NAIMATULLAH PHULPOTO, J.---Appellants Samero, Gumano, Jalo alias Dahio and Rugho were tried by learned Additional Sessions Judge, Tharparkar alias Mithi for offences under sections 302, 147, 148, 149, 114 and 504, P.P.C. After regular trial vide its judgment dated 10.04.2017 appellants were found guilty and convicted under section 302(b), P.P.C. and sentenced to death on three counts.
They were directed to pay compensation of Rs.2,00,000/- each in terms of section 544-A, Cr.P.C. to be paid to the legal heirs of the three deceased and in default thereof appellants were ordered to suffer S.I. for six months. Co-accused Sht. Lakhman, Sht. Kakoo and juvenile Sht. Dahi were acquitted for want of evidence. Trial court made reference to this court for confirmation of the death sentence awarded to the appellants Samero, Gumano, Jalo alias Dahio and Rugho.
2. Brief facts of the prosecution case as mentioned by the trial court in the impugned judgment dated 10.04.2017 are as under:- "Succinctly facts of the prosecution case as gleaned from the instant FIR, lodged by complainant Anbo on 28.10.2011 are that he resides at the given address, and works as farmer while Rugho Kolhi is his co-villager. On 27.10.2011 said Rugho was ploughing land for Juwar crop, in the meanwhile complainant's "Ox" entered there whereupon his son Dano (deceased) went to expel the said "Ox" during which Rugho Kolhi abused him. On 28.10.2011 in the morning complainant was sitting in the court-yard of his house where at about 0630 hours each 1. Rugho son of Jeso,
2. Samero son of Rugho both having hatchets,
3. Jalio alias Dhatio son of Rugho having iron rod,
4. Gumano son of Rugho having iron-hoe(Ranbo),
5. Sht: Lakhman w/o Rugho,
6. Sht: Kakoo w/o Samero, and 7.Sht: Dhahi daughter of Partab (juvenile) having lathies, all by caste Kolhi resident of village Sadooras, Taluka Nangarparkar came there out of whom Rugho while abusing, instigated others not to spare them, upon which all accused persons assaulted upon them. In the meanwhile Rugho inflicted hatchet blow to complainant's son "Navo" on his neck and head, Samero inflicted hatchet blow to his wife "Sht: Marwan" on her face and body, Jalio alias Dhatio and Gumano caused iron-rod and iron-Ranbo to his son "Dano" on his head and other parts of body while rest of accused also maltreated them with lathies. On hue and cries, Meghraj son of Natho along with Mevo son of Oko Kolhi, reached and saved the complainant party. After incident complainant brought his both injured sons and wife at Government Hospital, Nangar-parkar for treatment where "Navo" succumbed to injuries, thereafter complainant went to police station, Nangarparkar and reported the incident. On the same date viz 28.10.2011 while shifting the injureds Dano and Sht. Marwan to Hyderabad, they also succumbed to injuries on the way, as such taken back to Civil Hospital Mithi.
After registration of FIR, police commenced with the investiga- tion inspected the injuries sustained by injureds including dead bodies of deceased Navo, Dano and Shrimati Marwan, arrested accused Gumano, Samero and Jalio, visited the place of occurrence, recovered incriminating articles viz: blood stained "hatchet", "iron-rod" as well "iron-Ranbo" and after completing all formalities, submitted challan against accused persons to face the trial."
3. Trial Court framed charge against all the accused Samero, Gumano Jalo alias Dahio, Sht.
Lakhman, Sht. Kakoo and Rugho under the above referred sections at Ex.3, Appellants pleaded not guilty and claimed to be tried.
4. At the trial prosecution examined Anbo (PW-1), Mevo (PW-2), Meghraj (PW-3), Dr. Choone. Lal (PW-4), Dr. Sht. Indra (PW-5), Leebo (PW-6) Ramchand (PW-7), Mano (PW-8), ASI Anb Khan (PW-9.
Thereafter prosecution side was closed vide statement at Ex.20.
5. Trial court recorded the statement of accused under section 342, Cr.P.C. at Exs. 21 to 26.
6. Learned trial court after hearing the learned counsel for the parties and assessment of the evidence vide judgment dated 10.04.2017 convicted and sentenced to death the appellants Samero, Gumano, Jalo alias Dahio and Rugho as stated above and made reference to this court for confirmation of death sentence as required by the law. However, trial court acquitted co- accused Sht. Lakhman, Sht. Kakoo and juvenile Sht. Dahi for want of evidence. Appellant feeling aggrieved and dissatisfied with the judgment of conviction and sentence preferred this appeal. By this single judgment we intend to decide the aforesaid appeal as well as Confirmation Reference No.12/2017.
