1. ' AJMAL MIAN, J.-- By this common judgment we intend to dispose of the above confirmation case, criminal appeal and criminal revision.
2. ' The brief facts are that present two appellants Abdul Hameed son of Dilmurad Janwri and Abdul Majeed son of Dilmurad Janwri, and two other co-accused who have been acquitted, namely, Atta Muhammad son of Muhammad Hayat Janwri and Ahmed Nawaz son of Muhammad Hayat Janwri were charged and tried under sections 302/307/324/323/34 and 114, P.P.C. For murdering Ali .Gohar son of P.W. 2 Muhammad Siddiq and causing injuries to Arbab son of P.W.2 Muhammad Siddiq and Mt. Bachul. It was the case of the prosecution that on 17-4-1977 at about 12-00 noon deceased Ali Gohar and P.W. Arbab were ploughing their land situated in Deh Qaim Coping about seven miles from the Police Post Behram, whereas their parents P.W.2 Muhammad Siddiq and P.W. 3 Mst. Bachul were cutting grass. The present two appellants Abdul Hameed and Abdul Majeed and acquitted co-accused Atta Muhammad and Ahmad Nawaz, both sons of Muhammad Hayat by caste Janwris emerged from pan grass of a nearby ditch. Abdul Hameed abused Ali Gohar and threatened him and remarked that he would not be spared as he had not allowed them to flow water for their field. After saying so he instigated the others. It is said that Ali Gohar and Arbab tried to run away but accused Abdul Hameed and Atta Muhammad chased him and caused hatchet blows, whereas accused Abdul Majeed and Ahmad Nawaz gave hatchet blows to P.W. Arbab. On their raising cries P.W. Mst. Bachul intervened but she was given hatchet blow by accused Abdul Hameed. It is also said that P.Ws. Bakhshal, Chutto and other persons were also attracted to the place of Wardat and thereafter the accused ran away. It is also said that P.W.12 Manzoor Ahmad also came to the place of Wardat and on his advise P.W.2 Muhammad Siddiq father of the deceased went to the Police Post Behram for lodging the report which was recorded at 15-00 hours on the same day Exh. 10 by P.W. 13 Muhammad Yusuf ASIP. In the above report, the motive for the commission of the above offence given was that about 3-4 days prior to the incident accused Abdul Hameed and Abdul Majeed had exchanged harsh words with the complainant's sons Ali Gohar and Arbab over the water on which the said accused were annoyed.
3. 2.(a) The prosecution in support of the case examined P.W.1 Dr. Nanakram (Exh.5), who carried out post-mortem on the dead body of Ali Gohar (Exh. 6) on 18-4-1977 at 8-00 a.m. And finished the same at 9-00 a.m., examined injured Arbab and issued certificate of injury Exh. 7 and also examined P.W.3 Mst. Bachul and issued certificate of injuries Exh.
8. On external examination of the deceased, he found the following two injuries on the person of the deceased:-
(1) Incised wound 6" x 3" x muscle deep on the left side of neck vertically extending from left ear upto the sternium. Cartoid vessels were cut.
(2) Incised wound 3" x 1" bone cut on the left parietal region."
4. ' He found that both the injuries were ante-mortem and appeared to have been caused by some sharp cutting weapon like a hatchet. Injury No,1 individually and both injuries collectively were sufficient to cause death in an ordinary course of nature.
5. ' On internal examination, he found the left parietal bone was cut, cartoid vessels were cut and stomach was empty. He also found all other organs normal. He opined that the time between the death and the post-mortem was about 20 hours.
6. ' On P.W. Arbab he found the following four injuries:- "(1) Incised wound 3" x 14" x chest deep with open pneump thorax on the left side chest 2" below the axilla.
(2) Incised wound 4" x 1" x bone deep on the mid parietal region.
(3) Incised wound 2" x 1/2" x scalp deep on the left parietal region.
(4) Abrasion 1/2" x 4" on the left shoulder."
7. ' He found that injury No,1 was grievous in nature. Injury No,2 was kept under observation till the receipt of X-Ray report and injuries Nos. 3 and 4 were simple. He found that injuries Nos. 1 to 3 appeared to have been caused by some sharp cutting weapon such as hatchet while injury No, 4 by blunt substance like Lathi.
