MUHAMMAD MUNIR KHAN, J.-This Criminal Appeal No. 1111 of 1980, connected Murder Reference No. 254 of 1980 and Criminal Revision No. 2 of 1981 (Multan) filed by Allah Bakhsh, P. W. 12 against Muhammad Nawaz and others arise from the judgment of the learned Additional Sessions Judge, Vehari, whereby, he, on 18-9-1980 evicted the appellants, Muhammad Nawaz, aged 30 years and Mushtaq Ahmed, aged 25 years presumably under section 307./34 of the Pakistan Penal Code for causing the death of Muhammad Sharif, aged 28 years and sentenced each to death and a fine of Rs. 500, or in &fault thereof to further simple imprisonment for 3 months with the direction that the fine be Oaid to the legal heirs of the deceased. The co-accused namely, Iqbal, Gulzar and Sher Muhammad were, however, acquitted of the charge. Allah Bakhsh, P. W. 12 has also filed Criminal Revision No. 2 of 1981 (Multan) against the acquittal of the co-accused namely, Iqbal, Gulzar and Sher Muhammad and for the enhance--ment of fine awarded to the appellants. We propose to dispose of these connected matters through single judgment.
2. The occurrence took place on 12-6-1976 at 6 a.m. In Killa No. 24 of Square No. 353 near a tube- well of Saleh Muhammad situated in mauza Mustafabad within the limits of Police Station Ludan, Tehsil and District Vehari. The place of occurrence is owned by Saleh Muhammad, father of Allah Bakhsh, P. W. 12 and others and was under the cultivation of Muhammad Sharif deceased who had sown cotton crop thereon.
3. The facts leading up to the prosecution of the appellants briefly are that the appellants and the deceased reside and own land in the village Mustafabad. Prior to the occurrence the appellants also took land on lease near the tube-well of Almas. Since there was no regular passage for the vehicles, the appellants had to pass their tractor through the fields occupied and cultivated by the deceased. On the evening preceding the fateful day, Muhammad Nawaz appellant and Gulzar acquitted co-accused passed tractor near the place of occurrence. When checked by Muhammad Sharif deceased and others, there ensued scuffle between the parties in which the deceased party slapped Muhammad Nawaz appellant and Gulzar. The prosecution case is that to avenge the insult of the appellants and the acquitted co-accused came to the spot on tractor at 6-00 a.m. Through the cotton crop of the deceased. At that time the deceased was present at the tube-well. The appellants stopped the tractor. On the inquiry of the deceased as to why they passed the tractor from their fields, Muhammad Nawaz appellant started abusing the deceased, who also paid in the same coin.The appellants were armed with hatchets, Gulzar with revolver, Sher Muhammad and Iqbal were carrying guns. Sher Muhammad instigated his co-accused to do away with the 'deceased, thereupon, Mushtaq Ahmad gave a blow on the head of the deceased followed up by second blow on the head of Muhammad Nawaz appellant. Muhammad Sharif deceased fell down. This occurrence was witnessed by Allah Bakhsh son of Ahmad, P. W. 11 and Allah Bakhsh son of Saleh Muhammad, P. W.
12. When the witnesses stepped forward, Sher Muhammad opened fire and Allah Bakhsh, P. W. 12 allegedly received a pellet wound on the root of his right thumb. The co- accused Iqbal and Gulzar had also fired which, however, did not hit any one. Thereafter, the accused persons made good their escape. Muhammad Sharif, in injured condition, was removed to Civil Hospital, Mailsi.
4. Dr. Safdar Ali, P. W. 1 examined Muhammad Sharif and sent 'Ruqqa' Exh: P. C. To the S. H. O. Police Station Mailsi intimating the arrival of an injured patient in the hospital, advising for recording of his dying declaration. P. W. 5 Atta Ullah, A. S. I. Of Police Station Mailsi, on the receipt of Ruqqa, Exh. P. C.
Moved Assistant Commissioner, Mailsi, for recording the dying declaration. Thereupon, Mr. Babar Khan Nasir, P. W. 13, Magistrate Ist Class reached the hospital. He got certificate, Exh. P. D. From the doctor to the effect that Muhammad Sharif the injured could make statement. He accordingly recorded the statement of Muhammad Sharif, Exh. P. K. At about 5-45 p.m. This statement has to be treated as F. I. R. As well as dying declaration. The distance between the place of occurrence and the Civil Hospital, Mailsi, where statement, Exh. P. K. Was recorded, is 14 miles. Since the occurrence had taken place within the limits of Police Station Ludan, the statement, Exh. P. K. Was sent to the Police Station concerned, where formal F. I. R. Exh. P. K/1 was registered under section 307, P. P. C. At 8-15 -p.m. The same day by Ghulam Hur Head Constable, P. W.
