G. M. SHAH, J.----The appellants were convicted by the learned II Additional Sessions Judge, Sukkur, for offences under section 302 read with section 34, P. P. C. And were sentenced to death, for the murder of the deceased Hotu Alamani, by means of a gun and hatchets. The appellants were further-directed to pay a fine of Rs. 1,000 each or in default to undergo R. I. For six months more. Out of the amount of fine, if realised. Rs: 1500 were ordered to be paid to heirs of the deceased, as compensation, as provided under section 544-A, Cr. P. C. The appellant Ghazi was further convicted under section 13 (E) of Arms Ordinance and sentenced to suffer R. I. For one year.
2. The appellants have filed the appeals against the judgment of conviction and sentence under section 302, read with section 34, P. P. C. There is also a separate Appeal No. 121 of 1979 filed by appellant Ghazi against his conviction under section 13 (E) of the Arms Ordinance. There is also a reference made by the learned II Additional Sessions Judge, Sukkur, under section 374, Cr. P. C. For the confirmation of the death sentence. The appeals, as well as, the reference will be disposed of together, by this judgment.
3. The deceased Hotu was elder brother of Faqir Mohammad, first informant. P. W. Shamsuddin is their cousin and Bahawal is their Mast. The prosecution case is that about two years before the occurrence, one Pinjio Kato was murdered and both Faqir Mohammad and deceased Hotu were accused in that case, which was challaned in the Court of the Sub Judge Ghotki. Appellant Ghazi is the complainant in that case. During the pendency of the proceedings the deceased and Faqir Mohammad were released on bail. The allegation is that appellant Ghazi used to give them threats that he would take revenge for the murder of Pinjio Kato. The hearing of the case against the deceased and Faqir Mohammad was fixed on the day of occurrence (22March, 1975).nd
4. On 22nd March, 1975 at about sunrise time, both, the deceased and his brother Faqir Mohammad proceeded, from their village to attend the hearing of the case, at Ghotki. In view of the threats of appellant Ghazi Kato, they were apprehensive, therefore, the deceased and Faqir Mohammad bad accompanied their relatives. P. Ws. Shamsuddin and Bahawal, who even before, used to accompany them, on each date of the hearing of the case. They all started on foot, from their village, early in the morning for Ghotki, by the road, going from "Jabri Sharif" to Pano Aqil. When they reached the place, opposite Gagul village, the deceased Hotu happened to be ahead of rest of them. When they were about 12 paces away, all of sudden, the three appellants, who were hiding in the wheat cultivation, came out and challenged them. Appellant Ghazi was armed with a gun, while the other two appellants, had hatchets in their hands. Appellant Ghazi fired from his gun, and the shot hit the deceased, who raised cries and fell down. The witnesses ran back, out, of fear. From a short distance, they looked back and saw that appellants Wahid Bux and Ali Murad were causing hatchet injuries to the fallen deceased. After killing the deceased, the appellants went away.
Thereafter all the three witnesses went and saw the deceased, who had already died. He had gunshot and hatchet injuries. P. Ws. Shamsuddin and Bahawal were left with the corpse, at the vardat, and Faqir Mohammad went to inform Bhai Khan, their Nekmard. At Pano Aqil, who directed him to lodge the report with the police, which he did at 7-15 a. m. Accompanied by the complainant, the police reached the vardat and inspected the place of occurrence. It was situated on Baiji road, leading to Pano Aqil. The police found one empty cartridge and blood stains, at the place of occurrence, which were secured and. Sealed in presence of the Mashirs Shah Bux and another. The dead body of deceased Hotu, was sent to the Medical Officer Pano Aqil, for post- mortem. Statements, of witnesses, Shamsuddin, Bahawal and Bhai Khan were recorded at the spot.
