1968 P Cr (PLP)

ANWARUL HAQ, J.-Illahi Bux and his two sons Bangul Khan and Rahim Bux were tried by the learned Additional Sessions Judge, Jacobabad, on charges falling under section 302 read with section 34 of the Pakistan Penal Code and section 13(d) of the West Pakistan Arms Act. Rahim Bus was acquitted by being given the benefit of doubt, whereas Illahi Bux and Bangui Khan have been convicted on both the counts. On the charge of murder, Illahi Bux has been sentenced to transportation for life, whereas Bangui Khan has been sentenced to death; and on the charge under section 13(A) of the Arms Act, each of them has been sentenced to undergo rigorous imprisonment for one year. The convicts have appealed and the case is also before us for confirmation of the death sentence awarded to Bangui Khan.

2. Muhammad Moosa (P. W. 3) who is a son of the deceased Raza Muhammad, has filed Criminal Revision No. 151 of 1967, praying that the acquittal of Rahim Bux be set aside and he be retried on the charge of murder. After the filing of this revision petition, the State has also filed Criminal Acquittal Appeal No. 224 of 1967 against Rahim Bux, with the result that Muhammad Moosa's revision petition has become infructuous. The acquittal appeal filed by the State will also be disposed of by this judgment. (3) The parties are Khosos by caste and are related to each other, the grandfather of tile deceased Raza Muhammad and the father of the appellant Illahi Bux being brothers. Raza Muhammad had taken up residence in a village named after him and established on his own land in the area of village Jahan girabad situated in the Taluka of Kundkot in District Jacobabad. It appears that the appellant Illahi Bux had also similarly set up a village after his own name at a distance of one and a half miles from the village of the deceased. For some years before the present occurrence, which took place on the 31st of July 1965, the relations between the parties had been far from cordial. It is common ground between the prosecution and the defence that there has been considerable criminal litigation between them or their henchmen and associates, and at least on one previous occasion the two appellants Illahi Bux and Bangui Khan along with others were accused of having made an attempt on the life of the deceased Raza Muhammad, although he escaped and only his mare was injured. The immediate cause of the trouble is stated to be a dispute over 276.36 acres of land belonging to one Mundhoo Khan and situated in Deh Jahan girabad. By a registered deed (Exh. 26) dated the 28th of April 1954 the deceased Raza Muhammad had taken this land on lease for a period of 20 years commencing from 1956-57 to 1975-76. The lease deed was, however, executed in the name of Raza Muhammad's son Muhammad Usman (P. W. 6) having a ten annas share, one Abdul Karim having two annas share and Shah Bux (P. W. 5) having a four annas share. It appears that the appellant Illahi Bux presented the action of the deceased in taking this large area on lease as, according to the allegations made by the deceased himself while appearing as a prosecution witness in the Sessions Court at Sukkur on the 13th of August 1959 in Sessions Case No. 19 of 1959 relating to the attempt on his own life and the murder of his nephews Rehmat Ullah and Sahib Khan, he was interested in setting this land in exchange for his own land situated elsewhere, but at that time the exchange was not allowed by the Collector. Subsequently, however, the appellant Illahi Bux acting as a General Attorney of one Wahid Bux Shaikh, who has been described as his business partner, succeeded in getting this land in exchange for other land which also nominally stood in the name of Wahid Bux Shaikh; but the deceased Raza Muhammad refused to part with possession of the land during the currency of his 20 years' lease. According to the prosecution the dispute between the appellant Illahi Bux and the deceased Raza Muhammad was then referred by the parties to Ghulam Muhammad (P. W: 7) who is a Nekmard of the Khoso community and lives at kundhkot. He gave an. award, three or four years before the present occurrence, to the effect that the appellant Illahi Bux should sell the leased land to the deceased for Rs. 27,000, out of which Rs. 14,000 should be paid immediately and the balance of Rs. 13,000 should be paid when the mutation of sale is entered in the name of the deceased. It is stated that the award or Faisla of Ghulam Muhammad was accepted by the parties, and in partial com pliance thereof the deceased paid a sum of Rs. 14,000 to Illahi Bux. The latter demanded the payment of the remaining amount of Rs. 13,000 as well, but the deceased insisted on Illahi Bux first performing his part of the Faisla, namely, getting the mutation of sale entered in favour of the deceased before demanding the payment. As a result, the amount of Rs. 13,000, thus remained unpaid.

