1. ' SALEEM AKHTAR, J.--- The appellants, Rafique, Imamuddin and Murad were tried for committing murder of Mchrab and attempting to murder Muhammad Bakhsh. Rafique died during trial. The learned Additional Sessions Judge, Sukkur acquitted Imamuddin and Murad but held the appellants guilty of offence under sections 302 and 307, P.P.C. And sentenced them to death and fine of Rs,10,000 each and in default R.I. For one year. They were further convicted under section 307, P.P.C. To undergo R.I. For seven years and fine of Rs,5,000 in default R.I. For six months.
2. ' In a separate case the appellants were sentenced under section 13-D of Arms Ordinance to undergo R.I. For five years. The confirmation case and two appeals filed by the appellants will be disposed of by this judgment.
3. ' Briefly the prosecution case is that while Muhammad Bukhsh complainant and his cousin Mahrab after sloughing the land were returning to their houses, Amir Bakhsh, Rafiq and Sher Baig armed with gun and Murad and Imamuddin armed with hatchet came in front of them near the Autaq of Ghous Bukhsh Kalhoro, challenged and fired upon them. Mahrab fell down due to gunshot injuries.
4. They also fired upon the complainant which hit him in the right arm and stomach who fell down and raised cries. On gunshots and cries P.Ws. Habib son of Qalandar, Bakhshan, Manzoor and others came running and saw the accused firing who then ran away, towards eastern side. The complainant related the story to P.Ws. And found Mahrab dead. Leaving Bakhshan and Manzoor with the dead body Muhammad Bakhsh along with Habib went to the police station and lodged the report. The motive for the offence was alleged to be that about one year back Mst. Safooran wife of Amir Bakhsh was declared as Kari with the complainant's brother Arbab and in the murder of Safooran, Arbab was challenged. Two years back Rafiq son of Amir Bakhsh and others were challenged for the murder of Allah Dino father of Mahrab but in spite of settlement Mahrab's party did not comply with it.
5. ' Additional S.H.O. Recorded F.I.R. At 12-15 hours. He prepared Mashirnama of injuries of the complainant and recorded the statement of P.W. Habib under section 161, Cr.P.C. Who had accompanied the complainant. He then proceeded to the place of occurrence where he prepared the Mashirnama of Wardat, inquest report and sent the dead body for post-mortem. The Investigating Officer also secured four empty cartridges about 15 paces away from the Wardat and two empties were found in the wheat cultivation about 100 paces away from the Wardat. They were found freshly fired and were sealed. Appellants Imamuddin, Sher Baig and Murad were arrested on 17-4-1983 and Mashirnama of arrest and personal search was prepared. On 21-4-1983 Amir Bux was arrested and similar Mashirnama was prepared. He also produced gun which was concealed in 'sue bushes for which a Mashirnama was prepared. Dodo was one of the Mashirs in all these Mashirnamas. The post-mortem report certified that the deceased received the following injuries:-
(1) Lacerated wound 3 c.m. x 1-1/2 c.m. On the right side of face, margins ecchymosed and inverted searching and blacking present fracturing the bone and teeth underneath.
(2) Lacerated wound 1 c.m. In diameter x muscle deep, margins ecchymposed and inverted on the right side of neck (wound of entry).
(3) Lacerated wound 1 c.m. In diameter x chest cavity deep through axilla, margins ecchymosed and inverted on the lateral surface of right shoulder.
(4) Lacerated wound 1 c.m. x 1/2 c.m. x epiderms deep on the chin, margins and base ecchymosed (grazing).
(5) Lacerated wound 4 c.m. x 1 c.m. x epiderms deep, margin and base ecchymosed on the top of right shoulder (grazing).
6. ' The injuries were caused by fire-arm. Injuries Nos. 2 and 3 individually and all injuries collectively were sufficient to cause death.
7. ' Muhammad Bakhsh the complainant was also examined having the following injuries;--
(1) Three lacerated wound each side 3/4 c.m. x diameter margins inverted and ecchymosed on posterior surface of the lower portion of right upper arm (wound of entry).
(2) Three lacerated wounds 1 c.m. x diameter margins averted on the later surface and posterior surface, lower portion of right upper arm (wound of exit).
(3) Six lacerated wounds margins ecchymosed and inverted each size 3/4 c.m. And diameter (depth reserved) on the epigastric, umbelomal and hypogastria region.
(4) Lacerated wound 1 c.m. x 1 c.m. x 1 c.m. Margin and base ecchymosed on the tip of penis (grazing).
