1. SAJJAD ALI SHAH, J.-----.This appeal is filed against the judgment dated 30th November, 1977 passed by learned Sessions Judge, Sanghar, whereby he has convicted appellants named above under section 302/34, P.P.C. And sentenced them to life imprisonment each for allegedly having committed murder of Mohammad Ali son of Saeed Khan, in furtherance of their common intention by giving him hatchet blows on 29th November 1975 at 12 noon in village Khan Rind, Deh Maqsood Rind, Taluka Shahdadpur, District Sanghar.
2. Shortly stated prosecution case is that both appellants are cousin inter se and are related to the complainant party. Complainant Meenhon is son of deceased Mohammad Ali; while appellants are sons of maternal uncle of deceased. Both parties reside in the village Khan Rind and have agricultural lands adjacent to each other. On the day of incident at about noon time, complainant Meenhon P. W. 1, his brother Moriro P. W. 2, and their cousin Ghulam Rasool P. W. 3 were sitting in their otak, which is near their cotton cultivation, when they heard noise and saw their bullocks being chased by Palio Hoti, Allahditta and Allah Warayo Bullocks entered cattle-pen which is next to the otak and the persons mentioned above abused complainant party for the reason that the bullocks had entered their field and damaged their crop. Exchange of harsh words subsequently converted into a fight, in which Palio Hoti, Allahditta and Allah Warayo, who were armed with hatchets attacked and the complainant party also retaliated in consequence whereof - both parties became injured. In the meantime Leemoon brother of Palio entered otak, separated both groups and took away assailants. Hoti is father of appellant Had, while Palio is father of appellant Bagh. While the complainant and his companions were still in otak and hardly about 20 minutes had passed, when they heard cries outside their otak. They rushed out and saw Mohammad Ali father of complainant being given hatchet injuries by both the appellants near water-pump at a short distance from otak. After the arrival of complainant and his companions appellants ran away with their hatchets. P. W. 4 Ghulam Ali who was in his field near the spot also came and saw the incident. Mohammad Ali after receipt of sharp side hatchet blows became unconscious.
3. Complain--ant then went to Police-Post, Lundo and registered first information report as stated above. He had named therein six accused-including the present two appellants and Allahditta.
4. Allah Warayo, Hadi Bux and Bagh who had attacked in the otak and caused injuries. This report was entered into daily diary and sent to Police Station Shahdadpur for incorporation in 154, Cr. P.C.
5. Register. Dost Ali A.S.I.Who recorded F. I. R. At police post came to the scene of offence, prepared mashirnama of injuries of Mohammad Ali and sent him to the hospital as he was unconscious. He prepared mashirnama of vardat. On the same day in the evening injured Mohammad Ali died in the hospital and Haji Abdullah S. H. O. Police Station, Shahdadpur was informed, who went to the hospital and prepared inquest report. He came to the scene of offence and took over investiga-- tion from Dost Ali A.S.I. On the same day both appellants were already arrested by A. S. I. Dost Ali and they were wearing blood-stained clothes. Which were seized. Appellant Bagh while in custody led to the recovery of his blood stained hatchet from the southern corner of his house, like--wise appellant Hadi Bux led to the recovery of blood-stained hatchet from under the cot inside his house. Both hatchets were put into sealed parcels. On 1st December 1975, both appellants had made judicial confession before Mukhtiarkar and F.C.M., Shahdadpur. After comple--ting other steps of investigation, challan was presented in the Court.
6. Subsequently at the initial stage of proceedings tote trial court, on the application of D. P. P. Under section 233, Cr. P. C. The case was split into two as two separate incidents were involved, one taking place in the otak in which a separate set of accused was concerned and the other near the water pump in which present appellants were involved for causing death of Mohammad Ali by hatchet injuries. In the case giving rise to the appeal before us, the prosecution examined in all 11 witnesses.
7. P.W. 1 Menhoon, P. W. 2 Moriro, P. W. 3 Ghulam Rasool and P. W. 4 Ghulam Ali are the eye-witnesses of the incident. P. W. 5 Mohammad Tufail mashir has attested mashirnama of injuries of deceased Mohammad Ali in mortuary Exh. 12 and inquest report Exh.