4. The prosecution alleges that on the morning of the 31st of July 1965, at about 9-00 a. m., the appellant Illahi Bux and his two sons Bangui Khan and Rahim Bux arrived in front of the otak of deceased Raza Muhammad armed with double-barrel guns. At that time the deceased was standing on the bullock cart track at a distance of 92 feet from his otak and was talking to his sons Muhammad Moosa (P. W. 3) and Abdul Rahim (P. W. 4) before leaving for his lands to supervise the transplantation of rice. Shah Bux (P. W. 5) was also present, having stopped at the otak on his way back from the village mosque. On arriving at the spot, the appellant Illahi Bux demanded the payment of Rs. 13,000 from the deceased, but the latter made the same old reply, namely, that he would pay the amount when Illahi Bux gets the land mutated in the name of the deceased. On hearing this reply, the appellant Illahi Bux is stated to have told the deceased that the amount had been long overdue from him and they were, therefore, not going to spare him, and saying so, he and Bangui Khan fired gun-shots at the deceased. The shot fired by Bangui Khan hit the deceased in the region of his chest while that fired by Illahi Bux hit him on his leg. Raza Muhammad fell down and died instantaneously on the spot. During the assault the acquitted accused Rahim Bux is stated to have kept a watch over Muhammad Moosa and the other two prosecution witnesses, threatening them with his gun in case they took any steps to save the deceased. After killing Raza Muhammad, the father and sons then escaped towards the east.

5. Leaving Abdul Rahim and Shah Bux with the dead body, Muhammad Moosa proceeded to report the matter to Tangwani Police Station; at a distance of eight miles from the soot. After his departure, his other brother Muhammad Usman (P. W. 6), who had gone out to his lands, returned home and was informed of the incident. by Abdul Rahim and Shah Bux who also gave him the names of the assailants. Similar infor mation was conveyed by these witnesses to two persons named Gullu and Abdul Karim who had also turned up at the spot after the event.

6. The first information report was recorded at l l-00 a. m. by S. H. O. Maqbool Ahmad (P. W. W) who immediately put in a telephonic massage to Kundhkot Police for arresting Bangu Khan: Consequently Bangul Khan was arrested the same day at Kundhkot at 12-30 p. m. Rahim Bux was arrested on the 5th of August 1965, but the appellant Illahi Bux could not be found by the Investigating Officer who accordingly submitted the challan in the absence of this accused. However, Illahi Bux surrendered himself in Court on the 27th of August 1965. At the instance of the acquitted accused Rahim Bux a licensed single-barrel gun was taken into possession, but according to the prosecution this gun was not used in the attack, which was launched with double-barrel guns.

7. On visiting the spot the investigating officer found that there was a pool of blood on the bullock cart track in front of the otak of the deceased. He recovered nine wads of cartridges of S. G. mate from the spot although no empties could be found. The relevant mashirnama in this behalf is Exh. 29 which has been proved on the record by the evidence of Amir Bux (P. W. 8) who acted as one of the mashirs.

8. The autopsy on the dead body of the deceased Raza Muhammad was conducted by Dr. Minhajuddin, the then Assistant Medical Officer at Bakhshapur. It appears that at the request of the defence an attempt was made to secure his presence at the trial but that could not be done as he had left for East Pakistan. As a result, his previous deposition recorded during the inquiry proceedings was, brought on the record. As the medical evidence has an important bearing on the case, it will be useful to reproduce here the details of the injuries noted on the deceased by this Doctor: (1) A circular lacerated wound, 1/6' in diameter with un detectable depth, on the right side of the chest. (2) A circular lacerated wound, 1/6' diameter, with un detectable depth, on the right side of the chest. (3) A circular lacerated wound, 1/6' in diameter, with undetectable depth, on the centre of the chest. (4) A circular, lacerated wound, 1/6" in diameter, with undetectable depth, on the centre of the chest, J' on the left side to injury No. 3, on the left border of the sternum. (5) A circular lacerated wound, 1/6" diameter, with undetectable depth, on the lower part of the neck in front. (6) A circular lacerated wound, 1/6" in diameter, on the right side of the neck, 1/2" above the collar bone. (7) A circular lacerated wound 1/2 in diameter, on the right scapular region. (8) A circular lacerated wound, 1/2" in diameter, on the right scapular region. (9) A circular lacerated wound, " in diameter, on the right scapular region, on the middle border of the scapula. (10) A circular lacerated wound, 1/2" in diameter, on the right scapular region on the upper part. (11) A circular lacerated wound, 1/2" in diameter, on the centre of the back, in the thoracic region. (12) A lacerated circular wound, 1/2" in diameter, on the centre of the back, in the thoracic region. (13) A circular lacerated wound, 1/2" in diameter, on the right side of the chest back in the thoracic region near the inferior (lower) angle of the scapula. (14) A lacerated wound with complete laceration of muscles and vessels with complete fracture of both tibia and fibula on the left leg, 1" above and ankle joint; fractured pieces of the bone were coming out.