Appellant Ali Murad was arrested from his house on the same day (22nd March, 1975). He was found to have sustained one penetrated wound --" in dia, x --" deep on the left knee, which was suspected to have been caused by a fire arm. As a result of interrogation, the appellant Ali Murad; voluntarily produced, from his house, one hatchet, and his clothes, comprising of a blue colour shirt and loin-cloth (Tahmad), all stained with blood. The Police also arrested Wahid Bux, on the same day, at about 2-00 p. m. From his house. He also produced a hatchet, a khaki shirt and a silken loin- cloth, with squares, which were stained with blood. They were secured and sealed by the Police. On 4th April, 1975, the Police arrested appellant Ghaza, from his village Jamo Kato. On interrogation, he led the police party to his house; and voluntary produced a single barrel gun of .12 bore, bearing No. 1555/SBBL-DSA, from under the bed, lying on a cot. The gun .Was in. Working condition, for which the appellant had no licence, it was put into parcel and sealed. A separate case under section 13-D of Arms Act was regis--tered against appellant Ghazi. The crime empty and the gun were sent, on 22nd April, 1975, to the Forensic Science Laboratory Karachi, for matching, whereas the clothes and the hatchets, secured from appellants, Ali Murad and Wahid Bux, which were bloodstained, were sent to the Government Chemical Examiner, also, on the same day (22nd April, 1975). In his report dated 27th February, 1978 (Exh. 32) the Ballistic Expert had given his opinion that the Crime empty was fired from the same gun that was produced by appellant Ghazi: whereas the Chemical Examiner, to the Government of Sind, in his report Exh. 31 dated 27th February 1978, had mentioned the result of the Chemical Analysis, stating that the light blue loin-cloth and light blue shirt and the hatchet secured from appellant Ali Murad, as well as, the checked loin-cloth, green shirt and hatchet, recovered from appellant Wahid Bux, were stained with human blood. After completing the investigation, the case was challaned in the Court.
5. The autopsy on the dead body of deceased Hotu was conducted by Dr. Pamandas, Medical Officer at Rural Health Centre, Pano Aqil. On external examination the doctor found the following injuries on the dead body:-
(1) One incised wound (6" x 1" x 3" deep over the face cutting right eye and nose maxilla.
(2) One incised wound 4" x 1" bone deep over the left side of the face below the injury No. 1.
(3) One incised wound 4" x 1--" x 2" deep infront of the neck.
(4) One incised wound 3" x 1" x muscle deep over the left side of the neck.1
(5) One lacerated wound 2" x 1-- x bone deep over the lateral side of thigh.
(6) One wound of entrance 3" in diameter over the medial side of right thigh.
(7) One punctured wound 1" in diameter over the medial side of left thigh.
(8) One punctured wound --" in diameter into skin deep over the medial side of the left thigh.
On internal examination of the dead body the doctor found the follow--ing injuries:- Larynx and tracheae were cut. Jugular vein was cut. Left side carotid artery cut. Stomach was empty. All other organ were healthy. There was fracture of the right femur. There was fracture of mandible and maxilla. All the injuries were antimpartum in nature.
From the external, as well as internal examination of the dead body, the doctor was of the opinion that the death was due to shock and haemor--rhage, as a result of hatchet and firearm injuries, and the death was caused instantly. The probable duration, between the death and post-mortem was within seven hours.
6. The case of the appellants was a bare denial of the prosecution version. Appellant Ghazi had added that he was complainant in the case of murder of Pinjio Kato, which was pending in the Court of Civil Judge and F. C. M., Ghotki, against both the brothers, the informant Faqir Mohammad and deceased Hotu. Appellant Wahid Bux stated that he was not related to Pinjio Kato, and had nothing to do with the case. He is the only appellant, who had stated that the deceased was declared karo, by two/three persons and was a man of bade character. No further explanation was offered, as to with whom, the deceased was declared Karo and by whom; whereas appellant Ali Murad had stated that Pinjio was not related to him. He further stated that he had an injury on his knee, which was caused by a gunfire, early in the morning, when he was going for watering his land. The gunshot was fired from the jungle and he could not see the culprit. All the appellants had explained that since the witnesses were related inter se, they were deposing against them, due to previous enmity. None of the appellants led any defence.
7. We have heard .The learned counsel, Mr. Azizullah K. Shaikh for appellant Ghazi and Mr. Mohammad Hayat Junejo for appellants Wahid Bux and Ali Murad, while Mr. S. Murtaza Hussain has appeared for A.-G. For the State. We have been taken through the entire record and have been only assisted by the learned counsels, while going through the evidence in examining each aspect of the case.
