P L D 1961 (W (PLP)

4. Dr. Abdul Rahman P. W. finished the post‑mortem examination on the dead body of Sheru at 1‑20 p.m. on 16‑1‑1960. He found the following injuries on the dead body:‑ (1) One round perforated wound 1/3" in diameter on the left side of the chest at the level of the left nipple 3" away to the right. (2) One round perforated wound 1/4" in diameter on the left side of the back 2" below the inferior angle of the left scapula. The doctor was of opinion that injuries Nos. 1 and 2 appeared to have been caused by discharge of a fire‑arm. Injury No. 2 was wound of entrance while injury No. 1 was wound of exit and that both the injuries were the result of one and the same gun‑shot and had been caused within about 24 hours. On internal examination of this dead body the doctor found the wall of the thorax perforated pleura perforated only in the left lung which also was perforated. The stomach contained semi‑digested food which in the opinion of the doctor indicated that the last meal had been taken about two or three hours earlier. The doctor was further of the opinion that the injuries were ante‑mortem and were sufficient in the ordinary course of nature to cause death.

5. On the post‑mortem examination of the dead body of Umer which the doctor finished on the same day at 2.50 p.m. he found the following (1) Two perforated wounds 1/3" in diameter and 2/3" apart x " above the right sterno costal junction. (2) A lacerated wound 1" x 1/3" x muscle deep on the chin. The doctor was of opinion that injury No. 1 appeared to have been caused by discharge of a firearm, viz. a gun and that injury No. 2 could have been sudden impact with some hard substance and could be caused by fall on the ground. The injuries, according to the doctor, were about 24 hours old. From inside the dead body the doctor extracted two pellets which he sent away to the police. In the opinion of the doctor both the injuries were ante‑mortem and injury No. 1 was sufficient in the ordinary course of nature to cause death. The stomach of this dead body also contained semi‑digested food indicative of the last meal having been taken within two or three hours.

6. Murad accused pleaded not guilty and ascribed the case against him to his enmity with Aru, Asar and Rajab Khwajas. He explained that Asar had started a decoity case against his brothers Jaro and Karmi in which case his brothers had been acquitted and that since the P. Ws. appearing in this case are the Maris of the aforesaid Zamindars they were falsely implicating him in this case. He further stated that he was away to the Khara of Allo Khoja on the morning of the day of the occurrence and while he was on his way back with two other persons at about noon time and was passing the place where Umer deceased's dead body was lying, he was informed that there had been a quarrel and those who had gathered about the dead body made him sit there until the arrival of the police who on their arrival secured him. He denied all knowledge that Sheru and Jhumro were ploughing land near his houses on the day of the occurrence or that he had told them not to plough it. He further denied that after shooting Sheru he had shot down Umer deceased while he was pursued by Obhayo and Umer deceased etc. He further denied that any gun was recovered from him and when specifically asked why the prosecution witnesses were deposing against him he stated that Umer deceased, the father of Mitho, had demanded Sang chand in marriage) from his brother Bachayo whose refusal to agree to the proposal had antagonised Mitho P. W. He further stated that Khamiso P. W. had also enmity with him and his brother Obhayo on account of Sangs. Allah bachayo accused contented himself with a bare denial of all knowledge of the occurrence plead ing his absence from the spot at the time of the incident. Neither of the accused led any evidence in defence.

