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Confirmation Case No. 7 and Criminal Appeals Nos. 69 to 72 of 1959, decided on 29th May 1959.

, S. 302‑Murder‑Evidence Medical report‑Opinion of doctor performing post‑mortem exami nation indicating age of injury as 18‑20 hours‑Evidence of witness indicating age as 24 hours‑Held, discrepancy not so material as to discard evidence of witness ‑ Evidence of doctor always subject to an allowance being given on such issue‑ Difficult in the extreme to expect of witnesses to look at watch at time of occurrence so that they might in their evidence give exact time with utmost precision ‑ Evidence Act (I of 1872), S. 45.

‑Witness‑Merely fact that witnesses belong to Police‑‑No reason to disbelieve them ‑ Fact that police personnel had been rewarded for having performed feat of gallan tary‑No ground for declaring them as false witnesses.

A. G. Talpur for Appellants.

M. H. Junejo for the State.

Dates of hearing : 8th and 15th May 1959.

.‑The appellants were tried by the learned Sessions Judge. Tharparkar, under sections 302, 307, 333 read with section 3 1, P. P. C. and I 9‑E of the Arms Act. They were all convicted on the 7th June 1958. The appellants had filed an appeal in this Court and the matter had also come up for confirmation of death sentence passed on the appellants. The High Court by its Judgment in Confirmation Case No. 44 of 1958 and Criminal Appeal No. 223 of 1958 came to be of the view that prejudice to the appellants had been caused on account of non‑compliance of the provisions contained in section 309, Cr. P. C. The High Court, therefore, allowed the appeal, set aside the convictions and sentences passed on the appellants and sent the case back to the Sessions Court at Tharparkar with a direction to comply with section 309, Cr. P. C. and question the assessors on each charge separately. The learned Sessions Judge after complying with the directions of this Court has passed a judgment on 17th December 1958 by which he has convicted all appellants under section 302, P. P. C. and sentenced them to death. He has also convicted them under sections 307, P. P. C. and 19‑E of the Arms Act and sentenced them to suffer R. I. for 7 years and two years each respectively. He has also convicted Mir Khan and the other appellants under section 333, P. P. C. and section 333 read with section 34, P. P. C., respectively and sentenced them to suffer R. I. for 5 years each. The sentences have been directed to run concurrently in case the sentence of death is not confirmed by the High Court and is not subsequently executed. The appellants have filed this appeal.. The matter is also before us by way of reference for confirmation of the sentence of death under section 374, Cr. P. C. Both the appeal and the murder reference will be disposed of by this Judgment.

2. The facts of this case briefly are that all the appellants and Ghulam Kadir and Sumar were undertrial prisoners confined in Sub‑Jail at Tando Adam. On 3rd June 1957 at 6‑10 p. m. Gulzar Khan Head Constable (P. W. 5) who was on duty at that time, opened the door of the cell in which the prisoners were confined in order, to deliver a lamp to them. He was suddenly pounced upon by one Ghulam Kadir prisoner. Gulzar Khan who bad a lock in his hand, struck Ghulam Kadir with it but before he could extricate himself from his grip he was pounced upon by appellant Hakim. Three or four other prisoners also helped Hakim and over‑powered Gulzar Khan completely. The prisoners then came out of the Jail and picked up 6 rifles with bayonets and 350 rounds. The police including Gulzar Khan started firing at them which resulted in exchange of shots between the police and the prisoners. Gulzar Khan shot at Ghulam Kadir on account of which he died. 'The present appellants and Sumar, however, escaped with 6 rifles and 350 rounds. The other prisoners came back to their cells. All the police stations were then alerted. Mr. Qurbar Ali, Sub‑Inspector of Police at Mirpurkhas received information on the 4th rune at about 2 a.m. He rallied round the police force which included Shah Muhammad and Sohrab also and proceeded towards a place called Nazikabad. He posted Shah Muhammad, Sohrab, Khurshed, Allabditta, Farid Khan and Said Rehman at Nazikabad bridge and posted other constables at other places. He himself went on patrolling the entire area. The police force kept on to the positions given to them for the whole day and the following night till on 5th June 1957 at 6 a.m. Piaro, a Railway employee, gave them certain information on account of which Shah Muhammad and others, who were at the bridge, followed Piaro and went up to a jungle near the railway line. Shah Muhammad and others took up positions on different sides and while they were approaching the appellants a gun‑shot was fired at them. Shat Muhammad and others also fired in return. The appellants were initially taking shelter behind the bushes but ultimately went into the garden of Sulleman. Shah 'Muhammad and others then took up fresh positions. Shah Muhammad during the course of firing had bit Mir Khan appellant. One Sono Mali on being asked as to where the appellants were pointed out the places where the appellants were hiding and this resulted in s shot being fired from the side of the appellants and the same hit Piaro and killed him. This happened at about 9 or 10 a.m. The firing continued when at 11 a.m. Mr. Qurban Ali, Sub-Inspector of Police, arrived with police force and took up positions. At 3‑30 p.m. P. A. R. Force arrived and advanced towards the appellants. Sandho Khan, an Assistant Sub -Inspector of Police, was injured by appellant Mir Khan by a gun shot fire. The appellants, however, were surrounded on all sides and finding' no way for escape they agreed to surrender. They were then arrested by Sub‑Inspector Qurban Ali and four rifles and bayonets were also secured from them in presence of mashirs Sulleman and Mahi. Piaro, Sono Mali and Kambar, beggar, were found killed. The dead bodies were sent for post‑mortem examination to Tando Adam. The Sub‑Inspector then made enquiries from various people and challaned the appellants on 6th November 1957.

