered on 30-6-1976, convicted all the appellants of the offence under section 302 read with section 3 t, P. P.
C. And for the said offence sentenced appellant Wali Muhammad to death and the other two appellants to imprisonment fear life. Ho also convicted appellants Wall Muhammad and Isso under the Arms Ordinance and for the said offence awarded each of these appellants R.
1. For two years with the direction that the sentence in respect of appellant Ghulam Rasool is to be excused only if the death sentence awarded to him is not confirmed. All the three appellants have preferred appeals against their convictions and sentences and the learned Sessions Judge has also referred the case of appellant Wali Muhammad for confirmation of the death sentence awarded to him.
Furthermore, the complainant has preferred a revision application praying for the enhancement of the sentence of life imprisonment awarded to appellants Isso and Rajo on the murder charge. This Judgment will dispose of the appeals, reference and the revision application.
2. The incident occurred on 26-1-1974, at about 12 noon, on the Katcha road running alongside AbranMinor, near village Nabi Bux Lakho, at a distance of about y miles from Naushero-Feroae Police Station. The prosecution case is that on that day, at about six in the morning, deceased Muhammad Hassan Baladi, who was a trader in cattle, set out from his village, Rahim Khan Baladi, alongwith his brother-in-law and partner-in---business, Sobho, and their relations Piaro and Jiwan, for the purpose of taking cattle to Kazi Ahmed for sale. When they neared Nabi Bux Lakho village, at about noon time, the deceased is said to have been fired upon by appellants Wali Muhammad and lsso, who are stated to have been armed with a gun and rifle respectively and were biding alongwith appellant Rajo, who was armed with a hatchet, in the nearby rapeseed field.
In consequence of the firing Muhammad Hassan died on the spot. The companions of the deceased raised an outcry and ran for their lives. At that time a numbed of persons were clearing silt nearby from Abrar Minor. On hearing the fire-arm shots and the cries they pursued the culprits.
Sobho, however, left immediately for Naushero-Fero:o Police Station, where he lodged his F.1. R. The same day at 18-15 hours with S. H. O. Agha Mir Alvi. The motive fen the murder is said to have been the fact that some 14 or 15 years prior to the incident, the deceased had killed Mebro Baladi, maternal uncle of appellant Wali Muhammad. For that homicide, he was tried and sentence to Seven years rigorous imprisonment. It is slated that appellant Wall Muhammad was riot satisfied with the punishment awarded to deceased Muhammad Hassan and in retaliation for the murder of his maternal uncle, had murdered the deceased with the assistance of his cousin, appellants isso and Rajo.
3. After recording the F. I. R.,
5. H. O. Agha Mir accompanied firs! Informant Sobho to the scene of offence, where they reached at about sunset time. At the wardat, where the dead body of Muhammad Hassan was still lying, the S. H. O, learnt that the people clearing the silt had captured the 3 culprits and taken them to the bungalow of Ahmed Khan Jatoi. The S. H. O. Accordingly, after posting a police constable to guard the dead body, proceeded to the bungalow of Ahmed Khan, where the custody of all the three appellants was handed over to him by Muhammad Hashim and Muhammad Hassan, Kamdars of Ahmed Khan Jatoi. They also produced before the S. H. O. a gun, one rifle, 25 live and two empty cartridges of .12 bore and a sum of Re. 315 in cash which are said to have been recovered from the possession of the appellants by Muhammad Malook and Muhammad Khan, who were in charge of two separate parties which were engaged in the silt clearance operations. The S. H. O. Prepared a mashirnama of the seizure of the above items and scaled the gun, rifles and the live and empty cartridges. On the same night the S. H. O. Recorded the statements of Muhammad Malook, Muhammad Khan. Muhammad Hashim, Jiwan and Biaro.
On the following morning, the S. H. O. Secured from the rapeseed field near the scene of offence, at the pointation of appellant Rajo, a hatchet which was not blood-stained. The S. H. O. Thereafter inspected the Vardat and prepared a mashirnama. From the Vardat the S. H. O. Secured two empty shells of bullets, one empty .12 bore cartridge, three wads, seven pellets, the Ajrak of the deceased and blood-stained earth, all of which articles he sealed. After sending the dead body of Muhammad Hassan for post-mortem examination, the S. H. O., on the same day, recorded the statements of Karim Bux, Imdad and Yakub. The S. H. O. Thereafter brought the appellants to the Police Station, where he lodged F. I. Re. Against appellants Wali Muhammad and Isso under section 13(d) of the West Pakistan Arms Ordinance, 1965, for being in possession of unlicensed fire--arms.
