' FAROOQ ALI CHANNA , J.---The appellants have filed instant criminal jail appeal against the judgment dated 25-1-2007, passed by learned IInd Additional Sessions Judge, Thatta in Sessions Case No,107 of 2002, culminated F.I.R No,8 of 2002, Police Station Jati, convicting the appellants under section 302(b), P.P.C. As Taazir, sentencing them to imprisonment for life. The appellants were also directed to pay Rs,50,000 (Fifty thousand) each to the legal heirs of deceased Ibrahim as compensation in terms of section 544-A, Cr.P.C., in default thereof to suffer R.I for 6 months more.
The appellants were extended benefit under section 382-B, Cr.P.C.
2. Concisely, the facts of the prosecution case are that Complainant Waryal lodged F.I.R. That on 6- 4-2002, he along with his relatives Hamzo and Amir Nahrio were going to Nahariabad by foot, his brother Ibrahim riding on bicycle crossed them, and when reached at some distance ahead, Juman and his son Abu Nahrio having lathis in their hands were standing on road, abused Ibrahim and started inflicting lathi blows to him, the complainant and P.Ws. Challenged the accused persons who ran away. Ibrahim fell down from bicycle on road and went unconscious. The complainant party arranged Dotsun and took the injured Ibrahim to Taluka Hospital Jati, where he succumbed to injuries. The Complainant after leaving his relatives over the dead body went to Police Station Jati and lodged F.I.R. The motive behind the incident was brothery dispute with the accused persons, who being the persons of bad character were ousted from brothery.
3. The Investigating Officer carried out the investigation, recorded the statements of P.Ws, arrested the appellants and recovered lathis used in crime on their pointation. After completing investigation, the Investigating Officer submitted challan, the trial Court recorded the evidence of prosecution witnesses, examined the appellants under section 342, Cr.P.C. And after affording an opportunity of hearing to the counsel for both the sides, convicted and sentenced the appellants as referred hereinabove.
4. The prosecution in order to substantiate the charge against the appellants has relied upon the evidence of complainant Waryal and P.Ws Amir and Hamzo, corroborated by the circumstantial evidence including the arrest of the appellants and recovery of Lathis on their pointation and the evidence of Investigating Officer. To prove the death of deceased Ibrahim to be due to injuries caused with hard and blunt substance the prosecution has examined Dr. Mushtaque Hussain, who had conducted the postmortem over the dead body.
5. The ocular testimony consist of three eye-witnesses viz complainant Waryal and P.Ws. Amir and Hamzo, who in their evidence before the trial Court have narrated the incident in detail and have deposed that on the day of incident they were going to Nahariabad by foot, when reached near Bhatai Oliya, deceased Ibrahim coming behind on bicycle crossed them. They also saw accused Juman and Abu standing on road, when Ibrahim reached near them, they abused Ibrahim and inflicted him lathi blows, resultantly he fell down from bicycle on metalled road, they challenged the accused persons, who ran away. The complainant party arranged Dotsun, took the injured to hospital, where he succumbed to injury. All the eye-witnesses were cross-examined at length.
During cross-examination learned defence counsel has failed to shake their evidence or to extract anything favourable to the appellants. However P.W. Hamzo during cross-examination has admitted that on 23-9-1999, his brother Nazir Muhammad had lodged F.I.R. No,50/1999, regarding the murder of his nephew Ghulam Qadir at Police Station Jati, nominating the appellants Juman and Amir and his other brothers Ali Hassan, Malook and Ghani. P.W. Hamzo has also admitted that all the accused were acquitted by the trial Court and thereafter they have filed the present case against the appellants. The evidence of eye-witnesses was corroborated by the other witnesses and the circumstantial evidence. Dr. Mushtaq Hussain after conducting the post mortem had opined the death of deceased Ibrahim due to Haemorrage shock leading to cardio respiratory failure, resulting from injury No,3, caused with hard blunt substance. The Investigating Officer in his evidence before the trial Court has narrated in detail whatever the evidence he had collected during investigation. The Investigating Officer was also cross-examined at length however, except few minor contradictions, the defence counsel has failed to bring on record any adverse/remarkable substance, which may cause dent in the prosecution evidence, minor contradictions inferred from the cross-examination of Investigating Officer are not fatal to prosecution case.
6. Learned counsel for the appellants during arguments has mainly focused on two points i,e, the evidence of P.W. Hamzo, who during cross-examination has admitted that his brother had lodged F.I.R. No,50/1999 against both the appellants and other sons of appellant Juman, as such it was an admitted fact that P.W. Hamzo had inimical terms compelling him to give false evidence against the appellants. Learned counsel has further contended that complainant and other witnesses are related inter se, and interested witnesses, as such in view of old enmity their evidence cannot be relied upon. The next contention of the learned counsel was that the deceased had died due to head injury received by him by fall on road, which version is supported by the evidence of Dr. Mushtaq Hussain, who during cross-examination has admitted that injury No,3 could be caused by fall from bicycle on metalled road. Learned counsel for the appellants has further contended that the trial .Court has failed to appreciate and consider the above aspects of the case judiciously, as such the conviction is perverse based upon weak evidence and presumptions hence the appellants are entitled to be acquitted.
