AJMAL MIAN, J.-- By this common judgment, we intend to dispose of the above appeal and the confirmation case. The facts giving rise to the above appeal and the confirmation case are that the three appellants were charged under section 302/34, P.P.C. For committing murder of Rahimdad son of Khushi Muhammad Teghani on 18-1-1981 at about 2-00 p.m. In Bazar of Karampur, Taluka Kandhkot District Jacobabad. It was alleged that appellant No.1 Sadhu son of Wahid Bux caused gunshot injury whereas appellant No.2 Khawand Bux son of Wahid Bux had allegedly inflicted hatchet injury but no overt act was attributed to appellant No3 Abdul Ghani son of Ismail, except his presence alongwith other two co-accused. The motive alleged was that appellant No. 1's and 2's brother Sujawal was murdered sometime back (according to P.W. Azam 5/6 months prior to the incident whereas according to P.W. Meherdil about two years prior to the incident) in respect of which a murder case was pending in the Sessions Court against three persons, including the deceased Bahimdad. It was alleged that appellants 1 and 2 suspected Rahimdad of having committed the murder of their brother Sujawal, and therefore, they avenged his murder by murdering him. The F.I.R. Exh.20 was lodged by P.W.8 Sultan at 7-00 p.m. At the Police Station Tangwani situated about 22 miles from the place of incident, which was recorded by P.W.10 Muhammad Afsar A.S.I. In which it was alleged that the complainant left his village in the early morning alongwith deceased Rahimdad and P.Ws. Meherdil and Azeem for going to Karampur for private work and when they finished their work at about 10-00 a.m. They were returning to their village. It was alleged that Rahimdad was ahead to the complainant and P.Ws. Meherdil and Azeem, when suddenly the above appellants emerged. It was further alleged that appellant Sadhu was armed with gun whereas the other two appellants were armed with hatchets. It was further alleged that appellant Sadhu challenged the complainant party and remarked that he would take revenge of his brother Sujawal and after saying so, he fired gun shot at Rahimdad which hit him at his back side, thereupon he raised cries and fell down. It was also alleged that the appellant Khawand Bux gave hatchet blows to Rahimdad which hit him on the right side of his arm. It was further averred that the appellants after seeing that Rahimdad was dead went away towards western side alongwith their weapons while raising slogans and that when the complainant saw Rahimdad he was alive but he was not able to talk. It was also averred that the complainant party had brought Rahimdad to the police station for lodging the report but on the way Rahimdad had expired. The aforesaid motive was alleged to the F.I.R. After recording the above F.I.R. P.W. 10 Muhammad Afsar prepared the inquest report in presence of Mashirs P.W.1 Rajo and one Mureed.
After that he despatched the dead body of the deceased for autopsy to the Medical Officer Kandhkot through Police Constable P.W.3 Abdul Hakeem. Then he recorded the statements of P.Ws.
Azeem and Meherdil under section 161, Cr.P.C. On the following day i.e. 19-1-1981 he proceeded 'to the place of Wardat alongwith complainant who pointed out the place of Wardat. He secured blood-stained earth from there under Mashirnama Exh.24 in presence of the above two Mashirs. On 27-1-1981 he arrested appellants Sadhu and Khawand Bux in presence of Police Constables A.I Nawaz and A.I Sher and prepared Mashirnama of arrest Exh.25. On 29-1-19131 co-accused Abdul Ghani voluntarily appeared before the police after obtaining bail before arrest from the Sessions Judge, Jacobabad. Whereas on 30-1-1981 it is alleged that during interrogation appellants Sadhu and Khawand Bux confessed their guilt and voluntarily led the police party to their respective houses where appellant Sadhu produced unlicensed gun and appellant Khawand Bux produced one hatchet without blood stains which were recovered under Mashirnama Exhs. 26 and 27 respectively in presence of P.W.7 Haji Saeed Khan and one Dalail. After that P.W.10 Muhammad Afsar A.S.I. Returned to the police station and registered a separate case against appellant Sadhu under section 13-D of the Arms Ordinance on behalf of the State under Crime No. 10 of 1981 against F.I.R. Exh.
