1. MUSHTAQ ALI KAZI, J.-Appellants Abdul Majeed and A.I Hassan have been convicted by the District and Sessions Judge, Khairpur for offences under section 302/307/326 read with sections 149, P. P. C.; 147 and 148, P. P. C. For murder of Karimdino, Mst. Hawa and Mst. Bakhtawar and they have been sentenced to transportation for life, R. I. For seven years and fine of Rs. 1,000 or in default of payment of fine R. I. For one year, R.I. For five years and fine of Rs. 1,000 or in default R. I. For one year, R. I. For one year and R. I. For two years respectively, for each of the above offences, the sentences to run concurrently. While admitting this appeal, notice was issued to both the appellants to show cause why sentence for the triple murder imposed upon them should not be enhanced to the normal penalty of death. Along with the two appellants three other co-accused Bux A.I, Abdul Hameed and Muhammad A.I had also been committed to the Court of Session. The trial Court acquitted these three co-accused on the ground that there was not sufficient corroboration of the ocular testi--mony against them. The Government through Advocate-General has filed an acquittal appeal against the order of acquittal in respect of these co-accused for the above offences. All these three matters will be disposed of by this judgment.
2. Deceased Mst. Hawa had originally been given in marriage to appellant Abdul Majeed when she was a minor. Afterwards on 3rd October 1964 Mst. Hawa filed a suit in the Court of Civil Judge 11 Class, Gambat, for dissolution of her marriage, on the ground of the exercise of option of puberty and non-maintenance. The Civil Judge found that the marriage of Mst. Hawa with appellant Abdul Majeed had been consummated and the plaintiff had actually been living with appellant Abdul Majeed as his wife, and he accordingly dismissed the suit. Mst. Hawa preferred an appeal in the District Court, Khairpur Mir's which was also dismissed on 11th November 1966. Thereafter Mst. Hawa married deceased Karimdino as she claimed that she had been abandoned by her former husband.
3. On 11th September 1968, Karimdino, his wife Mst. Hawa and two daughters were returning to their village Bbiria, after having attended the marriage of one Saleh's son at village Parto Wahan in Taluka Gambat. Complainant Faiz Muhammad was bringing the party in his bullock cart from the village up to Hingorja from where they were to catch a bus. Deceased Karimdino and his brother Soomar were walking behind the cart on foot. Faiz Muhammad was driving the bullock cart with Mst. Hawa, her two daughters, and Mst. Pathani her mother, seated in the cart. The party had left the Parto Wahan village in the morning. As soon as they reached the highway near Hingorja at about 8-30 a.m. They were challenged by a party of five persons consisting of appellant Abdul Majeed, his two brothers Muhammad A.I and Abdul Hameed, his sister's son Bux A.I and his maternal cousin appellant A.I Hassan. Abdul Majeed, Muhammad A.I and A.I Hassan were armed with hatchets, while Abdul Hameed and Bux A.I carried lathis. The party attacked Karimdino and dealt him hatchet and lath blows on head, neck and other parts of his body. Karimdino died on the spot. Soomar fell on the dead body of his brother and he was also given lathi and hatchet blows causing him grievous hurt. His frontal and parietal bones were cut and he sustained incised injuries on the occipital region of his head as a result of which he became unconscious. Complainant Faiz Muhammad stopped his bullock cart, took out a peg from the cart and came out for help. He advanced towards the assailants, and caught hold of accused Abdul Hameed after grappling with him. On the cries of Abdul Hameed the rest of party fell on Faiz Muhammad, gave him lathi blows and rescued their companion. Accused Muhammad A.I, Abdul Majeed and A.I Hassan then advanced towards Mst. Hawa and brought her down from the cart. She was carrying her one month old baby daughter Mst. Bakhtawar in her lap. The assailants then dealt hatchet blows to Mst.
4. Hawa on her head and killed her also. Mst. Bakhtawar who had fallen from her mother's lap was found to have sustained a bruise on the -occipital region on her head. She was afterwards taken to Hingorja Hospital where she expired on 19th October 1968 on account of internal haemorrhage inside the brain.