8. ' Whereas on examination of P.W.1 Mst. Bachul, he found the following injuries:-
(1) Incised wound 11/4" x 14" x scalp deep on the frontal region.
(2) Two incised wounds each about 1" x 1" skin deep on the left parietal region.
(3) A bruise 2" x 1" on the left forearm.
9. ' He found all the injuries were simple in nature and that in injuries Nos. 1 and 2 appeared to have been caused by some sharp cutting weapon such as hatchet and injury No, 3 by blunt substance like Lathi or back side of hatchet.
(b) The prosecution also examined the eye-witnesses namely P.W. 2 Muhammad Siddiq, P.W.3 Mst.
10. Bachul, P.W.7 Arbab, P.W.8 Bakhshal and P.W.9 Muhammad Chuttal. The prosecution also examined P.W.4 Miandad who had carried the dead body to the Civil Hospital for postmortem, P.W.5 Abdul Majid one of Mashirs to the Mashirnama of injuries on the deceased Exh.15, Mashirnama of Wardat Exh.16 and inquest report Exh.17. P.W.6 Hamz Ali, Tapedar, who prepared the sketch of the place of Wardat in May 1980 Exh.19, P.W.10 All Hassan and P.W.11 Abdul Karim, both Mashirs to the Mashirnama of arrest Exh.26, Mashirnama of recovery of blood-stained hatchet from appellant Abdul Hameed Exh.27, Mashirnama of recovery of the alleged blood-stained hatchet from appellant Abdul Majeed Exh.28, Mashirnama of the alleged recovery of blood-stained hatchet Exh.29 from the acquitted co-accused Atta Muhammad and Mashirnama of recovery of the alleged blood-stained hatchet from the acquitted co-accused Ahmed Nawaz, Exh.30, P.W.12 Manzoor Ahmed Nekmard on whose advise the report was lodged at the Police Post Behram and P.W.13 Muhammad Yousaf A.S.I.P. Incharge of police post Behram on 17-4-1977, who recorded the above report.
(c) The accused in their 342, Cr.P.C. Statements have denied the commission of offence.
(d) The learned ex-officio Additional Sessions Judge, Larkana, by his judgment, dated 20-10-1983 acquitted the two co-accused Atta Muhammad and Ahmed Nawaz and convicted the present appellants. Appellant Abdul Hameed has been convicted and sentenced to death under section 302 read with section 34, P.P.C., whereas appellant Abdul Majeed has been awarded life imprisonment and also to pay a fine of Rs,2,000 in default of payment R.I. For two years under the above section. Appellant Abdul Hameed has also been convicted under section 323/324, P.P.C. And sentenced to R.I. For one year and two years, respectively. Appellant Abdul Majeed has also been convicted under section 307 and has been sentenced to R.I. For five years for causing injuries to P.W. Arbab and fine of Rs,1,000 in default further R.I. For one year. Both the appellants have also been ordered to pay compensation of Rs,5,000 each to the complainant under section 544-A(1), Cr.P.C. And in default each shall undergo imprisonment for six months.
11. ' The learned ex-officio Additional Sessions Judge, Larkana has made the above reference for confirmation of death sentence awarded to appellant Abdul Hameed, and the appellant% have filed the above appeal, whereas the complainant party has filed the above revision for enhancement of sentence from life imprisonment to death in respect of appellant Abdul Majeed.
(e) It may be pertinent to point out that the state has filed an acquittal appeal against the above two acquitted co-accused but the non-bailable warrants have not been executed against them.
12. Ordinarily, the above confirmation case, criminal appeal or criminal revision and the aforesaid criminal acquittal appeal would have been disposed of together but at the request of the learned counsel for the appellants with the consent of the learned Additional Advocate-General, Mr. Abdul Satter Shaikh, Division Bench No,1 comprising of the learned Chief Justice and Mr. Justice Saleem Akhtar on 15-1-1985 ordered that the appellants' appeal may be heard separately.
