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Criminal Appeal No. 101 and Confirmation Case No. 29 of 1966, decided on 10th June 1967.

Witness -- Eye-witnesses closely related to deceased-Evidence of such witnesses alone not sufficient for holding accused liable for offence.

S. 540-A-Accused (8 in number) charged under S. 302/149, P.,P. C. Magistrate on request of counsel of one of accused exempting presence of his client and then recording statements of Police Officers present in Court-Held, nothing was wrong with examination of such Officers by committing Court-Commitment on that account not rendered bad.

Pokar Das Gangs Ram v. Emperor A I R 1938 Lab. 21; Bigan Singh v. King Emperor A I R 1928 Pat. 143; Bishnath v. Emperor A I R 1935 Oudh 488 and K. Belli Gowder v. Emperor A I R 1934 Mad. 691 (1) held irrelevant.

S. 302/149 Murder Sentence-Fatal injury causing death of deceased not attributable with certainty to one or other of two accused-Liability of accused, in circumstances, held, constructive-Sentence of death reduced to transportation for life.

Muhammad Hayat Junejo for Appellants

Mansoor Hussain for the State:

Dates of hearing: 2nd and 5th June 1967.

.-The appellants, Godho and Pathan, have been convicted under section 302/149, P. P. C. and sentenced to death. They have also been convicted under sections 148, P. P. C. and 13 (d) of the Arms Ordinance, and sentenced to suffer rigorous imprisonment for one year each under each count. The appellants Gul Sher, Ghazi, Gaman, Gulab, Piroo alias Pir Bux and Jaffar have been convicted under sections 302/149, 147, P. P. C. and sentenced to transportation for life and rigorous imprisonment for one year each. The sentences of imprisonment have been directed to run concurrently. The appellants have filed an appeal. The matter is also before us for confirmation of sentence of death passed on the appellants Godho and Pathan. We shall dispose of both the appeals of the appellants and the murder reference under this judgment.

2. Before we give the facts of the case, it is necessary to mention that Godho, Pathan, Gul Sher, Ghazi and Gaman are all brothers and sons of appellant Jaffar. The appellant Gulab is the nephew of appellant Jaffar and father of appellant Piroo allay Pir Bux. It will thus be noticed that all the appellants are closely related.

3. The facts of the prosecution case briefly are that Pir Buz son of Khan Muhammad, one of the prosecution witnesses, was given block No. 35 on Uksala basis in Deb Gondak, Taluka Kashmore, about eight or nine years before this incident. The appellants had also been given block No. 36 in the same Deb, which ad joined block No. 35. Before this incident, Block No 35 was erroded by river. Afterwards when the river recede, it is alleged that the appellants had trespassed on a portion of block No. 35 claiming it to be a part of block No. 36 and raised culti vation on it. As Pir Bux son of Khan Muhammad could not persuade the appellants to give the portion of block No. 35 to him he approached the Mukhtiarkar, Kashmore, and made an application Exh. 5 for demarcating Blocks Nos. 35 and 36. The Mukhtiarkar passed an order on this application directing the Tapedar of the beat, Khan Muhammad son of Rasul Bux, to visit the site and demarcate the two blocks. Notice of such a demar cation was also given to the parties which has been brought on record as Exh. 6. The Tapedar fixed the date for demarcation as the 5th of March 1964. He consequently came to the village Geehalpur and went from there on the site with Sanwan Khan, Pir Bux, his father Khan Muhammad and some haris of Pir Bux.

