ALI NAWAZ BUDHANI, J.----The seven appellants namely Chango son of Godho Bangwar, Yaqoob Gulab Bangwar Bahar son of Godho Bangwar, Hidoo alias Hidayatullah son of Bahar Khan Bangwar, Tillu son of Jamal Khan Bangwar, Rasool Bux alias Moroo son of Jamal Khan Bangwar and Hazooro son of Jamal Khan Bangwar, were tried for offences charged under sections 148, 302, 149, 307, 323 and 324, P. P. C. And 13-D, Arms Ordi--nance, by Additional Sessions Judge, Kandhkot, and by his Judgment dated 31st January, 1981 they were found guilty for offence under section 302/149, P. P. C. Appellant Chango was sentenced to death while the remaining appellants were sentenced to life imprisonment and in addition to pay compensation of Rs. 1,000 each to the heirs of the deceased in default to suffer R. I. For six months. Appellants Yaqoob and Hazooro are sentenced under section 323, P. P. C. To R. I. For six months. Appellants Tilu, Maroo, Bahar and Hidoo are sentenced under section 324, P. P. C. To R. I. For six months. Appellants Tilu, Maroo, Bahar and Hidoo are sentenced under section 324, P. P. C. To R. I. For one year. One of the accused by name Ali Muhammad was acquitted while another accused Bijak died during the trial.
2. The instant appeal is directed against the aforesaid judgment dated 31st January, 1981 by the Additional Sessions Judge Kandhkot, who also made reference before this Court for confirmation under section 374, Cr. P. C. All the seven appellants filed appeal through Muhammad Hayat Junejo, Advocate Mr. Nazir Alam appeared before us for State. He has not supported the convictions and sentence imposed on the appellants.
3. Prosecution case is founded on the facts described by Mst. Mengul who is complainant in the F. I.
R. Filed by her on 13th August, 1976 at 9-30 a.m. She alongwith her sons and husband resided in one house situated on an abandoned canal near Chinku village. P. Ws. Imam Bux, Dil Murad and Lalkhan and the deceased Ali Murad are her sons while Zalkhan is her husband. The appellants reside at a short distance of two furlongs to the south of the house of complainant and are relatives of Mst. Mengul. The sons of complainant proposed to build an Otak about 30 paces north of their house on the same abandoned canal and two days prior to the incident they were demarcating the outline of the otak when appellant Chango asked them not to build the Otak. The sons of complai--nant insisted on building of the Otak and the same embittered the appellant Chan go who subsequently went away annoyed. On the day of incident namely on 13th August, 1976 at 6-00 a.m. The four sons of the complainant went to work in constructing the Otak.
Complainant followed her sons. Appellant Chango came armed with a gun and challenged the sons of the complainant not to build the otak. Saying so Chango fired his gun which wounded Ali Murad on his chest and he fell down. At that time other appellants Ali Muhammad armed with gun; Mooro, Tilu, Mazooro, Bahar, Bajak, Hidu and Yaqoob armed with hatchets and lathfs came to the place of occurrence. Ali Muhammad fired his gun which hit Imam Bux. Imam Bux fell down.
Appellants Moroo, Hidu, Tilu, Bahar and Bajak were armed with hatchets while Yaqoob and Hazooro were armed with lathis. P. W. Lal Khan was given blows by Moroo, Hidoo and Hazooro. P. W. Dil Murad was given blows by Tilu, Bahar, Bajak and Yaqoob. Seeing this complainant Mst. Mengal went to her house and brought Holy Quran to intercede. Due to this intercession the accused went away running towards western side. She further saw her son Ali Murad who bore gunshot injury on his chest. Her son Imam Bux had gun-shot injury on his head. Dil Murad had hatchet injuries on his shoulder and other parts of the body while Lal Khan had hatchet injuries on his back and head. She then arranged a bullock-cart and took the injured towards police station. Ali Murad died on the way.