8. At the very outset, it was pointed out by both the learned counsel, Messrs Azizullah K. Shaikh and Mohammad Hayat Junejo that the recoveries of the incriminating articles viz. The crime empty, the gun, hatchets and the clothes, secured from the appellants were despatched to the Ballistic Expert and the Government Chemical Examiner, so late, that no reliance can be placed upon the recoveries. All the articles are stated to have been despatched by the police on 22nd April, 1975.
9. Since the delay in receipt of the report required explanation, the learned counsel appearing for the State Mr. Murtaza Hussain Junejo stated that it would be in interest of justice, if Dr. Abdul Wadood, Govern--ment Chemical Examiner, the Director F. S. I. Crime Branch Sind, at Karachi as well as, the S. H. O. P. W. Abdul Majeed be called and examined, to explain the delay in obtaining the opinion of the experts, to which Mr. Azizullah K. Shaikh and Mr. Mohammad Hayat Junejo had no objection. We, therefore, considered it necessary in the interest of justice to examine the Chemical Examiner Dr. Abdul Wadood, as well as, the Director Forensic Science Laboratory, Mr. Ghulam Abbas Jafri. They have testified while giving the reasons, what had caused the delay, in submitting their respective reports, containing their opinion. Dr. Abdul Wadood, the Government Chemical Examiner went on, further to state that, on account of lack of adequate facilities, as well as, shifting of the Laboratory, in the new premises, where there was lack of water and electricity. He has also deposed that his report was given, after the relevant report was received, from the Government Serologist at Islam--abad. Similarly the Director Forensic Science Laboratory, Government of Sind, has explained that the crime empty and the gun, produced by appellant Ghazi, were received in his Office, first on 30th May, 1975 but could not be accepted for incorrect crime number given in the forwarding letter.
The articles were returned, on the same day, to the bearer, due to mistake of the typist, in the Office of the S. P. Sukkur, who instead of 1975, had typed 1974, in the despatch letter, which did not tally with the year mentioned on the bundle of the articles. The articles were returned and were again received in his office. Second .Time, on 27th February; 1978. The gun was examined and compared with the crime empty and the report Exh. 32 was given, since there were so many other parcels.
Waiting examination and report, each parcel was taken up for examination by its turn. He. Went on further to depose ,that in his office, he has only one qualified person, working under him, and due to heavy work, it does occasionally, result in the delay in submitting the reports with opinion. At times, he is also summoned to give evidence in Courts, out--side Karachi. He also goes to Baluchistan and Interior of -Sind for giving, his evidence.
10. We had also called the S. H. O., and recorded his statement in respect of the delay for sending the articles, for obtaining the opinion of the experts. He has testified that the incriminating articles, requiring expert opinion, were first deposited in the police Malkhana and according to the procedure, a letter was written to the S. P., for permission for sending the articles to the Government Chemical Examiner and the Ballistic Expert. After such a permission was granted by S. P., including the sanction for incurring the necessary expenses, the articles were taken, by hand, to, the Experts.
Since the appellant Ghazi was arrested on 4April, 1975 the letter to the S. P. Sukkur was written on 8April, 1975. The reply dated 22nd April, 1975, from the S. P., was received, on or about 24th April, 1975, granting the permission and according sanction for sending the crime empty and the gun to the Ballistic Expert and the blood-stained clothes and hatchets to the Government Chemical Examiner (Exhs. 39 and. 40). The articles were consequently sent, on 28April, 1975 to both, the Ballistic Expert, as well as, the Chemical Examiner. The Ballistic Expert returned the parcels, containing the crime empty, and the gun, for making necessary corrections in the letter relating to the year, therefore the articles were returned to him on 27February, 1978.
11. We have ourselves --- examined the correspondence and perused the record in the light of the arguments advanced and find that the clothes and the hatchets, were first received by the Chemical Examiner on 31st May, 1975, through a Police Constable from Pano Aqil Police Station.