13. 3.(a) In support of the above appeal Mr. Muhammad Hayat Junejo, learned counsel for the appellants has vehemently urged that the learned ex-officio Additional Sessions Judge, Larkana having found that the two acquitted co-accused were falsely implicated could not have convicted the present two appellants on the basis of the testimony of the same alleged eye-witnesses without having independent corroborative piece of evidence worth reliable.
(b) On the other hand Mr. Makhdoom Abdul Wali learned counsel for the State and Mrs. Salima Nasiruddin for the complainant party have contended that the learned ex-officio Additional Sessions Judge has wrongly acquitted the two co-accused and that there is sufficient evidence to maintain the conviction against the present two appellants and that there were no mitigating circumstances warranting awarding of imprisonment for life to appellant Abdul Majeed instead of death sentence.
4. Adverting to the above contention of the learned counsel for the parties, it may be observed that as pointed out hereinabove the evidence against the appellants is comprised of ocular evidence of the eye-witnesses, recovery of the blood-stained hatchets and motive. The learned trial Court has discarded the recoveries for cogent reasons. It has been rightly pointed out by the learned trial Court that though in the Mashirnama of arrest Exh.26 it has been shown that all the four accused were arrested on 20-4-1977 at 12-00 noon from the Otaq of Ghulam Muhammad, village Manik Janwri, whereas according to P.W.3 Mst. Bachul she had seen the accused on the day of the incident at the police station, whereas according to P.W.8 Bakhshal he had seen the accused with the police on the day of the incident. It is, therefore, evident that the police has wrongly shown in the Mashirnama of arrest 20-4-1977 as the date of arrest. The alleged recoveries were made on 20-4-1977 when the accused were already in the custody of the police for more than three days.
14. Furthermore, the hatchets were despatched to the Chemical Analyser after the expiry of nearly three months. P.W.12 A .S.I.P. Muhammad Yousuf was unable to give any explanation for the above delay. The recoveries have also not been supported by the Mashirs of the recoveries, namely, P.W.10 Ali Hassan and P.W. 11 Abdul Karim. They were declared hostile by the prosecution.
15. ' We are, therefore, of the view that the alleged recoveries cannot be taken into consideration.
(b) As regards the motive, it may be observed that as pointed out hereinabove, in the complaint the motive given was that about 3-4 days prior to the incident appellants Abdul Majeed and Abdul Hameed had exchanged harsh words with the complainant's sons All Gohar and Arbab over the water. At the same time it has been stated in the complaint that the complainant's land is below the land of the accused on the watercourse. This position has been reiterated by P.W.2 Muhammad Siddiq in his deposition by stating that "the watercourse supplies water first to the cultivation of the accused Abdul Hameed and Abdul Majeed and thereafter it supplies water to my land". In his cross-examination he has deposed that "we had no dispute even over water with the accused before the incident. There is no rotation of water officially fixed in respect of watercourse supplying water to our lands and those of the accused." In the above background of the facts, the alleged motive seems to be doubtful. If the accused were receiving the water first, it is not understandable how the complainant party could have tampered with the supply of water to the accused prompting them to commit the above offence. Even otherwise, exchange of harsh words on the alleged dispute of water 3-4 days prior to the incident would not have infuriated the accused to the extent of commission of murder and causing the above injuries. There seems to be some other immediate motive which might have prompted the accused to commit the offence.
6. We are, therefore, left with the ocular evidence of the eye-witnesses. At the very outset, we may observe that P.W.8 Bakhshal a nephew of the complainant i.e, the sister's son and P.W.9 Muhammad Chuttal brother of the complainant have been disbelieved by the learned trial Court.
16. We are also inclined to take the view that the above two witnesses could not have witnessed the incident for the reason that according to P.W. Bakhshal his land was situated about two miles from the place of Wardat. He had given the reason for being near the place of Wardat by stating that he had come to see the head of watercourse. This reason seems to be not sustainable because of the fact that there was no cultivation on his land as per his admission and, therefore, there was no occasion for him to go and to see the head of the watercourse. Whereas P.W.9 Muhammad Chuttal, brother of complainant P.W.2 Muhammad Siddiq also happens to be a chance witness. He has stated that by profession he is a grazier and that he had taken his cattle for grazing and while he was returning, he heard cries. He has admitted that there was no grazing field near the place of Wardat. The learned trial Court while recording the testimony of this witness has also recorded a note to the effect that the above witness was evasive. His reason for being near the place of Wardat seems to be highly improbable. His testimony is, therefore, liable to be ignored.