The gun, rifle and the empties secured from the appellants as well as those recovered from the wardat were sent to the Ballistic expert to the Government for examination and report. On 11-2-1974, the appellants were challaned.
4. The autopsy on the deceased, which was conducted on 27-1-1974, revealed the following external injuries on the deceased, which were the result of discharge from fire-arm :- "(1) A lacerated wound about J' In diameter with blackening over the left upper arm, laterally.
(2) A lacerated wound about J' in diameter over the left upper arm medially (wound of exit).
(3) A lacerated wound about J' in diameter over the left upper arm with blackening (wound of entry).
(4) A lacerated wound about J' in diameter over the left upper arm with blackening.
(5) A lacerated wound over the left upper arm about J' in diameter medially (wound of exit).
(6) 4 lacerated punctured type of wounds, each about J" in diameter, over the left shoulder and scapular region with blackening (wound of entry).
(7) A lacerated wound about J' in diameter with blackening over the left scapular region medially.
(8) A lacerated wound about J' in diameter over the back of chest in middle line parallel to the angle of scapulae.
(9) A lacerated wound about J' in diameter over the left side neck with blackening.
(10) 3 lacerated punctured typo of wounds, each ;' in diameter, with blackening over the left side of chest,"
5. On internal examination, the pleura, both the lungs and the heart of the deceased were found lacerated. Three pellets were recovered from the body of the deceased and sent to the S. H. O.
According to the Medical Officer the injuries were caused from a distance of 4 feet.
6. 'the case of the appellants is that they have been falsely implicated by the P. Ws. Who arc on inimical terms with them. Appellant Wali Muhammad, in his statement '---o the Sessions Court, further stated as follows :- "Before this case my 'Marot' Sadik and Imam Bux filed a case of theft of the gun of Imam Bux against Muhammad Hashim father-in-law of deceased Muhammad Hassan. That case was pending in this Court. I produce the true copy of the Judgment in Sessions Case No. 7 of 1958. State v. Mehroas Exh.
58. Karim Bux, brother cf P. W. Muhammad Khan, was convicted in the case which was filed by my cousin Sajjan. In that case the other witnesses were my relatives. Hence Muhammad Khan was our enemy. I produce true copy of the Judgment as Exh.
59. I bad filed a robbery case in which Sulleman Doongah, cousin of P. W. Malook Shamovn Machi, nephew of P. W.
Muhammad Hashim alongwith one Arbab were convicted under section 398 read with 393, P. P. C.
And sentenced for 7 years. Since then these witnesses are inimical to us. I produce the true copy of the Judgment as Exh.
60. All the witnesses are interested and in conspiracy with the Police they have fabricated the evidence against us. We were arrested from our house during night time. P. Ws.
Jiwan and Piaro are related to the Complainant and the deceased by blood as well as by Sauga Bandi. Co-accused Rajo is my maternal cousin and cc-accused Isso is my father's sister's son. We have been implicated due to long standing enmity."
7. We have heard Mr. A. K. Brohi, who appeared for the appellants, and Mr. Saris Hussain Rehmani, who appeared for the State. We have also beard Mr. Muhammad Hayat Junejo, who appeared in support of the application for enhancement of sentences in respect of appellants Isso and Rajo.
8. The motive has been established through first informant Sobho. Ha has testified about the murder of Mehro Baladi, the maternal uncle of appellant Wali Muhammad, some 14 or 15 years back, for which murder the deceased was sentenced to seven years imprisonment. He has further testified that the deceased had served out his sentence some 7 or 8 years before his murder and that he was killed in retaliation for Mehro's murder.
9. The direct evidence in t' re case is furnished by first informant Sobho and P. W. Jiwan. Both of them have testified that they were with the deceased when the incident occurred as they alongwith the deceased and Piaro were taking cattle from them village to Kazi Ahmed. They have further deposed that when they neared Nabi Bux Lakho village, at about 12 or 12-30 p.m., the three appellants suddenly emerged from the adjoining rapeseed field and appellants Wali Muhammad sad Isso, who were armed respectively with a gun and rifle, fired at the deceased, wino was bit and dims on the spot. They have also stated that on the fire-arm shots and the cries raised by them a number of persons, who were engaged in silt clearance from the adjoining Abrar Mirror, gave a chase to the appellants who were attempting to run away. Piaro, who had also witnessed the incident, was gives up by the learned Prosecutor in charge of tire ease on tire ground that he was on the same point as P. Ws. Sobho and Jiwan and was not examined in the trial Court. The learned Sessions Judge has carefully examined the evidence of the two eye-witnesses and has held that they have given a substantially correct version of the incident and has relied upon their testimony.