3. When called upon to answer the accusations made against the appellants they admitted that they had escaped from Jail. They also admitted to have met with an encounter with the police. They, however, stated that they had serious complaints about proper ration not being supplied to them and therefore they complained to the guard on duty and ultimately to the jailor. They were given a severe beating on account of this complaint and Ghulam Kadir was killed. In order that the Jail authorities might escape the consequences of murder of Ghulam Kadir they asked the appellants to escape or else they also would be killed. The appellants consequently left the jail and were going to Mirpurkhas to complain of the conduct of the Jail authorities to the Collector there when they met with an encounter with the police party in the garden of Sulleman and surrendered. They do not admit to have killed Piaro, Sono or Kambar. According to them they were killed by the police force.

4. Post‑motrtem examination on the dead body of Kambar was held and the following injuries were found on his person:‑

"(1) One gun‑shot (entrance) wound about 1 /4" in diameter on the back right side at the level of the 11th rib with inverted edges, communicating with the entrance wound.

(2) One gun‑shot lacerated (entrance) wound 2J" in diameter on the right side of the chest on the front about 2' below the right nipple with everted and shrinked edges fractur ing the ribs underneath.

(3) One gun‑shot lacerated (entrance) wound about " in diameter at the level of the outer end of the right elbow joint fracturing the lateral epicandyle going upwards and backwards on the outer side of the right elbow about 14" above the joint communicating the entrance wound.

(4) One gun‑shot lacerated (entrance wound) 1 " x 1" in the sire destroyed the muscle, about 1 " above the right elbow joint on its outer side.

(5) One oval gun‑shot wound " x " in size about ' above the wound No. 4 going downwards and inwards deep to the muscles with the bullet embedded underneath.

(6) One entrance pun‑shot lacerated wound 2' in diameter on the side of the left lumber region going inwards and medically fracturing the illicioe crest and rupturing the pelvic portion of the large bowel."

All these injuries were certified to be ante‑mortem and were the result of shots fired from rifles. Death according to the doctor, was due to shock and haemorrhage. All the injuries were sufficient in the ordinary course of nature to cause death. The doctor also noticed injuries on Piaro. They were as under :‑--

"(1) One gun‑shot entrance wound with inverted edge about 3/4"' diameter on the left side of the back about 2" lateral to the scapular border of the left scapula.

(2) One gun‑shot lacerated (entrance) wound about 4" diameter deep to the muscle in front of the left shoulder. There was fracture of the head of the left humeroc involving the whole shoulder joint."

"These injuries were also found to be ante‑mortem and sufficient in the ordinary course of nature to cause death. They were certified to have been the result of gun fire. The following injuries on Sono were also noticed:

"(1) One gun‑shot entrance wound about 1/4' diameter on the right side of the back above the right shoulder with inverted edges.

(2) One lacerated entrance wound oval in the shape 1 " in diameter on the front of the chest at the level of 1/3rd with the outer 2/3rd of the clavicle with the fracture of the clavicle."

The injuries in case of Sono also were ante‑mortem and were sufficient in the ordinary course of nature to cause death.