5. On the cries of the parties, Miandad, Audo and Khaliqdino, who were ploughing their land at a distance of about 250 paces from the scene, came running. One Nek Muhammad Beldar who was also working there, arrived for help. On seeing them the accused assailants took to their heels. They were pursued by these witnesses and two out of them namely, Abdul Majeed and A.I Hassan were caught and taken into custody. The clothes of these two accused were stained with blood and they also carried blood-stained hatchets. They had sustained minor blunt weapon injuries on their person.
6. Meanwhile, complainant Faiz Muhammad went to Hingorja Police Outpost from where Police Constable Ibrahim took him to Gambat Police Station by taxi. He lodged his report at about 11-45 a.m. Faiz Muhammad mentioned the names of all. The five accused and he also cited Nek Muhammad, Miandad and Audo and many other persons as witnesses who came on the scene.
7. A. S. I. Ishtiaq Ahmed started the investigation. He visited the scene of offence where he found the dead bodies of Mst. Hawa and Karimdino lying in pools of blood. A blood-stained danda was also lying there. The bullock cart was standing nearby. P. W. Miandad produced appellants A.I Hassan and Abdul Majeed along with their blood-stained hatchets, as they had been kept tied up at the scene. The clothes of these appellants were blood-stained and they were secured by the A. S. I. And sealed. The hatchets were also sealed. A. S. I. Then prepared mashirnama of injuries on appellant A.I Hassan and Abdul Majeed. He prepared mashirnama in respect of dead bodies of Mst. Hawa and Karimdino and sent them for post-mortem examination to Hingorja. On 12th September 1968, accused Abdul Hameed was produced at the Police Outpost Hingorja by one Habibullah Zamindar.
8. Injured Faiz Muhammad, Soomar, Mst. Pathani and Mst. Bakhtawar were sent for examination and treatment to Medical Officer, Hingorja. On 19th September 1968, at 2-30 p.m. Mst. Bakhtawar expired. Mst. Pathani had sustained three incised and two contused wounds. Some of the injuries were grievous in nature. Faiz Muhammad had seven blunt weapon injuries but none of them was grievous. Soomar had seven injuries caused by hatchets and lathis on his head cutting frontal and parietal bones. They were found to be grievous in nature.
9. The earth secured from the scene of offence, shirt and loin-cloth of appellant Abdul Majeed, shirt and loin-cloth of appellant A.I Hassan and two hatchets of appellants Abdul Majeed and A.I Hassan were secured and sent to chemical analyser who sent his report that all the above articles were stained with human blood. The appellants and their co-accused were then sent up before the Civil Judge and First Class Magistrate, Gambat, who committed all the five culprits to stand their trial in the Court of Session. The learned Sessions Judge convicted the two appellants and sentenced each of them to transportation for life. He did not impose normal sentence of death on these appellants on the ground that Mst. Hawa was openly leading an infamous life.
10. The version of appellant Abdul Majeed and AU Hassan is to the effect that on the day of incident they were both going from village Chakarwayaso to Hingorja on foot by kacha track when they found some persons fighting at some distance. Complainant Faiz Muhammad and P. W. Miandad then came and, detained them after giving them a beating. Their clothes got stained with their own blood. They were later on handed over to police. The remaining accused-respondents Muhammad A.I, Abdul Hameed and Bux A.I have denied their presence at the scene.
11. The evidence in this case consists of the ocular testimony of witnesses who were injured in the fight namely, Faiz Muhammad, Mst. Pathani and Soomar and also witnesses Miandad, Audo and Nek Muhammad who saw the incident from some distance and came running to the spot. There are also pieces of circumstantial evidence against appellants Abdul Majeed and A.I Hassan that they were caught on the spot with blood-stained hatchets and blood-stained clothes and they had injuries on their person.
12. Complainant Faiz Muhammad has stated that he is not related to Mst. Pathani and others but he is their case-fellow. Faiz Muhammad resided at village Chakar Wayaso Taluka Gambat in Khairpur District while Mst. Pathani and her daughter deceased Mst. Hawa, deceased Karimdino and his brother Soomar were residents of Bhirya in Nawabshah District. Faiz Muhammad therefore had no enmity against the accused and nothing has been alleged against him in this regard or put to him in the cross-examina--petition. He has definitely stated that he saw all the five accused giving blows with hatchets and lathis to Karimdino and others. All the accused were known to him. He has assigned specific part in this attack to accused Abdul Hameed and Muhammad A.I. According to him accused Abdul Hameed was caught hold of by him when he was rescued by other accused and blows were given to him with lathis and hatchets. He lodged F. I. R. Within about three hours of the incident and he had hardly any time to manipulate the report and add the names of innocent persons as co-accused. In fact he had no reason to do so. The evidence of this witness thus stands corroborated by the F. I. R. Faiz Muhammad had sustained injuries at this fight and his presence at the scene cannot be doubted. Even the two appellants have admitted his presence and that of Miandad and others at the scene in their statements at the trial.