10. Mr. Brohi has assailed the ocular evidence on a number of grounds. His first ground of attack is the abnormal delay in the lodging of the F. I. R. He submitted that if the complainant party, while encumbered with cattle, could traverse a distance of about 14 to 16 miles from their village to the scene of offence in about six hours time, it should not have taken the complainant more than 3 to 3j hours to cover the distance of about 9 miles from the scene of offence to the police station, and since according to the complainant himself he had left for the police station within 15 minuets of the incident the F. I. R. Should have been recorded before 4 p.m., whereas it was recorded at 6.15 p.m. The learned counsel center dad that this delay in the lodging of the F. I. R. Is ominous and suggests some undisclosed and behind the scene activities prior to the lodging of the report which strongly react on the entire case. No doubt it is possible for a villager, specially if like the complainant he is used to covering long distances on foot, to have covered the distance of 9 miles from the scene of offence to the police station in about 3 to 31 hours, as contended by Mr. Brohi, but on the other hand we should not lose sight of the facts that the complainant, before setting out for the police station, had already covered on foot a distance of 14 to 16 miles, which fact must have tired him out, that he must have been greatly agitated at seeing his cousin and brother-in-law shot down within a few feet of him and that finally the last meal taken by the complai--nant party was before getting out in the early morning from their village, as indicated by the testimony of the Medical Officer to the effect that the deceased had taken his last meals about six hours prior to his death, which coincides with the time given by the eye-witnesses when they had set out from their village. We, therefore, are of the opinion that the slight delay in the lodging of the F. I. R. Was natural in the circumstances of the case and are unable to discover anything sinister or even suspicious therein.
11. Mr. Brohi also commented adversely on the omission from the F. I. R. Of any mention of the apprehension of the appellants, though they are said to have been apprehended after a chase of between a few hundred yards and a furlong. '1 he learned counsel submitted that even if complainant Sobbo had stayed at the scene of offence for only 15 minutes, as stated by him, he could not but have learnt about their apprehension, if the prosecution version about their being chased and captured is correct, before he set out for the police station. He contended that the reasonable possibility of the appellants being apprehended much later, probably at night or even on the next morning, cannot in the circumstances of the case be excluded. We will consider the evidence regarding the apprehension of the appellants later, bus we would at this stage point out that the F. I: R. Specifically mentions the pursuit of the appellants by the 'Chhair' (persons who were engaged in the silt operations). Furthermore, we do not see how the omission from the F. I. R. Of the apprehension of the appellants would have served the purpose of the complainant or in any way furthered the case of the prosecution if in fact the appellants were apprehended while the complainant was still at the wardat. 1n fact mention In the report of their capture would have considerably strengthened the case against them.
12. Mr. Brohi also attacked the evidence of the two eye-witnesses on the grounds that they are related to the deceased and hostile to the appellants, that their evidence is inconsistent with the medical evidence, that they have made contradictory statements, that P. W. Jiwan resides at Sita Road, far away from the scene of offence, and hence big presence at the scene of offence at the time of the incident i9 very doubtful and that finally they have not given an intelligent account of the incident.
13. There is no doubt that both complainant Sobho and P. W. Jiwan were closely related to the deceased, the former being his cousin besides his brother-in-law, and the latter being the maternal uncle of the deceased. The enmity between the complainant party and the appellants is also admitted. In fact it is the prosecution case itself that deceased Muhammad Hassan had killed Mehro, the maternal uncle of appellant Wali Muhammad, for which killing he was awarded '7 years imprisonment and because of this crime the appellants bore a grudge against the deceased and in retaliation for Mehro's death killed him. Furthermore, as admitted by P. W. Kauro, who is a case- fellow and partner-in-business of a relation of the deceased, Imam Bus, the brother-in-law of appellant Wali Muhammad, and Imam Bux's brother Sadiq, had filed a criminal case against Hashim, the maternal uncle and father-in-law of the deceased, which case is still pending. These circum--stances undoubtedly make complainant Sobho and P. W. Jiwan interested witnesses. This, however, does not mean that their evidence is to be discarded. What has to be done in such cases is a careful and cautious sifting of evidences and to look for corroboration of the interested testimony to ensure that no innocent persons are being implicated. The rule regarding the appraisal of interested witnesses was thus stated by their Lordships of the Supreme Court In Nazir v.
State PLD 1962 SC 269 :- "But we had no intention of laying down an inflexible rule that the statement of an interested witness (by which expression is meant a witness who has a motive for falsely implicating an accused person) can never be accepted without corroboration. There may be an interested witness whom the Court regards as incapable of falsely implicating an innocent person. But he will be an exceptional witness and, so tar as an ordinary interested witness is concerned, cannot be said that it is safe to rely upon his testimony in respect of every person against whom he deposes.