The fact that Piaro, Sono and Kambar died as a result of injuries from rifle shots is not disputed. There is ample evidence from Shah Muhammad, Sohrab, Sandhe Khan and Qurban Ali also to establish this. The factum of the death of the deceased by gun‑shot injuries is also admitted by the appellants.

5. The moot question in the present case is whether Piaro, Sono and Kambar died on account of injuries given to them by the appellants. 1n order to prove their case the prosecution have relied upon the evidence of Gulzar Khan (P. W. 5), Shah Muhammad (P. W. 2), Sohrab (P. W. 3), Sandhe Khan (P. W. 4), Qurban Ali (P. W. 8) and Muhammad Alam (P. W. 1). The prosecution have bifurcated their case into two incidents. The first incident relates to the escape of the appellants from Sub‑Jail at Tando Adam. Gulzar Khan (P. W. 5) is the witness examined on this point. According to his evidence he was on duty on the 3rd June 1957 at 6‑10 in the evening and had gone to the cell of the prisoners to deliver a lamp to them. He was pounced upon by Ghulam Kadir. He struck him with the lock. He was overpowered by the appellant Hakim and other prisoners. The prisoners then left the Sub‑Jail and took away the rifles and the ammunition. This witness along with the other police force started 'firing at the prisoners as‑a result of which Ghulam Kadir, one of the prisoners, died. The present appellants and one Sumar, however, escaped taking away 6 rifles and 350 rounds. The evidence of Gulzar Khan has gone absolutely unchallenged and not a single question has been put to him in cross‑examination. He identified the four rimes secured from the appellants to be the rifles that had been taken away on the 3rd June 1957. This incident, according to the appellants, is also partially admitted. They have, however, attached a rider to the version given by Gulzar Khan. According to the appellants they were beaten on account of having carried a complaint to the Jailor for not being supplied proper ration and in the course of that beating Ghulam Kadir was killed. The appellants and the other prisoners were then asked to leave or else they would also be killed. According to them they complied with the wishes of the jail authorities and left the place. The version advanced by the appellants appears to be fantastically false. There is no reason as to why they would be given a beating for having complained on a petty affair like non‑supply of proper ration. It would be difficult in the extreme to believe that the jail authorities would not only beat the prisoners but would also kill Ghulam Kadir. Whatever may have been the reason, it is not possible to expect the jail authorities to tell the prisoners to run away because by doing so the jail authorities obviously knew that they would have to face serious consequences. Even if it be assumed that the prisoners were asked to go it is difficult to believe that they would be permitted to take away the rifles and the ammunition. It is also very difficult to believe that the appellants would keep on hiding in the jungle till the 5th June 1957. We are, therefore, not prepared to accept the version advanced by the appellants. We fully believe the evidence of Gulzar Khan especially in view of the fact that the case put across by the appellants is not even so much as put to Gulzar Khan.

6. The other incident is that of an encounter which took place between the police on one side and the appellants on the other. The prosecution have founded their case on the evidence of Shah Muhammad, Sohrab, Sandhe Khan, Qurban Ali and Muhammad Alam. Out of these witnesses Sandhe Khan has received injuries. The evidence of Shah Muhammad. Sohrab, Sandhe Khan, Qurban Ali and Muhammad Alam consistently is that they on information received by them went up to the jungle where the appellants were hiding. They encountered the appellants and the appellants started firing at them. It was in the presence of Shah Muhammad and Sohrab that Sono Mali and Piaro were killed by the firing done by the appellants. There is, however, no evidence as to how Kambar, the beggar, was killed. The evidence conclusively, however, is that it was by the firing of the appellants that all the three persons were killed. The evidence of these witnesses also has gone unchal lenged. The case of the appellants that they were on that day going to Mirpurkhas to file a complaint with the Collector, cannot be believed. If the appellants were so innocent as that, they would not have kept on hiding from 3rd June to 5th June 1957. No reason, however, has also been assigned as to why they were going to Mirpurkhas to file a complaint with the Collector when they had escaped from the Jail at Tando Adam. We have not been shown by the learned counsel for the appellants as to whether Tando Adam would be within the jurisdiction of the Collector, Mirpurkhas. It i3 also not possible to believe that the police would resort to firing if the appellants straight away surrendered. There also appears to be no reason why Shah Muhammad, Sohrab, Qurban Ali and Sandhe Khan would resort to firing when the appellants were unarmed and could not do the firing. All that the police party was concerned with was to arrest the appellants. They would not have gained by firing at the appellants unnecessarily. Even if it be assumed that they did resort to firing because they wanted to earn rewards, they would have fired at the appellants and not at the innocent persons like Sono, Piaro and Kambar. The injuries that appeared on some of the appellants were not such which would have endangered their life. Whatever may have happened, it is not explained as to why Sandhe Khan, A. S. I. P. received an injury if the firing was done by the police party. The obvious conclusion, therefore, is that the appellants had become desperate and wanted to resort to any extreme measure for the purpose of effecting an escape. It was, therefore, definitely from the firing done by the appellants that the three persons died and Sandhe Khan received an injury.

