QABOOL Versus THE STATE

JAMALUDDIN H. AHMAD J .-The appellants Qabool son of Mitho Shoro, and Darya Khan son of Waroo Shoro, were tried alongwith Hyder son of Dawood Shoro, for the murder of one Nabi Bukhsh Memon, under sec tion 302 read with 34, P. P. C. While Hyder was acquitted by the Additional Sessions Judge, Hyderabad, he convicted the two appellants and sentenced them both to death, vide his judgment dated 16-9-1974. The two appellants have assailed their conviction by filing their appeal while the case is even otherwise sent to this Court for confirmation of the death sentence.

2. The case of the prosecution is, that on 28-4-72 at about evening time, complainant Ali Dino son of Fiaz Mohammed Memon and deceased Nabi Bux who were relatives and lived in adjacent houses came out, and proceeded to the Volley Ball ground. There Alidino was watching the game while Nabi Bux played. After some time winess Ghulam Hyder came and informed deceased that his brother Qazi Ali Bux had telephoned from Hyderabad and he wanted to speak to him. Upon this Alidino, Ghulam Hyder and deceased Nabi Bux, left the play-ground and when they reached the Hotel of one Gul Hameed, they saw Mohammed Soomar and Hussain Shah alias Iqbal Hussain Shah standing there. The latter shook hands with them and enquired as to why they were going in such a hurry. Just as they were about to disclose the facts, they saw appellants Qabool son of Mitho, Darya Khan son of Waroo and the acquitted accused, coming. Appellants Qabool and Darya Khan had hatchets, while Hyder was empty-handed. Hyder came and caught hold of deceased Nabi Bux. Appellant Qabool gave one hatchet blow to him on his head and appellant Darya Khan gave him another. Deceased Nabi Bux fell down, while the witnesses raised cries. The appellant and acquitted accused raised slogans and ran towards West. The deceased was unconscious and Mohammed Soomar, Ghulam Hyder and Hussain Shah took him to the hospital. Alidino proceeded to the Police Station, Tando Ghulam Ali, and lodged his report Exh.

5. The motive disclosed in the First Information Report was that deceased Nabi Bux had quarrelled with Pirano Shoro and Hussain Shoro over the lands and after abusing them had turned them out from the land. This incident had taken place about a month before, and to take revenge appellants Darya Khan, Qabool and the acquitted accused Hyder had caused injuries to Nabi Bux.

3. The First Information Report was recorded by A. S. I. Mohammed Jamil at 6-30 p. m. within 15 minutes of the occurrence. He immediately proceeded to the place of incident and prepared Mashirnama of the scene of the offence which was in Tando Ghulam Ali Town on the road leading from Math to Digree. He secured the blood-stained earth from near the place of incident vide Mashirnama Exh.

14. He then proceeded to Tando Ghulam Ali Hospital and saw injured Nabi Bux who was still unconscious and he gave a letter to the Medical Officer for his examination. Soon thereafter he was informed that Nabi Bux died in the Hospital, so he informed the S. H. O. on Telephone and after preparing inquest report, handed over the papers to the S. H. O. for further investigation. The S. H. O. Khaleel Ahmed received the message at about 7 p. m. He reached the Hospital Tando Ghulam Ali and examined witnesses Ghulam Hyder, Hussain Shah and Mohammed Soomar. He then verified the wardat and taking Nek Mard Jumu Khan with himself proceeded to the village of the accused. He arrested appellant Darya Khan on 29-4-74 in the morning who took the police and the mashirs to his house and produced a blood-stained hatchet from beneath the wheat chaff. The hatchet was stained with blood and the S. H. O. seized it vide Mashir nama Exh.

20. Thereafter he proceeded to the house of appellant Qabool and arrested him. He also led the police to a hedge in his house and from beneath the same produced one hatchet which was blood-stained. This was also seized by the S. H. O. vide Mashirnama Exh.

22. The S. H. O. there after went to the house of acquitted accused Hyder and arrested him. His shirt was stained with blood which was seized vide Mashirnama Exh.

23. On 2-3-72, he got 164, Cr. P. C. statements of witnesses Mohammed Soomar and Ghulam Hyder recorded. Statement under section 164, Cr. P. C. of witness Hussain Shah was recorded on 8-5-72, whereafter the final report was submitted on 16-7-72.

4. The S. H. O. had sent the 2 hatchets and the shirt of Hyder, stained with blood, to the chemical analyser, whose report Exh. 33 about these articles showed that the articles were stained with human blood. Dr. Ghulam Qadir, the Medical Officer, Health Centre Tando Ghulam Ali, who first examined deceased Nabi Bux while the deceased was alive, had found two lacerated wounds on the head tend one abrasion on the left side eye of the deceased. The post mortem-examination of the body was held by Dr. Mohammad Azim, the Medical Officer, Tando Mohammed Khan on 29-5-72, and he also found the following injuries on the body of deceased

(1) Lacerated wound 3" x 1" deep to brain, brain matter was coming out, on the right side, front parietal region 2 x 3/4" above right ear and 4" above right eye brow transversely oblique.

(2) Lacerated wound 3" x 1/2' scalp deep with fracture of bones underneath, transversely oblique on ttie mid occipital region.

(3) An abrasion 2' x 1 lateral to left eye with echymosis present on both eyes and both upper and lower eye lids. The injuries were antemortem.

