P L D 1964 (W (PLP)

8. There is no doubt that the deceased Raza Muhammad was murdered on the night of the incident. Besides the ocular evidence of Khial, Alan, Mondro and Shah Nawaz on this point, we have the medical evidence as to the cause of his death in the evidence of Dr. Mued, who performed the post‑mortem examination on the body of Raza Muhammad. and noticed the following external injuries on the corpse: (1) An incised wound 7" semi‑circular cutting the temporal bone on left side, exposing the brain. (2) An incised wound 6" x 2" x cutting the muscles of neck on the left side and the upper part of mandible and lower part of temporal bone below injury No 1. (3) An incised wound 5" x 1" muscle cut on the lateral aspect of right thigh in upward direction. (4) An incised wound 6" x 2" x muscle cut on the medial aspect of right thigh in the lower portion. (5) A lacerated wound 2" x 2" x cavity deep on the upper part of chest on right side near the sternum with charred margines. The first four injuries had been inflicted with a sharp cutting weapon such as a hatchet, and injury No. 5 was caused by a discharge of firearm like a shotgun or a country‑made pistol in which a cartridge was used. The shot appeared to have been fired from a close range. The internal injuries revealed congestion of the membrane and the brain, blood clots between the meninges and the brain, fracture of the third rib, on the right side of the chest and cavity containing blood dots, puncture of the trachea at various places and the opinion of the doctor was that the cause of death was shock and haemorrhage as a result of injuries 1, 2 and 5, of which Nos. 1 and 5, were individually sufficient in the ordinary course of nature to cause death 117 pellets and two pieces of wads were recovered from injury No.

5. There is, therefore, no doubt that the deceased Raza Muhammad met an unnatural and violent death consequent to injuries inflicted by the hatchets and the discharge of a firearm.

9. We may at this state refer to the injuries on P. Ws. Khial and Alan. The S. H. O. of Bagarji Police Station Mr. Ghulam Hyder Iqbal, has stated that after his arrival at the scene, he prepared mashirnamas of the injuries on Alan and Khial in the presence of mashirs Ghulam Kadir and Piral. Alan had an injury on the right hand being a cut injury near the little finger of his right hand. Khial had a cut injury on the middle finger of his left hand and it was bleeding, at the time the mashirnamas were prepared. They are Exhs. 28 and 29, and although these two witnesses were given letters for examination and treatment at the Hospital, they do not appear to have gone there, and it would appear from the evidence of Dr. Mued, that they did not in fact do so. The learned Additional Sessions Judge has held and, in our opinion, quite rightly, that there is no reason to doubt the existence of these injuries on these two Witnesses, but for reasons given at page 113 of the paper‑book that the appellants were not liable in respect of these injuries as they were received by Alan and Khial whilst they were grappling with the appellants, and as these appellants did not inflict these injuries voluntarily to make them liable under the law. He, therefore, excluded these injuries from consideration in determining the guilt of the appellants on this count, and held them to be entitled to an acquittal with regard to the charge under section 324/34, P. P. C.

10. The case in the main against the appellants, depends on the oral testimony of P. Ws. Khial, Alan and Mondro, supported by the corroborative evidence of the first informant, Shah Nawaz. In addition, there is the strong circumstantial evidence as to the bloodstained hatchets secured from both the appellants, a bloodstained shirt from the person of appellant Allah Wadhayo, and a bloodstained shirt and a turban from the person of Sheral. Further, both the appellants had been apprehended on the spot at that part of the night, about 15 miles away from their own place of residence. There is also the evidence of the securing of the bus and the train tickets from both the appellants, .a country‑made pistol from the folds of the loin cloth of appellant Sheral, and lastly, the motive which, according to the prosecution, impelled the appellant to murder Raza Muhammad.

11. It is not denied that the parties are related inter se, and that they were living together for a while at the Khaki bridge at Khairpur, and worked, at the brick kiln of Ali Nawaz Shaikh. All of them are camel‑cart drivers, and earned a living by labour. The suspicious against Raza Muhammad in respect of Hakimzadi,, wife of appellant Sheral, has been adduced to by Khial, Alan and Mondro. The defence have denied it, but after we have examined the testimony of these three witnesses who, according to us, are completely reliable witnesses, and whose testimony even though they are related to the deceased, has been supported by strong circum stantial evidence, coupled with the fact that they were secured at the scene, leaves up in no doubt as to their veracity. The contention of the learned defence counsel was that the prosecution story that the deceased had gone to sleep at the house of his uncle Alan is not true. It was suggested that he had gone there because of his liaison with Alan's wife, and it is they who caught him and murdered him. We see nothing on the record to support this suggestion, and we agree with the prosecution case that the deceased used to sleep in his uncle's house owing to the fear of the complainant's party. The deceased was in fear of his life, and slept at Alan's place as a measure of protection in a place where he would not normally be found.

