SAJJAD ALI SHAH, J.-This appeal is directed against the judgment dated 14-10-1980, impugned herein, of learned 1st Additional Sessions Judge, Dadu, whereby four appellants named above have been convicted for offence under section 302/34, P. P. C. And sentenced each to life imprisonment and a fine of Rs. 4,000 in default of the payment whereof further sentenced to R. I. For one year.
Appellants mentioned above are further convicted for offence under section 307/34, P. P. C. And sentenced each to R. I. For 7 years and a fine of Rs: 2,000, in default of the payment whereof further sentenced to R. I. For six months more. The sentences are directed by the trial Court to run concurrently. The trial Court has further directed that if the amount of fine arising from conviction and sentence for offence under section 302/34; P. P. C. Is recovered, half of it be given to the heirs of deceased Ghulam Hyder as compensation under section 544-A, Cr. P. C. Similarly, if the amount of fine arising from conviction and sentence under section 307/34, P. P. C. Is recovered, half of it be paid to injured Ghulam Hadi. It would be pertinent to point out that co-accused Muhammad Usman was also sent up for trial alongwith above named appellants before the trial Court but he has been acquitted by the learned trial Judge for the reason that his complicity in the crime was doubtful, although allegation of prosecution was that Muhammad Usman threatened, instigated and caught hold of Ghulam Hyder to facilitate attack by other appellants, in the result whereof Ghulam Hyder became injured and died. There is also before us revision application in which sua motu notices have been issued by the High Court to the appellants for enhancement of their sentences to capital punishment. We propose to dispose of both appeal and the revision application by this single judgment,
2. Briefly stated prosecution case is that appellant Shafi Muhammad is Sand by caste and appellant Muhammad Saleh is his son. Appellant Abdul Rehman is brother of appellant Shafi Muhammad. Appellant Dino alias Din Muhammad is Katyar by caste. Acquitted co-accused Muhammad Usman is also Katyar by caste. In the complainant party deceased Ghulam Hyder was brother of complainant Ghulam Rasool and P. W. Ghulam Hadi injured in this case is also brother of the complainant. Complainant party is Burdi by caste and jointly cultivated 28 acres of land on lease from Kazi Abdul Khalique, which is situate in Deh Channa. Nearby that land is the land of Haji Ismail which was being cultivated at the time of incident by appellants and acquitted co-- accused. On the day of incident i.e. 26-4-1978 at about 10-30 a.m. Deceased Ghulam Hyder was grazing buffaloes and P. W. Ghulam Hadi sheep, when they were called by the appellants and their acquitted co--accused in their land where they had grown lucerine grass. Acquitted co-accused Usman shouted at Ghulam Hyder as to why they bad got their lucerine grass trampled by the grazing of animals. Ghulam Hyder replied that they had taken precaution and had not allowed their animals to trespass into their grass. Upon this acquitted co-accused Usman threatened Ghulam Hyder that they had forcibly occupied their plot and for that reason they would not be spared. At that time two other witnesses namely Pandhi Burdi who was taking bath in disused canal at a short distance and Piral Burdi who was grazing his sheep also at a short distance were attracted to the spot on commotion. Complainant Ghulam Rasool at that time was on his way from his land to his house and reached the place of incident just in time. In the meantime, acquitted co- accused Usman caught hold of Ghulam Hyder and appellant Shafi Muhammad and Saleh who were armed with hatchets gave hatchet blows to Ghulam Hyder on head, neck and arm.
Appellants Abdul Rehman and Dino gave hatchet blows to Ghulam Hadi on his head. In the meantime eye-witnesses reached at the spot and were threatened by the assailants not to come near. Assailants thereafter ran away with their weapons towards their village. Complainant and other witnesses went near and found Ghulam Hyder lying dead with injuries and Ghulam Hadi seriously injured but was still alive. Complainant Ghulam Rasool left P. Ws. Pandhi and Piral at the wardat to look after the dead body and injured P. W. Ghulam Hadi and himself went to Police Station Schwan at a distance of four miles and lodged F. I. R. At 11-30 a. In.