In order, therefore, to be satisfied that no innocent persons are being implicated alongwith the guilty the Court will in the case of an ordinary interested witness look for some circumstance that gives sufficient support to his statement so as to create that degree of probability which can be made the basis of conviction. This is what is meant by saying that the statement of an interested witness ordinarily needs corroboration. For corroboration it is not necessary that there should be the word of an independent witness supporting the story put forward by an interested witness.
Corroboration may be afforded by anything in the circumstances of the case which tends sufficiently to satisfy the mind of the Court that the witness has spoken the truth. What circumstances will be sufficient as corroboration it is not possible to lay down. But, as the question before the Court would be whether some innocent persons had not been implicated in addition to those who were guilty the circumstances relied upon must have bearing on this question. In the case of an interested witness the corroboration need not be of the same probative force as in the case of an accomplice for the two do not stand on the same footing."
14. Again is the case of Abdul Rashid v. Umed A.I PLD 1975 SC 277, their Lordships of the Supreme Court observed thus :- "It may be mentioned in this context that although as a rule of prudence, the Courts have more often than not insisted on independent corroboration before placing reliance on the testimony of interested witnesses yet it is not an inflexible rule to be rigidly and unexcep--tionally applied. There might be cases in which the witnesses related to the deceased might be otherwise, quite natural furnishing direct evidence of a convincing nature unless there are reasons to believe that they have an animus against the accused and are giving a rather distorted or exaggerated account which does not Inspire confidence, even their uncorroborated testimony may be implicitly relied upon of course in the context of other relevant circumstances of each case. Reference may be made in this regard to this Court's judgments in Jahan Khan v. State PLD 195 SC (Pak.) 488 ; Niaz v.
State PLD 1960 SC 387 and Nazis and others v. State P I. D 1962 SC 269. These judgments were referred to with approval in Muhammad Ismail v. Khushi Muhammad and 7 others."
15. The above observations were referred to and followed in the case of Talib Hussain v. Fazal Hussain PLD1976SC518, wherein Muhammad Afzal Cheema, J. Further observed that he fully agreed with the principle "that it is not an indispensable requirement of law to look for independent corroboration of the testimony of interested witnesses before placing reliance on it".
16. As to the inconsistency of the ocular evidence with the medical evidence, Mr. Brohi pointed out that after the deceased fell down on being hit by the fire-arm shots appellant Rajho ran up to him and gave him blows with the back side of the hatchet, the medical evidence clearly shows that deceased bad sustained only fire-arm injuries and had not been given blows with a hatchet, laths or butt of afire-arm. This undoubtedly is a mis--statement on the part of the two eye-witnesses but it does not, in out respectful view, render the rest of their testimony untrustworthy. As pointed out by their Lordships of the Supreme Court in Baka v. State 1977 SCMR 150, the principle of the maxim falsus in uno falsus in omnibus has long been abandoned by our Courts and what is required to be done is to separate the grain from the chaff.
17. Mr. Brohi also referred to the fact that though according to both Sobbo and Jiwan, appellant Isso had fired his rifle at the deceased, according to the medical evidence the injuries on the deceased are all consistent with gunshots and mot rifle shots, which would have caused injuries of larger dimensions. While we agree with Mr. Brobi that the medical evidence indicates that the deceased had sustained only gunshot injuries, we may point out that both Sobho and Jiwan have admitted in their evidence fn the Sessions Court that they are unable to say whether the deceased was hit by rifle shots. In this connection we may notice another argument of Mr. Brohi that if the appellants were hiding very close to the place from where the complainant party was passing, as stated by the eye-witnesses, it is impossible that appellant Isso, if in fact he bad fired his rifle at the deceased, could have missed him. We, however. Do not know the exact distance from which he fired at the deceased. There is nothing to indicate that he was standing at the same distance from the deceased from which appellant Wall Muhammad fired his gun at the deceased. Then also it is possible to miss a target even at a short distance with a rifle snot, since a rib; fires a single bullet, while a gun ordinarily fires pellets which increasingly spread with the distance traversed. It may be stated that even the F. I. R. Recipes that deceased was fired at both with a gun and rifle though it does not state whether he was hit by the gunshots and the rifle shots.
18. So far as the contradictions made by the two eye-witnesses in their testimony are concerned, they do not appear to be very important or of such a nature as to Impair their testimony in regard to the material facts of the case. Although the learned Sessions Judge has made a note in the deposition of complainant, Sobho that in the committal Court he has stated that the deceased was hit by the rifle shot fired by Isso, the extract from his evidence in the lower Court with which he was confronted and which has been exhibited merely sates that "Isso had also fired at the deceased". The other contradictions in the evidence of complainant Sobho and P. W. Jiwan are in respect of the time that the S. H. O inspected the wardat and prepared Mashirnama of the same, where they stayed on the night of the incident and the time when the police recorded their statements. These contradictions are minor and do not indicate that the witnesses have either given an untruthful account of the incident or falsely implicated the appellants.