17. We are left with the testimony of three eye-witnesses namely, P.W.2 Muhammad Siddiq, the father of the deceased, P.W.5 Arbab who received injuries and P.W.3 Mst. Bachul, the mother of the deceased who had also received injuries. It was argued by Mr. Muhammad Hayat Junejo, learned counsel for the appellants that the parents i.e, P.Ws. 2 and 3 were factually not present at the place of Wardat at the time of the incident, and must have reached subsequently. We are unable to accept the above contentions. Both the above witnesses have deposed that their sons had left the house early in the morning for ploughing the field and that they had come afterwards with the breakfast for their sons and that they were cutting the grass when the incident had taken place.
18. Mashirnama of the place of Wardat Exh.16 indicates that at the place of Wardat there were two pairs of bullocks yoked in ploughs and there were two bundles of lucern grass lying cut and two sidles. The above Mashirnama of the place of Wardat clearly corroborates the testimony of P.Ws.
19. Muhammad Siddiq and Mst. Bachul and Arbab. It has been proved beyond reasonable doubt that P.W. Arbab along with his deceased brother Ali Gohar had come early in the morning with two pairs of bullocks for ploughing the field. It has further been proved that P.W. Muhammad Siddiq and his wife Mst. Bachul were factually cutting the grass. Their evidence would have been sufficient to sustain the convictions but the fact that the learned trial Court found that the two acquitted co- accused were factually not involved in the commission of the offence necessitated the need of having reliable independent corroborative piece of evidence. We have examined this aspect and we are of the view that the conclusion of the learned trial Court that the two acquitted co-accused were rope in at the behest of P.W. Manzoor Ahmed is not without foundation. Apart from the fact that P.W. Manzoor Ahmed Nekmard of the complainant party (who was declared hostile by the prosecution) on whose advise the above complaint was lodged, in his cross-examination admitted that there was dispute between him and Ghulam Muhammad, uncle of co-accused Atta Muhammad and Ahmed Nawaz over the land, there seems to be no nexus between the present two appellants and the said two acquitted co-accused except that they belong to the same castes. According to the above witnesses there was no dispute whatsoever between them and the other two acquitted co-accused and that their village was different than that of the complainant party, their lands were situated also in their village and not close to the place of Wardat. We are, therefore, inclined to hold that the view found favour with the learned trial Court on this aspect is a view which cannot be said to be perverse warranting interference by this Court.
7. As observed hereinabove that after having held that the above two acquitted co-accused were implicated at the behest of P.W. Manzoor Ahmed the learned trial Court could not have recorded conviction against the present two appellants on the basis of the testimony of the above eye- witnesses, without having independent corroborative piece of evidence worth reliable.
