NASIR ASLAM ZAHID, J.-Accused Shah Ali, Mono (both sons of Yar Muhammad Shahani), Basar, Haji Gul Beg and Haji Saleh (son of Shah Ali Shahani) were tried for the murder of Muhammad Issa and for causing injuries to Haji Manik. By his judgment dated 24th June, 1981, the learns! Sessions Judge, Dadu acquitted accused Shah Ali and Mono but convicted appellant Gul Beg under section 302, P.
P. C. For the murder of Haji Issa and sentenced him to death. The learned Sessions Judge further ordered that in case the death sentence of Gul Beg was not confirmed, he would pay compensation of Rs, 5,000 to the heirs of the deceased and in default he would suffer further rigorous imprisonment for 1 years more. The trial Court also convicted appellants Basar and Saleh under section 325, P. P. C. Read with section 34, P. P. C. And sentenced each of them to rigorous imprisonment for 7 years and a fine of Rs, 1,000 in default whereof each of them was to suffer rigorous imprisonment for 6 months more. The three convicted accused, namely, Gul Beg, Basar and Saleh have filed this Criminal Appeal No, 122/81 before this Court and the case has also come up in reference under section 374, Cr. P. C. For confirmation of the death sentence passed against Gul Beg. We had heard the arguments of the learned counsel on 16th December, 1981 and 17th December, 1981, and on conclusion of the arguments, by a short order, we allowed the appeal filed by the three appellants and set aside their conviction and sentence and declined to accept the reference for confirmation of the death sentence. The present judgment contains the reasons for our 'aforesaid short order dated 17th December, 1981.
2. In this case F. I. R. Was lodged by Haji Sabz Ali, brother of deceased Haji Issa, on 8th March, 1977 at 3.00 p. m. At P. S. Tando Rahim Khan, District Dadu and the time of occurrence was given as 2.00 p. m. On the same day, that is, one hour earlier than the time of the recording of the F. I. R. The F. I. R.
Lodged by P. W. 3 Haji Babz Ali is reproduced here :- "I cultivate the land. Haji Issa is my brother, Haji Manik is my cousin. Today morning I, Haji Issa, Haji Manik, Haji Abdul Aziz, Haji Chibhur, Haji Saindad, went to attend feast of Moula Bux Shahani in village Leemon Shahani, from where we returned at Manjhand. Haji Issa and Manik were ahead of us. We were behind them. At about 2.00 p. m. We reached the land of Wahid Bux Shahani and saw that Haji Gul Beg, Haji Shahali, Mono, Basar and Saleh "were sitting under a Kandi tree and they came in front of Haji Issa and Haji Manik and surrounded them. Haji Shahali challenged them and fired. In the meanitime Haji Gul Beg, who had a knife, assaulted Haji Issa and in our seeing caused knife injuries, and Morio had also inflicted injuries with hatchet to Issa in our seeing. Haji Saleh had lathi. Basar lhad hatchet, who in our seeing inflicted injuries to Haji Manik, with lathi and hatchet. We gave hakals and raised cries, on which Haji Shahali aimed at us and said not to come near them else we would be killed. Due to fear we could not go near. Due to injuries Issa and Manik both fell down. On our cries accused left the injured and went running to their village. We saw that Haji Issa had injuries on his chest face and other parts of his body and blood was oozing out. Haji Manik had injuries on his head and other parts of his body, Blood was oozing Out. After some time Issa had died. Two months ago Haji Issa had quarrelled with Haji Saleh in Saudi Arabia and got arrested him, on which Saudi Government departed both of them to Pakistan about a month ago. Family of Haji Saleh remained in Saudi Arabia. On that enmity Haji Saleh with the help of his cousin namely Mono and Basar his father Haji Shahali and his relative Haji Gulbeg, with their common intention assaulted him and murdered him. Then I made others to sit on the dead body of Haji Issa and injured Haji Manik and came here for complaint.