3. S. H. O. Inayatullah Soomro after registering F. I. R. Came to the scene of offence, which he visited at the pointation of complainant Ghulam Rasool. He found dead body of Ghulam Hyder as well as injured Ghulam Hadi lying there. He noted their injuries, prepared inquest report sent the dead body to mortuary and injured Ghulam Hadi to hospital. He recorded police statements of the witnesses present at the spot. He recovered blood-stained earth from two places one where the incident took place and the other where the dead body was removed to lay down on the cot under the tree. He put the blood-stained earth into sealed parcels. On the same day S. H. O. Went to village Pacca Channa from where he arrested appellants Shafi Muhammad, Dino and Muhammad Saleh. Appellant Shaft Muhammad produced crime weapon hatchet which was lying under the cot in the courtyard of his house. The hatchet was stained with blood and was put into sealed parcel, Appellant Muhammad Saleh took out hatchet from the roof of cattle shed in front of his house and produced the same. The hatchet was stained with blood and two pieces of hair attached to it. The hatchet was put into sealed parcel. Thereafter appellant Dino produced blood--stained hatchet from the back of corn-bin on the western side of a room in his house. The hatchet was put into sealed parcel. Thereafter appellant Shafi Muhammad once again led to the recovery of blood-- stained hatchet which was lying under the cot in his house and produced the same. The hatchet was put into sealed parcel. It would be pertinent to point out here that appellant Shafi Muhammad about this second hatchet disclosed that it was of his brother Abdul Rehman. Thereafter S. H. O.
Arrested appellant Abdul Rehman and acquitted co-accused Usman from Aral Wah Bridge and brought them to the police station where accused Abdul Rehman lodged counter F. I. R. Which has been produced as Exh.
6. S. H. O. Visited the wardat mentioned in counter report and also found appellant Abdul Rehman having sustained injuries on his person. S. H. O. Prepared mashirnama of injuries and referred Abdul Rehman to the hospital for examination, treatment and certificate. S. H.
O recorded statements of Haji Muhammad Ismail, Abdul Khalique and P. C. Ghulam Hyder. On 29- 4-1978 S. H. O. Produced P. Ws. Pandhi and Pical before the Mukhtiarkar and F. C. M., Sehwan and got recorded their 164, Cr. P. C. Statements. S. H. O. Also sent sealed parcels to the Chemical Examiner and after completing other steps of the investigation presented the challan in Court.
4. Prosecution has examined in all 9 witnesses in support of its case. So far ocular evidence is concerned prosecution has examined P. W. 1 Ghulam Rasool complainant, P. W. 2 Ghulam Hadi (injured), P. W. 4 Piral, P. W. 5 Pandhi as eye-witnesses of the incident. They have sup--ported the case of prosecution. Prosecution has also produced circumstantial evidence in the shape of recovery of blood-stained weapons from the appellants. P. W. 9; Bakhshal has been examined as Mashir who has attested all Mashirnamas starting from scene of offence and then arrest of appellants and acquitted co-accused and recovery of hatchets from the appellants as stated above. This Mashir has stated m his deposition before the trial Court that some parcels were not sealed in his presence and some hatchets were not stained with blood. His evidence we will discuss later on at a proper place. Prosecution has examined P. W. 3 Ghulam Hyder Constable who is corpse-bearer. P. W. 6 is Ali Asghar Tapedar who has prepared sketch of wardat, P. W. 7 Inayatullah S. H. O. Has investigated the case and produced before the trial Court Mashirnama from Exh. 17 to Exh.
26. P. .W. 8 is Doctor Ghulam Qadir who conducted post-mortem examination on the dead body of Ghulam Hyder and found five injuries out of which four were incised wounds and one was abrasion. From the external and internal examination of dead body the doctor was of the opinion that the cause of death was due to shock and haemorrhage due to injuries Nos. 1, 2 and 3 which individually and collectively were sufficient in the ordinary course of nature to cause death.
Injuries 1 to 4 were caused by a sharp cutting weapon such as hatchet. The same doctor examined P. W. Ghulam Hadi on the same day and found on his person four incised wounds in the area of head. Doctor declared Injury No. 4 as grievous in nature as it had caused fracture of frontal bone.