(5) Two lacerated wounds 1 c.m. x 1/2 c.m. x muscle deep margin and base ecchymosed with swelling of left testis on the left side of scrotum (reserved).
(6) Two lacerated wounds each size 1 c.m. x 1 c.m. x 1 c.m. x muscle deep x margin inverted and ecchymosed on the medial surface of right thigh."
8. ' Injuries Nos. 3 and 5 were certified as grievous while the rest were simple.
9. ' The prosecution case is based on the evidence of three eye-witnesses namely Muhammad Bakhsh P.W.3, Bakhshan P.W.4 and Habib P.W.5, recovery witnessed by Dodo P.W.6, the medical reports and the motive alleged by the complainant. Ghulam Abbas Additional S.H.O. Has produced the Mashirnama of Wardat. Six empties were recovered from the place of incident, four of which were recovered where the crime was committed and two few paces away in the field. However, neither the gun nor the empties were sent to the Ballistic Expert for examination. The Investigating Officer after recovering the gun and empties handed over to the S.H.O. Who did not take any further step. Therefore, on the basis of this evidence it can be presumed that they were not sent for examination of the Ballistic Expert. In these circumstances the gun and empties cannot have any evidentiary value against the appellant. The appellants in their statement under section 342, Cr.P.C.
10. Denied the charges. Amir Bakhsh stated that Mahrab was Karo of Gadani community and he has been falsely implicated due to enmity. All other appellants adopted the statement of Amir Bakhsh.
11. ' Mr. Azizullah Shaikh the learned counsel for the appellant has contended that in view of the contradictions and infirmities in the evidence of prosecution witnesses no reliance can be placed on them. He further contended that as the eye-witnesses are related to the injured and the deceased and are enimically disposed towards the appellant, in the absence of any corroborative evidence, their testimony cannot be treated sufficient for conviction. From the statements of the witnesses it is clear that P.Ws. 3, 4, 5 and 6 are related to the deceased. We need not point out the relationship between them but this fact has abundantly been brought on record that they are related. It is also clear from the evidence that the accused and the complainant had a background of enmity. There were cases and cross-cases of murders between them. In this background we have to assess the evidence of the P.Ws. Although being relatives of the deceased by itself is not sufficient to discredit the testimony of any witness, such prosecution witnesses who are not only related but are also enimical should be cautiously and carefully examined and unless their testimony is fully corroborated by independent witnesses of unimpeachable character or by such circumstantial evidence which in the circumstances be sufficient to record conviction the same cannot be accepted.
12. ' It has been contended that the statement of Muhammad Bakhsh P.W.3 is in conflict with the F.I.R., and therefore, it cannot be relied upon. The learned counsel has pointed out that the fact that before firing the appellant asked Mahrab how he was to demand compensation for his father has not been stated in the F.I.R. This discrepancy by itself is not sufficient to completely discredit the evidence of P.W.3. It is not every omission or discrepancy in the F.I.R. And statement which may discredit the testimony and render it unreliable. One has to examine the nature of evidence and if on material facts the statement is in conformity with the F.I.R., minor discrepancies should be discarded. The discrepancy pointed out is not of such a material nature that it may affect the entire statement. The learned counsel then pointed out that in cross-examination P.W.3 stated that it is incorrect that Manzoor is his brother-in-law (married to his sister) and Bahnoi. P.W. Manzoor was an eye-witness and was given up by the prosecution. The learned counsel also pointed out that in his statement he has stated that appellants reloaded their guns and then fired at him but this fact was not stated in the F.I.R. In the F.I.R. It was stated that Amir Bakhsh, Rafique and Sher Baig were armed with gun and fired upon Mahrab and complainant. Mahrab fell down and they fired upon complainant who was injured. There does not seem to be any material conflict as the appellants are stated to have fired twice. However, in the F.I.R. It has not been stated that they loaded the gun before firing. This discrepency is not so vital as to render the testimony incredible.
13. Minor discrepancies and contradictions in the F.I.R. And the statements of eye-witnesses cannot render the ocular testimony unreliable and untrustworthy. Reference can be made to Inayat Masih v. The State 1980 SCMR 937 and Karam Ali and others v. The State 1968 SCMR 1025. P.W.3 can be relied upon only if he is corroborated by strong evidence.
