KHALILUR REHMAN KHAN, J.-Muhammad Sher, his brother Alam Sher and their cousin Muhammad Khan were tried for the murder of Muhammad Nawaz, by the learned Additional Sessions Judge, Sargodha who vide judgment dated 25th June, 1978 acquitted Alam Sher and Muhammad Khan accused and convicted Muhammad Sher under section 302, P. P. C. He has been awarded sentence of death and a fine of Rs. 3,000, in default whereof to suffer further rigorous imprison-- ment for one year. The amount of fine when realized was directed to be paid as compensation to the heirs of the deceased.
2. The occurrence took place on 26th July, 1976 at day dawn time in a field near the dera of Fateh Muhammad Khokhar which is at a distance of 2 miles from village Gunjial, District Sargodha, Police Station, Gunjial. The prosecution case as narrated in the F. I. R. (Exh. P. E.) lodged with police station Gunjial which is at a distance of two miles from the place of occurrence, on 26th July, 1976 at 6-30 a. m. By Muhammad Sher P. W. 7, a real brother of the deceased is as follows :- "I (Muhammad Sher P. W.) along with parents and brothers reside at the dera of one Fateh Muhammad Khokhar which is about 2 miles from the village Gunjial and cultivate own land and that of my maternal-uncle Khawaj Muhammad. On the night between 25th and 26th May, 1976 after taking his meals Muhammad Nawaz, went to the field of Khawaj Muhammad nearby the dera and slept there so as to guard the thrashed wheat. It was day dawn time that on hearing the cries of Muhammad Nawaz, I and Khawaj Muhammad, ran towards the Pir (thrashing flour). In the meantime Muhammad Ameer son of Fateh Khan (given-up P. W.) also reached there. We the three saw Muhammad Sher and Muhammad Khan accused inflicting injuries to the deceased with hatchet and spear respectively and Alam Sher accused was holding the legs of Muhammad Nawaz while: he was lying on the cot. On our lalkara the three accused leaving my brother Muhammad Nawaz fled away towards their dera. Before our arrival Muhammad Nawaz expired.
Muhammad Nawaz had many injuries on his forehead which were bleeding. The cause of the crime is that Muhammad Sher, Alam Sher and Muhammad Khan accused had the doubt that Muhammad Nawaz had illicit relations with Mst. Hayat Khatoon wife of Muhammad Sher, accused."
3. After registration of the F. I. R., A. S. I. Fazal Hussain. P. W. 10 reached the spot at 8.00 a.m. On the same day and prepared the injury statement Exh. P. G. And Inquest Report Exh. P. H. Of Muhammad Nawaz deceased. He sent the dead body for post-mortem examination and also prepared the usual recovery memos for the recovery of blood--stained earth from the spot and the blood- stained cot of the deceased. Nothing, however, was recovered from the spot to directly incriminate or connect any of the three accused with the crime. A. S. I. Fazal Hussain, P. W. 10 arrested all the three accused on 27th May, 1976, i. e. The very next day of the occurrence. It is significant to note that weapons allegedly used by the accused were not recovered and therefore at trial no such recovery was alleged or relied upon.
4. The medical evidence is contained on the deposition of Dr. Mumtaz Ahmad, Medical Officer, Kot Mamoon who on 26th May, 1976 at 10-00 a. m. Conducted the post-mortem examination and found the following injuries on the dead body of Muhammad Nawaz, the deceased :-
(1) One incised wound 4 ----- into 1 -----'. Underlying bone was cut on forehead on its left side.
(2-A) One incised wound 1 ----- x -----' on middle of forehead, underly--ing bone was cut.
(2-B) One incised wound----- x ----- Underlying bone has got out just left to injury No. 2-A.
(3) One incised wound 1" x -----" bone deep on middle of hair border of forehead.
(4) One contused wound 1 ----- x ----- bone deep just above Rt. Eye. Brew.
(5) One contused wound ----- x ----- bone deep on middle of forehead just above root of nose.
(6) One incised wound ----- x ----- x 1" on outer aspect of Rt. Eyebrow.
(7) One incised wound ----- x ----- x 1" on Rt. Lower aspect of nose.
(8) One incised wound 1'' x ----- bone deep on lower aspect of left ear while cutting the lower part of ear.