The remaining injuries were declared try the doctor to be simple in nature. This doctor on the same day examined injured appellant Abdul Rehman and found on his person three incised injuries. First was on the region of skull, second was on frontal region and third on the back of left scapular region. The doctor finally declared all the three injuries to be simple in nature. Before closing the case prosecution produced report of Chemical Examiner which is to the effect that all the four hatchets and blood-stained earth sent in sealed parcels to the laboratory were found by the Chemical Examiner to be stained with human blood.
5. Appellants in their statements under section 342, Cr. P. C. Before the trial Court have denied the prosecution allegations and have proclaim--ed innocence and false implication. Appellant Shafi Muhammad has stated that deceased Ghulam Hyder and P. W. Ghulam Hadi had caused injuries to his brother Abdul Rehman at their lucerine grass cultivation. Abdul Rehman had filed such case against them, hence this case against them was just a counterblast of the case of Abdul Rehman.
Other appellants have taken similar plea as stated above. Appellant Abdul Rehman has further stated in his statement under section 342, Cr. P. C. That on the day of incident at about 10-30 a.m.
He was levelling his land near lossan grass. At that time Ghulam Hadi and Ghulam Hyder left their cattle in their lossan grass. P. W. Ghulam Rasool was coming from eastern side and he (Abdul Rehman) drove away the cattle from his grass on which Ghulam Rasool and Ghulam Hyder gave him blows. He raised cries which attracted co-villagers who came running about 40-50 in number.
The fighting ensued., He saw Shafi Muhammad and Muhammad Saleh coming running. He could not see any more. Appellants did not produce any witness in defence.
6. We have heard Mr. A. Q. Halepota, counsel for the appellants and Mr. Agha Ghulam Ali for A.-G., for the State at great length. So far the ocular testimony furnished by the prosecution in this case is concernes, not much criticism can be made on it. Out of the four eye-witnessed examined by the prosecution P. W. 2 Ghulam Hadi is injured eye-witness. Although P. W. Ghulam Rasool is brother of deceased and P. W. 2 Ghulam Hadi and claims to have seen the incident but material on the record shows that be lived nearby and is a natural witness. P. W. 4 Piral and P. W. 5 Pandhi are not related to the complainant party or to the appellants and are from different caste. They also claimed to have seen the incident and have given reasonable explanation to show that they were present at the relevant time. Mashirnama of scene of offence Exh. 17 on the record is a document which was prepared by S. H. O. Immediately when he came to the wardat after registering F. I. R.
This document gives clear picture of the scene of offence and the places where the eye-witnesses were present at the time of incident. According to this document the place of occurrence was in lucerine cultivation, where grass was trampled due to public traffic and quantity of blood was lying there. Towards north of the place of occurrence there was uncultivated land in which eye--witness Piral Burdi was said to be grazing cattle at a distance of 800 paces. Scene of offence was visible to this witness: Towards west of the scene of offence was wheat granary of Ghulam Muhammad Qureshi at a distance of one athas where deceased Hyder was grazing his cattle. In-between wheat granary and the scene of offence was a disused canal in which there was some water and witness Pandhi is said to be taking bath in it at the relevant time. It is mentioned in the Mashirnama of wardat that even the scene of offence was visible from the place where Pandhi was taking bath.
It is further stated in this document that houses of complainant and the appellants are at a distance of 3 R. D. From the scene of offence and the complainant saw incident at a distance of 120 paces from the scene of offence. Not only this but F. I. R. Was lodged promptly after about one and half hours of the incident at the police station and the complainant has named eye-witnesses in F.