3. The prosecution case was based on the ocular testimony of the following witnesses :-
(i) P. W. 3 Sabz Ali (complainant)-brother of deceased ;
(ii) P. W. 4 Manik (injured)-cousin of deceased and brother of Sain Dad ;
(iii) P. W. 5 Chibar-relation of complainant party ; and
(iv) P. W. 6 Sain Dad-cousin of deceased and brother of P. W. 4 injured Manik.
Apart from the ocular testimony the prosecution relied upon recoveries, judicial confessions of acquitted accused Mono and appellant Basar, evidence of P. W. 7 Maula Bux, motive and medical evidence. As observed earlier, the incident and taken place on 8th March, 1977, whereas acquitted accused Mono was arrested on 10th March, 1977 at 2.30 p. m. Mashirnama of arrest is Exh. 32) and blood-stained hatchet and washed clothes were recovered from his house the same day at 2.45 p. m. (Exh. 33). Appellant Basar was also arrested on 10th March, 1977 at 4.00 p. m. (Exh. 34) and blood-stained hatchet and washed clothes were also recovered from his house at 4.15 pm. (Exh.
35). The house of appellant Gul Beg and that of accused Shah Ali and appellant Saleh were searched on 11th March, 1977 by the police but nothing incriminating was recovered therefrom.
(Exhs. 36 and 37). On 29th April, 1977 at 5.30 p. m. Appellants Gul Beg and Saleh were arrested (Exh.
38). Exh. 39 is the mashirnama dated 29th April, 1977 regarding production of knife by appellant from a cave in the graveyard. Exh. 40 is the mash irnama dated 29th April, 1977 for the lathi produced by appellant Saleh from a cave in the same graveyard. The learned trial Court has rejected the evidence relating to recoveries. We have gone through the evidence relating to recoveries with the assistance of the learned counsel for the appellants and the state and we are also of the view that the evidence relating to recoveries does not inspire confidence and the same was rightly rejected by the trial Court. It may be mentioned here that at the vardat two live cartridges and two live empties were recovered whereas the evidence of the eyewitnesses was to the effect that only one shot was fired by acquitted accused Shahali and there does not appear to be any logical reason for the appearance of two live cartridges and two empties at the scene of the incident. This recovery has also been rightly rejected by the learned trial Court.
4. We may then refer to the two judicial confessions which wer recorded on 12th March, 1977 by P. W.
9 Mr. Muhammad Usman Mukh tiarkar and First Class Magistrate, Johi. The judicial confession of the acquitted accused Morio is Exh. 26 whereas the judicial confession appellant Basar is Exh.
27. This piece of evidence relating to judicial confessions was also rightly rejected by the learned trial Court. According to the trial Court the confession of Mono was recorded in the presence of the co-accused Basar and they were also recorded after the detention in police custody of these two accused for several days. On account of these two factors, the trial Court rejected the judicial confessions. We also find from the evidence of the Magistrate that several questions asked by him from these two accused for satisfying himself that the confessions were being given voluntarily were not recorded by the Magistrate and on being cross-examined he stated that he remembered from memory the questions asked and answers given. Then he says- "I remember these facts because accused are my caste follows". Then the two judicial confessions show that deceased Haji Issa had fired first whereas the ocular testimony contradicts this and there was no recovery of any gun or rifle which could be attributed to Haji Issa. We agree with the trial Court that the two retracted judicial confessions were in admissible.
5. The other evidence on which reliance has been placed by the prosecution is the medical evidence. The pos-mortem on the deceased was conducted by P. W. 8 Dr. Sher Muhammad and according to his report the following injuries were found on the body of the deceased :
(1) "Stab wound (incised) 3/4"x 1/2"x chest cavity deep on front of middle of chest.
(2) Stab wound 1"x 1/2" x 1" on front of neck left side near the mendible.
(3) Incised wound 3/4" x 1/4" x 1/2" on the back of right upper arm near the elbow joint.