13. P. W. 6 Mr. Mohammad Salik, Mukhtiarkar and F.C.M. Shahdadpur had recorded judicial confes--sions of appellants Bagh and Hadi Bux Exh. 16 and Exh. 17 respectively. P. W. 7.Mansab Ali is tapedar, who had prepared sketch of vardat Exh.
19. P. W. 8 Dittal Khan is mashir, who has attested mashirnama of injuries of Mohammad Ali Exh. 21, mashirnama of vardat Exh. 22, mashirnama of arrest of appellant Bagh and recovery of blood-stained clothes from him Exh 23, mashirnama of arrest of appellant Hadi Bux and recovery of his blood-stained clothes Exh. 24, mashirnama of recovery of blood-stained hatchet of appellant Bagh Exh. 25 and of recovery of blood-stained hatchet of appellant Hadi Bux Exh.
26. This mashir did not support recovery of blood-stained hatchets from the appellants, as such he was declared hostile and was cross-examined. P. W. 9 Ghulam Hussain is also mashir who has attested rnashirnama of recoveries of blood-stained hatchets from appellants but has stated that he and others waited outside while both appellants brought blood-stained hatchets from their houses and produced before Police. P. W. 10 Zulfikar Ali is the doctor who per--formed post-mortem examination on the dead body of Mohammad Ali. Lastly P. W. 11 Haji Abdullah S. H. O. Has testified as I. O. Report of the Chemical Examiner is positive to the effect that all the five parcels containing blood-stained clothes and hatchets of appellants separately and blood-stained earth were found to be stained with human blood.
8. Dr. Zulfikar Ali Shah has testified that on 30th November 1975, he performed post-mortem examination on the dead body of Mohammad Ali at the hospital in Shahdadpur at 11-30 a. m. He found the following external injuries :- (1)Incised wound 5' x 2" brain deep on the right parietal region.
9. (2)Incised wound 4" x 2" brain deep on the left side of the occipital region.
10. The injuries were ante-mortem. They appeared to have been caused with sharp cutting weapon such as hatchet. Both the injuries were indi--vidually sufficient to cause death.
11. On internal examination he found as follows :-- (1)Meninges cut at the site of injuries.
12. (2)Brain matter cut at the site of injuries (3)Cranial cavity was full of clots.
13. According to M. O. The internal damage was due to external injuries.
14. From both the examinations the M. O. Was of the opinion that the deceased died due to shock and haemorrhage as a result of above said injuries and that his death must have been instantaneous.
15. The time between death and post-mortem examination was about 12 to 18 hours.
16. Before the trial Court appellants denied prosecution allegations and claimed that their confessions were not voluntary and were made under duress. They have further stated that they bad been implicated due to enmity and they bad filed a case against the complainant party under section 307, P.P.C. Regarding first incident which took place prior to the murder. Their relatives and women folk were detained at the Police Station and threats were extended to them that if they did not make confessions their ladies would be disgraced. They did not lead any evidence in defence.
17. The learned counsel for the appellants has assailed the evidence produced by prosecution in this case and has strenously contended that the whole evidence is faulty and unworthy of acceptance as such convic--tion and sentence of the appellants is not warranted under the law and ought to be set aside. We have examined the whole evidence very carefully in the light of contentions raised by the learned counsel for appellants and for the State who supports the impugned judgment. In the direct evidence there are four eye-witnesses, who have fully suppor--ted the prosecution case.
