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Criminal Appeal No. 324 of 1963, decided on 26th May 1964.
, S. 302/34‑Charge of murder established by testimony of eye‑witnesses corroborated by over whelming circumstantial evidence‑Contention of false implication of accused not tenable in circumstances‑Conviction and sentence of death confirmed.
, S. 302/34‑Sentence‑Miti gation‑Murder, cold‑blooded and brutal‑Time elapsed since crime less than two years ‑ No mitigating circumstance‑Reduction in capital sentence, held, not warranted.
Abdul Hamid v. State P L D 1962 Quetta 111 distinguished.
Ghulamally for Appellants.
Zahoorul Haq for the State.
Date of hearing: 8th May 1964.
---The appellants, who are brothers, have been convicted under section 302 read with section 34, P. P. C. by the learned Additional Sessions Judge, Sukkur, and each of them sentenced to death by hanging. They have also appealed against their conviction from jail. This judgment will dispose of both these matters.
2. These two appellants together with their third brother Bhooral, were originally committed to stand their trial in the Court of Sessions at Sukkur for offences punishable under section 302 read with section 34, P. P. C., and in addition appellants Allah Wadhayo and Sheral were charged with causing simple hurt with hatchets to P. Ws. Alan and Khial. Appellant Sheral was further charged with being armed with an unlicensed country‑made pistol, an offence punishable under section 19‑E of the Arms Act. At the termination of the trial, the learned Additional Sessions Judge, Sukkur on the 16th of January 1963, convicted the present appellants Sheral and Allah Wadhayo under section 302/34, P. P. C. and sentenced each to death by hanging. Appellant Sheral was convicted under section 19‑E of the Arms Act, and sentenced to R. I. for 12 months. Bhooral accused was acquitted of all the charges. When the matter came up before a Bench of this Court, of which one of us was a member, it was decided on the 15th of August 1963, that as the trial Court had failed to comply with the provisions of section 309, Cr. P. C., in that the Assessors, who sat through the trial with the learned Additional Sessions Judge, had not been specifically questioned with regard to the charge under section 302/34, P. P. C. against the accused persons, the trial had been vitiated on the basis of the judgment of the Supreme Court in Muhammad Sajjad. The State (P L D 1961 S C 13) and in consequence of which a retrial was directed from the state where the illegality had been committed, which was at the stage where a non compliance of section 309, Cr. P. C. had occurred. The trial Court was further directed to call for the same assessors, and after questioning them on all the aspects in accordance with P l., D 1961 S C 13, and after, hearing the arguments of the learned counsel on either side, pronounce a fresh judgment.
3. This order has been complied with, and the present judgment dated the 14th of April 1963, is the result.
4. In the present case, besides each of the appellants being sentenced to death by hanging under section 302/34, P. P. C., appellant Sheral has also been convicted under section 19‑E of the Arms Act, and sentenced to 12 months' R. I.
5. The deceased Raza Muhammad together with his brother Abdul Razak, Tural. Nayar and others, was a camel cart driver, and lived at Sukkur on what is known as Adamji Hillock. Two years before the incident which took place on the night between the 27th and 28th July 1962, the deceased and his brothers migrated to the outskirts of Khairpur near Khaki Shah bridge, and worked at the brick kiln of Ali Nawaz Shaikh. The appellants and their relations also worked at the same kiln, and were also camel cart drivers. Sometime thereafter, the appellants and their relations suspected the deceased Raza Muhammad to be illicit with the wife of appellant Sherai, and in spite of assurances given by the complainant's party, persisted in their suspicions. Due to fear and apprehension, the complainant', party left Khairpur. The distance between Khairpur and Sukkur is about 14 miles. At Sukkur, the complainant's party settled at Nao Goth and whilst the complainant Shah Nawaz and his brothers lived in Nao Goth, the deceased Raza Muhammad due to fear used to sleep at the house of his uncle Alan. The residences of Shah Nawaz, and his relations and Alan's house, which are near the railway crossing Sukkur, are said to be about 100 paces apart. Khial, a cousin of Alan lived with him, so did Alan's brothers Mondro, Rasoolo, Wali Muhammad and other relations, all of them having separate houses but within the same enclosure. These parties had been living thus for about 3 months, and on the night of the incident, Raza Muhammad the deceased, with his uncle Alan and Khial were sleeping as usual in the house of Alan, when at about 2 a.m. the complainant's party heard the sound of pistol shots, and woke up and found that Raza Muhammad had been struck down with hatchet blows by the appellants and their brother. Alan on waking up, grappled with