When they reached the site, they found the appellants Gul Sher, Ghazi, Gaman, Gulab, Piroo and Jaffar present there with hatchets. Khan Muhammad son of Rasul Bux, the Tapedar, immediately on his arrival on the site, started the demarcation work of these two blocks and completed it roughly by about 1 I a.m. As per the demarcation done by the Tapedar, the portion which was claimed by Pir Bux son of Khan Muhammad as a part of block No. 35 was actually found to be its part. The appellants consequently felt annoyed on this demarcation and attributed it perhaps to the influence of Sanwan Khan, the Zamindar of the locality. They asked the Tapedar to demarcate blocks Nos. I 1 and 12 also and settle the boundaries of these two blocks so as to put an end to their dispute with the Forest Department. The Tapedar agreed to demarcate these two blocks also and actually started work for doing the same. In the mean time, the appellants Godho and Pathan emerged out of a jungle nearby with guns in their hands. They fired at Sanwan Khan who was on a mare back. Sanwan Khan received gunshot injuries and fell on the ground. The mare also received gunshot injuries. After Sanwan Khan fell on the ground; the appellant Jaffer told the rest of the appellants not to spare Sanwan Khan as he had always come in their way and had been responsible for depriving them of their lands. The appellant Jaflar inciting others dealt first hatchet blow to the fallen Sanwan Khan. The rest of the appellants also followed suit as a result of which Sanwan Khan died on the spot. The appellants Godho and Pathan kept guard over the witnesses so as to prevent them from rescuing Sanwan Khan at the time when hatchet injuries were being inflicted on him. After the injuries were inflicted all the appellants ran away. Khan Muhammad son of Pir Bux P. _W. 6 thereafter went to village Geehalpur and informed the sons of Sanwan Khan including Ismail Khan P. W. 15. He also informed Karim Bux, a guest of Sanwan Khan, about what had happened. Khan Muhammad then went to Geehalpur outpost and finding no oue there proceeded towards Kashmore Police Station. In the meantime, a private servant of Constable, Muhammad Yakub by name, went to the Police Station Kashmore and informed the S. H. O. Imamuddin that breach of peace at the place of the incident was apprehended. S. H. O. Imamuddin made an entry of this information Exh. 90-A at 1-45 p.m. and taking some constables with him proceeded to the place of the incident, Hardly had he covered about three miles from the police station, he met Khan Muhammad on the way who informed him about the murder of Sanwan Khan. S. H. O. Imamuddin, therefore, recorded the statement of Khan Muhammad, Exh. 23, at 2-15 p.m. and sent this statement through a constable to Kashmore Police Station for registration. The first information report was regis tered as Exh. 24 at 2-45 p.m. The S. H. O. Imamuddin then accompanied Khan Muhammad and reached the place of the incident.

4. During the course of investigation he prepared the Mashirnama of Vardat Exh. 73 in the presence of Mashir Abdullah P. W. 13. He secured an empty cartridge lying at the scene under this Mashirnama. He also prepared inquest report of the dead body of Sanwan Khan. He, thereafter, ex amined the prosecution witnesses. The appellant Godho sur rendered himself before Mouladad on the 6th of March 1964 and also made an extra-judicial confession before him. Mouladad produced Godho on the same day at Police Station Machka where he was arrested and his clothes consisting of shirt and Chadar, Art. E, which were found stained with blood, were also secured. Mashirnama Exhs. 16 and 17 were prepared in the presence of Mashir Mouladad. Mouladad also lodged a report with the police station at Machka which was recorded in Roznamcha as Exh. 54. The appellant along with the Mashirnama of the clothes secured from Godho was produced before S.H.O. lmamuddin on the same day. The appellant Godho then agreed to produce the gun and for that purpose led the police to his house and produced from its roof a gun which was secured under Mashirnama Exh. 65 in the presence of Dad Muhammad P. W. 12. The gun recovered from the appellant Godho and the empty cartridge Art. C secured from the scene of offence were then sent to the Ballistic Expert for examination. The appellants Pathan, Gaman and Pir Bux were all arrested on the 7th of March 1964. They produced gun No. 5225 and hatchets respectively from their houses on the 8th of March 1964, which were secured under Mashirnamas Exhs. 66, 67 and 68. The Mashir for all these recoveries was Dad Muhammad P. W. 12. Gul Sher, who was arrested on the 10th of March 1964, also produced a hatchet from a quilt in his house on the l2th of March 1964 in the pre sence of Mashir Abdullah P. W. 13. Ghazi and Gulab, who were arrested on the 11^th of March 1964 and 12th of March 1964, also produced a hatchet each on 12th of March 1964 which were secured under Mashirnamas Exhs. 77 and 75 respectively. The hatchets secured from Gaman. Pir Bux. Gul Sher, Ghazi and Gulab and the clothes secured from Godho were sent to the Chemical Analyser for examination. His report Exh 86 shows that there was human blood on all the articles except one hatchet on which the blood had disintegrated. It is admitted that there is no evidence on record to fix this hatchet on any particular appellant. After the usual investigation was completed, the appellants were challaned.