9. The Doctor opined that the deceased died as a result of shock and haemorrhage due to injuries Nos, 1, 2, 3, 4, 5 and 14 which had been caused by a firearm like a gun. According to him, death must have been instantaneous and the interval between death and post-mortem examination was about 24 hours. In cross-examination during the inquiry he stated that the injuries found on the deceased were the result of at least two shots, which must have been fired from beyond six feet, and that although he had not mentioned the fact in his certificate Exh. 5-A, yet in his opinion the injuries on the back of the deceased were exit wounds. He further stated that the time between the death and post-mortem examination may be four hours more or less than that stated by him in Exh. 5-A. He also noticed that on internal examination the stomach was found to be empty, thus indicating that the deceased had not taken food shortly before he was shot dead.

10. All the accused pleaded not guilty at the trial, denying practically all the allegations made against them and alleging false implication on account of enmity resulting from previous litigation and matrimonial disputes. The appellants Illahi Bux and Bangul. Khan pleaded alibis. Illahi stated that he was an indoor patient in Hadi Bakhsh Hospital at Sukkur from 30th July to the 1st of August 1:965, and the appellant Bangui Khan stated that on the day of the incident he was at Kundhkot as he had to appear in the Court of the Mukhtiarkar and F. C. M. as a defence witness in a criminal cafe. Illahi Bux filed a lengthy written statement giving details of the previous litigation between the parties and also placed on record certified copies of various judgments and reports, etc., relating to this litigation It may be stated, however, that Illahi Bux had pleaded his alibi during the inquiry proceedings but did not rely upon it when questioned by the trial Judge under section 342, Criminal Procedure Code.

11. Bangui Khan examined two officials of the Court of the Mukhtiarkar and F. C. M. Kundhkot, namely, Muhammad Ayub (D. W. 1) and Khuda Bux (D. W. 2), in support of his alibi. The first named merely produced the record of the case in question, whereas Khuda Bux deposed to the physical presence of Bangui Khan at Kandhkot from 7-00 a.m. to 10-00 a. m. on the day of the occurrence, and also referred to certain entries in the judicial record in support of his statement. The learned trial Judge has, however, disbelieved Khuda Bux, and has even directed that Khuda Bux be called upon to show cause why he should not be prosecuted for perjury and forgery, ate.

12. The case for the prosecution rests almost entirely on the ocular evidence of the two sons of the deceased, namely Muhammad Moosa (P. W. 3) and Abdul Rahim (P. W. 4), supported by their step uncle Shah Bux (P. W. 5). Besides the ocular evidence, there are only two circumstances, which need to be mentioned. The first one is the fact that the appellant Illahi Bux was absconding until the 27th of August 1965, and the second is the fact that the alibis pleaded by the two appellants have been found to be false by the learned trial Judge. The effect and the evidentiary value of these circum stances will be considered by us later. The important question at this stage is whether in the circumstances of this case it would be safe to rely upon the ocular testimony of witnesses who are related to the deceased and who can clearly be described as interested witnesses in view of the history of previous relations between the parties. It is true that the learned trial Judge has expressed the opinion that after the Faisla given by Ghulam Muhammad (P. W. 7) the relations between the parties had been normalised and they were on speaking terms with each other as asserted by Muhammad Moosa, yet the fact remains that the terms of the Faisla had not been fully implemented by the parties, thus providing a constant source of friction between them. Viewed in the background of their previous relations, it could hardly be said that they were on cordial terms with each other.

13. The question as to when partisan or interested evidence may be relied upon without corroboration, and when and what kind of corroboration would be necessary as a rule of prudence has been frequently discussed by the superior Courts, and we can do no better than to refer to the principles laid down by the Supreme Court in the two well-known cases cited as Niaz v. The State (P L D1960 S C 387) and Nazir and others v. The State (PLD 1962 S C 269). The dictum in the first mentioned case was further explained and elaborated by their Lordships in the second case in which it was laid down that: - "There cannot be an inflexible rule that the statement of an `interested' witness can never be accepted without corrobora tion. By what was said in Niaz v. The State it was not meant to lay down any rule of law though it explained for the guidance of Courts the Supreme Court's approach to the problem that generally confronts the Courts in cases of crime by violence. * * * * * * 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 a 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 person had not been implicated in addition to those who were guilty, the circumstances relied upon must have a 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. Circumstances corrobrating the eye-witness may be such as (1) that the number of culprits mentioned was such as would be required for an attack of the kind which is the subject- matter of the proceedings; (2) that the persons named as culprits were such as would be expected to join in the attack."