28. On 31-1--1981 he produced P.Ws. Meherdil and Azeem before the Resident Magistrate, Kandhkot, P.W.9 Agha Din Muhammad for recording their statements under section 164, Cr.P.C. After the completion of the investigation on the above date, he delivered the papers to the S.H.O. Police Station Tangwani for further investigation, who challaned the appellants.
2. In support of the case the prosecution examined aforesaid P.W.1 Rajo to prove the Mashirnama of the place of Wardat and inquest report Exhs.6 and 7, P.W.2 Muhammad Mureed, Tapedar Tapu Karampur who prepared the sketch of Wardat Exh.9, P.W.3 Police Constable Abdul Hakeem who transmitted the dead body of the deceased to the hospital, P.W.4, Dr. Bheemandass who prepared the post-mortem report Exh.12 and who deposed that he received the dead body of Rahimdad on 18-1-1981 at 11 p.m. Through Police Constable Abdul Hakeem which was kept in mortuary for the night and on the following day Le, 19-1-1981 he started post-mortem examination at 8-00 a.m. And finished by 9-15 a.m. And found that the body was of a male Muslim, aged about 30 years. On external examination he found the following injuries on the person of the deceased:- (1)One punctured gun shot wound 1-1/2" diameter abdominal cavity deep on back right side it was wound of entry and charring was present.
(2)8 punctured gunshot wounds each 1/3" x diameter abdominal cavity deep on lower part and upper part of abdomen, all were wounds of exit. No charring was present.
(3)One incised wound 3" x 1-1/2" x chopping upper layers of alnabone on medial side of lower third of right forearm.
On internal examination of the deceased he found the following damages:- "9th, 10th and 11th ribs were fractured. Peritoneum, liver and kidney on right side were punctured.
Stomach contained semi-digested food. All the other organs were healthy."
He opined that the death was due to shock and haemorrhage consequent upon external injuries.
He further opined that injuries Nos. 1 and 2 appeared to have been caused by discharge of some fire-arm at a distance of about within six feet and injury No.3 was caused by some sharp-edged weapon such as hatchet. He also opined that injury No.1 was sufficient to cause death and the time between death and the injuries was instantaneous, whereas time between death and post-- mortem was between 12 to 24 hours.
The prosecution further examined the above eye-witnesses P.W.5 Azeem P.W.6 Meherdil and P.W.8 Sultan the complainant, who reiterated the contents of the F.I.R. With certain variations, inasmuch as in the F.I.R. It was stated that `we went to Karampur for private work', whereas before the Sessions Court they deposed that they had gone to Karampur for purchasing household articles.
The prosecution also examined P.W.7 Haji Saeed Khan, one of the Mashirs to the recoveries but he did not support the prosecution. However, he was not-declared hostile. Process-server P.W.
Muhammad Siddiqui Police Constable was examined to prove the factum that P.W. Lahore and had expired, P.W.9 Agha Din Muhammad, Resident Magistrate Kandhkot was examined to prove 164 statements of P.Ws. Hzeem and Meherdil, P.W.10 Muhammad Afsar A.S.I. Who recorded the F.I.R. And investigated the case as stated hereinabove and P.W.II Police Constable Sahib Khan another process-server to prove that he was unable to execute bailable warrants Exh.29-B against P.W.
Dalal.
The appellants were examined under section 342, Cr.P.C. They also made statements on oath. They denied the factum of having committed murder or the factum of recoveries. The reason for P.Ws.
Having deposed against them given by them was the pendency of the murder case in respect of appellants No.1's and 2's brother Sujawal in the Sessions Court of Jacobabad.