12. We have examined the evidence of P. Ws. Alan, Khial and Mondro. Alan is an uncle of the deceased, Mondro is Alan's brother, and Khial is a cousin of Alan. They all lived within the same enclosure, and they have fully supported the prosecution case. They were attracted to the scene on the night of the incident by the gunshot sound, and amongst these, it was Alan and Khial, who not only saw the appellants assaulting the deceased with hatchets, but each one of them grappled with and succeeded in securing the appellants being able to hold them down finally with the assistance of the other inmates of the house who were attracted to the scene. We have examined the testimony of these three witnesses very closely indeed. The F. I. R. in this case was lodged at the A‑Section P. D. Sukkur almost within 45 minutes of the incident. The criticism levelled by the defence was as to why this report was made at the A‑Section P. S., Sukkur though the place of the incident was within the jurisdiction of the Bagarji Police Station. To this, the simple answer is that the first informant who lodged the report did not know this. Even the police at the A‑Section, Police Station Sukkur, were not sure that the place did not fall within their jurisdiction.

13. The additional corroborative evidence is of S. H. O. Sardar Muhammad (P. W. 10), who states that at about 2‑45 a.m. he was informed of the incident and recorded the F. I. R. of Shah Nawaz, after which he telephoned the Bagarji Police Station, and immediately proceeded to the scene, where he found the deceased Raza Muhammad lying in a serious state, and the two appellants secured by the complainant's party. This esta blishes the time of the incident, the scene, and the fact that the appellants were secured at the spot before the report was lodged. It is true that these three witnesses are related to the deceased, but it is not denied that they are also closely related to the appellants. Besides, there is unimpeachable circumstantial evidence supporting the testimony of these three eye‑witnesses. This is contained in the two hatchets secured by Sardar Muhammad, S. H. O. of the A‑Section Police Station, who states that from the possession of appellant Allah Wadhayo, he secured a hatchet with bamboo handle and from appellant Sheral a hatchet with a tai handle. In addition, the S. H. O. also secured Allah Wadhayo's bloodstained shirt and Sheral's bloodstained blue shirt and turban. The securing of these articles is corroborated by the testimony of mashir Dur Muhammad, (P. W. 7) who was one of the mashirs to the mashirnamas separately prepared of the securing of these articles by the S. H. O. The Chemical Analyser's report, earlier referred to, has certified that human blood on Sheral's hatchet, shirt and turban of Sheral, and although blood was detected on the hatchet and shirt of Allah Wadhayo, it was disintegrated and its origin could not be determined. The fact that there was blood on the clothes and the hatchet of Allah Wadhayo is a strong circumstance against him. The further circumstance is the securing of the bus and train tickets from the possession of each of appellants. A railway ticket from Sukkur to Ghosarji dated the 27th of July with consecutive numbers was also secured from each of the appellants, in addition to transport bus ticket of the same date, from the possession of appellant Allah Wadhayo, indicating his journey from Khairpur to Sukkur. These in our opinion are additional factors establishing that the appellants had travelled together from the place of their residence, namely, Khairpur, and had moved a round in concert. We find no circumstances to support the contention of the defence counsel that the appellants were secured from their sister's place, namely, from the house of Ghulamally. It was also argued that besides three eye‑witnesses, none others of the village had been examined as it was admitted circumstance of the prosecution case that the entire village had turned up. We do not ‑find any substance in this argument, for we have been greatly impressed by the testimony of the three eye‑witnesses earlier referred to, specially as they have been corroborated in every circumstance by the overwhelming circum stantial evidence, and we see no reason whatever to agree with the contention that the appellants have been falsely implicated.

14. We find from the record that one of the defenses set up in the trial Court was that the appellants were called to the scene by the police after the incident from the house of the appel lant Allah Wadhayo's sister's husband, Ghulamally, where Allah Wadhayo was staying. Suggestions were also made in cross examination of some of the prosecution witnesses, that Alan was implicating the appellants owing to Khawind Bux who is a cousin of the appellants and one Marvi, as according to the appel lants, this Marvi had been declared a Kari with Khawind Bux. P. W. Alan in his testimony has denied this allegation, and stated that Marvi had died a natural death.

15. Lastly, we consider the existence of the injuries on Khial and Alan, which cannot be denied, as an additional factor supporting their presence and participation in the incident.

16. We are of the opinion that this is a case of over whelming evidence, both ocular and circumstantial, establishing that both the appellants were secured at the scene. We see no reason for false implication of the appellants, and we are convinced that the appellants had come to the scene on the night of the incident to wreak vengeance against the deceased Raza Muhammad, and that they deliberately as a result of premeditated and concerted action, killed him with hatchet's and gunshot injuries. We also accept the evidence that a country made pistol was secured from the loin cloth folds of appellant Sheral. The fact that it had been used in the course of the incident is indicated in the testimony of mashir Dur Muhammad who not only adduces to the securing of the pistol from the folds of the loin cloth of appellant Sheral, but has stated that an empty cartridge was within the barrel of the pistol, and appeared to have been recently fired and was smelling of gunpowder. 17: We have, therefore, no hesitation in confirming the conviction of the appellants under section 302/34 P. P. C. We also find that there are no mitigating circumstances in the case. This is a cold blooded and brutal murder.

18. Mr. Ghulamally for the Appellant referred us to Abdul Hamid v. State (P L D 1962 Quetta 111) in his contention that the lesser sentence is warranted, in case the appellants are held guilty of the murder of Raza Muhammad. We do not agree. In the Quetta case, more than 5 years had passed since the murder had been com mitted, and the conviction of the appellant was confirmed. In the present case, the incident took place on the 27th/28th July 1962, less than two years ago.

19. We therefore, confirm the conviction and the sentence of death passed on the appellants and dismiss their appeal. S. Q. Appeal dismissed.