These articles were not accepted and were returned to the Police Constable as the Laboratory was under the --- process of shifting, from its old office to Barrack No. 10,. Frere Road, Karachi. During this period of shift, the Laboratory had remained closed for over about six weeks. According--ly, the Police Constable, who had brought the parcels, containing these articles for examination and report, was directed to inquire after about 15 days, if the said parcels could be accepted by the Examiner and examin--ed for report. As directed another constable of the same Police Station, brought the same sealed parcels on 5th September, 1977 which were 'accepted by the Office of the Chemical Examiner and the articles were examined on 28th September, 1977. Arrangements in the office of the Chemical Examiner are such that the blood-stained cuttings and scrapping front the blood-stained articles, are usually sent to the Government Serologist Laboratory, at Islamabad, for examination and report, whether, in case of blood found on the articles, was of human origin. The articles were sent to Islamabad on 4October, 1977 and the report was received at Karachi on 16February, 1978. It was confirmed that the articles noted in the report, were stained with human blood: After comparing both the reports, one given by the Government Chemical Examiner at Karachi, and another by the Government Seriologist at Islamabad, final report Exh. 31 was sent, by registered post, to S. P. Sukkur.th th th th th th
12. The learned counsel, Mr. Azizullah K. Shaikh has contended that the: crime empty was not recovered at the spot. He has argued that it could, have been, subsequently, fired, and foisted upon the appellant Ghazi, we find this contention untenable. There is no material brought on the record, to suggest of such an inference except the delay in sending of the articles to the Ballistic Expert.
Which has 'been satisfactorily explain--ed. The Director Forensic Science Laboratory, has testified the circumstances, which bid resulted in the delay of sending of his opinion. We are also unable to find any evidence suggesting any interest or hostility of the Ballistic Expert or the Chemical Examiner or the S. H. O. Police, Pano Aqil towards the appellants. The Government Chemical Examiner, Dr. Abdul Wadood has also testified before us giving satisfactory explanation of the delay in forwarding the report with his opinion which appears to us to be reasonable. It has come in his evidence that the Laboratory was in the process of a shift and was ill equipped at the initial stages, till the whole Laboratory was completely shifted to the new premises,
13. The deceased and his brother Faqir Mohammad were already facing a murder charge and were accused in the case for the murder of Pinjio Kato. Why would the S. H. O. Go out of his way to falsely impli--cate the appellants by planting the crime empty in the case? Appellant Ghazi had lodged the F. I. R. In the case of murder of Pinjio Kato. He had the access to the S. H. O. Prior to this occurrence. The S. H. O. Was not responsible for the release on bail, of the deceased and his brother Faqir Mohammad. It is also not shown that the party of the deceased is so rich that they could buy the services of the S. H. O. In order to falsely implicate the appellants. The crime empty was found at the spot on 22nd March, 1975; which was seized and sealed in presence of the mashirs, whereas, the gun was produced by the appellant Ghazi on 4April, 1975. In murder cases, specially by fire- arms, the intimation is forthwith given to the Deputy S. P. And the S. P. Of the District, who also supervise, the investigation and the evidence collected by the Police in such cases. It is not possible to presume that the S. P. And all the Police force of the District were against the appellants and had intentionally sheilded the real culprits.
14. All these articles were recovered by`: the S. H. O. Abdul Majeed is presence of the mashirs Shah Bux (P. W. 6). The evidence of the mashirs has been criticised by Mr. Azizullah Shaikh that he knew all the appellants since long, as they belonged to his neighbourhood. It is argued that the mashir is related to the deceased, since he had married, with one of the widows of deceased Hotu recently.