14. The same question once again came up for consi deration by their Lordships of the Supreme Court in Wasiullah v. Mirza Ali and others (1) and it was observed that the Supreme Court had granted the Special Leave to Appeal to consider the question whether, in view of the following factors, corroboration of the interested evidence was at all necessary (1) that the eye-witnesses were all natural witnesses. (2) that the results produced were commensurate with the number of persons charged. (3) that there was visibility, and the trial Court had believed a number of the witnesses after seeing and hearing them, and (4) that the feud had been dormant for 20 years. However, on examination the learned Judges came to the conclusion that the case was not free from doubts of a general character, and after listing the circumstances creating these doubts, their Lordships went on to say that "when such be the case, and the main direct evidence be also that of interested persons, i.e. enemies of the persons charged, it-is proper to ask that the evidence in corroboration should be exceptionally strong, almost, if not quite, sufficient by itself to establish the guilt of individual accused persons, beyond reasonable doubts". It would be seen that the observations just quoted. were made in the context of the particular circumstances of Wasiullah's care and did not, in any manner, constitute a departure from the princi ples laid down in the case of Niaz and elaborated in the case of Nazir and others. On the' contrary, the factors to examine which special leave was granted fell fully within the purview of ,.hr dicta in the previous two cases.

15. After hearing the elaborate arguments presented by the Learned counsel for the appellants and examining the evidence at considerable length, we are of the view that this is a case there where are circumstances proved on the record which are suffi cient to satisfy the Court about the truthfulness of the testimony given by the partisan eye-witnesses against the appellants Illahi flux and Bangui Khan.

16. We first take up the question of motive. As already stated, the prosecution has alleged that the whole trouble had started on account of the fact that the deceased was in possession of certain land as a lessee for 20 years and was not willing to give up that possession even though the appellant Illahi Bux had succeeded in purchasing the land, nominally in the name of his business partner Wahid Bux Shaikh. The lease was executed in the year 1954 and in a previous criminal case, namely, Sessions Case No. 19 of 1959, the deceased Raza Muhammad had alleged that the attack on him and his two nephews was launched on account of the annoyance which Illahi Bus had felt at the deceased acquiring this land on lease. We may skip over the intermediary stages and come to the point of time when a compromise was reached between the parties owing to the arbitration award given by the Nekmard of their community, namely, Ghulam Muhammad (P. W. 7). It was strenuously contended before us by Mr. Brohi that Ghulam Muhammad was also a partisan witness and that no such Faisla was ever given by him. In fact the learned counsel for the appellants completely repudiated the prosecution allegation that in pursuance of the Faisla given by Ghulam Muhammad the deceased had already paid Rs. 14,000 to the appellant Illahi Bux and only an amount of Rs. 13,000 remained to be paid on Illahi Bux completing the necessary formalities with the Revenue authorities.

17. It is difficult to accept the contention of the learned counsel for the appellants that Ghulam Muhammad is a witness who is either interested, against or inimical towards Illahi Bux and his sons. This contention is based mainly on the fact that in Sessions Case No. 190 of 1964, State v. Illahi Bux and Bangui Khan besides several others, relating to the murder of a woman named Mst. Jindul and abduction of her daughter Mst. Menghul, Ghulam Muhammad had appeared as a prosecution witness to depose that one of the accused persons in that case, namely, Siddiq, had been brought before him along with the abducted girl Mst. Menghul and he had directed the persons concerned to take Siddiq and the girl to Tangwani Police Station and make a report there. In the judgment delivered the learned Additional Sessions Judge, Jacobabad, in that case a reference is made to the contention raised on behalf of Illahi Bux that Ghulam Muhammad was inimical towards him, but the learned trial Judge observed that this contention was not 4ibstantiated, and Ghulam Muhammad bad acted correctly as the Sardar and Nekmard of the tribe. Mr. Brohi pointed out that he was referring to the previous judgment not as containing an expression .of opinion binding on the Court in the present trial bait merely to prove a fact in issue, namely, that on a previous occasion as well Ghulam Muhammad had appeared as e a prosecution witness against the appellant Illahi Bux and Bangui Khan and he was accused of enmity even at that stage. It seems to us, however, that the argument is far-fetched for the reason that on the previous occasion Ghulam Muhammad merely appeared as a formal witness to depose that one of the co-accused of the present appellants had produced the abducted girl before him and he had given a direction that the matter be reported to the police. It is clear, therefore, that this is not a case where Ghulam Muhammad had already tried, successfully or unsuccessfully to falsely implicate the present appellants. In fact, he had said nothing against them on that occasion, and even at the present trial he has done his best to help the appellants in whatever way he could by making admissions favourable to them. We have no hesitation in holding that the evidence of Ghulam Muhammad to the effect that the land dispute between the parties was brought to him and he gave an arbitration award, represents the truth.