13. Then there is evidence of Soomar brother of deceased Karimdino. He 'has stated that he and Karimdino were following bullock cart on foot. When they reached the main road at a distance of one mile from Hingorja at about 8 or 9 a.m. The five assailants suddenly appeared on the scene.
14. Out of them accused Bux A.I gave him a blow with a peg on his back. The party of assailants fell over his brother Karimdino and dealt him blows with hatchets and lathis. That Muhammad A.I, Abdul Majeed and A.I Hassan were armed with hatchets while the others used pegs of the bullock cart or dandas. The witness stated in cross-examination that Muhammad A.I and Abdul Majeed had attended the marriage of Saleh's son; that he had no quarrel with the accused before this incident. The medical evidence shows that Soomar had bruise on the right lumber region and the scapular region on his left side, apart from the incised injury. He had in all seven injuries on his person.
15. Then there is evidence of injured Mst. Pathani mother of the deceased Mst. Hawa. She has no doubt disputed the fact of marriage of her daughter Mst. Hawa with appellant Abdul Majeed but she has admitted that Mst. Hawa had filed divorce suit against accused Abdul Majeed and had lost it. Mst.
16. Hawa then married deceased Karimdino and had two daughters from him. The witness has also stated that these five accused were armed with lathis and hatchets, that they killed Karimdino and caused injuries to Soomar and Faiz Muhammad and then attacked Mst. Hawa: That accused Abdul Majeed, Muhammad A.I and A.I Hassan gave her hatchet blows. She fell over her daughter and she also sustained injuries. Mst. Bakhtawar was in the lap of Mst. Hawa when she was attacked. The medical evidence shows that Mst. Hawa had four incised injuries on the parietal region and scapular region. Mst. Pathani had also sustained five injuries out of which three were incised and two were contused.
17. There is also ocular evidence of another set of witnesses namely, Miandad, Audo and Nek Muhammad. Miandad and Audo were Sahtos by waste while Nek Muhammad was a Mangejo. The land of Miandad and Audo was about 250 paces away from the scene, Miandad being maternal uncle of Audo. Nek Muhammad was working as Baildar on the same road where the incident took place. The names of Miandad and Nek Muhammad were mentioned in the F: I. R. By Faiz Muhammad. After Karimdino was killed anal Faiz Muhammad and Soomar had sustained injuries, appellants Abdul Majeed and A.I Hassan were persued and caught at the spot by these witnesses.
18. The presence of these witnesses at the scene cannot therefore be doubted. It is true that name of Audo had not been specifically mentioned as a witness in the F. I. R. But Audo had his land about 250 paces away from the scene and he resided on the land at a distance of 500 paces. Audo is not therefore a chance witness.
19. P. W. Miandad has stated that he I along with Khaliqdino and Audo -were ploughing the land of Audo when they heard alarm of "Murder, Murder" from the main road. They saw the five accused armed with hatchets and lathis. Abdul Majeed,. A.I Hassan, Muhammad A.I had hatchets, while the other two had lathis. They gave blows to Karimdino and also attacked Soomar after that they killed Mst. Hawa and injured Mst. Pathani. Faiz Muhammad also received injuries. The baby had fallen on the ground, as she was in the lap of her mother. Accused then started running when he, Khaliqdino, Audo and Nek Muhammad caught. !,,old of accused Abdul Majeed and A.I Hassan along with their blood-stained hatchets and brought them to the scene where they kept them tied up with the turban. That the clothes of the accused were also blood-stained. These witnesses had known the accused who resided at a distance of about or 4 miles from them. No enmity has been alleged by the accused with P. W. Miandad and his presence at the scene has been admitted. Miandad is thus an independent witness who has implicated all the five accused as having taken part in this assault.