7. We have carefully heard Mr. Omparkash H. Karmani learned advocate for the appellants, Mr. Shahzado Saleem Nahiyoon, learned assisted by Mr. Ghulamullah Chang advocate for complainant and scanned the entire evidence available on record.
8. Learned advocate for the appellant after arguing the appeal at some length did not press the same on merits but submitted that there are mitigating circumstances in this case. The death sentence may be converted to the life. He has submitted that co-accused namely Sht. Lakhman, Sht. Kakoo and juvenile Sht. Dahi have been acquitted by the trial court on same set of evidence.
That all the incriminating pieces of evidence were not put to the accused in their statements recorded under section 342, Cr.P.C., that motive as set up in the FIR was not established at trial. In support of his submissions he relied upon the case report as Mst. Nazia Anwar v. The State and others (2018 SCMR 911).
9. Learned D.P.G. assisted by counsel for the complainant conceded to the contentions raised by the learned advocate for appellants that prosecution has filed to prove motive, conviction under section 302, P.P.C. may be maintained but death sentence awarded to the appellants may be converted to the life imprisonment.
10. No doubt appeal has not been pressed on merits but it is primary duty of this court to re- appreciate the evidence according to the settled principle of the law. In order to re-appreciate the evidence, we have gone through the evidence minutely. As regard to the unnatural deaths of three deceased persons namely Sht. Marwan, Navo and Dano are concerned, Dr. Choone Lal (PW-4) examined deceased Navo and Dano on 28.10.2011 at 03-30 p.m. and 5.40 p.m. and opined that both deceased had received injuries by means of sharp cutting weapons. Probable time between death and postmortem 5 to 6 hours and between injuries and death was 1 to 2 hours. Lady Dr. Sht. Indra (PW-5) examined deceased Sht. Marwan and found that deceased had sustained injuries by means of sharp cutting weapons and hard-blunt substance. Trial court has held that all the three deceased persons died of injuries as described by the doctors. At this stage learned advocate for the appellants did not dispute unnatural death of deceased. We, therefore, hold that all the three deceased died of injuries sustained by them as mentioned by the doctors. Finding in this regard recoded by the trial court requires no interference by this court.
11. Now the crucial issue involved in this case is that who had committed three murders on 27.10.2011 at about 0630 hours in the house of the complainant. Complainant has deposed that on 28.10.2011 the cattle of the accused persons trespassed into his land where accused party exchanged hot words with his deceased son Dano. On next date of incident at about 6.30 A.M. accused persons namely Rugho, Samero, Gumano, Jalo, Sht. Lakhman, Sht. Kakoo and Sht. Dahi came in his house armed with weapons for fighting purpose. Accused Rugho and Samero were armed with hatchets.
Accused Gumano was armed with iron Ranbo, while other accused persons were with iron rods and lathies. He has further deposed that accused Rugho inflicted hatchet blow upon the head of his son Navo. Accused Samero inflicted hatchet blow upon the head of his wife. Other accused jointly inflicted lathi blows to his family members. Resultantly, all the family members sustained injuries. Complainant shifted his son Novo to Taluka Hospital Nagarparkar where he succumbed to the injuries. His another son Dano died on the way to the hospital while his wife Sht. Marwan died due to the injuries near petrol pump of Mithi town. Then he brought the dead bodies in the hospital where postmortem examination of the deceased persons was conducted then he brought the dead bodies to the village where funeral ceremony was conducted. Then he lodged FIR against accused persons. It was produced before the trial court at Ex.11/A. He was cross-examined by the learned advocate for the appellants. He has denied the suggestion that he was deposing falsely against the accused persons. However, he has admitted that this is the case of counter version.
12. Mayo (PW-2) deposed that this incident occurred 23/24 months back at that time he was present at water-pond near village Sadooras. He heart cries. PW Meghraj was also with him. They went to place of incident and saw that accused Rugho and Samero were armed with hatchets.
Jalio was armed with iron rod, Gumano was armed with hoe (Ranbo). Sht. Lakhman, Kakoo and Sht.
Dahi were armed with lathies. All the accused abused the complainant party. It is stated that accused Rugho instigated others. Thereafter Rugho inflicted hatchet blows to deceased Navo at his head and neck. Accused Samero inflicted hatchet blows to Sht. Marwan at her face and head.