I. R. S. H. O. Came to the spot immediately, found injured eye-witness Ghulam Hadi noted his injuries and sent him to the hospital. S. H. O. Also found the other two eye-witnesses namely Piral and Pandhi present at the spot and recorded their statements. These facts show that the witnesses are natural and were present at the spot and particularly presence of injured eye-witness Ghulam Hadi cannot at all be called in question. It appears from the perusal of F. I. R. That correct and detailed version of the incident, as it took place, has been given by the complainant including part in which injuries were inflicted on the person of appellant Abdul Rehman by deceased Ghulan Hyder. It is the case of the prosecution that deceased Ghulam Hyder and injured P. W. Ghulam Hadi were grazing animals near the scene of offence on the day of incident when they were called by the appellants and their acquitted co-accused Usman in lucerine grass. Acquitted co-accused Usman asked Ghulam Hyder as to why their grass has been trampled by their animals which allegation was specifically denied by Ghulam Hyder. Thereafter Usman asked Ghulam Hyder as to why their plot of land has been forcibly occupied and thereafter Usman instigated and caught hold of Ghulam Hyder while appellants Saleh and Shafi Muhammad, who were armed with hatchets gave hatchet blows to Ghulam Hyder on his head, neck and arm. The other group comprising appellants Abdul Rehman and Dino who were also armed with hatchets gave hatchet blows to P.
W. Ghulam Hadi on his head. In the meanwhile Ghulam Hadi snatched hatchet from appellant Dino and gave blows to Abdul Rehman. Injuries to appellant Abdul Rehman are medically proved and he has filed counter F. I. R. Also. In counter F. I. R. Exh. 26 on the record filed by the appellant Abdul Rehman presence of deceased Ghulam Hyder and P. W. Ghulam Hadi and complainant Ghulam Rasool is admitted. On the other hand, in the counter F. I. R. Presence of appellants Shafi Muhammad, Muhammad Saleh, Dino and acquitted co--accused Muhammad Usman is also admitted. Only presence of eye--witnesses in this case namely P. Ws. Piral and Pandhi is not admitted. Injuries having been caused to deceased Ghulam Hyder and P. W. Ghulam Hadi are also admitted. We have been taken through the cross-examina--tion of the eye-witnesses in this case but we find that credibility and veracity of these witnesses is not shaken. They have fully supported the prosecution case and there are no inconsistencies or discrepancies in their evidence to suggest that they have not seen the incident or have given false evidence. It was contended by Mr. Halepota that P. Ws. Piral and Pandhi have not seen the incident but he has not been able to pick any holes in the evidence of these two witnesses. P. W. 4 Piral has deposed that at the relevant time he was grazing cattle on the northern side of Phitto Canal and P. W. Pandhi was taking bath in Phitto Canal. He heard the story of prelude to the incident between the appellants and deceased and injured eye-witnesses Ghulam Hadi as stated above. It appears in the cross-examination of this witness that he has admitted that he had hatchet in his hand while he was grazing cattle. It was argued by Mr. Halepota that if this witness had hatchet he should have gone to the rescue of deceased and P. W. Ghulam Hadi. It is not. Necessary that he should have done that and his omission to do so does not show that he was not present at the spot and had not seen the incident.
This witness has admitted that his house was at a call's distance from the wardat. In cross--- examination it was suggested to this witness that he had not stated in his 161 as well as 164, Cr. P. C.
Statements that P.W. Ghulam Hadi snatched hatchet from Dino and caused injuries to Abdul Rehman. So far Police statement is concerned no such clarification or confirmation was sought from S. H. O. When he was examined. So far 164, Cr. P. C. Statement is concerned this witness Piral has stated so specifically. Coming back to P. W. Pandhi, it was submitted that he could not have taken bath at 10-30 a.m, when the incident took place and further that. There was no water in the disused canal. Contention of the learned counsel has no force for the reason that presence of this witness at the spot is even otherwise' established by several other circumstances mentioned above. It is also stated in the Mashirnama of wardat that there was water in the disused canal. This witness has stated before the trial Court that his village was at a call's distance from the wardat and there was no hand pump in his house. He was taking bath in the canal at a distance of about one jareb from the wardat, Mashirnama of wardat also shows that wardat was visible to this witness who was taking bath in the disused canal. There is nothing adverse in the cross- examination of this witness to suggest that he had not seen the incident. We are, therefore, of the considered opinion that ocular testimony is worthy of reliance and the witnesses are natural and have spoken truth about the version of incident. We are impressed by the evidence of P. W. Ghulam Hadi who was himself injured at the time of incident.
7. Ocular evidence further finds support from medical evidence according to which deceased Ghulam Hyder sustained five injuries out of which four were incised wounds and one was abrasion.
