1. At' the four appellants : Ali Gohar, Muhammad Alam, Ali Murad and Muhammad Hassan who are all tethers we tried for the murder of Majan alias Abdul Majeed brother of the complainant Ghulam Hussain in the Sessions Case No, 75 of 1978, by the 1st Additional Sessions Judge, Sukkur. The learned trial Judge convicted them under section 302/34, P. P. C. And sentenced them to life imprisonment and fine of Rs, 2,000 or in default R. I. For 2 years, vide his judgment, dated 21st April, 1983. By the present appeal the appellants have challenged their conviction and sentence.
2. The prosecution case is to the following effect. About 9-10 months before his murder, the deceased Majan married with Mst. Mukhtiar who after the said marriage developed illicit liaison with the accused All Gohar who happens to be the nephew of the deceased. It is alleged that the accused's party arranged to have search-warrant issued by the Mukhtiarkar Shikarpur for search of Mst.
3. Mukhtiar. When she was produced before the Mukhtiarkar she gave statement in favour of the accused whereupon she was allowed to go with the accused All Gohar. This created bad blood between the parties who became hostile to each other and started fighting amongst themselves.
4. Both the parties have been run down in the proceedings under section 107/151. Cr. P. C which are said to be still pending. On the application of the mother of Mst. Mukhtiar, the latter was once again produced by the Police before the S. D. M , Rohri, but in view of her statement in favour of the accused Ali Gohar she was permitted by the learned S. D. M. To go with the said accused. However accused party were annoyed on their being dragged in Courts frequently.
5. One day prior to the occurrence the complainant and his deceased brother Majan were on their way to Pano-Aqil when they came across Rajo father of the accused and his two sons Liaqat Ali and All Murad. There had been sharp exchanges between the two sides and the complainant and the deceased ever gave blows to their aforesaid adversaries in course of the said scuffle.
6. On the day of occurrence (i. e. 12th January, 1978) the deceased accompanied by his tw6 brothers Ghulam Hussain (complainant) and Sain Dino were returning from Arzi village when at Nawa Bhutta village they were overtaken by all the four appellants-Accused Ali Gohar, Muhammad Hassan and Ali Murad armed with hatchets and Muhammad Alam carrying a lathi. The accused Challenged the complainant and Sain Dino to keep away, declaring further that they would kill Majan. The accused Muhammad Alam opened the attack and gave lathi blow to the deceased on his head whereupon he fell down. The other three accused also gave hatchet blows to him.
7. Accused Muhammad Hassan was said to have used back side of hatchet while giving blow to the deceased. Thinking that the deceased bad expired the accused fled away towards eastern side.
8. After the departure of the accused, the complainant and Sain Dino joined hands to carry the deceased to the Police Station Pano Akil where the complainant lodged F. I. R. At 12.45 p. m. A. S. I.
9. Muhammad Ashraf (P. W. 8) who was incharge of the Police Station Pano Akil recorded the F. I. R,.
10. (Exh. 5). He also noted the injuries on the person of the deceased who was still alive and referred him to Civil Hospital Sukkur, for examination and treatment. Then he recorded the statement of Sain Dino. Thereafter the A. S. I. Inspected the scene of occurrence which situated in the land of Allah Bux Malano in Deh Kot Sadiq Shah in presence of Masbirs All Muhammad and Muhammad Ramzan and secured blood-stained earth from there and sealed the same under memo. (Exh. 15).
11. Three of the accused namely Ali Gohar, Ali Murad and Muhammad Hassan were put under arrest by the A. S. I. From the house in presence of aforesaid mashirs under memo. (Exh. 16). Each accused led the A. S. I. To his house and produced one hatchet before him in presence of the same mashirs.
12. The hatchets recovered from Ali Gohar and Ali Murad were said to be stained with blood whereas the hatchet produced by Muhammad Hassan was not blood-stained. The hatchets secured from the accused were sealed into the separate pracels and were later sent with blood-stained earth to Chemical Analyser and Chemical report (Exh. 25) has been placed on record. The A. S. I. Also recorded statements of Daim, Abdul Hameed and Mst. Waziran. The deceased was shown to have expired in the Hospital on the following day i. e. 13th January, 1978. After completion of the investigation the accused were sent up for trial in the Court.