The learned IInd Additional Sessions Judge, Kandkhot after hearing the parties convicted the appellants under section 302/34, P.P.C. And awarded each of them death penalty. He also convicted appellant No.1 Sadhu under section 13---D of the Arms Ordinance and awarded sentence of five years' R.I.
The appellants being aggrieved by the above judgment have filed the above appeal, whereas the learned Additional Sessions Judge has made the above reference for confirmation of the death sentences.
3. Mr. Muhammad Hayat Junejo, learned counsel for the appellants in support of the appeal and in opposition to the confirmation reference has vehemently urged that since admittedly there was blood-feud between the appellants and the complainant party,, the convictions could not have been recorded on the basis of the alleged aforesaid three eye-witnesses evidence namely P.Ws.
Azeem, Meherdil and Sultan without having independent reliable piece of corroborative evidence.
He has further submitted that even otherwise there are material infirmities in the testimony of the three alleged eye-witnesses which demand that their testimony should be corroborated by some credible independent corroborative evidence.
4. On the other hand, Mr. Rasheed Tariq Khan learned counsel for the State has contended that it was a case of broad daylight murder, there was no plausible reason for the complainant party to have substituted the, appellants in place of the real culprits and that the requisite corroboration is provided by the motive and the medical evidence.
5. Before taking up the above first contention of Mr. Muhammad Hayat Junejo, it may be pertinent to dilate upon the above second submission namely that the testimony of the alleged eye- witnesses suffers from material discrepancies and infirmities. In support .Of the above submission Mr. Junejo has emphasised on the factum that in the F.I.R. The reason for going to Karampur Town given is private work and so also in the police statement and 164 statement but before the Sessions Court the reasons given is the purchase of household articles. It has been vehemently urged by him that factually the incident was not witnessed by the alleged three eye-witnesses and that the complainant had given a vague reason in the F.I.R. For their visit to Karampur Town on the day of incident, whereas the alleged eye-witnesses improved upon their previous statements by stating that they had gone to Karampur Town for purchasing household articles. It has also been contended by him that even the above improvement is belied by the material on record. In furtherance of his above submission, he has invited our attention to the factum that P.W.8 Sultan the complainant was unable to state from which shop he had purchased the articles and what articles he had purchased. He has also pointed out that there is material variation on the factum what was done by the alleged eye-witnesses of the purchased article as P.W. Azeem has deposed that they had put the purchased articles in a shop of their friend, whereas P.W.6 Meherdil has stated that they had put the articles m the shop of a `Banya' against this P.W.8 Sultan has deposed that they had put the article in the shop from where they had purchased. He has also invited our attention to the admission on the part of P.W.5, Azeem that there were two other towns nearer to their village than Karampur Town from where they could purchase articles. He has further invited our attention that according to P.W. Azeem and P.W. Meherdil the complainant party saw Nekmard of Karampur Town Sardar Noor Muhammad Bijarani, whereas according to P.W.8 Sultan the complainant he did not inform above Nekmard Noor Muhammad Bijarani. He has also invited our attention to the discrepancy between the statement of P.W., Meherdil and P.W. Sultan as to the time of taking of lunch as according to P.W. Meherdil they had taken meals as soon as they reached Karampur Town, whereas according to P.W.8 Sultan they had taken lunch one hour before the incident. In this regard he had also pointed out that according to post-mortem report deceased had semi-digested food in his stomach at the time of the post-mortem which clearly indicates the reason for the above discrepancy) between the two statements. He has further invited our attention to the following admission of P.W.8 Sultan in his cross-examination that the faces of the accused were muffled at the time of the incident. I suspected the accused as Sadhu, Abdul Ghani and Khandoo at the time of incident."