5. The appellants, when questioned, denied the allegations made against them and attributed the filing of this case to enmity with the witnesses. They have examined no witness in defence.

6. The question whether Sanwan Khan sustained injuries and died on account of them is not disputed. The evidence of Dr. Ghulam Mustafa, Exh. 99, also shows that there were four gunshot, six incised and two injuries with a blunt weapon on the person of the deceased which were all anti-mortem and sufficient in the ordinary course of nature to cause death. The evidence of the witnesses has also established this issue beyond doubt.

7. The only question, therefore, that needs to be decided in this appeal is whether the appellants cause injuries to Sanwan Khan in furtherance of their common object which brought about his death. The prosecution for the purpose of establishing their case have relied upon the evidence of Khan Muhammad son of Rasul Bux P. W. 1, Khan Muhammad son of Pir Bux P. W. 6, Pir Bux son of Khan Mohammad P. W. 8, Budho P. W. 9 and Ghulan P. W. 11. It is admitted that Khan, Muhammad is the cousin and wife's brother of deceased Sanwan Khan and Pir Bux. is his son. Budho and Gulan are said to be the haris of Pir Bux The evidence of all these five witnesses consistently is that block No. 35, which had been taken on Uksala basis by Pir Bux had been encroached upon and cultivated by the appellants. Their evidence also is that Pir Bux had made an application Exh. 5 to the Mukhtiarkar Kashmore for demarcation of the boundaries of blocks Nos. 35 and 36. They have also stated that pursuant to the orders passed by the Mukhtiarkar, the Tapedar Khan Muhammad son of Rasul Bux P. W. 1 came on the scene and demarcated these two blocks. The result of the demarcation, according to the witnesses, was that the portion of block No. 35, which had been encroached upon and cultivated by I, the appellants, was found to be a part of block No. 35 and was accordingly demar cated. They have also stated that the appellants felt annoyed on this and requested the Tapedar Khan Muhammad to demarcate also blocks Nos. I1 and 12. According to them, the Tapedar was busy in demarcating blocks Nos. 11 and 12 when the appellants Godho and Pathan emerged out of a jungle, nearby and fired shots from the guns they were holding at Sanwan Khan, who was on a mare back, as a result of which Sanwan Khan fell on the ground. They have also stated that appellant Ja8tar thereafter inflicted hatchet injuries on Sanwan Khan and also incited the other appellants armed with hatchets to finish Sanwan Khan as he bad been responsible for depriving them of their lands previously also. They have further stated that the rest of the appellants then gave hatchet blows to Sanwan Khan which brought about is death instantaneously. The evidence of these witnesses has not in the least been shaken in their cross-examination. It is true that there was enmity between Sanwan Khan and the appellants, the details of which are given by Ismail Khan P. W. 15, the son of Sanwan Khan. The evidence of Khan Muhammad and Pir Bux alone therefore, could not he sufficient for holding the appellants liable for the offences with which they had been charged as they are closely related to Sanwan Khan. The evidence of Budhu and Gulan may also not have been sufficient as they are admittedly the haris of Pir Bux although they belong to different castes. But the evidence in this case does not consist of these interested witnesses only. It consists also of the evidence of Khan Muhammad son of Rasul Bux P. W. 1, the Tapedar of the beat. It is undisputed that Khan Muhammad son of Rasul Bux is a completely independent witness. He is a Government servant and was present at the place of the incident at the time when the incident occurred because he had firstly demarcated the blocks and secondly he was present at the time when the police arrived there and recorded his statement. There can be no earthly reason whatever for Khan Muhammad son of Rasul Bux to implicate the appellants falsely or exaggerate their number. The evidence of Khan Muhammad, Pir Bux, Budho and Gulan, therefore, stands fully supported by the evidence of Khan Muhammad son of Rasul Bux. There can be no doubt, therefore, about the truth of the evidence of Khan Muhammad, Pir Bux, Budho and Gulan. The evidence of these five witnesses in itself would, in our opinion, be sufficient for holding the appellants liable for the offences with which they have been charged. But in this particular case the evidence consists also of the evidence of Karim Bux P. W. 14 and Ismail Khan P. W. 15. Both these witnesses have in clear terms stated that Khan Muhammad son of Pir Bux, P. W. 6 came to them in village Geehalpur and informed them about how Sanwan Khan had been done to death. Karim Bux and Ismail Khan have further stated that the intention of the appellants from the very beginning was to kill Sanwan Khan as the appellant Jaffar had come on the 4th and 5th of March 1964 to Sanwan Khan and pressed him to go to the scene of offence and see the demarcation being done in his presence. Their evidence also is that Sanwan Khan was reluctant to go to the place of occurrence but he went there on account of the insistence by appellant Jaffar.