5. According to Medical Officer the cause of death was shock and haemorrhage due to Injuries Nos.
1, 2 (A and B), 3, 4 and 5. These injuries were sufficient to cause death in the ordinary course of nature. All the injuries except Nos.4 and 5 had been caused by sharp-edged weapon. Injuries Nos.4 and 5 were found to have been caused by blunt weapon. Injuries Nos. 1 to 5 were grievous in nature while injuries Nos. 6 and 7 were simple. In the opinion of the doctor these injuries were caused within a duration of about 12 hours before the post-mortem examination. The duration between the injuries and death was stated to be immediate. The opinion recorded by the Doctor as to the condition of other organs was as under :-- "Stomach was empty, small intestine contained partly digested food mostly liquid. Large intestines contained a little faecal matter. Bladder contained nearly 20 ounces of urine. All the other organs were healthy."
6. The plea of the appellant as well as the other two accused on their statements under section 342, Cr. P. C. Was that they have been falsely implicated due to enmity and suspicion. Muhammad Sher stated that he produced evidence in his defence before the police and also gave Nian on Holy Quran in the village mosque. Muhammad Khan co-accused stated that he was innocent and that on 26th May, 1976 he had left his house long before day dawn time for Jauharabad as he had to attend a Court at Jauharabad on the same day. In support of his plea he produced certified copy of the interim order of the said Court Exh. D: B. The accused, however, did not produce any other evidence in their defence.
7. The prosecution relied upon the ocular evidence of Muhammad Sher P. W. 7, Khawaj Muhammad P. W. 8 and the Medical evidence only. The trial Court believing the testimony of Muhammad Sher P.
W. 8 and Whawaj Muhammad P. W. 9 against the appellant Muhammad Sher, convicted and sentenced him to death under section 302, P. P. C. For the murder of Muhammad Nawaz as mentioned above. The aforesaid two eye-witnesses were, however, disbelieved as against Alam Sher and Muhammad Khan, co-accused and giving them benefit of doubt they were acquitted observing that if Muhammad Khan had spear in his hand, he could have indicted as many blows as he liked to the deceased who was sleeping at the time of occurrence and that Muhammad Khan produced Exh. D. B. Copy of the interim order dated 26th May, 1976 passed by Mr. Masood Hussain Qureshi, Magistrate Section 30, Jauharabad showing that Muhammad Khan accused was present in the said Court on the date of occurrence. The learned Additional Sessions Judge also noted that the version of both the eye-witnesses that Muhammad Khan accused inflicted spear injury to the deceased, stands contradicted by the medical evidence, as no injury with spear was found on the body of the deceased. Alam Sher accused was given benefit of doubt by the learned Additional Sessions Judge for the reason that he would not have come at the spot empty handed and that the act attributed to Alam Sher accused is that he held the deceased from his legs and as no conspiracy has even been alleged between the three co-accused to participate in the crime in furtherance of their common intention, the case against Alam Sher accused is dubious.
R. The appellant has challenged his conviction and sentence through this appeal. Muhammad Sher son of Fateh Muhammad complainant has also filed Criminal Revision No. 749/1978 against the acquittal of Alam Sher and Muhammad Khan. This revision was not admitted as it was ordered to be heard along with the Criminal Appeal. This judgment will dispose of the present appeal, Murder Reference as well as the aforesaid Criminal Revision Petition.
9. The prosecution case rests entirely on the evidence of Muhammad Sher, P. W. 7 and Khawaj Muhammad P. W. 8 and the medical evidence. No recovery of the crime weapons was effected as mentioned above. According to the eye-witnesses, on the day of occurrence Muhammad Nawaz deceased was sleeping near the thrashed wheat in the field of Khawaj Muhammad at a distance of about two miles from the dera where the eye-witnesses were sleeping when at about day dawn time they heard the cries of Muhammad Nawaz deceased and they ran towards that direction.
Muhammad Ameer, P. W. Was present at his own Thrasher Floor and he also joined them from his field. When the eye-witnesses were at a distance of 10 to 12 Karams, from the dhari, they saw Muhammad Sher accused giving hatchet blows on the forehead of Muhammad Nawaz deceased and Muhammad Khan accused giving spears blow on the back of the left ear. Alam Sher, accused at that time was holding the deceased from his legs. Both the eye-witnesses claimed to have challenged the accused and the accused ran away towards their dera which is at a distance of 2/3 killas from the place of occurrence. On reaching near Muhammad Nawaz deceased they found him lying dead.
10. We have gone through the evidence with the help of the counsel for the parties and have also heard the arguments of all the three learned counsel. The learned counsel for the appellant raised the following con--tentions in support of this appeal :-
(1) The appellant could not legally be convicted on the testimony of the two eye-witnesses, as they have been disbelieved as against the other two co-accused.