appellant Allah Wadhayo, and though he received an injury in doing so held fast to him. Likewise Khial grappled with appellant Sheral, and even though he too was injured, he held Sheral from behind. The commotion attracted the attention of Rasoolo. Mondro and others, who rushed to the scene and assisted tile complainant's party in securing the two appellants. The third alleged assailant Bhooral made good his escape. The rest of the villagers then turned up and noticed the appellants tied down. Shah Nawaz left immediately to lodge his F. I. R. at the Sukkur A‑section Police Station, about a mile from the scene, though the scene was within the jurisdiction of the Bagarji Police Station, which is 9‑12 miles from the scene. The S. H. O. incharge Sardar Muhammad, at about 2‑45 a.m. was informed of the incident, and recorded Shah Nawaz's F. I. R. He immediately telephoned to the Bagarji P. S. as the scene was within its jurisdiction, and then proceeded to the scene, where he noticed Raza Muhammad with hatchet and gunshot injuries, and in a serious condition, on account of which he was despatched to the Civil Hospital. Appellants Sheral and Allah Wadhayo were found secured in front of the house of the complainant's party. The hatchets in their possession were secured: the hatchet with a bamboo handle from Allah Wadhayo, and the hatchet with lai handle from Sheral. Both the hatchets were stained with blood. Mashirnama of the scene were prepared. A search of Allah Wadhayo's person revealed 0/4/0 annas in cash, a railway ticket from Sukkur to Ghosarji dated 27th July 1962, bearing No. 381973, and a bus ticket from Khairpur to Sukkur. Allah Wadhayo's bloodstained shirt was also secured. From Sheral's person 0/10/4 paisas in cash, a knife, a third class railway ticket from Sukkur to Ghosarji dated 27th July 1962, bearing No. 381972, and his bloodstained shirt and turban were secured, together with a country‑made 12‑bore pistol, from the folds of his loin cloth. The barrel of the pistol retained an empty cartridge shell which smelt of powder and of having been recently fired. All these were secured in the presence of mashirs Dur Muhammad and Muhammad Yahaya. In the meantime, the S. H. O. of Bagarji P. S. also arrived on receiving the telephonic message from Sardar Muhammad reaching the scene at about 6-30 a.m. He took over the investigation and the papers from Sardar Muhammad and the two appellants who were at the spot. Thereafter witnesses were examined. A mashirnanue of the injuries on P. Ws. Khial and Alan was prepared in the presence of mashirs, and both of them were given a letter for examination and treatment to the Civil Hospital. Neither of the witnesses, however, went to the Civil Hospital, and their certificates are not on the record. The bloodstained hatchets and the clothes were sent to the Chemical Analyser, and the pistol to the Ballistic Expert. The opinion of the Chemical Analyser is that the hatchet secured from the possession of Sher together with his shirt and turban were stained with human blood, and that blood was noticed on Allah Wadhayo's hatchet and shirt, but it had disintegrated , and its origin could not be determined.
6. The appellants together with their brother Bhooral were later challaned. A separate challan was presented in respect of the charge under section 19‑E of the Arms Act against Sheral, but the case was tried jointly by the learned Additional Sessions Judge, Sukkur.
7. Both the appellants pleaded innocent in the Courts below, and denied having murdered the deceased Raza Muhammad. They also denied suspecting Raza Muhammad of having illicit relations with Hakimzadi, wife of appellant Slreral. Both denied that any weapon or bloodstained clothes, railway tickets, bus tickets, etc. were secured from their persons. In addition, they denied that they had been caught by the complainant's party at the scene, and contended that after the incident and on the arrival of the police, they were sent for from the house of their sister wife of Gliulamally, who lived nearby and where Allah Wadhayo was living. They alleged enmity against Alan and others. According to Allah Wadhayo, Alan had suspected Allah Wadhayo's cousin Khawind Bux to be illicit with Alan's sister Marvi. She was killed, and Alan's party demanded compensation from Allah Wadhayo and Khawind Bnx, which Allah Wadhayo and his relations refused to pay. In the committal proceedings, Allah Wadhayo has stated that his sister had been betrothed to one Abdullah, a cousin of Shah Nawaz, but she was ultimately married to Ghularnally, who lived near the scene, and the witnesses were otherwise interested against him. Appellant Sheral's defence was generally in the same terms as that of his brother. He denied that he had suspected the deceased of being illicit with his wife, and contended that he was being implicated by the prosecution witnesses on account of their enmity with Allah Wadhayo. No defence witnesses were examined.
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.
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