13. Dr. Abdul Karim (P. W. 7) of Bagerji Government Hospital conducted the post-mortem examination of the dead body of deceased Majan. His evidence discloses following injuries on the person of the deceased : "(1) Contusion 21" x 11" x on the first tempro-parietal region.
(2) Incised wound 31 " x11" x muscle and bone cut on the middle of left lower leg.
(3) Incised wound 11 x x muscle deep on the outer side upper third of left thigh.
(4) Contused wound 1' x x muscle deep on the parietal region.
14. The Doctor has certified the above injuries to be ante-mortem. In his opinion the injuries Nos. 1 and 4 were caused by hard blunt substance whereas other two injuries were the result of blows by sharp-cutting weapon According to the Doctor the injury No, 1 individually and all the injuries collectively were sufficient in ordinary course of nature to cause death. The medical evidence as stated above stands unshaken. Even the accused have not questioned the truth of the medical evidence which, accordingly proves that the deceased Majan had died of the injuries he had received.
15. The crucial point for determination however is whether the accused in furtherance of their common intention committed the murder of the deceased Majan. On this point the prosecution evidence is divided into three compartments ocular evidence, evidence of motive and recovery of incriminating articles.
16. The ocular evidence is furnished by complainant Ghulam Hussain, Sain Dino and Mst. Waziran. They have no doubt implicated all the four accused stating on oath that they saw the accused giving blows to the deceased. Accused Muhammad Alam with lathi and other three accused with hatchets.
17. The learned counsel for the accused has severely criticised the evidence of above eye-witnesses contending that it does not inspire confidence for variety of reasons. His first objection is with regard to P. W. Mst. Waziran who, according to the learned counsel does not figurer as witness in the F. I. R. And as such cannot be believed to have witnessed the incident. In support of his argument he has placed reliance on Khalil v. The State wherein it was held : "I have carefully considered the Statement of the witness and am inclined to consider it truthful, but it appears to me that in view of the fact that his name found no place in the first information report the safer course would be to keep his statement out of consideration."
18. In view of above authority, the argument of the learned counsel is not without force. Mst. Waziran seems to have come to vardat after the occurrence and as such she can be believed only to that extent.
19. As for other two eye witnesses, he contended that they are not only related inter se but are also hostile to the accused. He further submitted that in view of their own admission that following the fight between the complainant and the deceased with the accused's father Rajo and his two sons one day prior to the occurrence they had run away out of fear of Police and therefore their presence at the vardat was doubtful. It was also poined out by the learned counsel that independent persons from the nearby village Nawa Bhutta had admittedly witnessed the occurrence but none from them has been produced in the evidence. He also stated that the ocular evidence is not consistent with the medical evidence and that the evidence of above witnesses is full of contradictions casting a serious doubt on its truthfulness.
20. There is no doubt that complainant and Sain Dino are brothers of Majan deceased and Mst.
21. Waziran is latter's widow. It is further admitted that the parties have long-standing enmity over the question of Mst. Mukhtiar and there had been a lot of litigation between them on the said question.
22. The question arises if the evidence of such partisan witnesses can be acted upon for the purpose of conviction. While canvassing his view-point that no reliance can be placed on such evidence, the learned counsel for the accused has cited two authorities in his support namely, Sahib Masih and another v. The State and Niaz v. The State .
23. In the first case of Sahib Masih it was held by the Supreme Court :- "In the case of interested witnesses, as all the three eye-witnesses in this case happened to be, one expects that, their statements ring true or are not intrinsically unsound or inconsistent, when that test is satisfied, then in the case of ordinary interested witnesses, independent corroboration of some sort is looked for and ensured. The motive by itself in a case like this, serves as a double- edged weapon. It could prompt false implication. It could as well-prompt revenge in the form of agression. In determining the intrinsic worth or consistency of the statement of eye-witnesses, the mere presence of motive is not sufficient."
24. In the second case of Niaz, the Supreme Court was pleased to observe : Whenever interested persons claiming to be eye-witnesses of an occurrence 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 position 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 interested1 2 3 witnesses charge on 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 pale of substitution has to lay the foundation for it. But if the Court finds that the number mentioned by interested persons 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 circumstance of each case. However the circumstance itself must be proved beyond all reasonable doubt."