4. Muhammad Sharif died as a result of head injury on 24-6-1972 at 9-30 p.m. In the Civil Hospital, Mailsi and as such section 302, P. P. C. Was added.
5. Dr. Safdar Ali, P. W. 1 had found the following injuries on the person of Muhammad Sharif on 12-6- 1976 at 9-40 a.m. When he examined him in injured condition :-
(1) An incised wound 4" x. 1" x brain deep on the right side of head outer side, parieto-occipital region 1f above the right ear, bone was cut, fractured and brain matter was present in the wound, wound was bleeding.
(2) An incided wound 3--" x --" x bone and muscle deep on the back of head and neck, upper part of wound was united with the lower part of injury No. I, wound was vertical, muscles of neck cut, skin of head and neck are sliced to the depth of 3/4".
The patient had profound shock. Both the injuries were caused by sharp-edged weapon within six hours of the examination. The injuries were kept under observation. On X-ray examination injury No. 1 was declared grievous and injury No. 2 as simple.
The patient was referred to Nishtar Hospital, where he was received as emergency in the ward of Dr. Muhammad Akmal Saleemi D. W.
1. He was under treatment in the Nishtar Hospital, when he left the same on 20-6-1976 at his own risk. The patient was, however, on 21-6-1976 readmitted in the Civil Hospital, Mailsi when he was with severe headache, high fever, weakness of left side of leg and retention of urine. He expired in the hospital on 24-6-1976. On 25-6-1976, Dr. Safdar Ali, P. W. 1 conducted the post-mortem examination on the dead body. On external examination he observed the same injuries as found by him on 12-6-1976. In his opinion the death in this case was due to injury No. 1 which caused shock and haemorrhage and infection of brain. Injury No. 1 was sufficient to cause death in the ordinary course of nature.
This doctor had also examined Allah Bakhsh son of Saleh Muhammad, P. W. 12 on 12-6-1976 and found an abrasion 1--" x --" on the root of right thumb oblique in nature, wound was bleeding.
According to him this injury was simple in nature and inflicted with blunt weapon.
6. [Medical Evidence].
7. The appellants Muhammad Nawaz and Mushtaq Ahmad were arrested by Nizam Shahid, S. I. P.
W. 14 on 15-3-1976 and 27-7-1976 respec--tively. On 27-6-1976 Muhammad Nawaz appellant got recovered blood--stained hatchet P. 2 from the room of the tube-well of Saleh Muhammad. On 31- 7-1976, Mushtaq Ahmad appellant got recovered hatchet P. 6 which was not blood stained.
8. The appellants when examined under section 342, Cr. P. C. Denied the incriminating circumstances. Mushtaq Ahmad appellant denied his presence at the spot and took up the plea of false implication on account of enmity. Muhammad Nawaz appellant in reply to question as to why this case against him stated:- "I have been falsely implicated in this case. I am servant of Gulzar accused. The land of Gulzar accused and that of Muhammad Sharif adjoins each other. On previous occasion there had been a dispute between Gulzar, myself and with Sharif deceased over the turn of water and damaging of crop. Gulzar accused had taken 121 acres of land on lease on the tube-well of Almas. I and Gulzar accused used to cultivate that land. We had been going to that place near the behni of Nek Muhammad Wash where there is a regular passage, for reaching towards the tubewell of Almas from our behni. On 11-61976 in the evening I and Gulzar my co-accused were coming back to our behni in our tractor. Allah Bakhsh son of Saleh Muhammad and Allah Bakhsh son of Rehma prevented us from going to our behni. We protested and there was an exchange of abuses between us and both Allah Bakhsh mentioned above. We were separated and we went towards our behni. The complainant party threatened us that they will teach a lesson to us. On 12-6-1976 at about 6-00 a.m. I along-- with Gulzar accused were coming back from the tube-well of Almas and were going towards our behni. When we passed near the behni of Nek Muhammad Wasli, Muhammad Sharif deceased alongwith both Allah Bakhsh and other persons of Soro tribe attacked us and gave beating to us with sticks. I was taken away by the complainant party to Police Station Ludan where I was detained by the-police. It was on the application of my father under the order of A. C. Vehari I was medically examined. I have not committed any offence."
It is remarkable that in this statement Muhammad Nawaz appellant bas almost accepted the incident of the evening preceding the day of occurrence, accepted the presence of both the eye-witnesses at the eventful time and has not explained as to how and by whom the deceased received the injuries. He has not specifically pleaded the right of self-defence, has not owned the injuries found on the deceased. He simply stated that he and his co-accused Gulzar when going back towards their behni were attacked and injured by the deceased, Allah Bakhsh, P. W. 11, Allah Bakhsh son of Saleh Muhammad, P. W. 12 and others.