7. Learned D.P.-G. Has argued that mere relationship of the witnesses with the deceased Ibrahim doesn't mean that they are interested witnesses, their evidence cannot be discarded unless shaken by the defence counsel with cogent reasons. Learned D.P.G. Has further contended that no doubt P.W. Hamzo has admitted that his brother had lodged F.I.R. No,50/1999 against the appellant, however, there is no evidence to show that P.W. Hamzo was one of the witness against the appellants in that case. Learned D.P.G has further contended that contradictions in the evidence of prosecution witnesses as pointed out by the learned defence counsel appear to be minor in nature therefore will not be fatal to the prosecution case, as such the prosecution has successfully proved the charge against the appellants and the appeal is liable to be dismissed.
8. No doubt that all the witnesses are related inter se, the deceased was brother of complainant Waryal, paternal uncle of P.W. Amir and maternal uncle of P.W. Hamzo. Simultaneously it has come in evidence that complainant and other witnesses are also close relatives of the appellants.
Appellant Juman is cousin of Mother of P.W. Amir, who is real nephew of complainant. Complainant Waryal and P.W. Amir have denied their enmity with the appellants prior to this incident, however w/s. Hamzo and Amir have admitted that Nazir the brother of P.W. Hamzo had lodged F.I.R.
No,50/1999 against the appellant Juman and his sons, this admission shows that both the prosecution witnesses have not concealed anything and spoken truth irrespective of apprehension of adverse consequences of such admission, as such they are credible and trustworthy witnesses and their evidence is reliable.
9. To examine the question of considering the evidence of interested witnesses, the honourable apex Court in a case of Niaz v. The State (PLD 1960 SC 387) had led down following four conditions:- - "(a) Whether the witnesses saw the occurrence and could identify culprits?
(b) Whether they can be relied upon without corroboration?
(c) Whether the persons charged are not excessive in the circumstances?
(d) Need of corroboration in each case depends on particular circumstances of each case."
Similar question was also examined by the honourable Supreme Court in various cases, and has observed that independent corroboration is not flexible rule in relying upon the evidence of interested witnesses and that any corroborated testimony of interested witnesses can be relied upon in context with other relevant circumstances of particular cases. Reference is invited to the cases of Nazir and others v. The State (PLD 1962 SC 269), Muhammad Ismael v. Khushi Muhammad and 7 others (PLD 1974 SC 37), Abdul Rashid v. Umid Ali and 2 others (PLD 1975 SC 227) and Muhammad Ali v. The State (1985 SCM R 203). The honourable Supreme Court in other cases reported as Sharif and another v. The State (1973 SCM R 83), Roshan v. The State (PLD 1977 SC 55) has further been pleased to hold that interested and partisan witnesses need corroboration, but such corroboration need not to be such as would by itself justify conviction. Corroboration may be afforded by anything, in the circumstances of the case which tend to satisfy the mind of court. In another case reported as Gul Khan v. The State (1999 SCM R 304), it has further been observed that independent corroboration is not always to be insisted upon while relying upon interested witnesses but the value attached to the statement of interested witnesses depends on facts and circumstances of each case. In the instant case the occurrence had taken place at about 10-00 a.m. In broad-daylight, both the appellants being relatives of prosecution witnesses were known to them, as such there is no question of identifying the appellants mistakenly. The presence of prosecution witnesses at the time of incident finds support from the evidence of medical officer, who has deposed that the injured Ibrahim was brought at hospital at about 11-30 a.m. After one and half hour of the incident by his relatives, whose names are mentioned in the postmortem report to be Complainant Waryal son of Mir Muhammad (brother) and P.W. Amir son of Majno Nahrio. The delay of one and half hour in bringing the injured at hospital seems reasonable due to distance of about 15 kilo meters between the hospital and the place of incident and before removing the injured to hospital some time consumed in arranging the conveyance. In these circumstances there appears no reason to disbelieve the evidence of prosecution witnesses, who are in consonance on each aspect of the case, their evidence being unimpeachable inspire confidence, corroborated by medical and circumstantial evidence.