25. On the other hand the learned State counsel has argued that it is the intrinsic value and worth of the evidence which really counts. According to him the evidence cannot be disbelieved merely because it has come from the mouth of the interested witnesses. In support of his view he has placed reliance on Shahzado v. The State and 8 others wherein it was held : "There is no doubt that the witnesses were interested in the prosecution of the accused and inimical against them. But that fact alone is not sufficient to altogether discard their evidence. It has to be properly sifted and weighed with the necessary care and caution before rejecting the chaff and accepting the grain in the light of the facts of each case. The trial Court had the opportunity to watch the demeanour of witnesses and form first hand impression about their deposition and due importance should be attached to its conclusions drawn from their evidence.
26. In the circumstances the High Court was not justified in insisting upon corroboration of the testimony of the eye-witnesses in each and every detail in this case and thus reject their evidence on the point. I have already held above that the High Court was misled into thinking that the assailants had fired from a close range of two paces only."
27. The other case relied upon by the learned counsel on the same point is of Roshan and 4 athers v.
28. The State wherein it was observed : "As regards the testimony of Mehdi and Raju, P. Ws. There is also no universal rule that the evidence of an interested witness must be invariably corroborated by independent evidence. If that were so then why should the Court at all take into account the testimony of the interested witness.
29. Secondly, if the presence of a witness is proved beyond doubt and no other independent witness is available in the case, it would result in a grave miscarriage of justice to insist upon independent corroboration if that was the rule then the accused have only to destroy the evidence which may be used as corroboration and get scot-free regardless of the quantum and quality of the oral evidence provided by the interested witness. It, therefore, depends on the facts of each case and instances are not wanting where this Court has upheld the conviction of the accused based entirely on the testimony of the 'interested' witness."
30. No exception can be taken to the views expressed in the aforesaid Supreme Court cases. The position that has emerged from these cases is that interestedness of a witness alone is not enough to discard his evidence. At best it puts the court on guard so that in presence of the tainted evidence it should be extra-cautious in its evaluation. Although it is not possible to evolve any cut and dry formula universally applicable in c appraisement of evidence, yet it is the duty of the Court to look for all such material on record which may enable it to arrive at a correct conclusion as to truth or falsity of the evidence. This is possible only when the Court must weigh every bit of evidence and determine its effect in the given circumstances.4 5 As regards the next argument of the learned counsel for the appellant that presence of complainant and Sain Dino at the time of occurrence was doubtful, it may be observed that all that the complainant has admitted is that following the scuffle with the accused's father and brothers one day earlier they had run away out of fear of police. It appears that they had run away from the vardat which does not mean that they had left their village or locality in which they were residing.
31. The above argument of the learned counsel for the accused obviously overlooks the fact that the deceased who was with the complainant at the time of the scuffle which took place one day earlier was murdered on the following day and as such it could not be argued that the complainant and deceased had left their village to avoid any police action. If the deceased's presence is established by his murder at the time of occurrence, there is no justification to doubt the presence of the complainant. Similarly the presence of Sain Dino who was not involved in the earlier scuffle could not be doubted.
32. It is also admitted by S. H.O. Muhammad Ashraf that at the time of lodging of the F. I. R. Of the instant case he had arrested complainant Ohulam Hussain, Sain Dino and injured Majan (deceased). If they had not been present at the vardat, they would not have gone to the Police Station nor would they have been arrested by the S. H.O. Thus the evidence of S. H.O. Proves their presence at the time of occurrence Accordingly the contention of the learned counsel has no force.
33. Coming to the other contention of the learned counsel for the appellants that no independent witness has been examined though it has been admitted that several, independent persons had seen the occurrence. In this connection the learned counsel has referred to the admission of the complainant which is to the following effect :- "We saw that people of Nawa Bhutta were looking from their village."
34. It may be noticed that Nawa Bhutta village is admittedly 30 to 35 paces away from the place of occurrence. The complainant's evidence does not show that people of Nawa Bhutta actually came to the rescue of the victims. Consequently they could not be expected to say as to what transpired at the vardat. Moreover from their indifferent behaviour of keeping away from the vardat, it could be concluded that they did not want to get themselves involved in the case of others. It has been the experience of the superior Courts, that the persons unconnected with the occurrence are invariably unwilling to render any assistance to the victims of the offence or come forward to give evidence as witness. Instead they hastily depart from the scene of offence to avoid being entangled in the case. Of course this tendency on their part is far from commendable. Faced with such a situation the Courts of this country have been constrained to hold that non-examination of independent witnesses would not be permitted to adversely affect the prosecution case, which has otherwise been proved by the other evidence. Thus merely because no independent witness has been examined in this case, the evidence of aforesaid witnesses cannot be doubted or disbelieved.