The mashir Shah Bux had denied that the first were of deceased Hotu was his sister. The mashir is also supported by the S. H. O. Who had prepared the recovery memos. While perusing the evidence of S. H: O. Abdul Majeed and mashir Shah Bux, on the points of recovery of incriminating articles, we find that the criticism offered by Mr. Azizullah Shaikh about their evidence, is without much substance. There is no material, in the evidence, on the record persuading us to give a finding for rejecting their evidence. The proce--dure explained by the S. H. O, how the permission is sought from the S. P. And the manner, in which the articles are sent, to the Experts for opinion, are such that a reasonable delay is bound to occur. It is further apparent that there is enormous rush of such parcels reaching the offices of the Experts, who work single-handed. The delay in Such chief to obvious. Except the delay it; giving the opinions, which does not seem to be intentional and motivated, the reports of the Ballistic Expert and the Government Chemical Examiner have not been criticised on merits as regards their authenticity and correctness,
15. The learned counsel Mr. Azizullah Shaikh has referred us to the unreported Confirmation Case No, 12 of 1976 and the cases reported in 1969 9 C M R 714, 1975 P Cr. L J 820; 1976 P Cr, L J 419 and PLD 1962 Kar, 891, in which the crime weapons and Incriminating articles were sent late by the Police and no plausible explanation was offered for it, 16, We have carefully gone through these cases and find that the facts of these cases are different and distinguishable. Each case is decided on its own merits, When the evidence of eye-witnesses is rejected, no conviction can be based, ran the point of recoveries only, But if the eye witnessth account is believed, the position becomes different. In the above--noted cases, the prosecution had offered no explanation, as to why the sealed parcels were sent four months, after the empty cartridges had been secured from the place of occurrence. Nor was there any explanation as to the place, where, and the manner, in which those parcels were kept during the long period. In the cited cases, the primary evidence of the eye-witness was rejected and the only evidence left was one of recovery upon which the observations were made.
17. In the instant case, the two appellants Wahid Bux and Ali Murad were arrested on 22nd March, 1975 and recoveries of blood-stained hatchets and clothes were made from them, on the same day. Whereas, appellant Ghazi was arrested on 4th April, 1975 and he produced the gun on that very day. The S. H. O. Abdul Majeed has testified before us that he had written a letter to the S. P., Sukkur for permission; in respect of sending the articles to the Ballistic Expert, as well as, the Chemical Examiner, which permission was received on 22nd April, 1975 (Exhs. 39 and 40). The articles viz. The gun, and the empty were sent to the Ballistic Expert whereas the hatchet and clothes were sent to the Chemical Analyser on one and the same day i.e., 28April, 1975. On careful examination of the record, we find that there is no material in the evidence to support the contention that the investigation of the case was dishonest and that the empty was introduced in the case, in order to falsely implicate appellant Ghazi. There is also no reliable evidence to support the defence contention about planting of the hatchets and clothes against appellants Wahid Bux and Ali Murad.
18. In the instant case, we find that sufficient and satisfactory explanation has been offered, as is discussed hereinabove, and there is no evidence on the record, to discredit the testimony of the Ballistic Expert, and the Chemical Examiner, or to doubt the testimony of the S. H. O. In respect of the recovery of the incriminating articles and sending them to the two experts without inordinate delay.
19. It was next argued by Mr. Azizullah K. Shaikh that if the motive is believed, for committing the crime, the appellants had equally strong motive against both, the first informer Faqir Mohammad, as well as, his brother, deceased Hotu. Faqir Mohammad was not harmed. It is argued that an inference be drawn that Faqir Mohammad was not present at the spot. We rind no merit in this argument. The deceased was the elder brother and Faqir Mohammad is shown to be younger to him, by thirteen years. The deceased was ahead of the rest of the witnesses. May be, the appellants had the main grievance against deceased Hotu, as being respon--sible for the murder of Pinjio Kato. After killing one person, the appel--lant may have felt satisfied, avenging the murder of Pinjio Kato. Even otherwise, in the process, while the appellants were busy attacking deceas--ed Hotu, the witnesses had got a chance and preferred- to run away rather than resist the assault. It was good luck of Faqir Mohammad that he was saved. His presence at the place of occurrence is proved by the fact that he was one of the accused alongwith the deceased in the murder case, which was fixed for hearing on that day, for which, he was going by that road to attend the Court and he had lodged the F. I. R. Promptly at about 7-15 a. m., after covering the distance of about one to two miles.