8. The evidence of these witnesses also receives support from the evidence of Rahib Khan P. W. 19, Mukhtiarkar of Kashmore. He has stated that fir Bux son of Khan Muhammad had made an application Exh. 5 to him for demarcation of blocks Nos. 35 and 36 and that he had passed an order on that applica tion directing the Tapedar to demarcate the two blocks leaving it for the Tapedar to fix a date for the same convenient to him. He has also produced notice Exh. 6 sent to the parties for the demarcation of these two blocks.

9. The evidence of the witnesses also receives support from the evidence of MoulaDad P. W. 2 to whom the appellant Godho had gone on the 6th of March 1964 and made extra judicial confession. Mouladad on the pretext of having him arrested at Machka Police Station for creating evidence of alibi for him, produced the appellant Godho before the Police Station Machka where he was arrested and his clothes, shirt and Chadar, Art. E were also secured under Mashirnama Exh. 16. Mouladad P. W. 2, Manzoor Ahmad P. W. 3 and Rahim P. W. 10, Writer Constable have fully supported the case of the prosecution. The evidence of Mouladad also receive support from the report made by him which was recorded in the Roznamcha Exh. 54. The evidence of the witnesses also receives support from the appellant Godho making a statement pursuant to which he led the S. H. O. Imamuddin P. W. 20 to his house from where from the roof of his house he produced a gun which was secured under Mashirnama Exh. 65 in the presence of Mashir Dad Muhammad P. W. 12. Dad Muhammad and S. H. O. Imamuddin have fully supported the case of the prosecution. The gun produced by the appellant Godho and the empty cartridge Art. C secured from the scene of offence were sent to the Ballistic Expert for examination. The evidence of the Ballistic Expert, Shah Jehan Khan P. W. 7, shows that the empty cartridge secured from the scene of offence was found to have been fired from gun produced by the appellant Godho.

10. The evidence of the witnesses also receives support from the circumstance that appellant Pathan, who was arrested on the 7th of March 1964, led the police to his house on the 8th of March 1964, and produced from one of the rooms of his house gun No. 5225. The gun produced by Pathan was secured under Mashirnama Exh. 66 in the presence of Mashir Dad Muhammad P. W. 12. Gaman and Pir Bux appellants, who were arrested on the 7th of March 1964, also produced a hatchet each from their respective houses on the 8th of March 1964 which were secured under Mashirnamas Exhs. 67 and 68 in the presence of the same Mashir Dad Muhammad P. W. 12. Gul Sher, Ghazi and Gulab, who were arrested on the 10th of March 1964, 11th of March 1964 and 12th of March 1964 respectively also produced a hatchet each on the 12th of March 1964 in the presence of Mashir Abdullah P. W. 13. The hatchets produced by these appellants were secured under Mashirnamas Exhs. 76,77 and 75 As the hatchets produced by the appellants were bloodstained they were sent to the Chemical Analyser along with the clothes recovered from appellant Godho. The report of the Chemical Analyser Exh. 8b shows that there was human blood on the clothes recovered from Godho and the hatchets produced by the appellants except on one hatchet the blood on which had disintegrated. Whether the blood was human blood or the blood bad disintegrated, as per the view of the Supreme Court it would be a strong circumstance against the appellant supporting the evidence of the witnesses. Dad Muhammad, Abdullah and Imamuddin have also fully supported the case of the prosecution.

11. The evidence; both ocular and circumstantial, detailed above, in our opinion, has left no doubt in our mind that the appellants were responsible for causing injuries to Sanwan Khan in furtherance of their common object which brought about his death.