(4) Incised wound 1/2" x 1/2" x 1/4" over the right anterior, superior, iliac spine.
(5) Incised wound 1-1/2'5< 1/2" x 3/4" on front of right thigh upper part."
In the post-mortem report (Exh. 24) it is recorded by the Medical Officer that all the injuries were caused by a sharp-cutting weapon such as knife. In his evidence the Medical Officer. P. W. 8 Dr. Sher Muhammad, deposed that injury No, I. Was sufficient in ordinary course of nature to cause death and that all the injuries appeared to have been caused by a sharp-cutting weapon such as knife and dagger but not by hatchet. The Medical Officer had, therefore, very clearly, stated in his evidence that the injuries caused to the deceased "were not by hatchet but by some other weapon like a knife or dagger. This expert evidence has come on record from the prosecution side and no effort was made to get any clarification as to whether the injuries could have been caused by hatchet also. In the circumstances the evidence of the Medical Officer that injuries on the deceased had not been caused by hatchet was accepted by the trial Court and on this basis he acquitted accused Morio as he was alleged to have caused hatchet blows to the deceased according to all the four eye-witnesses. In para. 21 of his judgment the trial Court observes that in 'he circumstances, two inf!Rence could be drawn namely that either Mori was not present at the vardat when the incident had taken place or that he did not make use of his weapon thus becoming a silent spectator, and according to the trial Court, in such an event an inference favourable to the accused had to be preferred. Then comes para. 22 of the judgment of the trial Court which reads as follows :- "There is no serious enmity between the parties. Therefore, the witnesses ought not be interested in falsely implicating the accused, but since allegation against Morio that he had caused hatchet blows to the deceased has been proved false, credentials of all the eyewitnesses have become doubtful and their evidence shall have to be scrutinised carefully and cautiously. To base conviction on the evidence of such witnesses would therefore need corroboration."
6. According to the learned Trial Court credentials of the eyewitnesses had become doubtful and their evidence required careful scrutiny and for conviction of the accused the testimony of the eye- witnesses was not sufficient unless it was corrobrated by other evidence. Before we turn to the pieces of corroborative evidence on the basis of which, learned trial Court convicted the appllants, we may here refer to the evidence of the eye-witnesses regarding the type of injuries caused by the five accused to the deceased Issa and injured Manik
(a) According to the complainant (Sabz Ali) Basar and Mono were armed with hatchets, Saleh had a lathi, Gul Beg was armed with a dagger while Shah Ali was armed with a gun. According to this witness, Shah Ali fired from his gun and instigated other accused to catch hold of the complainant party ; Gul Beg proceeded towards Haji Issa and caused him dagger injuries, while Mario went to Haji Issa and give him hatchet blows ; Basar caused hatchet belows to Manik, while Saleh caused lathis injuries to Manik.
(b) The version of P. W. 4 injured Manik is that Shah Ali gave a hukkle and fired at him and deceased Haji Issa but the fire did not hit any of them. Basar and Saleh came towards Manik while Gul Beg and Morio went towards Haji Issa ; Gul Beg caused injuries with dagger to Haji Issa and Mono gave hatchet blows to Issa ; Basar gave Manik hatchet blows on his head and back with sharp side whereas Saleh gave Manik lathi blows on his back.
(c) According to P. W. 5 Haji Ghibhur, Shah Ali fired gun at Haji Issa and Manik but it did not hit them and he then instigated others not to spare Haji Issa and Manik, Mono and Gul Beg went towards Haji Issa and Gul Beg caused injuries with dagger and Morio with hatchet to deceased Haji Issa ; Basar and Saleh went towards Manik with Baser causing hatchet blows to Manik and Saleh gave lathi blows to him ;
(d) The other eye-witnesses is P. W. 6 Sain Dad, and according to his deposition Shah Ali loaded his gun and aimed it at the complainant party and threatened them that if they approached near they would be killed ; Gul Beg caused dagger injuries to Haji Issa from front side while Morio caused hatchet blows from back side ; Gul Beg had caused further injuries to Haji Issa while he was lying on the ground ; Basar and Saleh went towards Manik and gave injuries with their respective weapons i. e. Hatchet and lathi.
