1968 SCMR 502 (PLP)

MUHAMMAD YAQUB Art, J.-Atta Muhammad and Ali Nawaz of village Longai, faluka Larkana, who have been convicted under sectian 302, P. P. C. and sentenced the first named to death and the second to transportation for life for the murder of their co-villager Raza Muhammad, were on petitions A submitted from Jail granted leave to appeal to consider certain features of doubt appearing in the case. The murder was said to have taken place at 3 p.m. and the report was made at the Police Station, Dhamrah, six miles away at 11 p.m. It was recorded in the first information report that the complainant had come late. The delay was explained by saying that Wadero Ali Murad was called to the spot who had enmity with the appellants. Imdad Ali, P. W., who is cousin and Kamdar of Ali Murad gave evidence as an eye-witness though he was not named in the initial report. Imdad Ali had also grounds for enmity with the appellants. The two principal eye-witnesses Atta Muhammad Shaikh and Gul Muhammad were a brother and a cousin, respectively, of the deceased, and it was indicated that if there was a chase of the deceased they would have been able to witness the occurrence, but physical evidence of the case appeared to be lacking. Only five blows were struck and all the blood was found at one place. A fourth eye-witness Muhammad Ali, named in the first information report introduced doubts into his own evidence at the trial. There was damaging recoveries from the appellants, but were sworn by Ghulam Mustafa, P. W., a cousin of Ali Murad. A hatchet was des cribed in the Mashirnama recovered at the instance of Ali Nawaz was yet found by the Chemical Examiner to be stained with human blood. The motive for the crime was suspected illicit intimacy between the deceased and the wife of Uris, uncle of Atta Muhammad, appellant, about 23 years before the occurrence. On account of the suspicion both Atte Muhammad and Uris had left the village, but about three years ago the former came back, The testimony of Atta Muhammad (P. W. 2) brother of Raza Muhammad, deceased, and Gul Muhammad (P. W. 3) his cousin was that on 25-8-1965 at about tipahri time the deceased went from the village to an open maidan on the other side of the Kanga Minor to collect dung fuel. While he was busy in collecting the dung in a basket the appellants were seen going in the direction of the deceased. On coming near to him the appellants challenged the deceased who ran towards the Minor, but the appellants followed him and overtook him on the bank and started giving him blows. The deceased tried to run away, but fell down at a distance of 40 paces and was overtaken there by the appellants who then gave him more blows with hatchets. On hearing the challenge by the appellants to the deceased Atta Muhammad and Gul Muhammad (P. Ws.) followed them, but before they reached the scene Raza Muhammad had been killed and the appellants ran away towards the South. Muhammad Ali Jagrani who was standing by the side of the village also witnessed the occurrence and came to the scene of wardat. Imdad Ali Kulharo (P. W. 4) was also said to have arrived at the scene and witnessed the occurrence, but his name was not mentioned in the initial report. The statement of Muhammad Ali did not inspire much confidence. During the commitment proceedings he gave evidence to the effect that the face of Atte Muhammad, appellant, was muffled and the occurrence had taken place at sunset time, but during the trial he changed the version and stated that when he arrived he saw Atta Muhammad standing `over' Raza Muhammad deceased armed with a hatchet while Ali Nawaz was standing at a distance of 200 paces and he could not say as to what weapon was carried by him. Ghulam Mustafa (P. W. 6) a cousin of Ali Murad Wadero deposed to the recovery of blood-stained hatchets and clothes of the appellants from their respective houses, but in cross-examina tion, introduced certain discrepancies. In examination-in-chief Ghulam Mustafa deposed that at first Ali Nawaz volunteered to produce a blood-stained hatchet and a blood-stained ganji from his house and led the Police to his house and produced those articles from underneath a mat on the ground. The blood stains were visible on the blade as well as on the handle of the hatchet. The Police then arrested Atta Muhammad who volunteered to produce a blood-stained hatchet and his blood stained clothes from his house. He led the Police party to his house and produced a blood-stained hatchet, a blood-stained ganji and a blood-stained loin cloth from a corn bin in his house. Muhammad Alam the other mashir to the recovery was not examined by the prosecution. In the case of the hatchet recoveredfrom the house of Atta Muhammad it was mentioned in Maur nama Exh. 16 that the blade of the hatchet was .found to have been washed and that there was blood inside the hole for fixing the handle. There is no direct enmity between the accused and P. Ws. 2 and

3. The defence, however, relied on the enmity between the accused and Ali Murad the Wadero of village Longai. Imdad Ali, P. W. 4, admitted in cross-examination that his uncle Ali Nawaz Kulharo was injured by the father and uncle of Atta Muhammad, appellant, about three years before and that about four years ago his cousin Ali Murad was tried for robbery in which case Ali Nawaz and his uncle Bargu Khan had appeared as witnesses. Similarly Ghulam Mustafa (P. W. 6) stated in cross-examination that Ali Hussain and Dildar, a brother and a cousin of Ali Murad were charged with the offence of murder and sentenced to death about a year ago and in that case Atta Muhammad, appellant, had appeared as a witness for prosecution. It was also put to the P. W., in cross-examination that in 1946 the deceased who had a licensed gun had fired at the dacoits who had entered into the house of his zamindar Satter Bakhsh, killing one of the dacoits suggesting thereby that the deceased was in retaliation killed by those dacoits. In his statement under section 342, Cr. P. C., Atta Muhammad pleaded that he was not even born when the alleged intimacy between the deceased and the wife of Uris took place, that he had not migrated from the village at all and that he was implicated falsely at the instance of Ali Murad who bore grudge against him, because he had appeared as a witness against his brother Ali Hassan and his cousin Dildar in a murder case. Ali Nawaz pleaded enmity with Ali Murad and