9. The appellants produced Dr. Muhammad Akmal Sahu, D. W. 1 and Ghazanfar Hussain Shah, A. S. 1.
D. W. 2 in their defence. D. W. 1 stated that on 12-6-1976, he was posted as Registrar, Surgical Ward No. 6. Muhammad Sharif was admitted in the Ward but left the same on 20-6-1976 at his own risk against the medical advice. Ghazanfar Hussain Shah, D. W. 2 stated that according to his investigation Sher Muhammad, Iqbal and Mushtaq Ahmed accused persons were- not present at the time of the occurrence and they reached later on. Sher Muhammad accused in fact, did not come to the scene of occurrence even after the occurrence. The complainant party had injured Gulzar and Muhammad Nawaz accused when they were going to their behni from the tube-well of Almas.
10. To prove its case the prosecution produced as many as 16 witnesses. Out of whom, Mr. Babar Khan Nasir Magistrate 1st Class P. W. 13 has proved the statement Exh. P. K. Of Muhammad Sharif termed as dying declaration. Allah Bakhsh son of Ahmad, P. W. 11 and Allah Bakhsh son of Saleh Muhammad, P. W. 12 gave the ocular account of the occurrence and Shah Muhammad, P. W. 7 and Ghulam Ahmad, S. H. O. P. W. 16 have supported the recovery of blood-stained hatchet from Muhammad Nawaz appellant and the Serologist Report, Exh. P. Z. Shows that the hatchet allegedly recovered from Muhammad Nawaz appellant was stained with human blood. The rest of the evidence is more or less of formal nature.
11. In the dying declaration it has been stated by Muhammad Sharif that:- "At 6-00 p.m. I was present at my tube-well. Mushtaq, Iqbal and Muhammad Nawaz came there.
They came through cotton crop. On my asking why they passed the tractor from there they started abusing me. In return I also abused them. Mushtaq was having a hatchet. He inflicted a hatchet blow on my head thereafter, Muhammad Nawaz appellant gave a hatchet blow on my head. In the meantime, Sher, Muhammad and Iqbal armed with gun and pistol respectively came there. They raised Lalkara and opened firing. Gulzar was carrying pistol. He had also fired with the same.
Thereafter, on account "of hatchet blows, I fell on the ground and became unconscious. During the firing, Allah Bakhsh son of Saleh Muhammad had received a pellet wound on his hand. The motive is that the accused persons had crossed tractor through my crop and I had forbade them."
12. The learned counsel for the appellants has contended that there is inordinate delay in the F. I. R.
Dying declaration is not reliable the departing soul had falsely involved three persons and has not been believed to that extent the ocular evidence is related, discrepant, contradictory and has been disbelieved as against the majority of the accused persons the appellants Nawaz and Gulzar had acted in their self-defence inasmuch as Nizam Shahid, S. I. P. W. 1.4 has stated that :- "It is correct that it appeared on 16-6-1976 during the investigation of the case that Muhammad Nawaz (appellant) and Gulzar accused were waylaid by the complainant party in the morning when they were coming back from the tube-well of Almas as according to their version place of occurrence is the place of Nek Muhammad Wasli."
As against this the learned counsel appearing for the State has defended the judgment of the trial Court and has stated that the presence of the eye--witnesses has been admitted, they have no animus against the appellant and their evidence as against the appellants has rightly been believed by the learned trial Court.
13. We have read the judgment carefully. The learned trial Court has held that delay was not serious so as to cast doubt on the credential of the prosecution story as a whole ; the place of occurrence is factually the same which has been spotlighted by the prosecution, it has believed the motive and has held that the deceased was right in. Asking the accused to forbear from passing through the fields ; the injuries to Muhammad Nawaz and Gulzar accused/appellant were given by the prosecution witnesses in their defence ; has believed the dying declaration and the ocular account to the extent of the appellants' and by giving the benefit of doubt has acquitted the co-accused.
The account of the facts given above would show that it is a case where the deceased and the eye-witnesses have thrown noose wide enough to implicate as many persons from the side of the accused as they wished. The dying declaration and the ocular evidence have virtually been disbelieved and have not been acted upon so far as most of the accused were concerned. In this state of affairs the question for determination is should we follow the maxim ` falsus in ono falsus in omnibus" and throw out the entire case on the short ground that the deceased and the eye- witnesses had spread the net far enough to implicate three acquitted co-accused and exclude their entire testimony from the consideration, or we should sift the grain from the chaff?