20. P. W. Audo has also given the same facts and described the incident in which the live accused gave blows to Karimdino, Soomar, Mst. Hawa end others with hatchets and lathis. He has stated that accused Abdul Majeed and A.I Hassan were caught by them at a distance of about 200 paces from the scene.
21. Lastly, P. W. Nek Muhammad has also supported the prosecution case aid stated that while working on the road he saw the party of five accused persons going that side. Muhammad A.I, A.I Hassan and Abdul Majeed were armed with hatchets and the other two armed with lathis. He then heard alarm and on running to that side he found the same party of accused attacking Karimdino, Soomar, Faiz Muhammad, Mst. Hawa and Mst. Pathani. He, Miandad and others chased the accused and caught two of them namely, Abdul Majeed and A.I Hassan with blood-stained hatchets wearing blood-stained clothes.
22. Then there is evidence of Mashir and police officer that A.I Hassan and Abdul Majeed were found by them having been tied up at the scene and they had blood-stained clothes on their person. They had also injuries. The report of Chemical Analyser shows that the clothes and hatchets of these appellants were stained with human blood. The medical evidence of Doctor Din Muhammad who examined appellants A.I Hassan and Abdul Majeed shows that A.I Hassan had sustained two abrasions on the little finger and on wrist joint while Abdul Majeed had lacerated wound on head and on little finger of the right hand.
23. Thus the ocular testimony of these witnesses implicates all the five culprits including the three acquitted accused-respondents to the same extent. The first three witnesses have actually sustained injuries during the incident, and their presence at the scene cannot be doubted. The other three witnesses, were working at a distance of 250 paces from the scene and they must have been attracted by the noise of cries as the fight must have been going on for considerable time. All these witnesses have been corroborated by the medical evidence and the surrounding facts and circumstances. The number and nature of injuries on the victims clearly indicates that lathis and hatchets were used by the assailants who must have 7een more than two in number, and they could have been five. These five accused were closely related and three of them were brothers. The attack must have been pre-planned and they must have come prepared to waylay the party and commit murders of Mst. Hawa and her second husband Karimdino. The evidence of the eye- witnesses is therefore sufficiently corroborated and appears to be true and reliable. There is no reason for any of these witnesses to unnecessarily involve innocent persons on a murder charge.
24. It has been indicated in the judgment of the learned Sessions Judge that Mst. Pathani mother of the deceased Mst. Hawa had grudge against accused Abdul Majeed and she had therefore suppressed the facts of original marriage of Mo. Hawa with Abdul Majeed; that she is the mother of the deceased Mst. Hawa and P. W. Soomar is the brother of the deceased Karimdino; that these witnesses could therefore be regarded as interested witnesses; that the evidence of these injured witnesses who are inter-related and connected with the deceased could not therefore be accepted implicitly without corroboration. The learned Sessions Judge accordingly convicted only appellants Abdul Majeed and A.I Hassan who were caught on the spot with blood-stained hatchets and clothes and injuries on their person and allowed benefit of doubt to the remaining accused on the plea that there was no such corroboration against them.
25. The testimony of a witness who is otherwise consistent and who must have been present at the scene, cannot be doubted simply because the witness has not frankly admitted certain known facts and is otherwise related to the deceased. The maxim `falsus in uno falsus in omnibus" has all along been discarded by the Courts in this country. Similarly 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 without reservation and cannot be: accepted as one of universal application. In the last analysis, as stated in some of the eminent judicial decisions, the grain has to be sifted from the' chaff in each case in the light of its own particular circumstances. Tawaib Khan and others v. State (PLD 1970 SC 13). It was natural for Mst. Pathani not to admit the subsistence of the first marriage of Mst. Hawa with appellant Abdul Majeed in view of her second marriage with deceased Karimdino, 1 but merely on that ground her entire evidence cannot be discarded. It has been held in Muhammad Bashir v.