The number of injuries is consistent with ocular version that appellants Shafi Muhammad and Muhammad Saleh caused injuries to Ghulam Hyder. In, the same way four incised wounds were found on the person of injured Ghulam Hadi and the number of injuries is consistent with ocular version that appellant Abdul Rehman and Dino gave blows with hatchets to Ghulam Hadi on his head. Medical evidence may not lend corroboration qua accused specifically but the number and nature of injuries does. Afford corroboration to the extent stated above.
8. It was then contended that motive is not established and it is the case of prosecution that the reason for, attack was trampling of grass which when denied, it was altered to dispute over the plot of land, to prove which no evidence has been produced .It appears from the evidence on the record that acquitted co-accused Usman called deceased Ghulam Hyder and his brother Ghulam Hadi to lucerine cultivation and inquired from them as to why their grass was trampled by their animals. This allegation was denied by deceased and his brother who specifically stated that they were present and saw to it that their animals did not trespass into the grass of appellants and were grazing away from the spot. At that moment animals were not found in the cultivation, hence Usman switched over to the other allegation that why their plot was occupied by deceased and his companions. In fact the appellants and co-accused Usman wanted to attack the deceased and they had to invent some excuse. This version as stated above is testified in the Court by complainant, injured P. W. Ghulam Hadi and the other two eye-witnesses. It is mentioned in the mashirnama of wardat that grass was trampled but by the people. It is not necessary that for every crime are committed without motive or in some cases motive does not come to surface. In such circumstances prosecution case as a whole does not stand falsified on this account only.
9. So far recovery of incriminating crime weapons from the appel--lants is concerned prosecution has examined P. W. 9, mashir Baxial. He is an omni-bus mashir in the sense that he had joined the investigation right from the very beginning and has attested all the mashirnamas and other documents prepared during the course of the investigation including mashirnama relating to the recovery of weapons from the appellants. This mashir is Hyderaai by caste and apparently does not appear to be related to either party. He has stated that he resided about two miles away from the place of scene of offence. According to this mashir appellant Shafi Muhammad while in custody took out a hatchet from his house lying under the cot and produced before the Police. The hatchet was blood--stained. This witness has further specifically stated in his examination-in--- chief that hatchet was recovered by Police under mashirnama but was not sealed by the Police in his presence. He went on further to say that appellant Saleh while in custody led to the recovery of blood-stained hatchet from the roof of a thatched but and produced the same before Police which was secured and covered in a piece of cloth. Appellant Din Muhammad alias Dino while in custody led to his house and took out a hatchet from a room of his house and produced the same before Police. He did not see blood stains on that hatchet. Appellant Shafi Muhammad once again produced another hatchet from his house and disclosed that it was of appellant Abdul Rehman.
The hatchet was blood-stained and Police secured the same but covered if with a piece of cloth.
This mashir has further stated that the Police thereafter arrested appellant Abdul Rehman and acquitted co-accused Usman and prepared mashirnama Exh.
25. While this mashir was being cross-examined by the defence in the trial Court, he categorically stated that Police had not sealed the hatchets is his presence but had covered the same in a piece of cloth. He further admit--ted that appellant Shafi Muhammad had produced a hatchet lying under the cot in front of his house.
He did not know if Shafi Muhammad had three brothers. He knew only Shafi Muhammad and his brother Abdul Rehman, who lived in one and the same house. Surprisingly, this mashir was not declared hostile by the prosecution and was not cross-examined from which an inference can be drawn that prosecution has not challenged the veracity of this witness and has not called in question his version. His evidence as stated above is inconsistent with the prosecution case. Co--- mashir Haji Jhando has not been examined by the prosecution. It is, therefore, clear that prosecution proposed to rely upon the evidence of mashir Baxial as it is without any challenge with regard to its truthfulness.