After having considered these questions in the light of the circumstances of the case, we are not inclined to follow the maxim `falsus in ono fallus in omnibus" for the reasons that it was a case of daylight occurrence. The deceased was undoubtedly in a position to identify the assailants who had given hatchet blows on his head from a close distance. It cannot be believed that the deceased would exclude the real culprits or would spare them. It has been judicially recognized in so many cases, that in our country unfortunately, people do add innocent persons alongwith the guilty, but there is n instance in which the identified guilty person was left out altogether, moreover, the presence of Muhammad Nawaz appellant and the presence of the two eye-witnesses namely, Allah Bakhsh, P. W. 11 and Allah Bakhsh, P. W, 12 A are the admitted facts of the case. To our mind, in the instant case, the grain has to be sifted from the chaff in the light of the guiding principle; laid down by the superior Courts for the safe administration of justice in criminal cases, we propose to appreciate the case in accordance with the rules of appreciation laid down in Muhammad Hussain v. The State (PLD1960SC387) and Tawaib Khan ant another v. The State (PLD1970SC13). It has been laid down in the first case that .- ---Whenever interested persons claiming to be eye-witnesses of an occur--rence charge persons against whom they have some motive for false implication, with the commission of the offence, the first question to be considered is whether in fact they saw the occurrence and were in a post--tion to identify the culprits. If there be no reason to doubt that they in fact witnessed the occurrence and were in a position to identify the offenders, the further question arises as to whether they can be relied upon for convicting the accused without corroboration. In cases where such interested witnesses charge one person only with the commission of the offence, or where the number of persons whom they name does not exceed that which appears from independent evidence or from circumstances not open to doubt to be the true number of culprits, their evidence .May, in the absence of anything, making it unsafe to do so, be accepted without corroboration, for, substitution is a thing of rare occurrence and cannot be assumed, and he who sets up the plea of substitution has to lay the foundation for it. But if the Court found that the number mentioned by interested person may have been exaggerated their word cannot be made the basis of conviction and the Court will have to look for some additional circumstance which corroborates their testimony. This circumstance need not be such that it can of its own probative force bring home the charge to the accused. It should however, be a circumstance which points to the inference that the particular accused whose case is being considered did participate in the commission of the offence. The force that such circumstance should possess in order that it may be sufficient as corroboration must depend on the particular circumstances of each case. However, the circumstance itself must be proved beyond all reasonable doubt.--- Having appreciated the ocular account in accordance with the case law referred to above we find that it was a daylight occurrence and the presence of the two eye-witnesses have been admitted by the appellants. Undoubtedly, the deceased had made statement, Exh. P. K. Wherein he stated that he was given injuries with hatchets by the appellants and as such we are satisfied that e there is no reason to doubt that the deceased and the eye-witnesses, in fact, witnessed the occurrence and were in a position to identity the offenders. Now we proceed to consider the further question whether the eye-witnesses can be relied upon for sustaining the conviction of the appellants without corroboration.
According to the eminent Jurists there are three categories of wit--nesses :-
(i) wholly reliable
(ii) wholly unreliable ;
(iii) partly reliable and partly not reliable.
We find that the deceased and the eye-witnesses have not been believed to the extent of the majority of the accused persons and as such they cannot be termed as wholly reliable. We further find that the eye-witnesses had no ill-will against the appellants and being the residents of the same village they fully knew the appellants. It cannot be assumed that the true culprits were omitted or left out. The suggestion in cross-examination that Allah Bakhsh, P. W. 12 was the real culprit has to be rejected 4s ridiculous, in the circum--stances of the case. Moreover, this plea has not been taken by the appellants in the statements recorded under section 342, Cr. P. C.
Substitution, otherwise is a thing of rare occurrence and in the instant case no foundation for the same has been laid down by the appellants.
For all these reasons we are of the view that the deceased and the eye--witnesses are also not wholly unreliable. To us, they are partly unreliable. Since they have exaggerated the number of the accused out of whom three have been acquitted, we are of the considered opinion that their testimony becomes subject to reasonable doubt as against the appellants as well. The doubt however, can be safely resolved by material confirmatory circumstances or evidence coming from independent source qua each appellant indicating that the individual did participate in the occurrence.
Coming to the corroboration, it is well settled that the Court will have to look for some additional circumstances which need not be such that it can of its own probative force bring home the guilt to the accused. It should, however, be a circumstance which tends to satisfy the mind of the Court that the individual appellant had participated in the crime. The force that such circumstance should possess in order that it may be sufficient as corroboration, must depend on the particular circumstance of each case. As for Mushtaq, we do not find any confirmatory circumstance. He had no direct motive against the deceased. He was not present in the incident of the evening preceding the day of murder. The hatchet allegedly recovered from him was not stained with blood. The mere recovery of a hatchet does not C connect him with the participation in the crime.