7. As is evident from the summary of the prosecution story, the prosecution case rests not only on the ocular testimony of Mitho and Jhumro P. Ws. respecting the murder of Sheru deceased and of Obbayo and Khamiso P. Ws. besides Mitho and Jhumro P. Ws. respecting the murder of Umar deceased but also on the medical evidence and the evidence of recoveries apart from the motive evidence. It has been contended before us by the learned counsel for the accused that in view of the fact that the learned Sessions Judge disbelieved the evidence of eye witnesses regarding the part of Allah Bachayo accused in the murder of Sheru deceased the testimony of these P. Ws. should be discarded as regards the role assigned to Murad accused respecting the murder of Sheru deceased. We do not see any force in this contention. The learned Sessions Judge, it appears to us, has by way of abundant caution acquitted Allahbachayo accused by giving him the benefit of doubt. The fact that Allahbachayo was not mentioned in the F. I. R. and in the disinterested testimony of Khamiso P. W. as having instigated Murad accused to kill Sheru deceased had influenced the. Sessions Judge in favour of Allahbachayo accused. It is clear from the record that Khamiso P. W. is related neither to the accused nor the deceased. He belongs to another place and had brought his bullocks for ploughing the land at the invitation of Umer deceased. Although Murad accused in his statement recorded under section 342, Cr. P. C., referred to Khamiso P. W's. enmity with him and his brother on account of some Sang having been refused to him, yet no evidence has been led to substantiate any such plea, nor has during the cross‑examination of Khamiso or any other P. W. anything come on the record in support of this contention. We fully endorse the view that the Sessions Judge has taken of the testimony of Khamiso P. W. This P. W. not only is an eye‑witness of the murder of Umar deceased but he also testifies to Mitho and Jhumro having related to him immediately after the death of Sheru deceased the circumstances in which he had been killed by Murad accused. Nor do we see any reason of doubt the truthfulness of the evidence of Jhumro and Mitho P. Ws. regarding the murder of Sheru deceased by Murad accused. A gun was recovered from the accused soon after his capture and was taken into possession by Ghulam Rasool S. H. O. on his arrival at the spot. This circumstance also supports the prosecu tion version that Murad accused had killed Sheru and Umar with gun‑fire. It is true that the Ballistic Expert was unable to say that pellets recovered from the dead body of Umar deceased had been fired from the gun alleged to have been recovered from Murad accused, but the other circumstances of the case clearly point to this gun having been used for the murder of both the deceased. Besides, this being a double barrel muzzle loading gun with a smooth bore, it could not, according to the ballistics expert, produce any characteristic barrel markings on the pellets fired through it. As there is no reason to discredit the consistent and undiscrepant testimony of the eye‑witnesses produced by the prosecution regarding the gun having been recovered from Murad accused after he had shot down Sheru and Umar deceased, the non‑committal testimony of the ballistic expert does not create any doubt regarding this very gun having been used by Murad for killing the two deceased. Ghulam Rasool P. W. states that when the gun was secured by him it smelt of having been recently used. Muhammad Arab P. W. corroborates him on this point.

8. It is significant that even according to the accused's own admission the occurrence had taken place in broad day light. For, he states that ho was secured by the eye‑witnesses at noon time while he was passing by Umar deceased's dead body. Surely, there could be no manner of doubt regarding the identity of the person who fired the gun at the two deceased especially when it cannot be disputed that the eye‑witnesses were present in connection with the cultivation of their respective pieces of land at the respective scenes of crime. The medical evidence also lends support to the prosecution version that the deceased were killed by gun shot. In the circumstances it is incredible that the P. Ws. should falsely implicate the accused if the real murderer was some one else. The plea that the P. Ws. were implicating Murad accused because Asar, one of the Zamindars, had not succeeded in getting Jaro and Karmi, the two brothers of Murad accused, convicted in a dacoity case is obviously untenable. If indeed, the P. Ws. were at the beck and call of Asar they should have tried to implicate Karmi and Jaro who had slipped through the fingers of Mar for, obviously, Asar would be interested in their implication and not of Murad accused.

9. The learned counsel for the accused has urged before us that the fact that the semi‑digested food was found in the stomachs of the dead bodies during the post‑mortem examina tion belies the prosecution version that the occurrence took place when meals had not yet been taken. We find no force in this contention. For one thing, so far as Sheru deceased is concerned, Jhumro P. W. has clearly stated that they had taken meals in the morning before coming for ploughing. As regards Umar, it is true that Obhayo P. W. did state that they had not yet taken food and Mitho had been sent home for' ascertaining if the food was ready, but it‑ appears to us that he was referring to the noon meal and not the snack or breakfast that all cultivators normally take before coming out for cultivation. Besides, it is not improbable that unknown to Obhayo P. W. if, indeed, it be assumed that Obhayo had eaten nothing by way of breakfast. Umar, had eaten something in the morning.