18. The evidence of Ghulam Muhammad stands fully supported by three documents Exhs. 32 to

34. The first docu ment is an application made to the Executive Engineer, Begari Canal, by Adam Khan, a son of the deceased Reza Muhammad, praying that permission may be granted to excavate a water course through the disputed land. This application is dated the 8th of April 1964. Exh. 33 contains objection put in by the appellant Illahi Bus signing as General Attorney of Wahid Bux. This document is dated the 16th of June 1964, and by means of Exh. 34 which is dated the 14th of July 1964 Illahi Bux withdrew these objections. It is the case of the prosecution that Illahi Bux withdrew his objections only when he has been paid Rs. 14,000 in pursuance of the Faisla given by Ghulam Muhammad. This statement was made at the trial by Muhammad Usman, another son of the deceased, appearing as P. W. 6, and was not challenged at all in cross-examination. When questioned about these documents under section 342, Cr. P. C. Illahi Bus contended himself by saying that in this matter he was acting as the General Attorney of Wahid Bux. It seems to us that the only explanation for the withdrawal of his objections by Illahi Bux to the excavation of a watercourse by he deceased and his sons through the land in dispute is that the matter had been settled between the parties on certain terms. It was submitted by Mr. Brohi that there could be other reasons as well, bat the learned counsel did not take us into confidence about these other reasons. We are, therefore, satisfied that there was this long standing dispute between the parties about the land belonging to Mundoo Khan, that the dispute was ultimately settled due to the intervention of P. W. Ghulam Muhammad and that in pursuance of this settlement the deceased had still to pay a sum of Rs. 13,000 on the completion of certain formalities by Illahi Bux. We are further satisfied that as this amount remained outstanding owing to the insistence of the deceased that Illahi Bux should first perform his part of the Faisla, the latter had a grievance against the deceased, such as could have led to the present incident-keeping in view the mentality and the ways of the tribe to which the parties belong. The learned trial Judge, who must be credited with some experience of the attitudes of the tribe in question, has accepted the fact that non-payment of money does lead to murders among the Baluchis to which category Khosos belong.

19. In coming to this conclusion we have taken due note of Mr. Brohi's objection that Ghulam Muhammad' a name was not mentioned in the first information report, nor was he examined before the committing Magistrate, and that even the police recorded his statement three weeks after the occurrence. We find that in the first information report the details of the Faisla were given and Muhammad Moosa had mentioned that this Faisla had been brought about by their kinsmen. This statement appears to u: to be consistent with the part now assigned to Ghulam Muhammad. The fact that he was examined nearly three weeks after the occurrence does not, in any way, reflect on his integrity, although it may reflect upon the efficiency of the investigating officer. There is no explanation on the record as to why Ghulam Muhammad was not examined in the committing Court, but that hardly Is a reason for discrediting his testimony. The existence of the Faisla had been mentioned right from the beginning, i.e. the moment first information report was lodged, and, therefore, there could be no question of any prejudice to the appellants on account of the non-examination of Ghulam Muhammad during the commitment proceedings.

20. Turning now to the occurrence itself, the first important circumstance to be noticed is that the murder has taken place right in front of the otak of the deceased and, therefore, there is nothing unnatural about the presence of the two sons of the deceased Muhammad Moosa and Abdul Rahim, and of his brother-in-law Shah Bux. Further, the offence took place in broad daylight, i.e. either at 7-00 a.m. or 9-00 a.m. In the first information report the time is mentioned as 7-00 a.m. in the opening column, although subsequently in the report as well as in the evidence the time is Indicated to be 9-00 a. m. In either case, both these hours would fall during broad daylight on the 31st of July 1965 and accordingly we see no substance in the contention that the deceased may have been done to death by some unknown assailants while he was returning from his morning prayers in the village mosque. The medical evidence clearly shows that there were at least five wounds of entry on the front part of the chest of the deceased and that would suggest that he was fired upon from the front and not from the back. The learned trial Judge has rightly observed that the dimensions of the gunshot wounds are some indication of the fact whether they are wounds of entry or exit. The dimensions of the wounds on the back of the chest are larger than those found on the front, thus suggesting that the wounds on the back are those of exit. It would appear, therefore, that the murder was committed in broad daylight, in front of the otak of the deceased, with the assailant standing In front of the deceased. It is true that the stomach of the deceased was found to be empty on post-mortem examination, and there fore, it does provide a basis for Mr. Brohi's argument that if indeed the deceased was about to leave for his lands, as suggested by his sons, then how was it possible that he did not take his morning meal. Whatever be the explanation for the fact that the deceased had not yet taken his morning meal, it is clear that if it had been a murder committed under cover of darkness, then it could not have been on the cart track opposite the otak of the deceased; on the contrary, the scene of offence would then have been either in the house or in the otak itself. The opinion of the Doctor who conducted the post-mortem ex amination also puts the time of the incident at about 7-00 a. m. although it is not an exact estimate.