(2) The eye-witnesses should not have been believed as against the appellant as their testimony stands belied by the medical evidence inasmuch as no stab wound was found on the dead body and the two blunt weapon injuries found on the dead body remain un--explained.
(3) The version of the eye-witnesses as to the time of occurrence is also not free from reasonable doubt.
11. The contention of the learned counsel that as the evidence of the two eye-witnesses has been disbelieved by the trial Court as against the two acquitted accused, the same should not have been made the basis for convicting Muhammad Sher and as such the conviction of the appel-- lant merits to be set aside on this ground alone is not entirely correct. It is well established that merely the fact that a witness has been disbelieved in some respects or against some accused is not sufficient to discard his testimony altogether and against other accused as well. In Samano v.
State (1973 SCMR 162) the Supreme Court observed :- " ...------..It was next submitted that the fact that the evidence of the eye-witnesses has not been relied upon as against Fateh Muhammad would react on its credibility as against the present appellants as well. The argument of course proceeds on the premises that the credit of a witness is indivisible but the maxim `falsus in uno falsus in omnibus' has not been followed by the Courts in this subcon--tinent and it has been repeatedly held that in the context of the conditions prevailing in the country the Courts have a duty to sift the grain from the chaff ..................--- We may refer to Abdus Samad v. The State (1973 SCMR 215) wherein their Lordships of the Supreme Court observed :- ---.......It appears to us that the High Court has given all the benefit that could be given to the accused persons of the inconsis--tencies between the evidence of Saadullah Jan and Taj Bibi, but this does not mean that because their evidence has not been accepted in some respects, their evidence cannot be relied upon at all even in other respects. This Court has not accepted the principle of `falsus in uno falsus in omnibus ------------."
The tale of Tawab Khan and another v: State (1973 SCMR 215) may also be referred, wherein it was observed as under :- "But I consider that in the matter of the administration of criminal justice, taking in view the present state of our society, the assessm ent of evidence, whether it is the statement of a witness or the statement of a person who is dead, is essentially an exercise of human judg--ment to evaluate the evidence so as to find out what is true and what is false therein. In this effort, the case has to be considered in all its physical environments and circumstances to find out how far the evidence over its different parts fit in with the circumstances and possibilities that can be safely deducted in the case. The injuries suffered by the deceased in relation to the roles which he has ascribed to his assailant, furnish the best test to find out as to what is truth or at least to discover what is doubtful."
The maxim `falsus in uno falsus in omnibus' has all along been discarded by the Courts in this country. Similarly, the rule that the integrity of a witness is indivisible, despite its moral virtue, has not been endorsed by the Superior Courts of this country with-- out reservations and cannot be accepted as one of universal applica--tions. In the last analysis, as stated in some of the eminent judicial decisions, `the grain has to be sifted from the chaff' in each case, in the light of its own particular circumstances."
12. The principle laid down by the Supreme Court for appreciation of evidence in such a situation therefore is that the grain has to be sifted from the chaff in each case in the light of its own particular circumstances and the mere fact that a witness has been disbelieved in certain respects is not sufficient to discard his testimony altogether and in all respects. It therefore necessarily follows that where any part of the testimony of a witness stands corroborated by any material and unimpeachable evidence or circumstance the same may be accepted and conviction may rightly b based thereon provided the same in conjunction with other material I sufficient to bring home the guilt of the accused. The fact that a witness is disbelieved in part should put the Court on caution and the duty cast in this situation is to scrutinize, and to consider the circumstances and probabilities appearing from the entire evidence with care or caution.
13. Appreciating the testimony on record in the light of the principle discussed above, we have to consider the circumstance and probabilities appearing from the record carefully and closely before discarding the evidence of Muhammad Sher P. W. 7 and Mukhtar P. W. 8 as against the appellant. In this respect the learned counsel for the appellant pointed out that both the eye- witnesses stand contradicted and belied by the medical evidence as no stab wound was found by the Doctor on the body of the deceased, though both the witnesses claimed having seen Muhammad Khan giving the spear blow. Moreover the Doctor found two blunt weapon injuries on the body of Muhammad Nawaz deceased and the injuries Nos.4 and 5 were grievous in nature as underlying bone was fractured but these injuries remained unexplained and that any of these blunt weapon injuries could not have been caused by hatchet or the spear as the eye-witnesses did not even say that the other side of the hatchet or the spear was also used by any of the accused. The case of the learned counsel for the appellant was that this is a case where no one had seen the occurrence and the accused had been implicated merely due to suspicion and enmity. He argued that the version of the eye-witnesses that they were attracted to the spot by the cries raised by the deceased is also not true and believable in view of the distance between the place of occur-- rence and the dera of Fateh Muhammad where Muhammad Sher and Khawaja Muhammad claimed to be sleeping.