19. So far as the place of residence of P. W. Jiwan is concerned, the witness has candidly admitted that be belongs to Sita Road, but two days prior to the incident he had gone to the village of the deceased to seek labour and he had been engaged by the deceased to help him, Sobho and Piaro to take cattle to Kazi Ahmad. The name of this witness transpires in the F.1. R. Furthermore, all the other witnesses have spoken of his presence at the wardat at the time of the incident. Finally, S. H.
O. Agha Mir has deposed that he had recorded the statement of this witness on the very night of the incident at the bungalow of Ahmad Khan Jatoi, where the appellants were being detained. We are thus satisfied that P. W. Jiwan was wins the deceased when the fatal assault was made on him.
20. We also are unable to agree with the contention of Mr. Brohi that the eye-witnesses have not given an intelligent version of the incident. Both of them have testified about the fatal bring upon the deceased by the appellants when they were passing by a rapeseed field close to Abran Minor and the factum of the appellants being chased by the Chhair people at the Abran Minor. They have also described the weapons which each of the appellants carried. Furthermore, P. W. Jiwan has testified about the capture by the Chhalr people of the three appellants and their being taken to the bungalow of Ahmad &ban Jatoi. The witnesses have thus given a detailed account of the entire incident. They were put to lengthy and starching cross-examination taut nothing was extracted from them from which it could be reasonably inferred that either they did sot see the incident of axe falsely implicating the appellants. The incident occurred in broad c daylight, the deceased was fired at from an extremely close range and the appellants were well known to :he eye-witnesses. In the circumstances there can be no scope for mistaken identify. The possibility of substitution cm also be safely excluded in the circumstances of the ease.
21. Strong corroboration to the ocular evidence is provided by the apprehension of the appellants practically on the spot and the recovery ofweapons from them. This corroborative evidence is provided by P. W.s Muhammad Khan. Muhammad Malook and Muhammad Hashim. Muhammad Khan is Iran of Rais Ghulam Mujtaba Jatoi, Muhammad Malak is a Zamindar and Muhammad Hashim is Kamdar of Raiz Ahmad Khan Jatoi. P. Ws. Muhammad Khan and Muhammad Malut were in charge of two different patties of chhair which were engaged in the silt clearance operations from Abran Minor and according to P. W. Muhammad Khan his Chhair party was about one and half furlongs away from the Chhair party under Muhammad Melook. These two witnesses have deposed that while they were engaged in the silt clearance operations, at about 12 O 'Clock, they heard fire-arm reports and cries, on which they went running in that direction and found the deceased murdered and were informed by the complainant and his companions that the culprit!, whom they pointed out, had committed murder of their man and were running away, where upon they chased and apprehended them and recovered a gun, 25 cartridges, an empty cartridge and a sum of Re. 315 from appellant Wall Muhammad, another empty cartridge which was lying near appellant Wali Muhammad, a rifle from appellant logo. While appellant Rajo was found to be without any weapon.
According to P. W. Muhammad Khan the appellants were surrounded and captured after a chase of about two furlongs while according to P. W. Muhammad Malook they had captured the appellants after covering a distance of about 100 paces. This difference apparently is due to the fact that the two Chharr parties were working at some distance from each other. Both the witnesses have deposed that they took the appellants alongwith the articles seized from them to the bungalow of Ahmad Khan Jatoi where the same were handed over in the charge of P. W.
Muhammad Hashim and Muhammad Hassan, Kamdara of Ahmad Khan Jatoi.
22. Mr. Brohi has assailed the story of the capture of the appellants on the ground that it is highly improbable that the appellants, who are said to have been armed with fire-arms, would have allowed themselves to be captured. It, however, appears that the Chhair was a very large one and consisted of persons estimated at between 60 to 100. We find nothing improbable in such a large number of persons apprehending the appellants in spite of the fact that they were armed.
23. Mr. Brohi also contended that if in fact P. Ws. Muhammad Khan and Muhammad Malook had apprehended the appellants either one of them would have gone to the Police Station for lodging a report or they would have sent one of their persons for doing so. Which admittedly they did not do.
This argument overlooks the fact that complainant Sobho had left for lodging the F.
1. R. Even before the capture of the appellants and this fact must have been learnt by P. Ws. Mohammad Khan and Muhammad Malook.