14. ' The learned counsel pointed out that in his statement the complainant has stated that about three years prior to the incident his cousin Mahrab was declared Karo with Mst. Safooran wife of Amir Bakhsh but in the F.I.R. It was stated that Mst. Safooran was declared Kari with his (Muhammad Bakhsh's) brother Arbab. The description of Mahrab and Arbab has so much phonetic similarity that it is possible that it may be a mistake of recording. Furthermore, this is not such a vital contradiction that evidence of P.W.3 be discarded outright. It seems that after Mst. Safooran was murdered Murad had been challenged. Another contradiction pointed out is that according to Bakhshan P.W.4 when Muhammad Bakhsh received injuries he fell down and became unconscious whereas Habibullah has stated that he was not unconscious and to the same effect is Muhammad Bakhsh's statement as well. On receiving injuries P.W.3 had fallen down. He had witnessed the entire incident before he fell down. After that whether he became unconscious or not is completely immaterial. While attacking the veracity of P.W.3 the learned counsel also stated that he has denied that Mahrab was cousin of Habib although this relationship has been admitted by Habib. By this infirmity the learned counsel wanted to point out that P.W.3 was trying to conceal relationship with an endeavour to show that he was an independent witness.
15. ' The other eye-witness is Bakhshan P.W.4. He has stated that while he and Habib were returning back at about 9 or 10 a.m. And reached the back side of the Autaq of Ghous Bakhsh Kalhoro they saw five persons coming out of the Autaq going towards the west. They identified them as Amir Bakhsh, Rafiq and Sher Baig having guns while Imamuddin and Murad were armed with hatchets.
16. In the meantime they warned Muhammad Bakhsh and Habib not to come nearer and thereafter Amir Bakhsh, Sher Baig and Rafiq fired from their gun upon deceased who fell down. At this time Amir Bakhsh said that Muhammad Bakhsh should not be spared as he would act as a witness against them. Muhammad Bakhsh was running away and all the three fired from their gun upon him and Muhammad Bakhsh fell down and the accused persons went away raising slogans Mahrab had died and Muhammad Bakhsh was lying unconscious. Bakhshan's statement reveals such contradictions that it does not give a ring of truth. He claims to have seen the entire incident from a close distance but his narration how injuries were caused to Muhammad Bakhsh is contrary to the statement of Habib P.W.5 who is also an eye-witness. The statement of Bakhshan that while Muhammad Bakhsh was running away the accused fired at him is contradicted by the medical evidence. All the injuries are on the upper arm, epigastria, umbilical and hpergastric region, margin and base on the tip of penis, left testicle and left side of scrotum and on the medial surface of right thigh. The seat of injuries belies Bakhshan's statement. He stated that police had recorded his statement but when he was confronted with that statement which contradicted his examination- inchief he stated that the police did not record his statement but obtained his signature. Ghulam Abbas who had investigated the case proved that Bakshan's statement was recorded by him and he had stated that when he heard gunfire reports he came out of his house and alongwith witnesses who were in their house rushed towards the place of occurrence. The whole story of going to Habib for demanding money, coming back with him, seeing the accused near the Autaq and the threat administered to them before firing at Mahrab and Muhammad Bakhsh was not stated. This proves that the statement under section 161 recorded few hours after the incident did not contain all those material facts. In the Court he made a statement which was completely different. A statement under section 161 is not substantive piece of evidence but it can be used for contradicting the statement of a witness and test the degree of his authenticity. The statement under section 161 cannot be used to corroborate or for explaining any part of the prosecution evidence. It is merely for the purposes of contradicting the witness and no other purpose.
17. Reference can be made to Haji Muhammad v. The State PLD 1966 Lah.
344. If a witness is contradicted by his statement under section 161, Cr.P.C. Then it will reduce the evidentiary value of his testimony in Court. In order to avail benefit from such contradiction, witness's attention should be drawn to the statement under section 161 and he should be confronted with it. In the face of such contradictions, endeavour on his part to improve the prosecution case and conceal the relationship between P.Ws. And the deceased, no reliance can be placed on the testimony of Bakhshan.