He is not injured. As such, there is no circumstantial guarantee or judicial certainty of the participation. It would, therefore, be expedient to give benefit of doubt to him as a matter of abundant caution.
14. So far as Muhammad Nawaz appellant is concerned, we find that more than one confirmatory circumstance is available. He is an injured accused. He has admitted his presence at the time of the occurrence. The hatchet recovered from him has been found stained with human-blood. Shah Muhammad, P. W. 7 is a disinterested person. He has no animus against the appellants. He has stood the test of cross-examination. His evidence is confidence-inspiring. This recovery which can safely be accepted as additional circumstance, furnishes the best test to find out what is truth or at least to discover what is false and doubtful. There is also direct motive against him. He was checked and insulted by the deceased on the evening preceding the eventful day. This incident has almost been admitted by him in his statement under section 342, C r. P. C. For these reasons, we are satisfied that the doubt which was created against the appellants on account of the acquittal of co-accused, stands sufficiently and successfully removed and resolved. The damage done by them to their own veracity and integrity by wrong implica--tion of three co-accused has been satisfactorily rehabilitated by the force of the circumstance believed by us. We have also attended to the criticism of the learned counsel for the appellants. The delay has been fully explained by P. W. 12 who, when cross-examined stated :- "We did not go to Police Station Ludan to report because. We were in hurry to take the injured to the hospital."
This conduct does not run counter to the natural probabilities. The dying declaration is just like a statement of an interested person. The minute scrutiny of the same would show that the deceased did not attribute any active participation to the acquitted co-accused. His statement shows that Sher Muhammad and Gulzar came at the spot after the infliction of the injuries to him. He did not attribute any overt act to Iqbal till after the infliction of injuries to him, and as such the dying declaration cannot be ignored in toto. It is well recognized that mere relationship is no ground to discard the testimony. As for the appellants, we do not find any material discrepancy in the ocular evidence. These witnesses did make divergent statements to the extent of the acquitted co- accused, benefit of which has already been given to them by the trial Court. Muhammad Nawaz appellant has not pleaded the right of self-defence specifically. He has not produced any evidence to show that he had acted in the exercise of the right of self-defence. He has not owned the liability of the injuries found on the person of the deceased. The statement of Nizam Shahid, P. W. 14 that "it is correct that it appeared on 16-6-1976 during the investigation of the case that Muhammad Nawaz and Gulzar accused were waylaid by the complainant party in the morning when they were coming back from Almas tube-well" being not admissible, is of no help to the appellants. The blood-stained earth was recovered from the land under the occupation of the complainant party, as such the accused had no right of self-defence at all. Rather, the same was available to the deceased party. The right of self-defence to the appellants is not spelt out from circumstance or from the prosecution evidence.
15. For all these reasons, we hold that Muhammad Nawaz appellant has been rightly convicted and his conviction recorded under section 302, P. P. C. Can be safely maintained. The nature of the injury, the force employed and the weapon used, clearly show the intention to kill the deceased. We have considered the question of the sentence with great care. We d not find any serious enmity of Muhammad Nawaz appellant with the deceased. He is resident of the game vicinity. The lands owned and occupied by the parties are contiguous. It is in the evidence of Allah Bakhsh, P. W. 12 that when be came out on hearing the noise, he found that Muhammad Sharif deceased and the accused were abusing each other. From the statement of the deceased it is clear that the appellants had not straightaway opened the attack and that the exchange of abuses had preceded the attack. In these circumstances, we are of the opinion that the lesser penalty provided under section 302, P. P. C. Would meet the case.
16. The upshot of the discussion is that the appeal is partly accepted. Mushtaq appellant is acquitted of the charge. He shall be released forthwith, if not required in any other case. The conviction of Muhammad Nawaz appellant under section 302, P. P. C. Is maintained. The sentence of death is not confirmed and the same is altered to imprisonment for life. The fine of Rs. 500, and the sentence in default thereof are, however, maintained. The fine, if recovered, be paid to the heirs of the deceased, as directed by the trial Court, Muhammad Nawaz appellant would also get the benefit of. Section 382-B, Cr. P. C.
As for the revision against acquittal of the co-accused and for enhance--ment of fine imposed upon the appellants, in view of the above findings, we do not find any merit in it and the same is dismissed Reference answered accordingly.
Death sentence not confirmed