26. The State (1970 SCMR 351) that the mere fact of witnesses being related to complainant party is no ground for rejection, of their evidence. In a recent case Suleman Shah v. Ayub and others (PLD 1971 SC 751) it has been observed as under: ---- "The learned Judges of the High Court disbelieved Bughdad Shah and Sultan Muhammad on the ground that they were interested witnesses but without determining their relationship with the complainant and in disregard of the fact that neither had any enmity with the accused persons to falsely depose against them. Their names were mentioned in the F. I. R., and the Investigating Officer examined them on the same day. As has been held in Shahamad v. The State, Pakala Narayana Swami v. Emperor v. Khawaja Nazir Ahmad, A.I Zaman v. The State and Ghulam Hussain v. The King, mere relationship of a com--plainant is not a sufficient ground to disbelieve him The trial Judge had taken notice of the relationship of Bughdad Shah and Sultan Muhammad with the accused and considered their testimony as trustworthy. The learned Judges in the High Court, however, ignored this part of the judgment and excluded the evidence of these eye--witnesses merely on the ground that they were related to the deceased. While Sultan Muhammad was not at all related to the deceased, Bughdad Shah was a remote relation. In the absence of any Sugges-- petition to that effect that these two witnesses had any animus against the respondents, the trial Judge had rightly accepted their evidence."
27. The evidence of Faiz Muhammad could not in any case be disregarded simply because he was case-fellow of the deceased, when no enmity has been alleged against him. The above principle as laid down by the Supreme Court has been followed in a number of decisions of the High Courts and law on this point appears to be well settled. In PLD 1971 Lah. 90, it has been held that the mere fact that witness is interested or partisan is not sufficient for disbelieving him, if other" is his statement inspires confidence. Same view has been taken in PLD 1972 Pesh.
92. There is no inflexible rule that tesimony of "interested" witness cannot be accepted without corroboration. This fact was emphasized in the case of Additional Advocate-General v. Jumma (1972 P Cr. L J 123) that mere relationship does not make witnesses interested. In Muhammad Shafi v. The State (1972 P Cr. L J 292) witness received grievous injury during incident. No previous enmity or any motive to falsely implicate the appellants had been suggested. Mere fact that the witness happened to be a widow of deceased, held, did not under the circums--tances affect her credibility. These witnesses have also received grievous injuries during the incident. No previous enmity or any motive to falsely implicate the appellants has been established against any of them. The mere fact that some of the witnesses are related to the deceased does not in the circumstances affect their credibility: Similar view was taken in Niaz v. The State (PLD 1960 SC 387) and Nazeer and others v. The State (PLD 1962 SC 269) that the mere fact of witnesses being closely related to the deceased was not C sufficient to brand such witnesses as interested. Same' view has been emphasised in Idhoo Mir v.
28. The State (1972 P Cr. L J 250) that mere relationship with the deceased is not by itself sufficient to discredit any witness. It must further be established that such witnesses had motive to falsely implicate the accused persons. A witness cannot therefore be disbelieved simply because of the relationship with the deceased unless there are any inherent discrepancies in his statement making him otherwise unbelievable.
29. Even in case of evidence of an interested eye-witness, the corroboration need not be of the independent testimony required for example, in the case of evidence of accomplices. The corroboration required in such cases is to be supplied by the surrounding facts and circumstances to show that the evidence could not be unbelievable. For instance where the question arises regarding the number of assailants who could have probably taken part in the fight, corroboration could be had from the number and nature of injuries on the victims. If the medical evidence is consistent with the fact that about five persons took part in the assault armed with hatchets and lathis the ocular testimony of the eye-witnesses could be said to have been corroborated. This principle has been laid down by the Supreme Court in PLD 1962 SC 269. It has been observed in that decision as under: --- "In order therefore to be satisfied that no innocent persons are being implicated along with the guilty, the Court will in the case of an ordinary interested witness, look for some circumstance hat gives suffi--cient support to his statement, so as to create that degree of probability, which can be made the basis of conviction. This is what is meant by saying-that the statement of an interested witness ordinarily needs corroboration. For corroboration, it is not necessary that there should be the word of an independent witness supporting the story put forward by an interested witness.
30. Corroboration may be afforded by anything in the circumstances of a case, which tends sufficiently to satisfy the mind of the Court that the witness has spoken the truth. What circumstances will be sufficient as corroboration it is not possible to lay down. But, as the question before the Court would be whether some innocent person had not been implicated in addition to those who were guilty, the circumstance relied upon must have a bearing on this question In the case of an interested witness the corroboration need not be of the same probative force as in the case of an accomplice for the two do not stand on the same footing."