20. ' Mr. Muhammad Hayat Junejo has vehemently urged that the view found favour with the Hon'ble Supreme Court in the case of Tawaib Khan v. The State reported in PLD 1970 SC 13 that the maxim "falsus in uno falsus in omnibus" has all along been discarded by the Courts in this country and that the rule that the integrity of a witness is indivisible, despite its moral virtue has not been endorsed by the superior Courts of this country and that the grain has to be sifted from the chaff in each case in the light of its own particular circumstances, is no longer the prevalent view of the Hon'ble Supreme Court. In furtherance of his above submission apart from citing a number of authorities, he has referred to the case of Ghulam Sikandar and another v. Mamraz Khan and another, reported in PLD 1985 SC 11, in which the Hon'ble. Supreme Court while commenting upon the above principle 'falsus in uno falsus in omnibus' has observed as follows:- "It is often said that the principle falsus in uno falsus in omnibus is not applicable in Pakistan. The same principle has been described in some cases slightly differently; namely, that the testimony of an eye-witness should not be treated as indivisible although there is no consensus with regard to the later view. A contrary view has also been held. Expressed in a more direct manner a similar rule in the administration of criminal justice which is hallmark of Islamic Jurisprudence, that when a witness has been found false with regard to the implication of one accused about whose participation he had deposed on oath the credibility of such witness regarding inolvement of the other accused in the same occurrence would be irretrievably shaken. However, as a matter of convenience a rule has been developed in Pakistan since the famous case of Ghulam Muhammad v. Crown PLD 1951 Lah. 66 propounded by late Chief Justice Muhammad Munir that where it is found that a witness has falsely implicated one accused person, ordinarily he would not be relied upon with regard to the other accused in the same occurrence. But if the testimony of such a witness is corroborated by very strong and independent circumstances regarding other the reliance might then be placed on the witness for convicting the other accused. For further and practical application of this rule the following cases can be instructive; ' Particularly if the principle of indivisibility of credibility laid down in the Privy Council case Muhammad Faiz Bakhsh v. The Queen PLD 1959 P C 24 is to be ignored:- ' Tawaib Khan and another v. The State PLD 1970 SC 13; The State v. Mushtaq Ahmed PLD 1973 SC 418; Muhammad Shafi and others v. The State 1974 SCMR 289; Bakka v. The State 1977 SCMR 150; Khairu and another v..The State 1981 SCMR 1136; Ahmed etc. v. The State 1982 SCMR 1049; Aminullah v. The State PLD 1982 SC 429 and Muhammad Nawaz v. The State 1984 SCMR 190.
21. ' It is to be emphasised that the sub-rule or "separating the grain from the chaff", has been demonstrated in many cases by applying the sure test whether the same tainted ocular evidence has received corroboration from independent and equally strong inculpatory evidence/circumstances (sic)/accused.
22. ' The afore-discussed main rule shall suffer serious change if and when it is examined in the light of the Islamic Principles. But for the time being even if the rule generally followed by the superior Courts is applied to this case it would be very essential to seek strong and independent corroboration against each one of the accused on account of various reasons discussed in the High Court judgment as also in this judgment. No such corroboration is forthcoming against Khan Beg and Maqbul Mehl. Therefore, maintaining their acquittal on this ground alone would be amply justified.
23. ' The same would be the result if the entire case is examined on the basis of another highly valued principle constantly followed by the Courts in Pakistan, namely that where a witness is interested and also inimical and is thus likely to falsely implicate one or the other accused, it is essential to seek independent corroboration."
24. Since in the present case there is no independent corroborative piece of evidence to lend support to the testimony, of the above eye-witnesses the convictions cannot be sustained.
8. Before parting with the above discussion, we may observe that the factum that the two of the eye-witnesses were injured would prove the fact that they were present at the place of Wardat but the injuries on their person cannot furnish the corroboration to their testimony if found untrue or unreliable in respect of certain co-accused. In this regard reference may be made to the following cases:-
(i) Sardar Baig v. The State 1978 P Cr. L J 690, in which a Division Bench of the Lahore High Court held that since the medical evidence belied the testimony of the injured eye-witnesses the same cannot be relied upon.
(ii) Said Ahmed v. Zammurad Hussain and 4 others 1981 SCMR 795, in which the Hon'ble Supreme Court while dismissing a petition for leave against the judgment of the Lahore High Court acquitting the accused observed that the fact that an eye-witness had injuries itself is not indicative to the effect that the witness has told the truth.
(iii) Ghulam Sikandar and another v. Mamraz Khan and others PLD 1985 SC 11 quoted hereinabove, in which on the question of injured eye-witness the Hon'ble Supreme Court observed as follows:- "Mst. Alam Khatun thus is the only eye-witness worth consideration in this behalf. Her being an injured witness would only corroborate her in so far as her presence is concerned. But if she is an interested and inimical witness this circumstance would not corroborate her with regard to the participation of each accused. That is why both the Courts below sought for corroboration; which was found against Mamraz only. Against the other two accused as analyzed above, the High Court did not find any corroboration while the trial Court had tried to find it in the number of injuries; which reasoning on exposure has not stood the test of reason."
9. We, therefore, allow the above appeal and set aside the convictions and sentences. The appellants shall be set free forthwith unless otherwise are required in some other case.
25. ' The above reference is rejected, whereas above criminal revision is dismissed.