24. Mr. Brohi also contended that there was no reason for the appellants to be taken to the bungalow of Ahmad Khan Jatoi and not to the wardat. The explanation for the appellants being taken to Ahmad Khan Jatoi's bungalow is furnished by P. W. Muhammad Khan who has explained that when they captured the appellants, the latter told them that in case they were overtaken by the complainant party they would be killed and hence entreated them either to hind them, over to Police or produce them before a Zamindar. It was in these circumstances that they took the appellants to the bungalow of Ahmad Khan Jatoi.
25. It was next submitted by Mr. Brohi that P. Ws. Muhammad Khan and Muhammad Malook are hostile to the appellants and further they have made contradictory statements and hence no reliance should be placed on their evidence. As regards P. W. Muhammad Khan, the learned counsel has stated that Sajjan, a cousin of appellant Wali Muhammad, had filed a robbery case against the witness's brother, Karim Bux, in which the latter was convicted. The witness admitted that Karim Bux was his brother but denied knowledge of the filing of any criminal case against him and his conviction on a robbery charge. A copy of the judgment in that case has been produced by appellant Wali Muhammad which shows that Karim Bux was convicted on a robbery charge and awarded imprisonment for three months and a fine of Rs. 100 and that the complainant in that case was Sijjan. There is. However, no evidence on record to show that Sajjan is a cousin of appellant Wali Muhammad, as claimed by the latter in his state--ment fn the Sessions Court, or that any of the witnesses in that case are related to him. However, the anxiety of P. W. Muhammad Khan to disclaim any knowledge of that case seems to suggest that Sajjan and the witnesses in that case are probably related to or connected with appellant Wali Muhammad. Even on this assumption we can neither discard or treat with suspicion the evidence of P. W. Muhammad Khan about the capture of the appellants and the recovery of weapons from them. As already pointed out, the Chhair people were about 60 to 100 in number and in view of this fact it was impossible to cook up the story of the chase and capture of the appellants. Furthermore, mention of the appellants being pursued by the Chhair people is made even in the F.
1. R. Which was lodged before comp--lainant Sobho was aware of their capture.
26. As regards P. W. Muhammad Malook, Mr. Brohi contended that he is falsely implicating the appellants because appellant Wali Muhammad had filed a robbery case in which Suleman Doongah, cousin of P. W. Muhammad Malook, and others were convicted under sections 393/398, P.
P. C. By an Additional Sessions Judge, Nawabshah, and awarded seven years' imprisonment each.
A true copy of the judgment in that case has been produced by appellant Wali Muhammad with his statement in the Sessions Court. P. W. Muhammad Malook, however, has denied that Sulaiman Doongah is either related to him or even known to him. It is thus only in the statement of appellant Wali Muhammad. Which is unsupported by any other evidence, that it is alleged that Sulaiman Doongah is cousin of P. W. Muhammad Malook. It may be pointed out that it was suggested to the witness that Sulaiman Doongah was his uncle, which indicates that the defence was not at all sure or aware of the relationship of the witness with Sulaiman Doongah and has based the claim of relationship on the fact that both Muhammad Malook and Sulaiman are Doongahs by case.
27. As to the contradictions in the testimonies of P. Ws. Muhammad Khan arid Muhammad Malook, they are not of serious nature or on material points and appear to us to have been due to lapse of memory on account of the fact that they were giving evidence in the trial Court more than two years after the occurrence of the incident. The contradictions, it may be pointed out, are as to the directions from which they heard cries, the number of people in the Chhair and when they were examined by the Police. Both P. We. Muhammad Khan and Muhammad Malook are residents of the locality. l'. W. Muhammad Khan resides one mile away from the Vardat while P. W. Muhammad Malook's residence is only at a call's distance from the Vardat. They are thus natural witnesses and in our opinion the learned Sessions Judge rightly placed reliance on their testimony.
28. Corroboration to the testimony of P. Ws. Muhammad Khan and Muhammad Malook is provided by P. W. Muhammad Hashim, Kamdar of Ahmad Khan Jatoi before whom the appellants and the arms and ammunition secured from them were produced by the two witnesses, and who had produced the same before the Police on its arrival at the bungalow of Rail Ahmad Khan. He has deposed that the appellants and the arms and ammunition were produced before him by P. Ws.