18. ' The other eye-witness Habibullah P.W.5 has deposed almost in identical terms with the statement of Bakhshan whom we have disbelieved. Habibullah in his cross-examination stated that his deposition in Court was correct while the statement made before the police that he and Bakhshan came on hearing gunshot reports was incorrect. A person who admits making contradictory statements on different places in respect of the same incident can hardly be a trustworthy and truthful witness. To corroborate the statement of P.Ws. 3, 4 and 5 the eyewitnesses, the prosecution examined Dodo P.W.6 who had acted as Mashir on Mashirnama of arrest of Imamuddin, Sher Baig and Murad Exh.38, Mashirnama of arrest of Amir Bakhsh Exh.39 and Mashirnama of recovery of gun from Amir Bakhsh Exh.40. His testimony as Mashir has been challenged as he is not a resident of the village. He resides at village Nirch which is about 1-1/2 miles from village Valloo Kalhoro where the incident had occurred. At the time when he acted as Mashir he had shifted from Valloo Kalhoro.
19. Dodo has admitted that he shifted after the murder of Allah Dino which happened in the year 1980 (Exh.46). He has, however, in the Mashirnama shown himself as resident of village Valloo Kalhoro. In this regard reference can be made to an unreported judgment in Criminal Appeal No,94 of 1989 Muhammad Achar v. The State in which after examining several authorities it was observed that subject to the facts and circumstances of the case if any search is made in any locality the Mashir must be respectable man of that locality.
20. ' In respect of Mashirnama of arrest Exh.30 Dodo stated that police had obtained his signature on a piece of paper and Imamuddin, Sher Baig and Murad were not arrested in his presence. According to him on 11-4-1983 from the scene of occurrence police came to the Autaq of Amir Bakhsh who took out a gun from the chaff of wheat stocked 50 feet away. According to him Amir Bakhsh was arrested and gun was recovered on 11-4-1983. But Exhs.39 and 40 reveal that the arrest and recovery was made on 214-1983. No other witness except the Investigating Officer has been produced to prove recovery of the gun. In the absence of any independent and respectable witness of the locality recovery of gun is doubtful. Dodo is uncle of the deceased and complainant Muhammad Bakhsh. He had lodged complaint in Police Station Pannu Aqil on 28-4-1980 for murder of his father Allandino against Rafiq and his two uncles who were acquitted. During trial Rafiq was murdered and Muhammad Bakhsh P.W.3 is an accused in that case. Therefore, Dodo's relationship with the deceased and P.Ws. Is established and further that he is on enimical terms with the appellant. In cases where corroboration is required it must come from witness of unimpeachable character. Dodo lacks this quality. He has stated that dead body was brought to hospital after sunset, but according to medical report it was brought at about 1245 noon. The deposition of Dodo leaves the impression of an untrue witness, unworthy of credit and unfit to corroborate the deposition of P.Ws. The Investigating Officer has stated that during investigation he was of the opinion that the appellants were innocent and one Pathan Gadani and Rafique were repor.Sible for the murder but the S.P. Directed the accused to be challaned. At this stage it may be mentioned that in cross-examination it was suggested to Muhammad Bakhsh that Mchrab was Karo of Gadani caste and they have murdered him.
21. ' The learned counsel contended that the prosecution has alleged motive which has not been proved, and therefore, benefit should go to the accused. Where motive is alleged it is the duty of the prosecution to prove it. But if it fails the prosecution suffers and the evidence of P.Ws. Should be examined cautiously. Reference can be made to Hakim Ali v. The State 1971 SCMR 432, Haji Ahmad v. The State 1979 P Cr. L J 460 and Bhai Khan and 3 others v. The State 1988 P Cr. L J 1836. The enmity on both sides is proved. But merely on proof of motive, prosecution cannot succeed. Motive corroborates rest of the evidence which proves commission of the offence beyond reasonable doubt.
22. ' From the evidence on record it is clear that there has been enmity between the parties. The deceased, the complainant and P.Ws. Are all related and are on one side, against the appellants.
23. There have been cases of murder and counter-murder between the parties. Minor discrepancies can be overlooked when the witness is disinterested, not inimical and independent but where the witness is interested, partisan or inimical towards the accused his deposition has to be scrutinized and tested carefully and cautiously and cannot be accepted unless it is corroborated by such unimpeachable independent evidence which by itself may be sufficient to record conviction. The ocular evidence produced to corroborate P.W.3 is shaky, contradictory, infirm and does not inspire confidence. Therefore, it is not conducive to the safe administration of justice to rely upon it.
24. ' The learned trial Court seems to have ignored the contradictions and infirmities. The corroborative ocular evidence is neither strong nor sufficient to prove the offence beyond reasonable doubt. The recovery of gun has also not been proved.
25. ' We, therefore, refuse to confirm death sentence, set aside the impugned judgments, allow both the appeals and acquit the appellants. They shall be set at liberty unless required in any other case.