20. It was further argued by Mr. Shaikh that there was recorded enmity between the parties and no independent witnesses, were examined when there were several villages close by, and so many people had reached the place of occurrence. From the evidence on the record, it appears that the entire incident had, at the most taken about five ten minutes, and the villagers had, if at all come, they had reached the vardat, after the occur--occurrence was over. It has often been noticed that the so called independent witnesses feel disinclined to appear as witnesses for reasons of unneces--sarily incurring the hostility of the accused persons and also the harassments they encounter in the Courts. In the case of Yakoob Shah reported in P L .D 1976 SC 53, it was observed as follows:-th "About the main argument of learned counsel that the petitioners' conviction rests entirely on the evidence of Police Officials and no "inde-- pendent" witness has been produced in the case, although the incident has taken place during busy hours in the main bazar, all that we need say is that this brings to a focus the tragedy of the general apathy in our society and absence of sense of civic duty to the fellow beings. It is a frequent experience of criminal Courts that many a gruesome tragedy is enacted, with scores of on lookers around, yet the assassin is allowed to operate without anylet or hindrance and is allowed to escape from the scene, with impunity. Not only that. These "independent" on lookers are not even prepared to say in Court what they have seen and thereby risk- animosity of the assassin or his partisans. It is a pity that it is not realized that this callousness is not only cowardly but is also in violation of the Islamic injunc--tions. Islam imposes a solemn duty upon its followers in unqualified terms to speak the truth, even if that were to conflict with their personal interest or the interest or their kith and kin. This indeed is one of the principle causes of delay in decision of criminal cases. In this case, the conduct of Pordil Khan is in keeping with the general pattern of behaviour in the society. But that should scarcely be a reason to doubt the veracity of the three Police Officials who appeared as the main witnesses to the incident, or the capture of the petitioner as he was trying to flee from the spot. Rather their grit and the sense of duty, is praiseworthy."
21. In motive for committing this offence was the murder of Pinjio; Kato, which the appellants wanted to avenge. The deceased and his brother Faqir Mohammad were the accused in that pending case and were on bail, which position the appellants it appears were not prepared to tolerate. When the deceased accompanied by others, namely P. W:, Shamsuddin and Bahawal were found going to attend the hearing of the murder case of deceased Pinjio Kato, the appellants were sure that they would pass by the same road, early in the morning, which was the best time to attack, and escape scotfree. It has been argued by Mr. Azizullah that there was no reason for the deceased to go ahead of the other P. Ws. When they had apprehended the trouble. In a situation like this it is not unknown that one person, who is unaware of the assault, may be a little ahead of other, leading the party. When they were suddenly accosted, the remaining three witnesses immediately, ran back to save themselves, as they were unarmed and the appellants had guns and hatchets in their hands. It is also faintly argued by Mr. Azizullah that when the deceased and his brother Faqir Mohammad had apprehended attack from the side of the appellants, why all the witnesses, as well as, the deceased were unarmed. Therefore, it is argued that their presence at the spot is doubt--ful. We are not impressed with the argument. The witnesses and the deceased had, previously, also, attended the Court hearings of the case and had returned safe. No one knew, when the deceased would meet hip death, so that they could have taken precautions. The deceased and the witnesses did not anticipate that they would be attacked on that particular day.
They were taken unaware, when they were unarmed.
22. It was next argued by Mr. Shaikh that the deceased had received one injury, which appeared to have been caused by a blunt object, and the eye-witnesses had made no mention of it. Therefore, it is submitted that the evidence of the eye-witnesses is contradicted by the medical evidence. We are not convinced by this argument, as at the time of occurrence, it is very difficult for the witnesses to observe, in details, what injuries are being caused and by which accused, which the doctor being the expert could depose in his evidence. The eye-witnesses at the time of occurrence, were at some distance behind, when the deceased fell down after receiving the gun shot injury. He was attacked by the remaining two appellants Ali Murad and Wahid Bux. It was, therefore, not possible for the witnesses to have seen the deceased being hit by the blunt object, which the doctor alone had the advantage of examining, and giving his opinion. It would be relevant in this context to refer to the case of Usman Khan reported in PLD 1969 SC 293:- "Of late, a tendency has grown to discard the testimony of seemingly reliable and natural witnesses to a crime on speculation as to the manner in which the deceased person in the case was injured or about the time of occurrence with reference to the contents of the stomach. While one can appreciate the anxiety shown by the Judge to test the credibility of the eye-witnesses with reference to the circumstances attending upon the commission of the crime, it falls to be said that Judges are not experts in medical science to form safe opinion on these matters. It is desirable, therefore, to summon the doctor who examined the injuries or performed the autopsy as a witness and investigate the reasons for his opinion. The same holds, true of the opinion given by a Ballistic Expert."