10. The learned Counsel for the accused has also criticised the evidence of the eye‑witnesses in so far as they state that Sheru and Umar were fired at from a short distance. His conten tion is that the absence of any charring at the points of injuries on the dead bodies falsifies the eye‑witnesses. It appears to us that in the hurry and excitement of the occur rence the P. Ws. could not be supposed to have a meticulously accurate estimate of the distance from which the deceased were fired at. It is significant that while Jhumro P. W. gave the distance between Sheru and Murad as 8 or 10 feet at the time he was shot down, Mitho stated that the deceased and the accused were 8 or 10 paces apart at that time. The discrepancy, to our minds, explains itself. It shows how difficult it is to form an exact estimate of the distance between the victim and the assailant when the deaths are caused by gun fire to the accompaniment of the hurry, the commotion and excitement evoked by the event, We have no manner of doubt that the persons appearing as eye‑witnesses of the occurrence cannot be disbelieved merely on account of these discrepancies which we do not consider As unnatural. We have already Murad given our reasons for relying on the testimony of Khamiso P. W. scare. It is significant that the other eye‑witnesses are all closely related to the accused. Murad accused is a nephew of Jhumro Nazir Ahmad P. W. and Umar deceased's sister is the wife of Allahbachayo Mahmood, (accused acquitted by the Sessions Judge) brother of Murad accused. It is highly improbable that these P. Ws. would falsely implicate Murad accused as the author of, the deaths of the deceased persons, although some one else had committed the murders, the occurrence having taken place as already discussed above in broad day light. It was however contended that Murad accused killed Umar deceased in the exercise of right of private defence for Umar deceased was not entitled under section 59, Cr. P. C., to capture the accused as the latter had not committed the murder of Sheru within his sight. The relevant portion of section 59 reads as follows:‑ "Any private person may arrest any person who, in his view, commits a non‑bailable and cognizable offence or any pro claimed offender, and without unnecessary delay, shall make over any person so arrested to a police officer, or, in the absence of a police‑officer, take such person or cause him to be taken in custody to the nearest police‑station." The learned counsel for the appellant urged that the words "in his view" mean within his sight but it has been held in A I R 1951 All. 3 (F ‑B)l that the words "in his view" should not be given a narrow interpretation. Similarly in P L D 1954 Lah. 54 it was held the words "in his view" used in section 59, Cr. P. C., are to be liberally interpreted and a person who has not actually seen the culprit committing the offence but is called upon, by those who had seen the scene of the crime, to effect arrest of the accused while they were running away could do so in view of section 46 of the Criminal Procedure Code. Subsection (2) of section 46 would be the relevant provision. Section 46 reads as follows:‑‑ 46. (1) In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or, action. (2) If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police‑officer or other person may use all means necessary to effect the arrest. (3) Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with transportation for life. We have no manner of doubt that the combined effect Q section 59, Cr. P. C., and subsection (2) of section 46 is that a person who has not himself witnessed the occurrence can effect the arrest of a person running after committing a non‑bailable A cognizable offence if he is called upon to do so by a person who has seen such an offence being committed by the culprit running away. The help of this other person who is being called upon to effect the arrest would be one of the `means' used by the person who has witnessed the culprit committing the offence,) necessary to effect the arrest. If therefore the ‑murder of Sheru had taken place within sight of Mitho P. W. and he called upon Umar deceased etc. to capture the accused. Umar deceased was legally entitled to effect the capture of Murad. Besides, even if the contention of the learned counsel be accepted as correct, it would not avail the accused one bit, for, the accused had no excuse for killing Sheru deceased and he was clearly guilty of his murder.

12. Another contention which came up for consideration was that there has been mis-joinder of charges and persons, and that Allahbachayo and Murad accused should not have been tried together, for, although under section 239, Cr. P. C. Allahbachayo could be tried together with Murad, accused of the murder of Sheru deceased, for having abetted the latter's murder, he having nothing to do with the murder of Umar which was not committed in the course of the same transaction, he should not have been jointly tried with Murad. But it appears to us that there is no force in this contention either. It has been held in various decisions that to determine whether an offence is committed in the course of the same transaction the tests are proximity of time, unity of place, unity of purpose or design and continuity of action, the purpose and continuity being the principal points to be regarded. In. a recent case decided by a Division Bench of the Karachi Bench of this High Court, (Criminal Appeal No. 423 of 1959), Bachal v. The State their Lordships relying on Muhammad Mosaddar v. The State (P L D 1958 S C (Pak.). 131) inter alia, observed that "the community of purpose however will again be controlled by the issue of one offence being the cause and the other the effect". It was held that all the murders took place in the course of the same transaction. In that case the accused after having shot down his wife and one daughter at his house went to the fields where two of his daughters had gone and after bringing them to his house killed them also with gun fire. Needless to say, in the present case the pursuit of Murad accused after he had murdered Sheru had arisen out of hi killing Sheru and therefore the murder of Umar was connected with the murder of Sheru as a result or effect thereof. Besides the latter murder took place in close proximity of time and continuity of action with the murder of Sheru. Had Murad not killed Sheru neither would he have been pursued nor would he have killed Umar. It appears to us, therefore, that both the murders were committed by Murad in the course of the same transaction and Allah Bachayo who was accused of having abetted the murder of Sheru could be jointly tried with him. . There is no bar in our opinion to two persons being tried together if one of them is accused of abetment of a murder and the other accused of actually committing this murder is also accused of having committed another murder in the course of the same transaction. The case would be covered by section 239, clause (d), Cr. P. C. There is, therefore, no force in the contention that the trial has been vitiated on account of mis-joinder of charges or Murad persons. We are satisfied 'that an offence under section 302, State P. P. C., and under section 19‑E, Arms Act has been fully made out against Murad accused.

12. For the reasons given above, we uphold the convictions and sentences of Murad accused and dismiss his appeal. His death sentence is confirmed. K. B. A. Appeal dismissed.