' SAJJAD ALI SHAH, J.--- This appeal is directed against judgment, dated 16-8-1988 of learned Sessions Judge, Khairpur, whereby three appellants named above, have been convicted under section 302/34, P.P.C. And sentenced each to death and a fine of Rs.5,000 or in default R.I. For one year. Each appellant is further ordered to pay compensation of Rs.10,000 to the heirs of deceased or in default to suffer R.I. For six months. Appellant Bakhshal is further convicted under section 13(E) of Arms Ordinance and sentenced to R.I. For three years and a fine of Rs.1,000 or in default R.I. For six months. Appellant Jani is further convicted under section 324, P.P.C. And sentenced to R.I. For one year and a fine of Rs.1,000 or in default R.I. For six months. He is further ordered to pay compensation of Rs.1,000 to injured Mst. Waziran or in default to suffer R.I. For six months. There is also reference under section 374, Cr.P.C. For confirmation of death sentence of all three appellants and we propose to dispose of both appeal and reference together by one single judgment.
' Prosecution case as depicted in F.I.R. And briefly stated is that on 20-61986, which was Friday deceased Atta Muhammad and his wife Mst. Nazeeran went from Khairpur Town to the house of their relative Inayat Ali son of Khamiso Gopang in village Trodi within the jurisdiction of P.S. Kotdiji to congratulate as he and his wife were blessed with a son. After lunch, while deceased Atta Muhammad, Mst. Nazeeran, Panjal, Mst. Allah Bachai, Inayat Ali and his wife Mst. Waziran were chit- chatting, all the three appellants named above, entered the house. Appellant Bakhshal had pistol, Jani had knife and Shah Wali was armed with Lathi. They caught hold of Atta Muhammad from collar, slapped him and dragged him outside. Witnesses also came out and from them ladies brought Qur'an Sharif and entreated but paying no heed, Bakhshal fired at Atta Muhammad and further he was given knife blows by Jani and Lathi blows by Shah Wali. Jani also gave knife blow to Mst. Waziran on the left side of her abdomen. Atta Muhammad fell down injured and bleeding and thereafter appellants ran away raising slogans that they had taken revenge of their relative Ghulam Muhammad, who was murdered about 115 years ago by Atta Muhammad. After departure of appellants from the spot, witnesses went near and found Atta Muhammad lying dead. Mst.
Nazeeran wife of deceased accompanied Inayat Ali went to Police Post Kumb at a distance of five miles, where she lodged report, which was entered in daily diary. It is mentioned in the report that Atta Muhammad had been murdered by appellants named above in consequence of conspiracy with Ali Nawaz alias Nazoo son of Kamal and Tajoo son of Ghulam Muhammad both Gopang.
' A.S.I. Nazamuddin entered report in Roznamcha register vide entry No.5 on the same day at 4 p.m., sent a copy to Police Station Kotdiji and then proceeded to the scene of offence. He saw dead body of Atta Muhammad and recovered from the spot blood-stained earth and broken piece of Lathi. He prepared inquest report and dispatched the dead body to the hospital for post-mortem examination. He prepared Mashirnama of injury of Mst. Waziran and sent her to the hospital. He recorded statements of Mst. Allah Bachai and her son Inayat Ali. He also recorded statement of Mst.
Waziran. He searched houses of appellants but could not arrest them as they were not there. On 23-6-1986 he recorded statements of P.Ws. Panjal and All Hassan. On 26-6-1986 he arrested all the three appellants from the house of MevoGopang in village Dadri. Appellant Bakhshal while in custody led to the recovery of revolver from the root of the palm tree which was surrounded by bushes in the house of Mevo. It was put into sealed parcel. Case was registered against Bakhshal for keeping unlicensed revolver. Appellant Jani, while in custody, led to the recovery of knife from the roof of the house of Mevo and that knife being stained with blood was put into sealed parcel.
On 28-6-1986 I.O. Produced P.Ws. Inayat Ali, Panjal, Mst. Waziran, Mst. Allah Bachai, All Hassan, Shahmir and Taro before Mukhtiarkar and F.C.M. Kotdiji who recorded their statements under section 164, Cr.P.C. After completing other steps of investigation, this witness handed over papers of this case to A.S.I. Muhammad Khan, Incharge Police Station Kotdiji, who presented challan in The Court.