Muhammad Khan and Muhammad Malook at about 12 noon and he had handed them over to the Police at about sunset time. This witness is a thoroughly independent witness, who neither knew previously the appellants nor any one from the complainant party. An attempt was made to discredit the testimony of the witness on the ground that he is on inimical terms with the appellants as appellant Wali Muhammad had filed a robbery case against his Masai, Shamoon Machi, In which the latter was convicted. The witness, while candidly admitting that Shamoon is his case-fellow, denied that he was in any way related to him or even had knowledge about the case against Shamoon or his convic--petition. It was also argued that the witness was father-in-law and maternal uncle of deceased Muhammad Hassan and further that Imam Bux tend Sadik, relatives of appellant Wali Muhammad, had filed a criminal case against him and because of these facts he was giving evidence against the appellants. In our opinion, this argument is without any foundation. No doubt comp--lainant Sobho has staled that they know one Hashim, who is maternal uncle and father-in-law of the deceased, and that Imam Bux and Sadik, who are related to appellant Wali Muhammad, had filed a criminal case against him, but there is no evidence to show that the said Hashim is the same person as P. W. Muhammad Hashim. No question was put to the witness suggesting that he was the father-in-law of the deceased or that Sadik and Imam Bux had filed a robbery case against him. On the contrary, as already pointed out, the witness has categorically stated that he did not know the appellants or the complainant party previously, and he has not been contradicted on this point. If he was either related to the compensation party or any of the relatives of the appellants had filed a criminal case against him, the defence could not have failed to ash him these important questions in its lengthy cross-examination. Moreover. The witness belongs to a different case from that of the deceased and it is common knowledge that marriages between persons of different castes in the rural areas of Sind are of rare occurrence. We are thus convinced that Hashim, who is the father- in-law of the deceased and against whom appellant Wali Muhammad's relatives had filed a criminal case, is an altogether different person from P. W. Muhammad Hashim.
29. Mr. Brohi also assailed the evidence of Kauro, Mashir of recovery of hatchet, of the wardat and the recovery therefrom of 2 empty cartridges and 2 empty shells of bullets, and the inquest report on the ground that he is a close relative of the deceased and furthermore had been summoned on telephone from Kazi Ahmad, 43 miles away from the scene of offence, where he is ordinarily residing. The evidence of the S. H. O. Agha Mir, was criticised on the grounds that he did practically no investigation on the day of the incident, that his conduct of investigation was most unusual and that he appears to have been a willing tool in the hands of P. Ws.
30. While both complainant Sobho and P. W. Kauro have denied that the latter is Masai of the deceased or in any way related to him, we are satisfied that he had very real interest in the deceased. In the first place he has admitted that he is a partner in business with one Bhai Khan, who is related to the deceased. Furthermore, he has admitted that on receiving phone message at about 2 p. m. About the Incident, he, Bhai Khan and others had gone to the Vardat. No inference, however, can be drawn from these facts that he is a false witness. The witness is corroborated in regard to the recovery, at the pointation of appellant Rajo, of a hatchet from the rapeseed field close to the wardat, as also the recovery, from the wardat of 2 empty cartridges, two empty rifle shells, wads of cartridges, pellets and blood--stained earth by S. H. O. Agha Mir.
31. We have been unable to find any substance in the submission of Mr. Brohi that the S. H. O. Had conducted no investigation on the day of the incident or that he was a willing tool in the hands of the P. Ws. The S. H. O. Has deposed that as he had reached the Vardat at about sunset time and further as he was informed that the appellants had been detained at the bungalow of Ahmad Khan Jatoi, he proceeded to that place, where he arrested the appellants and tools delivery from P.
W. Muhammad Hashim and Muhammad Khan, under Mashirnamas, of the arms and ammunition recovered from the appellants and on the same night also recorded the statements of P. Ws.
Muhammad Hashim, Muhammad Khan, Muhammad Malook. Muhammad Hussain. Jiwan and Piaro. Thus very substantial Investigation was conducted by the S. H. O. On the very day of the incident. On the following day, the S. H. O. Had merely recovered a hatchet at the pointation of appellant Rajho, inspected the scene of offence, sent the dead body for post-mortem examination and recorded the statements of certain persons who were not examined at the trial. The investigation by him thus appears to be prompt and quite satisfactory. We have not been shown how or in what way the S. H. O. Has acted as a tool in the hands of the P. Ws.
32. We equally find no substance in the contention that the appellants were arrested from their houses on the night of the incident. There is no evidence in support of this claim except the bare word of the appellants. On the other hand there is the evidence of P. Ws. Muhammad Khan and Muhammad Malook, which we believe to be true, and who are corroborated by P. W. Muhammad Hashim, that the appellants were apprehended prac--tically at the scene of offence. It may further be pointed out that the appellants reside near the village of the complainant party, that is about 14 or 15 miles away from the scene of offence. It was thus impossible for the P. Ws. To apprehend the appellants from such distance and bring them to the scene of offence before the arrival of the police. There is also no evidence that the police bad gone to the village of the appellants.