Imdad Ali, P. Ws. Land belonging to Imdad Ali was, 10-12 years before the occurrence, got auctioned through Civil Court by' one Girdhari Lal and purchased by the father of Ali Nawaz and his uncle on account of which Imdad Ali bore grudge against him. Ali Nawaz also claimed direct enmity with Atta Muhammad (P. W. 2) as be had appeared as a prosecution witness in a robbery case against his near relative Pario Shaikh, Out of the four eye-witnesses the testimony of Imdad Ali and Ali Muhammad could be discarded from consideration as the name of the former was not mentioned in the initial report which was lodged after some delay and the latter had introduced doubt into his own testimony as seen above. But there was evidence of Atta Muhammad, P. W. 2 and Gul Muhammad, P. W. 3, who had no direct enmity with the accused nor was it shown that they were under the influence of Ali Murad. No enmity between Muhammad Ali and Ali Nawaz as suggested by the latter was found. The question which require examination, therefore, was whether these witnesses had seen the occurrence. According to the plan prepared by the Tapedar the deceased was killed at a distance of only 50 feet from the abadi of village Longai. There are a number of home-steads in the village and the shop of Gul Muhammad was at a distance of 300 fee t from the scene of crime. The murclu having taken place at about 3 p.m. it could not be visualized that the cries raised by the deceased who was repeatedly attacked with hatchets did not attract the attention of persons living or working in the neighbour hood. Atta Muhammad and Gul Muhammad first saw the incident from point 'C' at a distance of about 150 yards from the bank of Kanga Minor where the deceased was first overtaken by the appellants at point 'B'. The deceased then ran upto point 'A' covering a distance of about 45 yards where he was finally over taken and given hatchet blows by both the appellants. Atta Muhammad and Gul Muhammad could not have seen the actual blows from point 'C', but as they were all the time running in the direction of the deceased they were likely to have come within the distance from which point 'A' was visible. Moreover, Muhammad Ali (P. W,) who was on the other side of the Kanga Minor was all along in a position to see the occurrence at point 'A'. His testimony about the details of the attack was liable to be discarded on account of the doubts introduced by him by giving two conflicting versions in the Committing Court and the other during trial, but since his name was mentioned in the initial c report and there was no enmity between him and the appellants nor any connection with Ali Murad or Imdad Ali it was safe to accept his testimony about the identity of the person whom he had seen escaping from a place where the deceased was found murdered. The oral testimony of Atta Muhammad and Gul Muhammad, P. Ws., further stood corroborated by the incriminating recoveries from the appellants. The occurrence took place on the 20th August 1965, and the initial report was made at 11 p.m. The S. H. 0., arrived in village Longai at mid-night and arrested the appellants on the 21st August 1965. On the same day they led to the recoveries of blood-stained hatchets and clothes from their respective houses which vouch for their genuineness. Though Glaulam Mustafa who deposed to the recoveries is a cousin o Ali Murad, but we find that in cross-examination no suggestion was made to him to cast doubt on his testimony. On the contrary he admitted the various items of enmity between the accused and his cousin Ali Murad and in cross-examination shifted the order and time of recoveries presumably to help the accused. As to the recital in the Mashirnama that the blade of the hatchet produced by Atta Muhammad appeared to have been washed, it was mentioned at the same time that blood-stains were found in the hole in which the handle is fixed. Such a possibility could not be eliminated more particularly as the recoveries were made promptly and no doubt on their genuineness was cast in their cross-examination of Ghulam Mustafa and the Investigation Officer. The medical evidence also supported the prosecution version that the deceased was injured with heavy cutting weapons like the hatchets produced by the appellants. Five incised wounds were found on the person of the deceased varying between 1' x x r and 5' x 5r, one of which had completely cut of the neck at the level of the 5th and 6th cervical vertebrae. The direct evidence furnished by Atta Muhammad and Gul Muhammad was thus sufficiently corroborated by the testimony of Muhammad Ali and the recoveries deposed to by Ghulam Mustafa and the Investigating Officer. The motive for the crime was undoubtedly not very convincing because Atta Muhammad was not even born at the time of alleged intimacy between the deceased and the wife of Uris and Ali Nawaz was only a friend of Atte Muhammad and not a member of Atta Muhammad's family to bear grudge towards the deceased and there was also delay in the lodging of the F. I. R. These circumstances, however, do not detract from the authenticity of the prosecution case to an extent to call for interference with the F., convictions of the appellants. Motive is after all a matter of speculation for what moves a person to take the life of another is within his special knowledge and does not constitute a necessary ingredient of the offence of murder. The delay in making resort to the Police is plain, but the defence did not ask Atta Muhammad, P. W., as to why Ali Murad had to be sent for. The delay in lodging the initial report, therefore, does not cast a material doubt on the prosecution case. However, we find no reason for discrimination between the appellants in the matter of sentence. There was neither any visible motive on the part of Atte Muhammad nor was he shown to have taken leading part in to the attack on the deceased.. The evidence is that both of them gave him hatchet blows so that it could not be spelled out that Atta Muhammad had caused more blows or that the blow cutting the neck of the deceased was caused by him. In the result we maintain the conviction of both the appel lants under section 302, P. P. C. for the murder of their co-villager Raza Muhammad, but alter the sentence of death awarded to Atte Muhammad to transportation for life. Both the appeals are with the modification in the sentence of Atta Muhammad dismissed. Appeals dismissed. Sentence modified.