We may here point out that according to the medical evidence of P. W. 8 Dr. Sher Muhammad only injury No, 2 inflicted on injured Manik was caused by a sharp cutting weapon while the rest were caused by some hard and blunt substance. According to injured P. W. 4 Manik himself, appellant Basar had given him hatchet blows on his head and back with sharp side. P. W. 5 Haji Chibhur in his cross-examination had stated that he had seen the incident with his own eyes very carefully and according to what he saw, Saleh and Basar were continuously giving blows to Manik till he fell down on the ground and that three blows were given to Manik by lath is (by Saleh) and three blows with hatchet were given to injured Manik (by appellant Basar). These pieces of evidence of P. W. 4 Manik and P. W. 5 Ghibhur are in conflict with the medical evidence. According to Medical evidence only one injury on Manik was caused by a sharp cutting weapon namely injury No, 2 and all the other four injuries were caused by some hard and blunt substance but P. W. Chibhur has deposed that three injuries were caused by Basar with hatchet to Manik and according to the injuries Manik himself injuries were caused by appellant Basar on his head and back from the sharp side of the hatchet. Only one injury namely injury No, 5 was found on the back side of injured Manik by the Medical Officer and that has been described as contusion. It is, therefore, obvious that no injury was caused by a sharp cutting weapon on the back of injured Manik and on his head only one injury was caused with hatchet. We have specifically referred to these pieces of evidence as the learned trial Court has let of accused Morio relying on the testimony of Medical Officer Sher Muhammad (P. W. 8). As observed earlier, the Medical Officer had stated that the injuries found on the body of deceased Issa were all caused by dagger or knife and not by hatchet whereas according to the ocular testimony MoRIO had caused hatchet injuries on the deceased. This was not the only conflict between the medical evidence and the ocular testimony but as point out earlier as regard as the hatchet injuries caused on the person of injured Manik also, there is a clear conflict between the ocular testimony and the medical evidence.
7. According to the judgment of the trial Court no evidence in the nature of corroboration was found against Morio and Shah Ali and therefore, these two accused were acquitted but according to the trial Court there was corroborative evidence in support of the ocular testimony in so far as the present three appellants are concerned and the pieces of corroborative evidence on which reliance was placed by the trial Court for convicting the three appellants was the medical evidence, evidence of P. W. 7 Moula Bax and motive. We now propose to deal with these three pieces of evidence relied upon by he learned trial Court as corroboration for the ocular testimony, which according to the trial Court was doubtful and required corroboration. Firstly we may refer to the medical evidence. It may be stated that medical evidence is evidence which depicts the type of injuries caused and which may confirm the ocular testimony as regards the type of injuries but it does not by itself connect the accused with the commission of the crime. In this case the trial Court itself on the basis of conflict in medical testimony and ocular evidence acquitted accused Mono and Shah Ali. Morio was acquitted as no hatchet injury was found on the body of the deceased according to the post-mortem report and the evidence of the Medical Officer and as there were no fire-arm injuries (according to eye-witnesses the one shot fired by Shah Ali had missed the complainant party) Shah Ali was also acquitted. Hovever, as pointed out earlier, this is not the only conflict in the evidence of the eye-witnesses and the medical testimony but there is also contradiction as far as these two types of evidence is concerned relating to the injuries caused to injured Manik. As observed earlier, medical evidence is only evidence which gives the type and extent of injuries caused to a person and it does not connect the accused with the D commission of the crime and in view of the conflict in the medical evidence and the ocular testimony, as mentioned earlier, in our view, medical evidence in this case could not be treated as evidence in corroboration of the ocular testimony.