21. It is clear to us, therefore, that the murder of the deceased Raza Muhammad was a crime, which must have been witnessed by those who could be expected to be present at or near the spot. The three eye-witnesses reside in the same village, and being Zamindars were under no necessity to have gone to their fields early in the morning. This being a witnessed crime, it is impossible to accept the suggestion that the eye-witnesses have substituted the present appellants for the real culprits. The account given by the eye-witnesses appears to be short and straightforward and we have not been able to discover any contradictions or inconsistencies, which could lead us to think that these persons were not present.

22. The medical evidence also provides corroboration inasmuch as the nature of the injuries sustained by the deceased clearly shows that he was hit by at least two shots, which in the ordinary course must have been fired by two different persons. One shot has hit the upper part of the body, namely, the chest, whereas the other has bit the leg. Even though the eye witnesses have stated that the appellants were armed with double barrel guns, it is clear that the same person could not have deliberately fired first at the upper part of the body and then at the lower part. It is, therefore, reasonable to hold that the two shots fired at the deceased were fired by two different persons, who were determined not to take any chances. The number of assailants -who are alleged to have taken active part in the assault on the deceased thus finds support from the medical evidence.

23. Another circumstance, which, in our opinion, lends support to the ocular evidence as against the two appellants is that even on the last occasion when an attempt was made on the life of the deceased, the major part was assigned only to Illahi Bux and his son Bangui Khan. The acquitted accused Rahim Bux was not involved.

24. It was contended by Mr. Brohi that the eye-witnesses are not worthy of credit for the reason that all of them have deliberately tried to conceal the relationship which existed between the deceased and Shah Bux; namely, that Shah Bux is a brother of the junior wife of the deceased named Mst. Ladan. Shah Bux went so far as to deny any knowledge of the existence of any woman of this name. However, he was confronted with his statement under section 161, Cr. P. C. in which he had admitted that he was the "salo" of the deceased Raza Muhammad. It is indeed established on the record that Shah Bux was the brother of Mst. Ladan and it was, therefore, sheer stupidity on the part of Shah Bux and the sons of the deceased to deny the existence of this relationship; but the question is whether on account of this denial we would be justified in rejecting their evidence. The answer is clearly in the negative, for this denial is nothing but a clumsy effort on the part of these witnesses to show that at least one of them was not connected with the deceased, but nothing else turns on it. Once the Court has come to the conclusion that the evidence is of a partisan character, the veracity of that evidence has to be tested in the light of the inherent circumstances of the case, as laid down by their Lordships of the Supreme Court, and the evidence cannot, therefore, be rejected merely on account of minor stupidities or inconsistencies.

25. Another point made by the learned counsel for the appellants was that admittedly the place of occurrence was near the village mosque, school and the shop of a Hindu named Sital Mal, and, therefore, an adverse inference must be drawn against the prosecution on account of its failure to produce independent evidence. The explanation given by the prosecution, in this behalf in that this was a season of rice transplantation and all the Haris living in the houses near the place of occurrence had already gone to their fields since early morning, that the school was closed due to summer vacation, that the shop of Sital Mal was also closed as he had gone to visit his family elsewhere, and there could not be any persons in the mosque as the morning prayers had already been offered much before the occurrence. W e consider that the explanation is probable, and further it is also clear that the contending parties in the present dispute being powerful 2;amindars, the Haris would not like to get involved in this blood feud. in these circumstances, there could possibly be no independent evidence of other persons who may or may not have witnessed the crime. 26 It was then submitted that the prosecution has failed to produce in evidence two persons named Gullu and Abdul Karim who are stated to have turned up at the spot after the incident, and to whom Abdul Rahim (P. W. 4) as well as Shah Bux (P. W. 5) had disclosed the names of the assailants. We consider that no useful purpose would have been served by the production of these two witnesses, as the disclosure of names to them by partisan witnesses would not by itself constitute much of a corroboration of their own evidence.