4. Head Constable Muhammad Usman registered the F. I. R. At 9-30 a.m He had examined the injured persons and had sent the deceased to the medical officer for autopsy. He had seen the wardat and had pre--pared the Mashirnama on the same day at about 12-00 noon. The case papers were then transferred to S. H. O. Mulazim Hussain who continued further investigation but unfortunately died of heart failure and could not be examined in the trial Court.
5. The arrest of the accused is on different dates. On 19th August, 1976, main appellant Chango is said to have been captured in Nakabandi operation conducted by S. H. O. Mulazim Hussain at a place called Chinku gate at about 2-00 a.m. An unlicensed single-barrel .12 bore gun was secured from his possession. Appellant Tilu alongwith other accused Ali Muhammad and Bajak were arrested on 20th August, 1976 from their houses. Appellant Hidoo was arrested on 22nd January, 1977 at Bus-stand Bakhsapur. It seems that appellants Yaqoob, Bahar and Hazooro were granted bail by the Court and they remained on bail. No incriminating article was secured from the possession of appellants or from accused Ali Muhammad and Bajak.
6. The prosecution has examined the main four witnesses, com--plainant Mst. Mengal and her son Dil Murad, Lal Khan and Imam Bux. One Dr. Amarlal was examined by the prosecution in place of Dr. Moolchand who had migrated to India. Dr. Amarlal has proved the post-mortem notes and the certificates issued by Dr. Moolchand. The prosecution has further examined Tapedar Muhammad Yaqoob, Mashir Lal Muhammad, P. C. Ashiq Ali F. C. Ghulam Hussain, H. C. Muhammad Usman, P. C.
Abdullah and P. C. Abdul Karim.
7. Appellant Chango (Muhammad Nawaz as he calls himself) claims that he, has enmity with the prosecution party. A piece of land adjacent to the land of complainant party was negotiated to be sold by the appel--lants to the complainant party. The refusal resulted in enmity. The remaining appellants have maintained the same and claimed enmity.
8. The submissions made by the learned counsel of the appellants are briefly that the ocular evidence is not only interested but stands uncorroborated by any incriminating circumstance, the evidence in itself is discrepant and is falsified by the medical evidence as well as the circumstances of the of the trial Coursed Advocate for A.-G. Has not supported the judgment
9. In order to assess the facts of the case a close analysis of F. I. R is necessary, The appellants/other accused persons residing at a distance of two furlongs from the house are admitted to be the relatives of the complainant. They are all Bhangwars by caste. That husband of complainant by name Zalkhan and their another son Rahim Bux do not figure at the time of incident and are said to have migrated towards Katcha side of the river to maintain/rear cattle.
The patch on which the proposed Otak was demarcated did embitter Chango who went annoyed bearing grudge in his mind in respect of the dispute on this patch of land on which the proposed Otak was being built. The bitterness which is admitted in the F. I. R. Constitutes an element of enmity and the enmity could not be anything else then the bitterness that ensued between the parties. To say that there was no enmity would be wrong. The ocular evidence consists of Mst.
Mengul and her three sons namely Lal Khan, Dil Murad and Imam Bux. Mst. Mengul was spared by the assailants while three brothers were dealt blows and the deceased was fired at also inflicted hatchet injuries, F. I. R. Does not mention as to who inflicted hatchet injuries on the deceased Ali Murad. Vardat was visited by the Head Constable Usman who did not take trouble to go to the village of accused to make arrests and he knew that the muder has taken place. The circumstances which surround the incident are that the accused were apprehended piecemeal on different dates and some of them had taken bail from the Court.