7. The next circumstance which connects the appellants conclusively with the offences is the factum of four rifles having been secured from them. There is no reason to disbelieve Shah Muhammad, Sohrab, Sandhe Khan, (urban Ali and mashir Sulleman (P. W. 7) on this issue.

We, therefore, believe the evidence and see no reason to interfere with the judgment given by the learned Sessions. Judge.

8. The learned counsel for the appellants, however, very seri ously contended that the evidence of the witnesses was not worthy of any reliance inasmuch as it stood contradicted by the medical evidence. The age of the injuries on the person of Piaro on 6th June 1957, at 9 a.m., as given by the doctor, was about 18 to 20 hours. The injuries to Piaro, according to the witnesses, were given at about 9 a.m. on 5th June 1957. The argument of the learned counsel, therefore, is that the age of the injuries, if the evidence of the witnesses was to be believed, would be about 24 hours and not 18‑20 hours as given by the doctor. This kind of discrepancy in our opinion is not so material as to induce us to discard the evidence of the witnesses. The evidence of the doctor is always subject to an allowance being given on an issue like this and if some such allowance is given the so‑called inconsistency between the evidence of witnesses and the medical evidence would get resolved. It is also difficult in the extreme in the circumstances of this case to expect of the witnesses to look at the watch at the time when injuries were given to Piaro so that they might in their evidence give the exact time with utmost precision. We, therefore, do not see any contradiction between the evidence of the witnesses and the doctor.

9. The other point urged by the learned counsel for the appellants is that Piaro should not have received injury on his back if the evidence of the witnesses was to be accepted because Piaro had, according to the witnesses, received injury while he was facing the appellants. We also do not see much force in this argu ment. We do not know the position of Piaro which he was occupying at the time when he was fired at. No attempt has been made by the learned counsel for the appellants to know from the witnesses as to the exact position of Piaro when he was fired at. It is, therefore, difficult to say as to where the injury would fall on Piaro at the time when the firing was done.

10. The third point advanced by the learned counsel for the appellants is that injury on Sandhe Khan is also not consistent with the evidence of the witnesses, the injuries being with charged margins. If the witnesses were to be believed that the injury given to Sandhe Khan was from some distance then the charred margins on that injury would not appear. The answer, however, according to us, is the same that no attempt was made to ask any questions from the witnesses to know the exact posi tion of Sandhe Khan when the firing was done. His argument also is that Mir Khan, one of the appellants, had received an injury on his back whereas the evidence of Shah Muhammad would indicate that it would be on his front side. These arguments are not such on which' the evidence of the witnesses should be discarded. We have already been of the view that the witnesses are reliable, trustworthy and have no special reason to give false evidence In this case.

11. The last point urged by the learned counsel is that the evidence is of interested persons in so far as all of them belonged to police force. They have given this evidence in order to escape the liability; of having fired at Piaro, Sono and Kambar them selves. They had also given evidence implicating the appellants to entitle themselves to a reward which ultimately had been given to them. We find ourselves unable to agree with the learned counsel even on this. Merely because the witnesses belong to police force, is no reason to disbelieve them. The reason that police people had been rewarded for having performed a feat gallantry is also no ground for declaring them as false witnesses. No question has been asked from any of the wit nesses to suggest to them the theory put forward by the appellants. We do not see any reason to disbelieve their evidence and we consider it sufficient for holding that the appellants had killed Piaro, Sono and Kambar.

12. Finding no substance in the appeal, we dismiss it and confirm the sentence of death passed on them.

A.E. Appeal dismissed

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