18. There is no dispute about the fact that these witnesses are related inter se and also to the deceased and accordingly, by way of prudence we have examined their evidence minutely from the point of view to find out whether they are natural witnesses and were present at the scene of offence to see the incident. P. W. 1 Menhoon and P. W. 2 Moriro are sons of deceased Mohammad Ali, while P. W. 3 Ghulam Rasool is nephew 9f the deceased and the fourth eye-witness namely Ghulam Ali is also related to them. It is admitted position that both parties are inter-related and they reside in the same village Khan Rind and have agricultural lands there which are adjoining each other. It is the case of prosecution that Mohammad Ali was returning from Shahdadpur when he was confronted by both appellants who were armed with hatchets and attacked him. This incident took place near water pump and the place of incident, according to the sketch of vardat Exh. 19, is on the public road coming from village Maqsood Rind. Otak of deceased Mohammad Ali is at a distance of two furlongs from the spot which is clearly visible from otak as there is no other obstruction in the middle. As per mashirnama of vardat Exh. 22 land of P. W. 3 Ghulam Rasool is at a distance of two acres from the spot towards east. No doubt can, therefore, be expressed about the presence of these three eye-witnesses, namely Meenhoon, Moriro and Ghulam Rasool in the otak at the time of incident. It was noon time and the otak of deceased is in the close vicinity of their agricultural lands. Secondly the three eye-witnesses present in otak participated in the prelude to the murder, which took place hardly 20 minutes before the incident, in which both parties were injured and F. I. R. In this case mentions names of six accused persons including four who took part in the first incident which took place in the otak. The trial Court bifurcated the case as both incidents took place at different places and involving different sets of accused. The appellants in their statements under section 342, Cr. P. C. Do not deny the first incident and infact insist that they had filed a case against these witnesses under section 307, P.P.C. This shows that presence of these three eye-witnesses, namely, Meenhoon, Moriro and Ghulam Rasool is not denied by the appellants so far the first incident is concerned and since second incident took place hardly after 20 minutes,' at a short distance, it could easily attract these witnesses to the spot. The presence of these three eye-witnesses appears to be very natural and it can safely be concluded that they could see the incident. As a matter o f abundant caution we rule out of consideration the evidence of fourth eye- witness, namely, Ghulam Ali for the reason that his name is not included in F.I.R. By complainant.
19. These eye-witnesses have made some contradictions in their evidence is pointed out by the learned counsel for appellants such as Menhoon complainant in F. I. R. Had stated that after receiving injuries his father had become unconscious but before the trial Court stated that after the attack his father was conscious for some time and told them that both appellants had given him hatchet injuries. P. W. 2 Moriro has deposed that after attack his father became unconscious and could not speak. This witness was himself injured in the first incident and Police examined him on the spot, recorded his statement and referred him to the hospital for examination and treatment. P, W. 3 Ghulam Rasool has deposed that deceased Mohammad Ali after attack was conscious for sometime and informed about the assault, All these witnesses are unanimous about the fact that Mohammad Ali lost consciousness when he was taken in the otak. We do not consider this contradiction to be of great significance as to when the deceased lost actual consciousness and whether he spoke or not, for the reason that attack was made at noon time and these eye- witnesses were nearest possible to run to the spot to see the assault, As stated above there are sound and plausible reasons to consider that these witnesses are natural and their presence at the spot cannot be doubted. We think this little improvement is made by these eye-witnesses as mentioned above due to plain naive thinking that some words to this effect from deceased himself would fortify their case. In the cross-exami--nation there are few other contradictions such as sprinkling of water on the injured or giving sips of water to him or who brought the cot to carry the injured but these are minor and immaterial discrepancies and can safely be ignored. It is admitted by these witnesses that other persons from the village had core after the incident and it is contended that no independent witness has been produced. This omission is also not material in the sense that natural eye-witnesses have been produced and examined and it is not necessary for the prosecution to cite all the persons who come to the spot whether at the time of or after the incident. It is also common knowledge that independent persons generally decline to come as witnesses.
20. It may be mentioned here that doctor has testified, apparently due to inadvertence that death was instantaneous, when in fact there is all the necessary evidence available on the record that injured Mohammad Ali died subsequently in the hospital on the same day at 6-30 p. m. And S.H.O. Police Station, Shahdadpur was informed on telephone about the death of injured, where after the S.H.O.
21. Cane to the hospital, prepared inquest report in the hospital and then-referred the dead body for post-- mortem examination. When the doctor was in the witness-box unfortunately no such clarification or explanation was sought from him. This unintentional mistake on the part of the Medical officer is so obvious on the face of it that it can be treated nothing more than an act of pure inadvertence, otherwise the remaining evidence of the doctor on all material particulars in unquestionable.