Jalo inflicted iron rod to deceased Dano on head and other parts of the body. All other accused inflicted kicks and fists blows to the complainant party. Thereafter complainant and P.W Mano took the injured persons to the hospital where Navo, Marwan and Dano succumbed to the injuries. He was also cross-examined and denied suggestion that he was deposing falsely against accused.
He also denied that he had not witnessed the incident.
13. Meghraj (PW-3) has deposed that on 29.10.2011 at about 6-30 a.m. he along with PW Mayo was present at water pond. They heard the cries of the complainant party and went there and saw that accused Samero and Rugho were armed with hatchets, accused Jalio and Gumano were armed with iron rods, Sht. Lakhman, Sht. Kakoo and Sht. Dahi were armed with laths. It is further stated that Sht. Lakhman and Sht. Kakoo were causing blows to deceased Sht. Marwan. Rugho was inflicting hatchet injuries to deceased Navo and accused Samero was inflicting hatchet injuries to deceased Dano. All other accused persons were causing kicks and fists blow to them. Above named P.Ws intervened to rescue them then accused went away while abusing. Anbo took the injured persons to Taluka Hospital Nagarparkar where deceased succumbed to the injuries. He was cross- examined by the defense counsel and denied the suggestion that he was deposing falsely at the instance of complainant who is his nephew, He has also denied the suggestion that he has not witnessed the incident.
14. Leebo (PW/mashir) has acted as mashir of the place of wardat and stated that police inspected the place of wardat in his presence. Co-mashirs was Rano. He has further stated that present incident accured in the house of the complainant.
15. Ramchand (PW) has also acted as mashir of the inquest report of the deceaseu persons. Mano
(PW) has, acted as mashir of the inspection of the dead bodies and arrest of accused Gumano, Samero and Jalo alias Dahio on 30.10.2011. Co-mashir was Ramchand. He has further deposed that during investigation accused Gumano voluntarily produced iron Rambo, accused Jalo alias Dahio produced iron rod and accused Samero produced hatchet.
16. Prosecution examined ASI Anb Khan (PW-9). He has deposed that on 28.10.2011 he was posted as ASI at Police Station Nagarparkar. He received telephonic message from Taluka Hospital Nagarparkar that dead body of one Navo Kolhi is received in the hospital so also other injured persons. He went to the hospital and saw Sht. Marwan, Dano Kolhi in the injured condition. He arranged mashirs namely Ramchand and Dalpat in whose presence he prepared mashirnama of injuries then above named ASI came to the police station along with complainant where complainant lodged FIR and he recorded such FIR vide Crime No.87/2011 for offences under sections 302, 324 147, 148, 149, 114 504, 337-A(i) and 337-F(i). P.P.C. Thereafter, Investigation Officer left Police Station and went to the Hospital where dead body of Navo was lying. He prepared inquest report in presence of mashirs and handed over the dead body to the doctor for conducting postmortem examination and report. Then ASI along with complainant went to place of incident where he inspected place of incident where he came to know that injured Sht. Marwan and injured Dano have expired due to succumbed to the injuries and dead bodies are lying in the Civil Hospital Mithi. He went to the Civil Hospital Mithi, prepared inquest report and handed over the dead bodies to the doctor for conducting postmortem examination. ASI along with complainant proceeded to the place of incident in the house of complainant and inspected it in presence of mashirs and prepared such mashirnama. He collected blood stained earth from the place of wardat and sealed it in presence of the mashirs and after post mortem examination handed over the dead bodies to the legal heirs for burial ceremony and clothes of the deceased were sealed in presence of the mashirs for dispatching to the chemical examiner. ASI recorded statements of the P.Ws under section 161, Cr.P.C. Thereafter, Investigation Officer made request to the Mukhtiarkar Revenue for preparation of the sketch of the place of wardat on 30.10.2011. Investigation Officer left police station Nagarparkar on spy' information that accused persons involved in this case were available at village Saduras. ASI proceeded there along with mashirs and found accused Samero, Gumano and Jaloo alias Dhatio standing there. He arrested them in presence of the mashirs namely Mano and Ramchand. During interrogation, accused prepared to produce crime weapons used by them in commission of the offence and accused produced weapons used in the commission of the offence. ASI secured the weapons in presence of the mashirs and prepared such mashirnama.
Thereafter Investigation Officer dispatched bloodstained earth, clothes of the deceased, crime weapons to the chemical examiner for analysis and rep6rt. Their positive reports were received by him. It is stated that ladies accused obtained the bail and joined investigation. On the conclusion of the investigation, Investigation Officer submitted challan against the accused and produced positive reports before the trial court. He was cross-examined by the defense counsel at length. He has denied the suggestion that dishonest investigation was conducted by him.