23. The learned counsel Mr. Azizullah further submitted that the crime empty recovered by the police was not mentioned in the F. I. R and it was not possible, how the crime empty was found at the spot, when prosecution did not allege the second shot having been fired by appellant Ghazi from the gun. This argument is also without force. After firing the first shot, the appellant must have reloaded the gun in order to ensure that the deceased was butchered to death. At the time of reloading, the rime empty was ejected and was found at the spot. It is true that the witnesses have not spoken of the reloading of the gun. In a situation like this, when the murder is being committed, it is difficult to calmly assess the position and give details, particularising the circumstances, how and when the gun was reloaded and fired.
24. It was then argued that P. W. Bahawal had stated that the Police had brought all the three accused at the Police Station, while he was present there, on the same day of the incident. It would, therefore, from his statement, be concluded that the arrest of appellant Ghazi, shown by the police on 4April. 1975, was false and the recovery of the gun from his possession at 5-00 p. m. Was a concoction, and the investigation of the case was dishonest. We have examined the evidence of this witness, who in his examination-in-chief had clearly and fully implicated the appellants but in his lengthy cross-examination had stated the fact of the three appellants being brought at the Police Station, when he was there, which we find has intentionally been introduced to minimise the role of Ghazi about the recovery of the gun.
25. Mr. Mohammad Hayat Junejo appearing on behalf of appellants Mr. Murad and Wahid Bux, has also repeated most of the arguments advanced by Mr. Azizullah K. Shaikh. He has led stress on the point that appellant Ali Murad had received gun shot injury before this occurrence and was not present. He has pleaded alibi for appellant xli Murad and has contended that the presence of appellant Ali Murad, in any case, at the time of occurrence was doubtful. We find that the injury caused to Ali Murad was simple in nature, and was the result of a pellet, having hit him on the knee.
It is true that the prosecution has not explained this injury caused to Ali Murad, but in a case of this nature, it is not possible to explain such an injury. It is not incumbent upon the prosecution to explain each and every injury on the accused, when the plea of the accused is of complete denial of the prosecution case. The injury on appellant Ali Murad is such, which could have been caused by a pellet froth the same gun of appellant Ghazi, when the appellants had suddenly accosted the deceased, fired at him and caused him hatchet injuries and killed him at the spot. Mr. Mohammad Hayat Junejo further emphasised the fact that the deceased was a previous convict and was a bad character. He had many enemies and therefore could have been murdered by his other enemies and not the appellants. We are unable to appreciate this argument. The occurrence took place during the daytime. Without losing time, the F. I. R. Was lodged naming the appellants and assigning each of them the specific part. It is not believable that the real culprits were spared by the complainant and the appellants were falsely substituted in their place. It is correct that in his cross-examination the first informant Faqir Mohammad, had admitted that he was detained under Sind Crimes Control Act. He had however denied that be was a person of bad character and that he was notorious for filing false cases. The complainant had further stated, in his cross-th examination that in a theft case the deceased was convicted by the Mukhtiarkar and F. C. M.
Ghotki. He had denied the fact that the deceased was a Mashir in a criminal case against Sohrab Almani and that the relatives of Sohrab Almani had threatened to murder the deceased Hotu.
Inspite of his bad character, it was not justifiable to cause his murder. A criminal also is entitled to justice.
26. From the circumstances of the case, we find no basis for any false implication of any of the three appellants and as a result of the examination of the record, we are convinced that the witnesses had seen the occurrence, which took place at sun rise time and the report was lodged at 7-15 a. m. Inspite of the fact that the witnesses were subjected to the lengthy cross-examination, but in our view, nothing has come out, to discredit their testimony, as witnesses of the occurrence.
We are conscious of the fact that the P. Ws. Appear to be related in one way or the other, but mere relationship will not discredit their version, to such an extent, to exclude their version completely, from consideration, it has come on the record that on the day of the occurrence, the case against the deceased and his brother complainant Faqir Mohammad, was fixed in the Court of the Civil Judge. Which they were going to attend. No efforts was made by the defence to falsify this version.