10. It also appears from the record that mashir Baxial was examined by the trial Court at S. No. 9 as the last witness and before him S. H. O. Inayatullah got himself examined in the trial Court as P. W. 7 and during the course of his evidence he has produced all the mashirnamas including those relating to the recovery of crime weapons from the appellants. According to S. H. O. He went to village Pacca-Channa where he arrested appellants Shafi Muhammad, Dino alias Din Muhammad and Muhammad Saleh. Appellant Shafi Muhammad while-in custody led to the recovery of hatchet lying under the cot in the courtyard of his house. The hatchet was stained with blood and was put into a sealed parcel. Similarly, appel--lant Muhammad Saleh took out a hatchet from the roof of cattle shed in front of his house and produced the same. The hatchet was found to .Be stained with blood and two pieces of hair were sticking on the hatchet. The hatchet was put into sealed parcel. Thereafter appellant Dino led to the recovery of hatchet which was lying at the back of corn-bin on the western side of a room of his house. The hatchet was blood-stained and put into a sealed parcel. Thereafter appellant Shafi Muhammad volun--tarily pointed out another blood- stained hatchet lying under the cot in his house about which he disclosed that it belonged to his brother appellant Abdul Rehman. The hatchet was blood-stained and put into a sealed parcel.
Now, first of all it appear that none of the hatchets was recovered from exclusive possession of any particular appellant, to whom it was attributed. The places from where the hatchets were recovered were accessible to all the inmates of the house. Hatchet of Shafi Muhammad was lying under the cot in the courtyard of his house. Hatchet of Muhammad Saleh was taken out from the roof of cattle shed in front of his house. Hatchet of Dino was lying at the back of a corn-bin on the western side of a room of his house. Shafi Muhammad produced second hatchet to be belonging to Abdul Rehman from under the cot in his house. Mashir Baxial has stated that appellant Shafi Muhammad and his brother Abdul Rehman lived in one and the same house. During the cross- examination before the trial Court S. H. O. Inayatullah has admitted that appellant Shafi Muhammad and Abdul Rehman lived in a common house from where two hatchets were produced by appellant Shafi Muhammad. House of Muhammad Saleh was separate from that of Shafi Muhammad. Muhammad Saleh is son of Shafi Muhammad. Houses of Muhammad Saleh and Shafi Muhammad were within common compound wall. In the circumstances we hold that the hatchets were not recovered from the exclusive possession of the appellants as is alleged by the prosecution nor can we impute exclusive knowledge of these weapons to the appellants from whom they are alleged to have been recovered. Moreover, appellant Shafi Muhammad has not produced his own hatchet from under the cot but also produced in the similar circumstances hatchet belonging to appellant Abdul Rehman even before appellant Abdul Rehman was arrested.
S. H. O. Has admitted in his evidence before the trial Court that after recovery of hatchet of Abdul Rehman from Shafi Muhammad he arrested Abdul Rehman and Usman from Aral Wahh Bridge in presence of same mashir and prepared such mashirnama of their arrest which has been pro-- duced as Exh. 25.
11. Apart from the defects and infirmities in the evidence of recovery of weapons as pointed out above, in the ordinary course the normal rule is that if mashirs do not support the prosecution case then reliance can be placed on the statement of Investigating Officer, who has affected the recoveries and is as good 'as any other witness provided he has taken alt the necessary steps required under law for such recoveries and has conducted investigation in an honest manner which inspires confidence. In the instant case, first hatchet of Abdul Rehman was secured by S. H.
O. From his brother Shafi Muhammad and then later on Abdul Rehman was himself arrested. In such circumstances it cannot be said that incriminat--ing hatchet was recovered from the exclusive possession of Abdul Rehman. Secondly, mashirnama of arrest of appellant Abdul Rehman Exh. 25 on the record shows that Muhammad Usman and Abdul Rehman were arrested by S. H. O. On 26th April, 1978, at 17-30 hours, which comes to 5-30 p. m. While on the other hand Doctor Ghulam Rasool F. W. 8 has deposed before the trial Court that on the same day i.e. 26th April, 1978 he received injured Abdul Rehman referred to him by the same Police and he examined him on the same day at 1-00 p. m. And found injuries on his person Statement of the doctor is in direct conflict with the statement of S. H. O. Now if S. H. O. Is right that he arrested appellant Abdul Rehman on 26th April, 1978, at 5-30 p. m., then how could medical officer examine him at 1-00 p. m. On the same day. Medical Officer does not appear to have any reason to falsify these details because he has performed post-mortem examination on the dead body of deceased Ghulam Hyder and then examined injured P. W. Ghulam Hadi and then has examined appellant Abdul Rehman and has given timings in proper sequence. In the circumstances, it appears that time of arrest of appellant Abdul Rehman as given by S. H. O. In his evidence and in the relevant mashirnama is open to doubt and for that reason it can be said that the investigation has been done in a manner which cannot be called honest. The upshot of the discussion made above is that we feel disinclined to rely upon the evidence of recovery of crime weapons.