27. Lastly Mr. Brohi submitted that the trial Court itself had found the eye-witness account unreliable as against the acquitted accused Rahim Bux and, therefore, the benefit of that doubt must also be given to the present appellants. We find that the case of Rahim Bux has been dealt with by the learned trial Judge in paragraph 67 of the judgment. This is a short paragraph and fray be reproduced here in full:

"As regards accused Rahim Bux, he did not fire any gun-shot at deceased Raga Muhammad according to the evidence of the eye-witnesses. The witnesses, however, say that he had stood guard over them with the gun in his hand but it is not so mentioned in the F. I. R. It is merely stated that accused Rahim Bux had threatened to kill them if they went near them. Nor there is any circumstantial evidence against him. In the circumstances, the possibility of his name having been exaggerated as one of the assailants of deceased Raza Muhammad, therefore, cannot be excluded. I accordingly consider his participation in the commission of the murder as highly doubtful."

28. It will be seen that the learned trial Judge is adopting a course of extreme caution in giving the benefit of doubt to Rahim Bux; he is not holding that the eye-witness account is false in so far as Rahim Bux is concerned. It was rightly pointed out by the learned counsel appearing for the State that the learned trial Judge is not correct in saying that no mention is made in the first information report of the part played by Rahim Bux at the time of the incident. While describing the incident, Muhammad Moosa (P. W. 3) stated in the first information report that "so saying, Illahi Bux and Bangui Khan fired guns at my father which struck my father and he fell down. On seeing this, we challenged the accused and advanced towards them, but accused Rahim Bux aimed his gun at us saying not to go near them and if we went near, we would be murdered." It is clear, therefore, that even in the first information report the presence of Rahim Bux was mentioned and the part assigned to him at the trial was described even in the report. However, the fact remains that the eye-witnesses did not attribute any gunshot to Rahim Bux and accordingly the question does arise whether in the peculiar circumstances of the case Rahim Bux could be burdened with constructive liability for the offence of murder by the application of section 34, P. P. C.

29. It is well-established that such liability is not to be infer red unless there are clear indications and circumstances justifying i such an inference. On the case set up the prosecution itself,) it is possible to hold that although Illahi Bux and his two sons had armed themselves with deadly weapons before proceeding to the village of the deceased, yet if the deceased had paid the money as demanded by Illahi Bux or had given some conciliatory reply, the occasion for murdering him might not have arisen. It is, therefore, difficult to hold, without reasonable doubt, that all the three accused had, from the very beginning, formed a common intention to murder Raza Muhammad and that the presence of Rahim Bux at the spot was in furtherance of that common intention. As regards the two appellants Illahi Bux and Bangul Khan, their individual acts are, in themselves, sufficient to bring their case within the purview of section 302, P. P. C. but that is not the case with Rahim Bux if, therefore, there is any doubt as regards the existence of common intention between all the three accused to murder the deceased in any event, then the benefit had to go to Rahim Bux. It follows, therefore, that the learned trial Judge was justified in giving benefit of doubt to Rahim Bux and that view does not, in any way, detract from the credibility of the prosecution evidence as against Illahi Bux and Bangui Khan.

30. We may now examine the two circumstances to which reference was make by us at an earlier stage, namely, the absconding of the appellant 1llahi Bux and the falsity of the alibis pleaded by Illahi Bux and Bangui Khan. As regards the fact that Illahi Bux had absconded, there is satisfactory evidence to show that he could not be arrested until the 27th of August 1965, but we find that in his examination under section 342, Cr. P. C. no question was put to him in this behalf and he was not afforded an opportunity to explain his absence from the village for all this time. Accordingly, this circumstance cannot be used against him.

31. Illahi Bux did plead an alibi saying that he was an indoor patient in the Hadi Bakhsh Hospital, Sukkur, from the 30th of July 1965 to the 1st of August 1965 and in support of this contention he produced a medical certificate Exh. 65-C, dated the 29th of August 1965, but he did not pursue this plea of alibi in the Sessions Court. He did not mention it in his statement at the trial, nor did he examine the medical officer who had issued the certificate. It would, therefore, appear that the alibi set up by Illahi Bux was proved. However, we are unable to go along with the learned trial Judge and to hold that the plea of alibi set up by Illahi Bux has been shown to be false.