10.- The next version of the deceased had died due to his fall according to learned defence counsel Medical Officer. I have examined the per postmortem report the deceased under:-- appellants' counsel was that the from bicycle on road, which is supported by the evidence of evidence of Medical Officer. As had 3 injuries, which reads as "Injury No,
1. Injury No,2.
Injury No,3. Brouse 10 c.m. x 2 c.m. Over the back of chest on right scapular region. Brouse 10 c.m. x 2 c.m. Over the back of the chest on right side of scapular region 5 cm apart from Ist injury. Huge swelling about 12 c.m. x 6 c.m. Over the left tempo parittal region of skull with profuse bleeding from left ear."
' The injury No,3 may have been sustained by fall on metalled road as suggested by the Medical Officer, however the injuries No,1 and 2 manifest that the injured had fallen down from bicycle due to said two, injuries, which cannot be sustained by fall down on ground, the injury No,3 was over the left tempo parittal region of skull, whereas injuries Nos.1 and 2 were brouse on the back of chest on right side of scapular region, if a person fell down on left side, he cannot sustain brouse or injury on right side of his body, so if it is presumed that injury No,3 was result of fall on road then injuries Nos.1 and 2 undoubtedly were sustained in some other manner.
11.
10.- The next version of the deceased had died due to his fall according to learned defence counsel Medical Officer. I have examined the per postmortem report the deceased under:--appellants' counsel was that the from bicycle on road, which is supported by the evidence of evidence of Medical Officer. As had 3 injuries, which reads as For the above reasons, I have come to conclusion that the evidence of prosecution witnesses is trustworthy and reliable and the deceased had died due to head injury, may he had sustained by fall on the ground, however, it is proved that deceased had fallen down from bicycle due to lathi injuries caused by the appellants, which in ordinary course of nature is not likely to cause death of person. In view of above facts and discussion no case of Qatl-e-amd punishable under section 302, P.P.C. Is made out, however, the appellants are guilty of offence of Qatl-i-Shibh-i-Amd defined under section 315, P.P.C., which reads as under:-- "315. Qatl Shibh-i-amd. Whoever, with intent to cause harm to the body or mind of any person causes the death of that or of any other person by means of a weapon or an act which in the ordinary course of nature is not likely to cause death is said to commit qatl shibh-i-amd."
12. The above offence of Qatl-i-Shibh-i-Amd is punishable under section 316, P.P.C., which provides that whoever commits Qatl-i-Shibh-i-Amd shall be liable to diyat and may also be punishable with imprisonment of either description for a term, which may extend to 25 years as Taazir, in view of above position, I convert the conviction of the appellants under section 302(b), P.P.C. Into section 316, P.P.C.
13. To determine the quantum of sentence, I have examined the jail rolls of both the appellants, which reflects that the appellants were arrested on 11-4-2002 and were released on bail by this Court on 2-1-2012 as such they have remained behind the bars for a period of 9 years and 9 months approximately. The appellants have also earned remissions for 3 years; as such they have served out the substantial period of their sentence. Appellant Juman as per NADRA record produced along with his application under section 426, Cr.P.C. Was born on 1-1-1928, as such he is aged about 85 yours old, therefore, keeping in view the period the appellants have remained in jail and the advance age of appellant Juman, I sentence both the appellants to a period they have already undergone. The appellants are also liable to pay diyat amount of Rs,2,90,327 determined by the Government of Pakistan vide Gazette Notification No,S.R.O. 499(f)/2001, dated 2-7-2001 for the fiscal year 2001-2002, when the offence had taken place.
14. The payment of diyat amount is dealt with under section 331, P.P.C, which reads as under:-- "331. Payment of diyat---(1) The diyat may be made payable in lump sum or in installments spread over a period of five years from the date of the final judgment.
(2) Where a convict fails to pay diyat or any part thereof within the period specified in subsection (1), the convict may be kept in jail and dealt with in the same manner as if sentenced to simple imprisonment until the diyat is paid full or may be released on bail if he furnishes security or surety equivalent to the amount of diyat to the satisfaction of the Court or maybe released on parole as may be prescribed in the rules.
(3) Where a convict dies before the payment of diyat or any part thereof, it shall be recovered from his estate."
15. In view of above provision of law, the appellants are liable to pay diyat amount of Rs,2,90,327 in 36 equal instalments within the period of 3 years from the date of pronouncement of this judgment, however subject to their furnishing surety/security equivalent to diyat amount to the satisfaction of trial Court within 15 days. During said period of 15 days the appellants shall remain on bail, on the same surety furnished on their behalf in this appeal, however, on their furnishing surety before trial Court and producing such proof, the Nazir of this court shall release the surety furnished on their behalf. If the appellants fail to appear before the trial Court and to furnish security/surety within 15 days as ordered, the trial Court shall issue warrants of arrest against both the appellants, and deal with them in terms of section 331(2), P.P.C.
' In view of the above modification in the impugned judgment the appeal is dismissed.