On the other hand, the complainant Faqir Mohammad had testified that on the day of occurrence, the S. H. O. Had informed the Court about his (Faqir Mohammad) inability to attend the Court, in the case of the murder of Pinjio Kato, against them, due to the murder of the deceased Hotu. The absence of the independent witnesses has also bcen explained by the witnesses that at the time of occurrence, no one had responded nor 'had witnessed the occurrence.
27. The eye-witness account is furnished by three eye-witnesses namely, Faqir Mohammad, first informant. Shamsuddin, who is cousin of the complainant and the deceased and Bahawal, who is Mast (son of Phophi) of the complainant. All the eye-witnesses are consistent to their version that they had left their village before sunrise and had reached the place of occurrence at about 7-15 a. m. When the appellants suddenly came out of the wheat cultivation. All the three eye-witnesses are unanimous that when the appellants came out on the road, and they saw that appellant Ghazi was armed with a single barrel shot gun and appellants Wahid Bux and Ali Murad each had a hatchet. They have testified that appellant Ghazi challenged the deceased Hotu, who was ahead of them, and fired at him. On receipt of the gun shot injury, the deceased collapsed on the ground and was given hatchet injuries by both the appellants Wahid Bux and Ali Murad. The testimony of the eye-witnesses had stood the test of the lengthy cross-examination.
28. In this context, reference to the case of Sharif and others reported in 1973 SCMR 83 is relevant:- "We have no hesitation in agreeing with the learned counsel for the appellants that this is indeed a case where the majority of the eye-witnesses can be described as interested and partisan, and for that reason it is necessary to look for satisfactory corroboration for the purpose of connecting the appellants whit the crime. It is proved that Mohammad Ashiq, a step son of the acquitted accused Ramzan and w step brother of the other accused persons was murdered by a brother of the deceased Shah Mohammad and Ghulam Mohammad, It is also in evidence that the were of the first informant, Mohammad Nawaz, has obtained divorce and married the acquitted accused Sultan Sikandar. Ghulam Hassan Kanju (P. W. 20) is either a servant or a tenant of the complainant party. Similarly. Ahmad Bakhsh Metla (P. W. 18) is a tenant of the deceased, although he is said to be cultivating sr1rne land belonging to other persons as well. The only eye-v fitness who does not appear to be particularly connected with the complainant party is Ahmad Bakhsh Mochi, (P. W. 21) as he is a "Moeen" of the Village. In this state of the record, the learned Judges in the High Court were clearly right in looking for corroboration of the ocular evidence of the interested witnesses.
Although the learned counsel, bas drawn our attention to several decided cases for the purpose of bringing out the nature of corroboration necessary in such a case, yet looking it is .Not necessary to dilate upon them, as it would suffice if the principles enunciated by this Court in Nazir and others v.
The State (PLD 1962 SC 269) are briefly mentioned, It was held in that case that "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 circumstance relied upon must have a hearing on this question." It was added that:- "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 corroborating 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."
1973 SCMR 432) it was observed at page 434 as under:- "As has been stated already, the occurrence took place at day time and in the open and it was witnessed by at least three witnesses including the father of the deceased P. W. Niaz Din is a paternal cousin of P. W. Ranjha while P. W. Pir Mohammad is a paternal cousin of P. W. Niaz Din.
Inspite of their relationship with the deceased, they appear to be the most natural and competent witnesses. Their evidence receives support from the fact that blood stained earth was recovered from a place opposite the house of the petitioner. The medical evidence too fully support their evidence."
26. In the instant case the eye witness account is corroborated by the strong motive. There is also the recovery of the empty from the vardat which matched with the gun produced by appellant Ghazi. Hatchets and clothes all blood-stained were secured from appellants Wahid Bux and Ali Murad. These pieces of evidence were supported by the opinions of the Ballistic Expert and the Chemical Examiner, coupled with' the medical evidence. All these circumstances taken together, leave no doubt in our mind about the guilt of the three appellants. We find no grounds for interfering with the judgment of the trial Court. We accordingly accept the reference and dismiss the appeals.