22. The evidence of the eye-witnesses is therefore supported by medical evidence to the extent that Mohammad Ali died of incised wounds caused by sharp cutting weapon such as hatchet.
23. Ocular evidence is further fully supported by the evidence of motive. Apart from the oral testimony of eye-witnesses on this point, there is documentary evidence to the effect that F.I.R. Speaks about two incidents from which first one shows presence of and injuries to the eye-witnesses. The case was bifurcated by the trial Court for the reason already stated above. It appears that appellants who saw their father injured took revenge then and-there when they saw father of complainant coming and inflicted injuries on him with hatchets. Apart from this, there was no other previous enmity between the parties hence no motive for false implication in this case is available.
24. So far the evidence of recovery of incriminating articles from appel--lants is concerned there is evidence of two mashirs P. W. 1 Dittal Khan and P. W. 9 Ghulam Hussain. Mashir Dittal Khan has not supported particularly recovery of blood-stained hatchets from the possession of appellants. He has been declared hostile, hence his evidence is not consi--dered. P. W. 9 Ghulam Hussain has supported recoveries but with reservation. He has stated that appellants went inside their houses and brought their blood-stained hatchets, which they produced. In this case we do not find any hesitation in relying upon the evidence of Investigating Officer on this point. He has no reason to falsely implicate the appellants. Both mashirs appear to have made obliging statements in favour of `appellants as parties are related inter se. The report of Chemical Examiner is positive that all the incriminating articles recovered from appellants such as clothes and hatchets were stained with human blood. There are no circumstances available to suggest that Investigation Officer was not honest in the conduct of investigation.
25. Judicial confessions of appellants Bagh and Hadi Bux Exhs. 16 and 17 respectively are 'recorded by Mr. Mohammad Salik, Mukhtiarkar and F. C. M., Shahdadpur Exh.
15. Both appellants were arrested on 29th November 1975, as per their mashirnamas of arrest Exhs. 27 and 24 at about 2-00 p.m. And their confessions have been recorded on 1st December 1975. These confessions were retracted from by the appellants on the grounds that they were extorted from them under duress and threats that if they did not make them their women folk would be disgraced.. We do not propose to rely on these confessions for the following reasons. The learned Magistrate has not observed the formalities properly which are mandatory requirements under section 164, Cr. P. C. He has admitted in his cross-examination before the trial Court that he had put to the appellants initial questions/orally such as whether they were prepared to confess and had not reduced them in writing in the body of confessions. He has admitted that he had administered first warning under sec--tion 164 (3), Cr. P. C. To both the appellants jointly. It is not mentioned in the first warning to both the appellants that he was First Class Magistrate and they were produced before him for confessions. It is also not mentioned in the first warning that he informed them that whether they confess or not they shall not be returned to Police custody. (The learned Magistrate has admitted that he made sit the appellants in the Court room and conducted cases in which P. S. 1. Had appeared and did not remember whether he recorded evidence of witnesses in those cases). It appears from the evidence that the learned Magistrate did not make the appellants sit separately for reflection and had recorded their confessional statements one after the other in their joint presence. Moreover the operative part of both confessional statements is exactly the same and is so strangely brief and identical that it is difficult to resist the presumption that the statements are tutored and not voluntary. They contain only the admission that both appellants gave hatchet injuries to Mohammad Ali who fell down. The confessional statements do not reflect other material particulars of the incident such as presence of eye-witnesses, recovery of blood-stained clothes and hatchets etc. We, therefore hold that confessions are not properly recorded and are not truthful and voluntary, hence they are ruled out of consideration.
26. After careful analysis we have come to the conclusion that even after exclusion of judicial confessions and testimony of P. W. 4 Ghulam Ali eye-witness, there is still overwhelming evidence of incriminatory nature, consisting of three eye-witnesses, supported by medical evidence, evidence of motive and recovery of incriminating articles from the appellants coupled with positive report of Chemical Examiner that clothes and hatchets bore human blood, as discussed above, which clearly connect the appellants with the commission of crime. We, therefore, hold that appellants are rightly convicted and sentenced and find no justification for any interference with the impugned judgment. The appeal is conse--quently dismissed.