32. The appellant Bangui Khan undoubtedly produced defence evidence to support his plea. The learned trial Judge has given elaborate reasons for holding that the evidence given by Khuda Bux (D. W. 2), who was then working as Reader in the Court of the Mukhtiarkar and F. C. M-Kundhkot, cannot be believed with regard to the presence of Bangui Khan in that Court from 7-00 a.m. to 10-00 a.m. on the date of this occurrence. We find ourselves in agreement with these reasons. It is significant that this witness is a school-fellow of Bangui Khan, and the documentary evidence in the shape of the order sheet or diary of the Court produced by him was all typed by him and got initialed from the Magistrate. Although Khuda Bu: asserted that on that day Bangui Khan and one Bahadur were present as defence witnesses in the case of State v. Sattaro and others under section 382, P. P. C. yet it is significant that only the Machalka of Bangui Khan binding him down for the next date of hearing was found on the record and that of the other defence witness Bahadur was not to be found. Similarly, it is also significant that the record of the Court did not show that any summonses were at all issued to Bangui Khan for his appearance as a defence witness on that date, and accordingly the learned trial Judge was right in looking with suspicion at the summons produced in Court by the learned counsel who was defending Bangui Khan at the trial. The Magistrate in whose Court the case State v. Sattaro was pending never saw Bangui Khan present in his Court at 7-00 in the morning 'on that day, and all the proceedings on that date appear to have been taken by the Reader at his own level. In these circumstances, the learned trial Judge was justified in rejecting the plea of alibi. In doing so, he also took note of the fact that Kandhkot, according to the estimate given by the investigating officer, was only four to five miles from the place of occurrence and Bangui Khan could easily have gone to Kundhkot after committing the crime. Mr. Brohi pointed out that according to the evidence of the Tapedar the distance to Kundhkot was about eight miles. Even if that be so, it would not be difficult for Bangui Khan to go to Kundhkot after the crime. It is correct that Bangui Khan was arrested at Kundhkot the same day at 12-30 p.m. in pursuance of a telephonic call made by the investigating officer who had apparently come to know that Bangui Khan had gone to Kundhkot, but his presence at Kundhkot at 12-30 p.m. or even earlier at 10-00 a.m. would not necessarily be inconsistent with his presence at the scene of offence at any time between 7-00 to 9-00 a.m. Considering all these factors, we see no reason to differ from the conclusion reached by the learned trial Judge.

33. The learned trial Judge has taken the view that the false pleas of alibi set up by both the appellants could be used as corroboration of the prosecution evidence, and in this view he has sought support from an interesting quotation from a judgment of the Calcutta High Court reported as 35 Cr. L J 1935, which is as follows:- Whenever a defence of alibi is set up and that defence utterly breaks down, it is a strong inference that if the prisoner was not in fact where he says he was, then in all probability he was where the prosecution says he was." We consider that in the present case it would perhaps be going too far to hold that the unproved alibis of-the two appellants provide corroboration of' the eye-witness account given by the prosecution witnesses, yet it is clear that the failure of the appellants to prove their alibis does recoil to their disadvantage. However the prosecution case will still have to stand on its own legs.

34. The entire position may now be summed up. Although the eye-witness account in this case consists of the testimony of persons who could be described as partisan and interested, yet we are satisfied of the truthfulness of that evidence on account of the fact that the murder was committed in broad- day light at a place opposite the otak of the deceased, at which the presence of his sons or other relations would be but natural, The medical evidence shows that at least two shots were fired by two different persons, and to that extent it corroborates the eye witness account. The two appellants are persons who clearly had motive' to launch the attack and there is, to our mind, no danger at all of their false substitution for the true culprits. No active part was assigned to the acquitted accused Rahim Bux and it would have been difficult in any case to burden him with constructive liability by the application of the principle embodies in section 34, P. P. C. As a result we feel fully satisfied that the appellants have been rightly convicted of the offence of murder and of the offence of possessing unlicensed double-barrel guns. Their convictions are accordingly maintained.

35. As regards the sentences, we find that this is a case of cold-blooded murder in which the normal penalty of death must have been imposed on both the appellants. As, however, no move was made by the state or the complainant for enhancement of the punishmenat awarded to Illahi Bux and the Court also did not issue any notice suo motu in this behalf, no change can be made at this stage; but we confirm the death sentence imposed on Bangul Khan. The appeal of c both the convicts is, therefore, dismissed.

36. From what we have said above, it follows that the appeal filed by the State against the acquittal of Rahim Bux has also to be dismissed and we order accordingly. The Criminal Revision is also dismissed. Appeal dismissed.