10. Mst. Mengul P. W. 4 deposes that Chango fired at Ali Murad who fell down while Ali Muhammad fired at Imam Bux who also fell sown. Those who were armed with hatchets were Bahar, Tilu, Hazooro, lajak, and Moroo. The remaining appellants were armed with lathis. Appellant Moroo and Hidoo gave hatchet blows to Lal Khan while appel--ant Hazooro gave lathi blows to Lal Khan. She has said a little bit 'artier that Hazooro was armed with a hatchet. Accused Bajak, Tilu and I3ahar gave hatchet blows to Dil Murad. Appellant Yaqoob gave lathi blows to Dil Murad. Appellant Moroo gave hatchet blow to deceased it is to be noted that in the F. I. R. It is not mentioned that accused Moroo gave hatchet blows to Ali Murad the deceased. P. W. Dil Murad deposes that Babar Bajak, Tilu and Yaqoob gave blows to him while Moroo gave hatchet blows to deceased, Ali Murad. In cross-examination this witness says that Chango fired two shots Lal Khan P. W. Says that Moroo, Hazoore and Hidoo had given him lathi and hatchet blows. In cross-examination this witness said that Ghous Bux their Nekmard had a dispute with one Shahzado Khan and that earlier Shahzado and Ghous Bux were involved murder cases. P. W. Imam Bux does not say that Ali Muhammad had fired a gun at him and that he was injured due to that gun-shot. According 0 him he was injured by Hazooro and Yaqoob who gave him lathi blows. Chango had fired at Ali Murad who fell down.
11. Reverting to the medical evidence we find that P. W. Imam Bux ad four injuries and the same were caused by some blunt and hard sub--stance such as lathi. The medical evidence falsified the ocular testimony complainant and the witnesses Dil Murad and Lal Khan that Ali Muhammad had fired a shot at Imam Bux. Imam Bux himself has not stated that Ali Muhammad fired a shot at him.
This discrepancy is a defect in the prosecution case which cannot be easily explained. P. W. Lal Khan another injured had three injuries; two of them incised wounds and one lacerated wound.
Ocular evidence shows that Moroo, Hidoo and Hazooro had given blows to Lal Khan. Dil Murad bore four injuries, three incised wounds and one lacerated wound. Dil Murad in his evidence implicates Bahar, Bajak Tilu and Yaqoob to have given him blows. The medical evidence anal the ocular.
Evidence when read together give an unreliable impression that the number of accused are apportioned, and assigned role corresponding to medical certificate. If the injuries are four, three incised wounds and one lacerated wound, then the assailants are also named to be four one of whom had a lathi and three had hatches. This situation is similar in respect of injured Dil Murad and Lal Khan. As regards Imam Bux no gunshot wound was on his person and only four lacerated wounds were noted by the medical officer. The deceased in all had six external injuries out of which three are incised wounds which are attributed to the appellant Moroo. Death was instantaneous.
The evidence of Dr. Amarlal shows that Ali Murad had died on the wardat. The evidence of medical officer falsifies the statement made by the P. Ws. That Ali Murad died on the way while taking him to the police station.
12. Assessing the ocular testimony it is to be noted that the witnesses have exaggerated and spoken half truths mixed with falsehoods. To what extent the testimony of these witnesses be relied upon or accepted is a matter which concerns us in the instant case. The trial Court appears to have been conscious of the character and the credibility of witnesses and certain remarks as to the averments of the witnesses could be cited hereinbelow. The trial Court has criticised P. W. Imam Bux and we would quote from his judgment the following passage ---I think appraisement of P. W. Imam Bux is very purile although he is a matriculate. It may be mentioned that he deposed that "the incident took place at about 6 a.m. They went to work at Fajir Prayer and worked for about 11 hours. The Fajir prayer takes place at 8-30 a.m. Had he a mature sense of appraisement of time and distances he would have not made this statement.--- ---The trial Court did not find a mature sense of appraisement in respect of time and the distance.
Can he have mature sense of identification of numerous assailants.? Can he have identified them?