35. It was averred by the learned counsel for the appellants that the ocular evidence is not in consonance with the medical evidence and therefore, the presence of the eye-witness is rendered doubtful. As has been pointed above that as soon as the F. I. R. Was lodged both the complainant and Sain Dino were taken into custody by the police in connection with the injuries they were alleged to have caused to the accused's father and brothers one day prior to the occurrence goes a long way to prove their presence at the time of the murder. Even otherwise I see no inconsistency between the medical evidence and the ocular evidence It is true that three of the accused were armed with hatchets and the remaining fourth carried a lathi but it is disclosed in the medical evidence that out of four injuries found on the person of the deceased, two were with sharp weapon and two with blunt substance. The argument of the learned counsel is that even if it be assumed that accused had given one blow each to the deceased still one injury by blunt substance would remain unexplained. It seems the learned counsel has overlooked the evidence to the effect that accused Muhammad Hassan had used blunt side of hatchet while giving blow to the deceased. When this was pointed out to the learned counsel he argued that it was not possible that in the heat of moment he would take care not to use sharp side of the hatchet. If this was not possible it was also unlikely that in the situation when there was confusion all around the witnesses would be in a position to count the blows each accused had given or to say which blow was given by which accused. May be the accused carrying a lathi had caused both the injuries certified to have been caused by blunt substance and the accused said to have used back side of hatchet.
36. Did not get his turn for inflicting injuries on the deceased. Thus the argument of the accused's counsel in this regard has absolutely no force. In this connection the learned State counsel has cited the case of Machia and 2 others v. The State wherein it was held "However, even on the assumption that the medical evidence is consistent with that of the eye- witnesses can medical evidence cor-roborate ocular evidence which is tainted by enmity ?
37. Medical evidence by itself and without more cannot throw any light on the identity of the assailants, but in the case of inimical evidence, it is this aspect of the ocular evidence which requires corroboration, because the danger in relying on the ocular evidence in such cases is that the witnesses may falsely implicate their enemies. At the highest, therefore, the fact that the medical evidence is consistent with the ocular evidence may furnish some limited corroboration of the ocular evidence if it can lead to the inference that the eyewitnesses have spoken the truth."
38. The learned counsel has further argued that the eye-evidence is discrepant inasmuch as that there are many contradictions appearing in the statements of complainant and Sain Dino and therefore, in his opinion no safe reliance can be placed on their evidence without independent corroboration. It may be stated that in the first place, the learned counsel has not been able to point out any material contradiction worthy of attention. The contradictions referred to by him are of no consequence. They are rather natural particularly when the witnesses were called to give evidence after lapse of more than three years from the occurrence. In course of time they are apt to forged the insignificant details of the incident. Again if they are subjected to lengthy and tiresome cross-examination it is not expected of them to give description of the occurrence with scientific precision. At this stage it would not be out of way to refer to the case of Roshan and 4 others v. The State, wherein it was held :- "As to the contradictions in the Statements of the eye-witnesses on which the defence has placed so much reliance, I may point out that some counsel devote all their energies to create such contradictions and to this and lengthy cross-examination is conducted for hours and days which is intended to confuse, even an intelligent person, and is not calculated to elicit any useful information. This exercise is undertaken because Courts give undue importance to contradictions found in the Statements of the prosecution witnesses. To my mind, the primary consideration in appraising the evidence given by a witness is to determine, firstly why has he offered to testify ?
39. Has he seen the occurrence ? If so, has the witness a motive to implicate a person who was not among the culprits or to exaggerate the part played by any of them ? If a witness satisfies these two tests, then the Court should watch the general demeanour of the witness in order to judge the quality of his perception and his faculty to re call the past incidents. A witness may make contradictory statements on some of the details of the incident in respect of which he is deposing in Court. The variation may be due to mere lapse of memory of the confusion caused in his mind by a relentless cross-examiner. Very often a witness gives an incorrect statement because he must answer every question regardless of the fact whether he knows the answer to it or not. It is not uncommon that the cross-examiner puts words in the mouth of witnesses and the presiding officer is not vigilant enough to check it. It is also common experience that, without any particular intent, even educated people exaggerate when describing an event. Some witnesses may be prone to it more than others. Mere contradictions, therefore do not lead to the result that whatever the witness6 has said on the salient features of the case and which conforms to the other evidence on the record is to be thrown overboard.- In view of what has been stated above the contradictions appearing in the evidence of above eye- witnesses should not be given undue importance as they are not so material as to create an impression of the witnesses having indulged in falsehoods.