Mr. Hayat Junejo has also invited our attention to the discrepancies between the testimony of the alleged eye-witnesses and the medical evidence namely (1) according to the eye-witnesses Rahimdad was alive but succumbed to the injuries on the way to the police station which was after about two hours from the time of the incident, whereas according to the medical evidence the time between the injuries and the death was instantaneous, (ii) that according to the eye- witnesses Rahimdad was attacked from a place several paces away, whereas according to the medical evidence the wound of entry had charring which indicates that the deceased was fired upon from a distance of few feet and (iii) that according to the complainant the deceased had taken meals one hour prior to the incident whereas medical evidence indicates that he had semi- digested food in his stomach at the time of his death.
On the other hand Mr. Rasheed Tariq Khan, learned counsel for the appellants argued that these infirmitities are not of the nature which could warrant disbelieving of the above eye-witnesses. He has further submitted that since the statements were recorded by the Sessions Court after the expiry of 6-7 years, some contradictions in the statements of the eye-witnesses are bound to occur, in that time submitted that there is no material discrepancy between the medical evidence and the testimony of the eye-witnesses.
6. No doubt that some discrepancies in the testimony of eye-witnesses are bound to occur on account of passage of time, particularly when the eye-witnesses are examined after 6/7 years there may be discrepancies of the nature which may be so trifle that the same may be overlooked, whereas there may be a case in which there may be material discrepancies but there may be sufficient independent corroborative piece of evidence on record which may reinforce the testimony of the eye-witnesses which may cure the defect arising out of material discrepancies.
We are inclined to hold that the prosecution should have examined either the shopkeeper from where the articles were left after the incident. The omission to mention in the F.I.R. 161 and 164 statements that the object of visiting Karampur was to purchase household articles and non- examination of the above- eye-witnesses at the place of incident Additionally, the aforesaid admission on the part of P.W.8 the complainant in his cross-examination that the faces of the appellants were muffled and he suspected the appellants at the time of incident also casts serious doubt as to the veracity of the testimony of the alleged eye-witnesses. Either the above admission is true or the above admission may be an obliging statement on the part of the above witnesses for the reason that appellants 1 and 2 are closely related to the complainant. Even if we were to take the latter view, the above obliging statement would render the testimony of P.W.8 Sultan unreliable without credible corroborative piece of evidence. In this regard Mr. Junejo has referred to the case of Illahi Bux v. The State reported in 1982 SCMR 57, in which the Honourable Supreme Court while allowing an appeal against the judgment of the Sind High Court observed that, no doubt Court can sift grain from chaff before relying only on certain portions of statements of prosecution witnesses deliberately perjuring themselves with regard to another portion of prosecution story. Court must of necessity seek unimpeachable and wholly independent evidence to corroborate portion of their statement on which reliance has been sought by the prosecution.
7. Adverting to the first submission of Mr. Muhammad Hayat Junejo that since admittedly there was blood-feud between the appellants and the complainant party, the convictions could not have been recorded on the basis of the alleged three eye-witnesses' evidence, namely, P.Ws. Azeem, Meherdil and Sultan without having independent reliable piece of corroborative evidence, it may be observed that he has referred to the following cases in furtherance of his above submission: (1)Taj Muhammad v. Pasham Khan and others reported in 1986 SCMR 823, (ii) Mst. Khatoon v. The State and others reported in 1987 SCMR 2042 and (iii) Bagh A.I and 4 others v. The State reported in PLD 1973 SC 321.
On the other hand Mr. Rasheed Tariq Khan has referred to the following cases in order to urge that mere relationship between the deceased and the eye-witnesses or the witnesses inter sc will not be fatal to the credibility of such witnesses; .
(i)Faiz Muhammad v. The State reported in PLD 1979 Kar. 513, (ii) Shamsher and another v. The State reported in 1973 SCMR 69.