8. We may then refer to the evidence of P. W. 7 Moula Bux who had given the party in honour of Shah Ali on his return from Saudi Arabia. Learned trial Court has placed great reliance on the evidence of Moula Bux so as to establish the presence of the complainant party at the scene and time of the incident. According to the trial Court this witness is a disinterested witness and worthy of reliance. The trial Court is not correct in its observation that Moula Bux was a disinterested witness. In his cross-examination to the counsel for accused Saleh, P. W. 7 Moula Bux admitted as follows :- "Saifal Shahani who had been murdered some time ago was my cousin. It is a fact that Haji Shah Ali accused in this case was an accused alongwith others in that case."
From this admission on the part of P. W. 7 Moula Bux, enmity between the witness and accused is apparent. In any case the evidence of P. W. 7 at the most established that the complainant party left the house of Moula Bux around 1.30 or 2.00 p. m. On the date of the evidence and this by itself would not be sufficient corroboration to sustain conviction for purposes of confirming or corroborating the ocular testimony which according to the trial Court was doubtful and required corroboration.
9. We may now turn to motive. It may be stated here that according to the trial Court the foremost piece of evidence as corroboration was the motive in the instant case. Paras. 24, 25,26 and 27 of the judgment of the trial Court are reproduced here :- "(24) Besides the fact that evidence of P. Ws. About their presence at the vardat has been supported by P. W. Moula Bux who is a disinterested person, the ocular testimony is corroborated by other circumstances also. The foremost among them is the motive for the murder.
(25) All the P. Ws. Have stated that deceased Haji Isso and accused Haji Saleh were in Saudi Arabia where they had quarrelled. On the complaint of Haji Isso (deceased) Haji Saleh was arrested and externed from Saudi Arabia leaving his family behind. He was thus annoyed with the deceased and had therefore avenged the insult, with the help of other accused. The fact that Haji Isso and Haji Saleh were in Saudi Arabia has not been controverted. Haji Saleh has stated in his examination under section 342, Cr. P. C. That he did not know Haji Isso but no such question was put to P. Ws of whom complainant is brother of the deceased. P. W. Manik was himself in Saudi Arabia. He has also supported the motive. The evidence of these P. Ws. On the point of motive has not been challenged in cross-examination and would be deemed to have been accepted.
(26) The learned defence counsel has attacked evidence of motive on the ground that the complainant had himself destroyed its value by stating that before murder they were on visiting terms with accused party and that they had not been threatened of revenge during the two months after their return from Saudi Arabia.
(27) I am unable to see how evidence of motive is destroyed by that statement. The P. Ws. Have deposed that not only accused Saleh but deceased Isso was also deported to Pakistan due to the quarrel. They were therefore, equally hit by the incident except that grant mother of accused Saleh could not come back with him. This fact by itself is not such as would raise an apprehension of murder at his hands in the mind of deceased particularly when there was no threat. The evidence shows that the idea crept in the mind of accused Saleh for the first time when he saw the deceased going for lunch. The complainant has not deposed that they had visited the accused party within two months of the murder. His, was a broad statement that they were on visiting terms with accused party before the murder, which does "not necessarily restrict their last visit to these two months only."
According to the trial Court, therefore, the foremost among the corroborative piece of evidence is the motive for the murder and that all the prosecution witnesses have stated that deceased Haji Issa and accused Saleh were in Saudi Arabia where they had quarrelled and on the complaint of deceased Haji Issa and Saleh was arrested and externed from Saudi Arabia leaving his family behind. It is further the conclusion of the trial Court' that the evidence of the prosecution witnesses on the point of motive has not been challenged in the cross-examination and would be deemed to have been accepted by the accused. In this connection, Mr. Muhammad Hayat Junejo, learned counsel for the appellant Gul Beg, had drawn our attention to the cross-examination of complainant P. W. 3 Sabz Ali where he deposed that during the two months after their return from Saudi Arabia neither anybody had complained to the complainant party nor the accused had threatened the deceased or anyone of the complainant party and that before the murder, the complainant party were on visiting terms with the accused. Then injured Manik in his cross- examination stated that he had no dispute whatsoever with the accused and that Issa deceased had also no dispute with the accused except the one which he had with accused Saleh in Saudi Arabia. According to Manik, deceased Haji Issa had no apprehension of murder at the hands of accused and that they were on visiting terms with each other before this murder. In the face of this evidence it cannot be concluded that the evidence relating to motive put forward by the prosecution had gone uncontroverted and that it would be deemed to have been accepted by the appellants. On the other hand, according to the evidence of complainant Sabz Ali and injured Manik, the opposing groups were on visiting terms and that after their return from Saudi Arabia the parties were visiting each other and that Haji Manik himself had no dispute at all with the accused.