12. The last piece of evidence worth consideration is counter-report filed by appellant Abdul Rehman produced on the record as Exh.
26. This report arises from the same transaction i.e. Incident in the instant case and the report is filed on the same day at 6.30 p. m. Place of incident in the counter-report is the same as place of incident in the instant case. It is mentioned by Abdul- Rehman appellant in the counter-report that he and his brother Shafi Muhammad were cultivating the land when at 10-30 a. m. Ghulam Hyder and Ghulam Hadi who were grazing buffaloes and sheep near disused canal called him and said that they should cut their lucerine grass completely else they (Ghulam Hyder and Ghulam Hadi) would have the grass trampled. It is further stated in the counter-- report that both Ghulam Hyder and Ghulam Hadi entered lucerine grass abused and Ghulam Hadi gave Abdul Rehman sharp-sided hatchet blow on his left eye, back on his head.
Abdul Rehman raised cries upon which Muhammad Saleh, Shafi Muhammad, Dino and Usman came running. Saleh, Shafi Muhammad and Dino were armed with hatchets. They on seeing Abdul Rehman bleeding started abusing accused persons and quarrelled with them. Hatchet blows of Saleh hit. Ghulam Hyder and hatchet blows of Shafi Muhammad hit Ghulam Hadi. In the meantime Ghulam Rasool brother of accused persons came running. Thereafter Abdul Rehman and his companions ran away to their houses. After a short while they came to know, that Ghulam Hyder had died. Mr. Halepota counsel for the appellant contended before us that this counter F. I. R.
Cannot be used against Abdul Rehman and other appellants for the reason that the same has not been put to them in their statements under section 342, Cr. P. C. Recorded by the trial Court, it is a fact that no such specific question with regard to the counter-report has been put to appellant Abdul Rehman in his statement before the trial Court but he has voluntarily stated in answer to the last question that on the day of incident Ghulam Hadi and Ghulam Hyder left their cattle in his lucerine grass. P. W: Ghulam Rasool was coming from eastern side. He (Abdul Rehman) drove their cattle from his grass upon which they Ghulam Hyder and Chulam Hadi) gave him blows. He raised cries which attracted co-villagers who came running about 40-50 in number. The fighting ensued.
He saw Shafi Muhammad and Muhammad Saleh coming running. He could not see any more. On being asked that this was an admission about the presence of appellants at the spot and causing injuries to Ghulam Hadi and Ghulam Hyder, the learned counsel for the appellants submitted that even in this statement appellant Abdul Rehman has not admitted categorically that he filed counter-report. Moreover, this admission is different from the version which is given in counter F. I.
R. It was further submitted by the counsel that prosecution should have put specific question to appellant Abdul Rehman about his filing counter F. I. R. Which was not done. Now, the question arises as to, what is the effect if some question is not put to the accused in his statement under section 342, Cr. P. C. Reading of provisions contained in section 342 Cr. P. C. Shows that the Court may at any stage of inquiry or trial put such questions to the accused to enable him to explain any circumstance appearing in evidence against him. The real object is to invite the attention of the accused to the point or points in the evidence which are likely to influence the mind of the judge in arriving at a conclusion adverse to the accused and before an adverse inference can be drawn, the accused is to be afforded an opportunity to offer an explanation if he has any. In support of the proposition stated above reliance is placed on the case of Makhool Ahmed v. State (PLD 1961 Dacca 113) The case-law on this point is discussed in detail in the case of Allah Dad and others v.