17. It was the entire prosecution evidence which was led by prosecution before the trial court.
Thereafter, statements of the accused were recorded under section 342, Cr.P.C. in which accused claimed false implication in the case and denied the prosecution allegations. Accused did not lead any defence and declined to give statement on oath in disproof of prosecution allegation. Trial court convicted and sentenced appellant to death as stated above, however, co-accused Sht.
Lakhman, Sht. Kakoo and Sht. Dahi were acquitted by the trial court vide judgment dated 10.04.2017 mainly for the following reasons: "As for as, the case against remaining accused namely Sht. Lakhman, Sht. Kakoo and juvenile Sht.
Dahi, is concerned, the prosecution has miserably failed to bring home their guilt beyond any shadow of reasonable doubt and this Court does not find any iota of evidence against them, as such, they are hereby acquitted under section 265-H(i), Cr.P.C. by extending them benefit of doubt. They are present on bail, their bail bonds stand cancelled and sureties discharged."
18. In this case complainant, P.Ws Mayo and Meghraj were the eye-witnesses of the incident.
Present incident occurred in the house of the complainant. It was day time incident. There was no question of mistaken identity. Both the parties resided in the same vicinity. Evidence of eye- witnesses is corroborated by the medical evidence. Despite lengthy cross-examination, not a single major contradiction came on record. However, certain minor contradictions have come on record which can easily be ignored because such minor contradictions would not be fatal to the case of prosecution. It appears that eye-witnesses had no motive to falsely implicate the appellants in this case. This is not the case of old murderous dispute between the parties but incident occurred on cattle trespass. At the cost of repetition, it may be observed that learned advocate for the appellants has not pressed the appeal on merits but prayed for reduction of death sentence mainly on the ground that prosecution failed to prove the motive at the trial. We have gone through the evidence of the complainant 'who has produced FIR at Ex.11/A: In the FIR motive has been set up that the cattle of the accused trespassed into the lands of the complainant there was exchange of hot words between the parties. On the next day, appellants being armed with hatchets, iron rods and lathies entered into the house of the complainant party and attacked upon them at 6.30 a.m. Resultantly, injuries were caused to all the three deceased persons namely Mst. Marwan, Navo and Dano who succumbed to the injuries.
19. As stated above, co-accused Sht. Lakhman, Sht. Kakoo and Sht. Dahi, who were nominated in the FIR, have been acquitted by the trial court for want of confidence inspiring evidence whereas appellants have been convicted and sentenced by the trial court as stated above. The question which requires consideration by this court is as to whether the evidence which has been disbelieved to the extent of three co-accused, who have been acquitted by the trial court can be believed to the extent of the appellants? By now it is well settled that principle of falsus in uno falsus in omnibus is not applicable in our system designed for dispensation of justice in criminal cases and courts are required to sift grain from the chaff in order to reach at a just conclusion. If some, independent and strong corroboration is available the set of witnesses which have been disbelieved to the extent of acquitted co-accused of the appellants can be believed to the extent of the appellants as held in the case of Munir Ahmed and another v. The State and others (2019 SCMR 79). Keeping this golden principle in mind on the basis of ocular evidence corroborated by the medical evidence and recovery of the incriminating articles / weapons, we have come to the conclusion that the prosecution has succeeded to establish its case against the appellants.
20. As regard to the motive, it has not been established at trial. In the FIR motive as set up was cattle trespass but complainant in his' evidence has not mentioned on which date and time cattle of accused trespassed in his lands. As such, complainant asserted motive in FIR but failed to prove at trial. Other eye-witnesses of the incident have also failed to mention about the motive in their evidence. Investigation Officer had also failed to interrogate/investigate the motive for the commission of the offence. Trial court in its judgment dated 10.04.2017 has clearly mentioned that prosecution has failed to prove the motive at the trial. Motive alleged for triple, murders was too feeble. Legal position is very much clear, if prosecution asserts a motive but fails to prove the same then such failure on the part of prosecution may react against a sentence of death as held in the case of Mst. Nazia Anwar v. The State and others (2018 SCMR 911). Relevant portion is reproduced as under: "4. I have particularly attended to the sentence of death passed against the appellant and have noticed in that context that the motive set up by the prosecution had remained far from being established. According to the FIR as well as the statement of the complainant the motive was based upon borrowing of a sum of Rs.5,000/- by the appellant from the deceased and on the issue of repayment of that loan a heated exchange had taken place between the appellant and the deceased. Mst. Sadiqa Bibi complainant (PW2) was the only witness produced by the prosecution regarding the alleged motive but in her deposition made before the trial court the complainant had admitted that the appellant and the deceased were on very good and friendly terms, no date or time of borrowing of the relevant amount by the appellant from the deceased had been specified by the complainant, the complainant was not present when the money had been borrowed by the appellant from the deceased, no date, time or place of the altercation taking place between the appellant and the deceased over repayment of the borrowed amount had been specified by the complainant and admittedly the complainant was not present when the said altercation had taken place. In these circumstances it is quite obvious to me that the motive asserted by the prosecution had remained utterly unproved. The law is settled by now that if the prosecution asserts a motive but fails to prove the same then such failure on the part of the prosecution may react against a sentence of death passed against a convict on the charge of murder and a reference in this respect may be made to the cases of Ahmad Nawaz v. The State (2011 SCMR 593), lftikhar Mehmood and nother v. Qaiser lftikhar and others (2011 SCMR 1165), Muhammad Mumtaz v. The State and another (2012 SCMR 267). Muhammad lmran alias Asif v.