12. The learned counsel for the appellants has also not been able to criticise the evidence brought against the appellants so as St to create a doubt in our mind. He has argued his case firstly on the question that the first information report had not been K registered in this case as alleged by the prosecution. According to him, information given to the police by Muhammad Yakub and the corresponding entry in the Roznamcha Exh. 90-A are fabricated. It has been argued by the learned counsel for the appellants that the police came on the scene and then after manipulating the whole incident and the evidence in support of it took down the first information report on a blank piece of paper and forwarded it for registration to the Kashmore Police Station. We have examined the arguments of the learned counsel and we are of the view that there is no material whatever for accepting these arguments. There is no evidence on the record that the police had any reason whatsoever for concocting all this evidence with a view to support the case of the prosecution. What is fantastic is that even the case as propounded by the learned counsel for the appellants has not so much as even been put to the S. H. O. lmamuddin who investigated the whole case. As a matter of fact the evidence of Muhammad Yakub, imamuddin and Khan Muhammad son of Pir Bux has been so consistent and chronological that there can be no doubt about the fact that the first information report came to be registered in the manner alleged by the prosecution.

13. The second argument advanced by the learned counsel for the appellants was that on the 25th of August 1965, Ghazi, one of the appellants, was not produced before the Committal Court by the Jail authorities. Imamuddin, Sahib Khan Head Constable and Imam Bux, A. S. L, who were examined on that day were, according to him, illegally examined and as such the committal order was illegal and the consequent trial of the appellants would be bad. We have heard the learned counsel for the appellants and we are of the view that there is no substance in his arguments. The admitted position on the record is that Ghazi, one of the appellants, was not produced on the 25th of August 1965, before the Committal Court by the Jail authorities. The counsel for this appellant made a statement in Court that the three police officers, who were present on that day, should be examined by exempting the presence of appellant Ghazi under section 540-A, Cr. P. C. The Magistrate made such a note in his diary and after granting exemption to Ghazi as required under section 540-A, Cr. P. C., recorded the statement of the three 8 police officers. There can, therefore, be nothing wrong with the examination of these three police officers on that day. But assuming the examination on these three police officers was bad, then too, at best the evidence of these three police officers before the Committal Court would be ruled out of consideration and the commitment on that account would not, in our opinion, be bad. The cases of Pokar Das Gangs Ram v. Emperor (A I R 1938 Lah. 21), Bigan Singh v. King Emperor (A 1 R 1928 Pat. 143), Bishnath v. Emperor (A t R 1935 Oudh 488) and K. Belli Gowder Emperor (A t R 1934 Mad. 681 (2)) cited by the counsel for the appellant are absolutely irrelevant to the point in issue and have no bearing whatever on the facts of this case. These cases either do not relate to the application of section 540-A, Cr. P. C., or deal with the case of a single accused where the evidence of the witnesses in his absence was recorded. We have examined the arguments of the learned counsel and as we have said above we find no substance in them.

14. In view of what we have said above, we are convinced in our mind that the case against the appellants has been fully established and the offences with which they have been charged, have been completely brought home to them, On this view of the matter, we see no merit in their appeal.

15. So far as the question of sentence is concerned, we think the sentence of death passed on the appellants Godho and Pathan is not merited in the circumstances of this case. There were four gunshot injuries, according to the evidence of the doctor Ghulam Mustafa, appearing on the person of deceased Sanwan Khan. Out of these four injuries injury No. 3 alone was certified by the doctor to be fatal. There is no evidence whatever on the record fixing injury No. 3 on any of the appellants. Under these circumstances, it cannot be safe to pass a sentence of death on both Gadho and Pathan when it is not certain as to whose shot had caused the fatal injury to the deceased. The other appellants have also been given transportation for life because they are liable for the offence under section 302/149, P. P. C. on account of their constructive liability. The liability of Godho and Pathan also in the circumstances of the case will be constructive as injury No. 3 cannot be fixed with certainty on any of the two appellants. Under these circumstances, we think that the ends of t injustice will be served if the sentence of death passed on Godho and Pathan is reduced tit that of transportation for life under, section 302/149, P. P. C.

16, The result, therefore, is that while the appeal filed by the appellants stands dismissed, the sentence passed on Godho and Pathan under section 302/149, P. P. C. is reduced from death to transportation for life. The rest, of the convictions and sentences passed on the appellants stands confirmed. Oral Judgment was announced on 5-6-67. This Judgment contains the reason for it,

Appeal dismissed.

Sentence reduced.

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