This being so as observed by the trial Court witness Imam Bux and for that matter the evidence of other witnesses cannot be accepted as in tote. The trial Court is criticising the witnesses on which it relied. The trial Court made an observation in respect of evidence of Lal Khan and we quote relevant passage from the judgment: ---So also seems the appraisement of P. W. Lal Khan who has categori--cally stated that Lan of accused is two furlongs away yet he felt it adjacent.--- Even Lal Khan suffers from immaturity. On analysis of the judgment of the trial Court it would be not out of place to note that the trial Court itself is conscious of the defects inherent in the ocular testimony. In earlier portion of our judgment we have noted that the P. Ws. Have improved their cage in their evidence apportioning the role of appellants corresponding to the injuries on the injured persons and have also added that appellant Moroo gave further hatchet blows to deceased Ali Murad. The trial r Court is conscious of this and has observed that the embellishments made to strengthen the prosecution case are liable to be ignored and also cited the authority PLD 1963 Kar. 805 wherein it was held "Where the witness has improved his statement to strengthen the prosecution case, the statement subsequently made cannot be relied upon". It would amount to an error to quote the authority against his own observations.
13. The four witnesses have given an exaggerated version of the incident. Since the trial Court itself had made observations against the testimony of the eye-witnesses, it would be risky to accept their version as a whole and in all respects. There is possibility that they have given an inflated number of the accused i.e. The appellants and it is also possible that they have averred for which there is no corroboration whatever. For instance appellant Ali Muhammad is given the benefit of doubt by the trial Court considering that there was conflict between version of the eye--witnesses and the medical testimony which recites that there was no gun--shot injury on Imam Bux. Thus, we note that the trial Court has accepted the evidence of eye-witnesses practically and has considered some portion of the ocular testimony to be exaggerated and inflated. In these circum.
Stances we consider that the case of appellants namely Yaqoob, Bahar, Hidoo, Rasul Bux alias Moroo, Hazooro and Tillu is on different footing than the case of the main accused Chango who had fired gunshot of the deceased. These six appellants were arrested at different times and that Police did not secure any incriminating article or weapon from their posses--sion. The ocular evidence against them is not only exaggerated but the witnesses have improved their version in Court by assigning the roles speci--fically against each of the appellants. For instance Moroo is said to have inflicted hatchet injuries to the deceased wherease F. I. R. Does not say so. There is an indispensable rule in regard to the corroboration of the ocular testimony. In the case of Lashkari and .4 others v. The State (PLD 1981 Kar) it is observed as follows ---The rule in regard to corroboration of the evidence of the interested and inimical witnesses, although a rule of caution has virtually ripened into a rule of law. The Supreme Court has, on numerous occasions, stated the rule and cautioned against acceptance of such testimony without corroboration for the reason that false implication is not very rare in this country. One has no hesitation in saying that a murder in such society infuses in the mind of the family of murdered person a desire to avenge and thus a series of murders had taken place. When feelings between the parties become embittered false implication or inflation in the number of accused very often is resorted to. It is precisely for such reason that the Courts are to be on guard and normally look for some corroboration lending an assurance to the evidence of witnesses.--- Corroboration of an independent nature is lacking in this case in respect of the six appellants mentioned above and it is to be noted that neither the weapon of offence nor blood-stained articles were secured from them. There is one circumstance patent in the prosecution story that whereas three persons are injured on the side of prosecution none seems to have been injured on the side of the appellants. The sons of Mst. Mengul were All young and sturdy. It is improbable that they would have suffered injuries without inflicting in defence any injury on the appellants. This peculiar circumstance in the event that no corroboration of any type supports the ocular testimony, renders the case of the prosecution doubtful particularly in respect of the six appellants.
Since benefit of doubt was extended to Ali Muhammad by the trial Court, we are of the considered opinion that the same benefit ought to have been extended to these six appellants against whom the ocular testimony is discrepant, contradictory and exaggerated.