However, the trial Court in para. 27 of the judgment (reproduced above) has tried to explain this by observing that the evidence shows that the idea for taking revenge occurred in the mind of accused Saleh for the first time when he saw the deceased Issa going for lunch. We find this observation or conclusion pf the learned trial C91,43 to be 91-ac 111)talice and plainly unnatural?
10. In our view the motive advanced by the prosecution for the murder is not only weak but has also not been established and in any case as rightly pointed out by Mr. Muhammad Hayat Junejo, learned counsel for the appellant Gul Beg, motive by itself is not sufficient for corroboration is, in the circumstances of a particular case, required or necessary. In this connection learned counsel referred to the case of Nawab v. State , decided by a Division Bench of this Court. It was held in that judgment that motive, howsoever strong, cannot provide corroboration to other pieces of evidence which are themselves infirm and not worthy of credence. The position in law appears to be sufficiently clear and that is that motive is not sufficient for corroboration of any evidence which evidence is infirm and by itself is not sufficient for conviction and which required corroboration. In the instant case we have already reached the conclusion that the motive advanced by the prosecution has not been established and further we are of the view that even if the evidence relating to motive was to be believed, the same cannot provide corroboration for such evidence which requires corroboration for purposes of conviction.
11. In the circumstances we find that the ocular testimony which requires corroboration has not been corroborated by other evidence. There are certain other factors which were considered by us in agreeing with the learned trial Court that the ocular testimony in the instant case was doubtful and required corroboration to sustain the conviction of the appellants and the acquitted accused.
Apart from the conflict in the medical evidence and ocular testimony highlighted in para. 6 of this judgment, it has been noticed that all the four eye-witnesses and deceased were closely related.
Abdul Aziz. The other eye-witness who may not have been related to complainant party, was not examined. According to Haji Manik (injured), immediately after the accused ran away, four or five graziers, who were in the nearby fields came to the scene of the crime and they were present when the police came. These independent persons were not examined. Motive advanced by the prosecution was weak and not established. According to the eye-witnesses, acquitted accused Shahali fired at the deceased and Haji Manik from very close range but completely missed them.
Two empties and two live cartridges were found at the vardat which does not fit in with the ocular account of one shot being fired by Shahali. The reasons recorded by the trial Court and those given in this paragraph led us to the conclusion that the ocular testimony in this case is infirm and required corroboration which, as observed earlier, is not there. Mr. Rashid Akhtar Qureshi, learned counsel for the State also did not support the conviction. In the circumstances, we are not inclined to sustain the conviction of the appellants on the uncorroborated ocular testimony, which testimony being inform and tainted required corroboration.
12. As a result we are of the view that the judgment dated 24th June, 1981 of the learned Sessions Judge, Dadu in the instant case cannot be sustained, and for the reasons mentioned in this judgment, the convictions and sentences of the three appellants namely Haji Gul Beg Basar and Haji Saleh are set aside and their Criminal, Appeal under section 410, Cr. P. C. Is accepted. The reference for confirmation of the death sentence passed against Haji Gul Beg is rejected. The appellants shall be set at liberty if not required in any other case. 1979 P Cr. L J 736