State (PLD 1978 SC 41). The relevant portion from the judgment is reproduced as under :- ---In the present case Dost Muhammad was represented by a counsel and he was himself present and had heard the entire evidence. In the circumstances the omission to put the question as to whether his gun matched with the crime empty cannot be fatal as he was at liberty to give an answer to that piece of evidence when he was questioned about the gun. Again it was open to the counsel to have brought it to the notice of the trial Court that this piece of evidence was not put to Dost Muhammad which was not done, and therefore, there was no compliance with the requirement of the explanation to section 537, Cr. P. C. That an objection should have been raised at an earlier stage in the proceedings. Accordingly, it is not possible to presume failure of justice.
The case cited by the learned counsel, therefore, cannot be of any help, for, the question now has to be resolved on the basis of the criterion whether or not the omission has occasioned a failure of justice. At least in the two cases cited above the question of prejudice was considered and the benefit of omission was not given to the accused. Accordingly the contention has no substance.---
13. It is, therefore, clear that, in each case it is to be seen whether omission to ask question in 342, Cr. P. C. Statement has occasioned a failure of justice or not. In the instant case no objection was raised in compliance with the explanation to section 537, Cr. P. C. Before the trial Court. Moreover, appellant Abdul Rehman has himself admitted his, presence at the spot and that of two other appellants namely Shall Muhammad and Muhammad Saleh. He has admitted presence deceased Ghulam Hyder and injured Ghulam Hadi at the spot. He admits that deceased Ghulam Hyder and P. W. Ghulam Hadi gave him blows. He admits that incident took place in his lucerine grass. Injuries sustained appellant Abdul Rehman are medically proved. In these circumstances mere omission of not putting the question with regard to the counter-report to him in his 342, Cr. P. C. Statement does not cause any failure of justice when he has voluntarily made so many admissions as stated above. We, therefore, hold that presence of appellant Abdul Rehman at the spot at the time of incident is conclusively established.
14. So far the question of presence of other appellants at the spot is concerned, no use can be made of admission of appellant Abdul Rehman in his 342, Cr. P. C. Statement to bind or to involve other appellants for the reason that it is well-established proposition of law that statement of an accused made under section 342, Cr. P. C. May be used for or against him but it cannot be used against any, person other than the one who has made it. Reliance is placed on the case of Ghulam Muhammad and others v. The State (PLD 1961 Lah. 146). It is further clear from the record that question relating to counter report was not put to any one of the appellants in their 342, Cr. P. C.
Statements recorded by the trial Court. Apart from appellant Abdul Rehman, appellant Shafi Muhammad ha B voluntarily stated in his statement that deceased Ghulam Hyder and P. W.
Ghulam Hadi had caused injuries to his brother Abdul Rehman and Abdul, Hadi had filed such case against them, hence this case is filed as a counterblast. Even this appellant does not admit his own presence at the spot at the time of incident. He does speak about counter-report filed by Abdul Rehman but does not give any detail with regard to the incident alleged therein excepting causing of injuries to Abdul Rehman as stated above. He does not say who others were present at the time of incident apart from Abdul Rehman. This admission is, therefore, not sufficient to bind him to say that he has admitted that he was present at the spot. Moreover, legal position as stated above is clear that counter report can be used only against the maker and not other accused.
15. After giving our careful consideration to the evidence brought on record and contentions raised by the learned counsel on either side, we have come to the conclusion that the ocular testimony produced in this case is reliable but there is no other corroborating evidence connecting the appellants with the commission of crime with the exception of appellant Abdul Rehman who was injured at the time of incident and who has admitted his presence at the spot at the relevant time in his 342, Cr. P. C. Statement. We, therefore, dismiss appeal of appellant Abdul Rehman and uphold his conviction and sentence as awarded by the trial Court. D We allow appeal in respect of appellants Shafi Muhammad, Muhammad Saleh and Dino alias Din Muhammad and set aside their conviction and sentences. They may be set at liberty if they are not wanted in any other case.
We also direct the Jail Authorities to give benefit contemplated under section 382-B, Cr. P. C. To appellant Abdul Rehman whose appeal has been dismissed and the period of his detention in jail during trial proceedings be included at the time of computation of sentence. Appeal is disposed of in terms stated above. We find no reason to justify interference in revisional jurisdiction for enhancement of sentence as such we dismiss the revision application.