On this point Muhammad Sher P. W. 7 in his cross-examination stated as under "The fields of Khan Muhammad are towards the west of the fields where the occurrence took place.
Still West, towards the fields of said Khan Muhammad, is the field belonging to Atta Muhammad, Dalukhel. Still west adjoining the field of Atta Muhammad, is the field belonging to Shahadat. My dera is at a distance of 5/6 killas from the said field of Shahadat . ---------------"
This would show that the place of occurrence was at about 8 killas from the dera where the witnesses were admittedly sleeping. The effort of the Public Prosecutor to obtain from this witness clarification in re--examination that the dera where he was sleeping and where he heard the alarm is about 2 killas from the spot, is of no consequence, when the dis--tance is calculated with reference to the details given in the above, quoted statement. The assertion of Muhammad Sher, P.
W. That Muhammad Ameer (given up) was attracted to the spot from his own field, also appears to be doubtful as he stated in his cross-examination that the field of Muhammad Ameer, P. W. Where he had cultivated wheat may be at a distance of 5 killas from the spot towards the south of the spot. The claim of both the witnesses that they were attracted to the spot due to the cries raised by Muhammad Nawaz, deceased is highly doubtful in view of the distance between the place of occurrence and the deras from where the eye-witnesses arrived. None except the two eye- witnesses were attract--ed to the spot from the dera though the father, a grown up brother Rab Nawaz and other family members were sleeping along with them. As to the possibility of cries of the deceased, the doctor in cross-examination stated, "the deceased could not have raised cries after the receipt of any one injuries Nos. 1 to 3 individually." Injuries Nos.4 and 5 are also serious while injuries Nos. 6 and 7 could have been caused by the grazing of a hatchet."
14. Moreover the presence of Khawaj Muhammad P. W. 8 at the dera of Fateh Muhammad was seriously disputed by the learned counsel for the appellant and it was argued that the excuse that he was to get the share of the Batai on the following day and therefore he was sleeping at the dera of Fateh Muhammad, is neither convincing nor reasonable as admittedly he owns a residential house in the Abadi of village Gunjial which lies at a distance of only 1f or 2 miles. The house of Khawaj Muhammad is fitted with electricity and in the month of May, it is unnatural and unlikely that he will go to the dera and sleep there only for the purpose of receiv--ing share of the crop for 3J killas from his real nephews. It was also suggested by the learned counsel for the appellant that though suggestion put to Muhammad Sher as to whether there are other enemies of the family, was not accepted, yet it is apparent that the family of the deceased had other enemies. In this respect P. W. 7 stated. "It is correct that Ahmad Khan Tarair was murdered. Again said `I do know Muhammad Nawaz son of Goraya was my cousin who was tried for the murder of Ahmad Khan Tarair and was sentenced to death. This happened long ago before I was born. I know Muhammad Altaf son of Noor Muhammad Wanakhel resident of Amirwala. Ghulam Muhammad is my first cousin. It is incorrect to suggest that two months before the present occurrence. Muhammad Nawaz deceased and Ghulam Muhammad aforementioned caught Muhammad Altaf while he was on horse back and gave him beat--ing. It is incorrect to suggest that my brother had a large number of enemies." Lastly the learned counsel argued that the version of the eye--witnesses as to the time of occurrence is also doubtful. The time of occur--rence is stated to be day dawn time and the F. I. R. Was lodged at 6-30 a. m. The same day. The doctor, however, noted that the stomach was empty, small intestines contained partially digested food mostly liquid. Large intestines contained a little faecal matter. Bladder contained nearly 20 ounces of urine.
15. As to the duration of injuries, the Doctor opined as under :- . All the injuries were ante-mortem having been caused within a duration of about 12 hours before post-mortem examination which was held at 10-00 a. m. On 26th May, 1976. If the injury is found to have been caused within one to two hours it is declared as fresh injury. If it is caused within four to five hours of the examination it is declared having been caused within six hours, and if the injury is found-to have been caused more than 7/8 hours, it is declared as having been caused within 12 hours."