Furthermore, if the appellants in fact had been arrested from their houses, as claimed by them, from whore did the P. Ws. Or the police procure the unlicensed fire--arms and ammunition which are said to have been recovered from the possession of the appellants. It may also be mentioned that mention of use of gun and rifle by the appellants is made even in the F. I. R. We are therefore satisfied that the appellants were apprehended near the scene of offence with unlicensed arms and ammunition.
33. The gun and rifle secured from appellant Wali Muhammad and appellant Isso respectively, along with the empties secured from the scene of offence and the possession of appellant Wali Muhammad, were sent to the ballistic expert who has opined that 2 of the crime empty cartridges had been fired from the gun said to have been secured from appellant Wali Muhammad and the 2 empty rifle shells from the rifle stated to have been secured from appellant Isso. It was contended by Mr. Brohi that inas--much as the weapons as well as the loaded ammunition was secured by the Police and the P. Ws. At the same time there exists the possibility that either the P. Ws. Or the Police may have discharged the live ammunition from the two fire-arms and sent the resultant empties to the Ballistic Expert. While we will concede that such a possibility does exist there is not a shred of evidence in support of it. Even no question was suggested to the S. H. O. Or any other witness that they had discharged the fire-arms. We are thus convinced that the empties sent by the Police to the Ballistic expert were the empties recovered from the Vardat and appellant Wali Muhammad.
34. There has also been some delay in sending the weapons and crime empties to the Ballistic Expert. While we deplore the delay, in the instant case we do not consider that anything turns on it.
It may also be mentioned that no question about the delay was put to the S. H. O. Who might have been able to give a reasonable explanation for the same.
35. On a careful appraisal of the entire evidence in the case we are satisfied that the guilt of all the three appellants has been established beyond g any reasonable doubt. We are accordingly of the opinion that the appellants were rightly convicted by the learned Sessions Judge.
36. There remains the application for the enhancement of sentence in respect of appellants Isso and Raja. It was contended by Mr. Muhammad Hayat Junejo, learned counsel for the private applicant, that the murder committed by the appellants gas a deliberate and premeditated one and hence the normal sentence of death should be awarded to all the three appel--lants since there were no extenuating circumstances in the case to justify the award of lesser sentence to appellants Isso and Raja. In support of his contention the learned counsel relied upon the decision of Young, C. J. In Mewa v. Emperor AIR 1935 Lah. 337. In that case 3 persons were convicted of murder of P but the learned Sessions Judge sentenced all the 3 convicted persons to transportation for life on the ground that though all of them had participated in the fatal attack on P and caused injuries to him, it was impossible to say which accused inflicted the fatal wound. On an application for enhance--ment of sentence being preferred by the Local Government, it was observed by Young, C. J. As follows :- "We are clearly of opinion that in circumstances such as these there is only one penalty which ought to be imposed and that is death. The mere fact that it is impossible to say which of the accused inflicted the fatal wound is no reason at all for refraining from passing the death sentence, where the Court is satisfied that there was a common intention to murder, brutally carried out, and that all took part in the beating which resulted in death."
Mr. Muhammad Hayat also relied upon the unreported decision in A.I Madad and others v. State Criminal Appeal No. 143 of 1973. In that case, on an application for enhancement of sentence being preferred by the provincial Government, a Division Bench of this Court enhanced the sentence of the appellants from transportation for life to death, observing that the murder committed by item was a brutal and heinous one, that the ordinary sentence for murder is death and there were no extenuating circumstances in the case. It may be mentioned that in that case it was established that all the three accused had caused knife injuries to the deceased.
38. Mr. Brohi submitted that the circumstances of the present case are quite different inasmuch as though appellants Isso and Rajo are stated to have been armed with a rifle and hatchet respectively, it is established from the medical evidence that no injury to the deceased or any one else was caused with either of these weapons. The learned counsel contended that these circum-- stances do constitute extenuating circumstances and justify the imposition of lesser penalty. To support of his contention he placed reliance on the decision of this Court in Hadi Bux v. State PLD1977Kar.1. In that case, the sentence of death awarded to the appellant by the Sessions Court was altered to imprisonment for life as it was not established that the fatal shot was fired by the appellant. We are inclined to agree with the submission of Mr. Brohi that death penalty in respect of appellants Isso and Raja is not called for, in view of the fact that though they were armed with a rifle and hatchet respectively, they did P not cause any injuries to the deceased. Their case is thus clearly distinguish--able from appellant Wali Muhammad who had effectively fired several shots at the deceased from an extremely close range.
39. For the reasons stated by us above, we would uphold the convictions of all the three appellants, confirm the sentences awarded to them, including the death sentence awarded to appellant Wali Muhammad and dismiss their appeals. The application for enhancement of the sentences for murder awarded to appellants Isso and Rajo also stands dismissed.