There cannot be any cavil with the proposition that in case of blood feud or when there is enmity between the complainant and the accused party, the Court as a rule of prudence seeks corroboration by independent piece of evidence of unimpeachable character. At the same time it is also equally well-settled principle of law that simpliciter relationship between the deceased and the eye--witnesses or inter se amongst the eye-witnesses will not render their testimony as unreliable. We may also observe that corroboration is more sought in those cases where the corroboration was available. For example in the present case the incident had taken place in a Bazar of Karampur Town which has a population of about 1,000 persons. According to the eye- witnesses the other persons had collected at the time of the incident. Whereas according to P.W.10 Muhammad Afsar A.S.I. He examined the other persons during investigation. The sketch of the place of Wardat Exh.9 indicates that there were shops near the place of incident. It is, therefore, evident that the prosecution could have examined any other person from the Town in order to provide the requisite corroborative piece of evidence. It was open to the prosecution either to examine the shopkeeper from where the articles were purchased or the shop keeper where the articles were kept or the Nekmard of Karampur Town, Mr. Noor Muhammad Bijarani or any other witness who might have seen the incident. If the present incident would have taken place at an isolated place where there was no other independent person available the Court might not have sought corroboration by independent corroborative piece of evidence merely on the ground that there was blood feud between the accused and the witnesses if there would not have been the above material discrepancies, infirmities in the testimony of the present eye-witnesses and if the Court would have been satisfied that the witnesses had stated nothing but the truth.
8. We have also noticed that appellants 1 and 2 'were arrested by the Investigating Officer on 27-1- 1981 whereas the incident had taken place on 18-1--1981. There is no explanation as to why the above accused were not arrested immediately after the incident. Similarly appellant No.3 was factually not arrested but he in fact appeared voluntarily at the police station on 25-1-1981 after obtaining bail before arrest. Nothing has been brought on record to indicate what efforts were made by the I.O to arrest the appellant during the above period. It is also strange to note that the Mashirs to the arrest of appellants l and 2 were two police persons and even none of them has been examined by the prosecution.
There is also delay in the lodging of the F.I.R. By about 3/4 hours. The incident had taken place at about 2 p.m. Whereas the F.I.R. Was lodged at about 7 p.m. As observed hereinabove at the Police Station Tangwani which was situated about 22 miles away. P.W.8 complainant Sultan has admitted in his Cross--examination that there was a Police Check Post in Karampur Town but it is strange that instead of informing the above check post the complainant after arranging a pick up, which according to him took about 2 hours went to the above police station 22 miles, way for lodging the F.I.R.
9. The learned Additional Sessions Judge as pointed out hereinabove has also convicted appellant No.1 under section 13-D of the Arms Ordinance and awarded 5 years' R.I. For keeping unlicensed gun. According to P.W.10 Muhammad Afsar Investigating Officer, appellants 1 and 2 were arrested on 27-1--1981. He continued to interrogate for several days when allegedly on 30-1-1981 during the interrogation appellant No.1 Sadhu led to the recovery of the above unlicensed gun. It has been vehemently urged by Mr. Junejo that such recovery cannot be relied upon particularly when no empty matching with the gun was recovered from the place of the incident and was sent to the Ballistic Expert. Reliance has been placed by him on the case of Piaremian v. The State reported in 1978 P Cr.L J 369, in which the recovery of revolver was discarded as the recovery was made after 3 days from the date of the arrest.
10. We are inclined to hold that the factum that the recovery of the gun was made after 3 days of the interrogation by the I.O. And the factum that no empty was recovered from the place of incident which could match with the gun in question casts serious doubt as to the recovery.
11. The upshot of the above discussion is that since there are above material discrepancies infirmities and as admittedly there was blood feud between the complainant and accused party, the convictions for a capital charge against three persons cannot be sustained without having reliable independent corroborative piece of evidence which is lacking in the present case. We are further inclined to hold that since the recovery of the unlicensed gun is doubtful, the conviction under section 13-D of the Arms Ordinance against appellant No.1 cannot also be sustained.
We, therefore, allow the above appeal and set aside the convictions and sentences. The appellants shall be released forthwith unless they are required in some other case. Since the appeal of the appellants has been allowed, the reference made by the learned IInd Additional Sessions Judge for confirmation of the death sentence is rejected.
H.B.T./S-358/K revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.