14. Under the circumstances we are inclined to give benefit of doubt to the six appellants namely Yaqoob son of Gulab, Bahar son of Godho, Hidoo alias Hidayatullah son of Bahar, Tilu son of Jamal, Rasul Bux alias Moroo son of Jamal and Hazooro son of Jamal. Their appeal is accepted they are hereby acquitted and be set at liberty if not required in any other case.
15. The case against appellant Chango is on a different footing. The first document which was written within about 3 hours of the incident namely the F. I. R. Reads that appellant Chango came to the scene of offence first and after administering a challenge not to build Otak, fired the gunshot at Ali Murad who fell down on the ground. This is the first document wherein the name of Chango is mentioned to have fired the gunshot at the deceased. Not only Mst. Mengul who is the mother of deceased but all the remaining three eye-witnesses invariably have maintain--ed in the evidence that it was Chango who had fired the gunshot at deceas--ed Ali Murad. There is no difference in the witnesses as to the role played by appellant Chango. Although no incriminating article was secured or recovered from appellant Chango yet the corroboration is furnished by the medical evidence which says that three lacerated punctured type wounds 1" in diameter x cavity deep in front of left chest above nipple and medial to the left nipple were noted by the medical officer.
Apart from this wound there were two other wounds of gun-shot on the right side of thigh and also on the back side of right thigh. The deceased had sustained the injury on his chest which was fatal and deadly. The medical evidence furnishes the necessary corroboration to the ocular testimony of Mst. Mengul, the F. I. R. Exh. 9 and the other witnesses whose evidence in this particular respect is acceptable.
16. After having a close scrutiny of the evidence on record we have accepted a part of the ocular testimony and have rejected the remaining part of the same. While we have extended the benefit of doubt to the other appellants, finding the ocular testimony discrepant, we cannot afford to apply the same rule in respect of the case of appellant Chango. We refer to the decision of PLD 1970 SC 13 and would like to quote the following passage ---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 without reserva--tions and cannot be accepted as one of universal application. 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.---
17. In view of the dictum quoted above we are of the considered opinion that convicted hand sentguilty under As regards punishment after and accordingly having assessed all the circumstances of the case we are of the view that the lesser punishment will meet adequately the ends of justice. Appellant Chango came to the wardat primarily to prevent the prosecution witnesses from building the Otak which was objected to earlier. The challenge which he threw for bidding the witnesses not to raise construction. Indicates that he had not come to kill or murder the deceased and that there is no pre-- planning or earlier design in his mind to murder a particular person. He had come to admonish the sons of Mst. Mengul not to do what was objected two days earlier by him. His firing the fire-arm at the deceased was a thought on the spur of the moment and nothing more. Hence we sentence him to the imprisonment for life under section 302, P. P. C.
And also impose the fine of Rs. 1,000 in addition as compensation to the heirs of the deceased and in default to suffer R. I. For six months. Sentence under section 148, P. P. C. Is maintained.
18. Appellant Chango was captured and arrested on 19th August, 1976, in a Nakabandi operation at night time from Chinu Gate and one single barrel gun and a few cartridges were secured from him.
This gun was not sent to the ballistic expert nor is it connected as weapon of offence in the instant case. However, an unlicensed fire arm was secured from the possession of appellant Chango on which there is evidences of police con--stables namely, P. C. Abdullah Exh. 23 and H. C.
Muhammad Usman. These two policemen had accompanied the S. H. O. For patrol. They had captured appellant Chango with a single barrel gun. There was no licence in the name of appellant. Three live cartridges were also secured from the shirt pocket of the appellant. There is nothing on record to discredit the two witnesses Mashir Muhammad Usman and Abdullah. No enmity is suggested against any of these witnesses. Thus it is proved that the unlicensed fire-arm was secured from the possession of the appellant Chango. He is sentenced under section 13 (d) of the Arms Act to R. I. For one year.
19. The appeal is partially allowed as noted above and the reference made by the trial Court for confirmation of the death sentence is rejected.