It was therefore argued relying on the opinion of the Doctor that Muhammad Nawaz deceased received the injuries not at the time alleged by the eye-witnesses but many hours earlier and that the witnesses stand belied on this score also.
We have considered this submission and we are of the view that the time of death from the state of the digestion of food in stomach cannot be ascertained with exactitude.
"According to Modi's Medical Jurisprudence and Toxicology, 21 Edn., page 136 :-- ---.... The tine of death can be ascertained to some extent from the state of the stomach and the degree of digestion of the stomach contents and from the content of the bladder and intestines- But this cannot always be relied upon in determining the time of death inasmuch as the power of digestibility may remain in abeyance for a long time in state of profound shock and coma. Food has been seen in the stomach remaining undigested in persons who received severe head injuries soon after their meal and died within twelve to twenty-- four hours afterwards. In one case the food consisting chiefly of rice and dal (pulse) remained in the stomach for about forty hours without undergoing digestion. It must also be remembered that the process of digestion in normal, healthy person may continue for a time after death."
Following pertinent observations in Taylor's Principles and Practice of Medical Jurisprudence (12th Edn.) at page 210 in this regard also support this view :- "The site and state of digestion of the contents of the stomach add bowel may be used as an additional means of fixing the hour of death in relation to the last meal. Most elaborate tables have been prepared of the time taken by the stomach to digest certain articles of diet but these are wholly unreliable, the rate of digestion varies in different persons and according to the functional efficiency of the gastric mucosa. Gastric and intestinal activity is much retarded in teases of trauma and insensibility.
Even without the paralysis of movement that is common to grave injury or deep insensibility, the process of emptying of the stomach may be much delayed.
The process of digestion does not cease at death-indeed the stomach may digest itself after death."
16. It follows from above that exact time of death cannot be ascertainedfrom the state of digestion of food in the stomach yet in this case it can be reasonably inferred that the food would not have been found in semi-digested conditions after full night---s sleep, had the death occurred at about day dawn time.
17. We have given our anxious consideration to the circumstances and physical environments noted above and are of the view that though any of the above-stated circumstances and features standing alone and independently may not be sufficient to cast doubt on the testimony of the eye-, witnesses, but considered together in conjunction with each other are enough to raise reasonable doubt. The version of the eye-witnesses not only stands belied by the medical evidence but is also not getting corrobo--ration from any other independent source so that the same could be relied upon for the purposes of bringing home the guilt to Muhammad Sher convict as well. It was held in Bagh Ali and 4 others v. The State (PLD 1973 SC 321)
"As has been pointed out by the Court in the case of Thoba v. The State (PLD 1963 SC 40) the appraisement of the evidence of eye--witnesses has to be based upon a full consideration and evaluation of all the circumstances appearing in the case where there is a total absence of physical circumstances to connect the accused persons with the crime, and there is a background of enmity in such a situation the ocular evidence must, in order to carry conviction on a capital charge, come from an unimpeachable source. If such a source is not available, then it must be supported by some strong circum--stance which would enable the Court to overcome the inherent doubt which such evidence must necessarily create."
In the same judgment it was also observed that the implication of as many as five persons closely related with each other-for the murder of two unarmed persons with gun shots also suggests false implication of several innocent members of `the enemy' family. Indeed the whole case bristles with inherent improbabilities and apparent contradictions which renders implicit reliance on oral testimony alone practically impossible and extre--mely hazardous."
18. Again the circumstance that though the accused were arrested the next day of the occurrence, yet the hatchet and the spear alleged t have been used for inflicting the injuries, were not recovered and n explanation for inability to recover the crime weapons had been offered by the prosecution, is also worth noticing.
19. After giving a very careful consideration to the entire evidence, various circumstances and features as discussed above emerging there--from, we are of the view that the evidence of Khawaj Muhammad and Muhammad-Sher, P. Ws. Cannot be believed in the absence of any corro-- borative evidence against Muhammad Sher, appellant also. The appraisal of the evidence in the case leaves a genuine doubt in our minds as to the guilt of the appellant. We would accordingly give him the benefit of doubt, accept the appeal and set aside the conviction and sentence. In the consequence, the reference for the confirmation of the death sentence awarded to the appellant is rejected. In the cir--cumstances of this case the revision petition also fails and is dismissed accordingly.
We had announced the short order of acquittal on 25th May, 1981 for the reasons to be recorded later. These are our reasons for recording acquittal of the appellant.