The State (2013 SCMR 782), Sabir Hussain alias Sabri v. The State (2013 SCMR 1554), Zeeshan Afzal alias Shani and another v. The State and another (2013 SCMR 1602). Naveed alias Needu and others v. The State and others (2014 SCMR 1464), Muhammad Nadeem Waqas and another v. The State (2014 SCMR 1658), Muhammad Asif v. Muhammad Akhtar and others (2016 SCMR 2035) and Qaddan and others v. The State (2017 SCMR 148). After going through the entire record of the case from cover to cover and after a ending to different aspects of this case I have found that although it is proved beyond doubt that the appellant was responsible for the murder of the deceased yet the story of the prosecution has many inherent obscurities ingrained therein. It is intriguing as to why the appellant would bring her four months old baby-boy to the spot and put the baby-boy on the floor and then start be labouring the deceased with a dagger in order to kill her. I have, thus, entertained no manner of doubt that the real cause of occurrence was something different which had been completely suppressed by both the parties to the case and that real cause of occurrence had remained shrouded in mystery. Such circumstances of this case have put me to caution in the matter of the appellant's sentence and in the peculiar circumstances of the case I have decided to withhold the sentence of death passed against the appellant."
21. Even otherwise, incident occurred on cattle trespass it is common in village life and weapons used were lathis, rods and hatchets Therefore, having regard to the facts and circumstances of the case, there are multiple factors for reducing sentence of death to imprisonment for life. In the case of Ghulam Mohy-Ud-Din alias Haji Babu and others v. The State (2014 SCMR 1034), 'it has been held that sentences under section 302(b), P.P.C. are alternative to one another, however, awarding one or the other sentence shall essentially depend upon the facts and circumstances of the case.
Relevant portion is reproduced as under : "20. Albeit, in a chain of case-law the view held is that normal penalty is death sentence for murder, however, once the Legislature has provided for awarding alternative sentence of life imprisonment, it would be difficult to hold that in all the cases of murder, the death penalty is a normal one and shall ordinarily be awarded. If the intent of the Legislature was to take away the discretion of the Court, then it would have omitted from clause (b) of section 302, P. P. C. the alternative sentence of life imprisonment. In this view of the matter, we have no hesitation to hold that the two sentences are alternative to one another, however, awarding one or the other sentence shall essentially depend upon the facts and circumstances of each case. There may be multiple factors to award the death sentence for the offence of murder and equal number of factors would be there not to award the same but instead a life imprisonment. It is a fundamental principle of Islamic Jurisprudence on criminal law to do justice with mercy, being the attribute of Allah Almighty but on the earth the same has been delegated and bestowed upon the Judges, administering justice in criminal cases, therefore, extra degree of care and caution is required to be observed by the Judges while determining the quantum of sentence, depending upon the facts and circumstances of particular case/cases."
Mr. Omparkash H. Karmani learned advocate for the appellants did not press the appeal on merits.
Learned D.P.G. assisted by the learned counsel for the complainant also prayed for reduction of the sentence.
22. For the above stated reasons while relying upon the above cited authority, we have no hesitation to hold that the prosecution established its case against the appellants therefore, conviction under section 302(b), P.P.C. passed against the appellants by the trial court vide judgment dated 10.04.2017 is maintained. However, so far the death sentence is concerned, it is reduced to the life imprisonment on three counts. So far the compensation and other sentences are concerned same are not disturbed. Appellants shall be entitled to benefit of section 382-B, Cr.P.C.
23. In the view of above, aforesaid appeal as well as confirmation reference are accordingly disposed of.