31. Applying the above principles we are of the view that the learned Sessions Judge ought to have regarded similar circumstances as corrobora--petition of the evidence of Faiz Muhammad, Soomar and Mst. Pathani and should have relied upon the evidence of Miandad, Audo and Nek Muhammad in respect of the identity of each of the five culprits. The evidence of the first three witnesses could not be discarded merely on the --ground that the witnesses were interested, nor could the evidence of the other three eye-witnesses be disregarded simply on the ground that they may have come to the scene after the fight was over and may not have witnessed the incident. It may be mentioned in this respect that the learned Sessions Judge has accepted the fact that the number of assailants was five and he has convicted the first two appellants under section 149, P. P. C. And also for an offence of being members of an unlawful assembly under sections 147 and 148, P. P. C. There could not however have been any doubt or mistake as to the identity of the five culprits when all the assailants were known to the witnesses and the incident took place in broad daylight at about 8 a. m. In the case quoted by the learned Sessions Judge namely PLD 1962 Kar. 583, it was on the other hand observed that only two of the assailants could not have been convicted under section 302 read with 149, P. P. C. When the existence of an unlawful assembly had not been believed. The convictions were therefore altered in that case to 302/34, P. P.
32. C. In the present case on the other hand, the evidence of the eye--witnesses is most natural and not improper and is corroborated not only by the circumstances and medical evidence but also by the testimony of other independent witnesses like Miandad and others. Each case has to be decided with reference to its special facts and circumstances and no hard and fast rule can be laid down regarding the degree of corroboration necessary. It is the inherent value and the degree of probability of the ocular evidence that is the deciding factor and it is then a question of fact for the Court to decide whether any corroboration of such evidence would at all be necessary.
33. We are accordingly of the firm view that in acquitting the remaining three accused respondents, the Sessions Judge adopted inconsistent and unsound standards without any real effort to assess the credibility of the evidence given by the various eye-witnesses against each of the accused.
34. This Court is therefore justified in view of highly unsatisfactory apprecia--petition of the evidence by the Sessions Judge, to question the correctness of these acquittals. The findings recorded by the learned Sessions Judge and the conclusions drawn by him are unreasonable to say the least, and we accord--ingly find it to be a fit case for interference.
35. For offence under section 148, P. P. C. R. I. For one year.
36. For offence under section 302/149, P. P. C. To transportation for life.
37. For offence under section 326/149, P. P. C. R. I. For five years and fine Rs. 1,000 or in default R. I. For one year.
38. All the sentences to run concurrently.
39. We have imposed the sentence of "transportation for life" and not "imprisonment for life", as under Article 11 of the Interim Constitution, the law cannot authorise the punishment which was not in existence at the time of the act or offence and since at the time of offence, murder was punishable with transportation for life and not imprisonment for life. The Law Reforms Ordinance, Article 129 does not expressly or by implication apply retrospectively. The question of sentence is part of substantive law and does not fall under procedure law; as such the amendment has no retros-- pective effect. As stated in section 6 of the General Clauses Act, the amendment does not affect any penalty or punishment already incurred, or substantive right or liability already accrued.
40. Generally speaking section 6 of the General Clauses Act, 1897 does not deal expressly with the effect of amendment of an Act, but there is no difference between amendment of an Act and its repeal and re-enactment, as held in the case of Saeed Ahmed v. The State (PLD 1964 SC 266). All rights and liabilities continue in spite of repeal and all proceedings already pending continue as if the amendment had not come into force. For every amendment is in effect a repeal of that part of the Act, in the form in which it stood previously. There is thus no difference between repeal and re- enactment and an amendment. The same view has been taken in State v. Muhammad Jameel (PLD 1969 SC 681). Emphasis has been laid in that ease on the point that when the law is altered during the pendency of an action, the rights of the parties are to be decided according to the law as it existed when the action was taken, unless the new Act or amendment, expressly shows clear intention to vary such rights, with retrospective effect.
41. Non-bail-able warrants of arrest may accordingly be issued and sent to the Sessions Judge, Khairpur Mir's for service on the three respondents and they may be remanded to jail under warrant of commitment to serve out the above sentences, their acquittal having been set aside.
42. MUHAMMAD HALEEM, J.-----I agree.