On internal examination he had found bleeding under the scalp; all the skull bones were fractured and brain matter was coming out under external injury No. 1. In his opinion the death was due to shock and haemorrhage, due to injuries on the person of the deceased which could be caused by hard, heavy and blunt substance, like backside of a hatchet. Injuries Nos. 1 and 2 were sufficient in ordinary course of nature to cause death collectively and individually.

5. At the trial the prosecution examined (i) P. W. Ali Dino, maternal uncle of the deceased, (ii) Mohammed Soomar Lund, a friend (iii) Ghulam Hyder brother-in-law of the deceased besides Iqbal Hussain alias Hussain Shah as the persons who saw the occurrence. The learned counsel for the appellants attacked the evidence of the eye-witnesses on mainly two grounds, firstly that in their earlier version the witnesses had stated that the hatchet blows inflicted by the 2 appellants on the deceased were with sharp side of the hatchet. But since the medical evidence was conflicting they had all attempted to improve upon their version, and stated at the trial that though the appellants struck with the sharp side of the hatchet, the blows that were actually caused were with the blunt side. The contention, therefore, was that evidence of such type of witnesses could not be safely relied upon. The second contention was that the whole story of the prosecution is such that an inference could legitimately be drawn that this was an unwitnessed crime. The appellants could not have prossibly anticipated, that the deceased would be at the spot where the murder took place so that they should wait for him having prepared themselves for taking the revenge. The deceased was going in response to a Telephone call alleged to have been received from Hyderabad. No investigation was admittedly made about this phone call, by the police. There were two banks exactly at the spot where the offence took place besides other shops. The place was in the Bazar. Obviously there would be chowkidars and other persons available but no witness from the Bazar has been examined. On the other hand the manner of causing blows as described by the eye witnesses was not compatible with the medical evidence. The acquitted accused Hyder is said to have grappled with the deceased from behind. In that case it was impossible for the appellants to have caused the injuries on the deceased without causing any harm to their own companion.

6. Now in his statement appellant Qabool has denied the incident and said that he had gone to sell milk at Tando Ghulam Ali when police sent for ' him and detained him. As for his residence he denied to reside in Taj Mohammed Shoro Village, but said that he resided in Tajo Shoro Village. He admitted his relationship with the other co-accused but said that he was victim of enmity. The other appellant Darya Khan also adopted the statement of appellant Qabool. However both of them have significantly failed to show why the prosecution witnesses should, be interested to falsely implicate them on a charge of murder. Although some of the P. Ws. are related to the deceased but they cannot be disbelieved merely on that A ground. They do not appear to have any motive for false implication. The day of incident being a holiday, the bazar must naturally be closed and it is more likely that there might be no other people in the Bazar particularly during evening hours. It being a mofussil town, people do not frequently go about the Bazar if the shops are not open. The circumstance that no other witness has been examined from that particular locality does not there fore diminish the evidentiary value of the eye-witnesses who have actually been examined. P. W. Iqbal Shah who is a Syed by caste and is a disinterest ed witness, has also given the same version as others. There is no apparent reason for this witness to falsely implicate the appellants. It is true that the acquitted accused is said to have grappled with the deceased from behind but the particular position in which he was holding him has not been made clear and in that situation, it'is difficult to say that he was open to any risk of being injured at the hands of his own companions. The incident as described by the eye-witnesses is not improbable. The First Information Report was filed without any loss of time and the description of the offence given is not different. Tile names of the eye-witnesses as well as the appellants were mentioned in this report. The use of the sharp side of the hatchet by the appellant is also not specifically mentioned and assuming the witnesses subsequently depose that blunt side of the hatchets was used, they cannot be dubbed as false witnesses on that account alone. In fact while the blows are actually given it is hardly possible to distinguish as to which side of the hatchet actually strikes the victim.

7. Apart from the evidence of the eye-witnesses as stated above there is also the evidence of the recoveries. Both the appellants produced the hatchets before the police which on examination were found by the Chemical Analyser to be stained with human blood. The appellants have denied the production of these hatchets. Appellant Qabool stated that he did not reside in Taj Muhammad Shoro Village, but resided in Tajoo Shoro Village in Deh Kaneeri. He produced certificate from the local administrator Local Council Ghulam Shah Leghari, that his name is shown in the Electoral Roll as resident of village Tajan Shoro. Similarly appellant Darya Khan is shown resident of Taj Muhammad Shoro. Both are in the Kandheri Union Council of the Ghulam Shah Leghari. The Mashirnamas of arrest Exh. 19 and Exh. 21 also show thae both the appellants were arrested from their own houses in Village Taj Mubammed Shoro, Deh Kaneeri. The hatchets were also produced by them from their houses. There is no reason to disbelieve the evidence of Mashir Jumo who has been corroborated by the S. H. O. The only attack made on the evidence of Mashir is that he has acted as such in several police cases. The Mashir himself has admitted that he has so acted in about 5 to 8 cases. He belongs to the same Village as that of the appellant B and merely because he has acted as a Mashir in 5 to 8 cases would not make him unreliable in the absence of anything to discredit his veracity, particularly when he is deposing against his own co-villagers.

8. The evidence of the four eye-witnesses, which is corroborated by the evidence of the production of hatchets by the appellants, which are proved to be stained with human blood and also by the medical evidence, is sufficient to uphold the conviction of the appellants. They have not examined any defence. In the result this appeal is dismissed and the conviction and sentence of the appellants, confirmed.

MUHAMMAD HALEEM, J.-I agree.

S. Q. Appeal dismissed.