40. The next piece of evidence relied upon by the prosecution to corroborate the ocular evidence is the evidence of motive. As has been deposed by the complainant that the dispute arose between the parties over the question of Mst. Mukhtiar who after her marriage with the deceased was suspected by the complainant's party to have illicit connections with the accused Ali Gohar.
41. According to him there had been even a lot of litigation between the parties so much so that the complainant and the deceased were remanded to jail. His evidence further shows that one day prior to the murder of Majan, he and deceased were engaged in a fight with Rajo, accused's father and his two sons in which the latter had even received injuries and this spurred the animosity existing between the parties. He is supported by Abdul Hamid (P. W. 3) who to my mind is most independent witness. It is in his evidence that he is on visiting terms with both the parties. It appears from his evidence that after Rajo, father of the accused had received injuries in the scuffle that had preceded the murder of the deceased, he had called on him in the Civil Hospital in presence of his sons (accused). He has stated on oath that he availed the opportunity to advise Rajo and his sons to patch up their differences with complainant's party to which Rajo gave curt reply that he was not prepared to compromise and his sons were there to take revenge. His evidence is entirely unshaken. No motive has been attributed muchless proved against this witness for giving false evidence. He lends full support to the complainant with regard to motive. It is also an admitted position that the accused are nephews of the deceased and so also of the complainant and Sain Dino. It cannot be believed that the uncles would involve their real nephews in the false case involving the capital punishment, unless they had actually committed the murder.
42. It was, however, contended by the learned counsel for the accused that motive of enmity is double-edged weapon which cuts both sides. According to him since accused Ali Gohar had married Mst. Mukhtiar wife of the deceased against the wishes and to the serious annoyance of the complainant's party, the latter party had the cause of grievance and therefore, it was not probable that accused would have resorted to violence resulting in the murder of the deceased. I am not impressed by this argument. Since the accused had equally suffered over the question of Mst.
43. Mukhtiar and had realized that they would not be allowed to get away with the wrong they had done to the deceased by taking away and detaining his legally-wedded wife, they could not be expected to forget the issue and only to remain on defensive. Moreover the scuffle that took place one day earlier than the deceased's murder in which the accused's father sustained injuries made the accused vow for taking revenge. Accordingly I am convinced that the accused hat sufficient motive to kill the deceased.
44. The last piece of evidence produced by the prosecution is the evidence of recovery of hatchets from the possession of the accused. The chemical report however indicates that the blood on the hatchets secured from the accused had disintegrated. Accordingly I agree with the learned counsel for the accused that the evidence of the recovery of hatchets has no evidentiary value.
45. To sum up the evidence that has been laid in proof of the prosecution case, it may be stated that the murder of deceased Majan was committed in a broad daylight when there was no question of mistaken identity. The occurrence was reported to the police with utmost promptitude leaving no margin of time for consultations and deliberations as regards false substitution in place of real culprit. The complainant Ghulam Hussain and his brother Sain Dino are real uncles of the accused and their evidence in view of above discussion can be safely believed. Unless the accused have committed the murder of the deceased, their own uncles, the aforesaid eyewitnesses could not be expected to involve their innocent nephew, in the case of the murder charge. The eye-evidence has been fully corroborated by the evidence of motive which has come not only from the complainant and his brother Sain Dino but also from the independent witness Abdul Hameed. Even the accused have not disputed the existence of enmity between them and the complainant's party over the question of Mst. Mukhtiar.
46. For the foregoing reasons I have come to the irresistible conclusion that the prosecution have proved their case to the hilt. Accordingly I see L no justification to interfere with the decision of the trial Court.
47. Therefore the appeal is dismissed. PLD 1956 (W. P.) Lah. 840 1982 SCM R 178 PLD 1960 SC 387 PLD 1977 SC 413 PLD 1977 SC 557 PLD 1976 SC 695