' In the trial Court, prosecution has examined 11 witnesses in support of its case. From them four are eye-witnesses namely P.W.1 Mst. Naziran, P.W.2 Mst. Waziran, who was injured, P.W.3 Inayat Ali and P.W.4 Panjal. Prosecution has examined P.W.5 Muhammad Nawaz, Tapedar, who prepared sketch of Vardat Exh.13-A on 15-1-1987. P.W.6 is Dr. Mumtaz Hussain, who conducted post-mortem examination on the dead body of Atta Muhammad on 20-6-1986. He found 6 stab wounds, one bruise on right lumber region and one penetrating type of inlet wound on abdomen cavity deep with blackening and tattooing on the dead body. According to the doctor death was due to injuries caused by sharp cutting weapon and fire-arm. This doctor also examined Mst. Waziran and found on her person one stab wound on the left lumber region of abdomen. Injury was simple caused by sharp cutting weapon.
' P.W.7 is Khuda Bux Mashir, who attested and produced Mashirnama of Vardat Exh.15-A, inquest report Exh.15-B and Mashirnama of injuries of Mst. Waziran Exh.15-C. P.W.8 is Constable Muhammad Ali, who is corpse-bearer. P.W.9 is Mashir Shamir, who attested and produced Mashirnamas of arrest Exh.17-B, and of recovery of revolver and knife Exh.17-C. Prosecution has examined P.W.10 Muhammad Khan and P.W.11 Nizamuddin as Investigating Officer of this case. Prosecution has produced report of Chemical Examiner Exh.19-B according to which earth and knife were found to be stained with human blood and closed its side.
' In the trial Court, appellants in their statements under section 342, Cr.P.C. Denied prosecution allegations and proclaimed innocence and false implication due to enmity. Appellant Bakhshal examined himself on oath. Appellant Bakhshal stated that deceased Atta Muhammad was married to Mst. Alam Khatoon, who sought divorce from the Court and married Kadir Bux who was uncle of Bakhshal. Bakhshal also admitted that Shahwali is his cousin and Jani is his Phuphat. This appellant further disowned relationship or acquaintance with Ghulam Muhammad. He stated that all appellants were arrested on 20-61986 and specified relationship inter se of witnesses. No other witness was examined on oath.
' We have heard at length Mr. Muhammad Hayat Junejo, Advocate for appellants and Mr. Jalaluddin Baloch for A.-G., Sind for State. In the trial Court prosecution relied upon ocular evidence, recoveries, ,iotive and medical evidence to prove the case. For the purpose of appraisal of evidence in appeal, we first take up ocular evidence. In this connection the first and the most immediate version of incident is given in F.I.R. By complainant Mst. Naziran, who is eye-witness and wife of deceased Atta Muhammad. This F.I.R. Is lodged within one hour of the incident at Police Post Kumb, where it was entered in Roznamcha. Distance between Police Post Kumb and spot is about 5 miles. It is mentioned specifically in F.I.R. By complainant that her husband had been murdered as a result of conspiracy of Ali Nawaz alias Nazoo son of Kamal and Tajoo son of Ghulam Muhammad Gopang, who were responsible for getting this murder committed. No effort was made by prosecution to prove this fact or produce any evidence in support of this assertion. Neither conspirators named above were challaned, nor complainant said a word again against them in her evidence in the trial Court. To this extent it is open to presume that complainant made false or incorrect statement in F.I.R.
' In the trial Court complainant furnished ocular evidence as P.W.1. Narrative of incident in her examination-in-chief gives impression that at the time of incident she, Mst. Waziran and deceased were sitting and conversing in the house when three appellants walked in. According to the complainant after lunch while they were sitting and chatting in Verandah, appellants came there.
Bakhshal was armed with revolver, Jani had knife/dagger and Shahwali had Lathi. They caught hold of her husband by collar and dragged him out of the house. She and Mst. Waziran took Holy Qur'an and came out to plead with appellants. In their view Bakhshal fired from his revolver at her husband, who became injured and then Jani gave him knife blows, while Shahwali gave him Lathi blows. Mst. Waziran also received knife injuries at the hands of Jani. After departure of appellants, complainant saw that her husband was lying dead. After finishing the whole story of incident complainant added that P.Ws. Inayat Ali, Panjal and Mst. Allah Bachai were also present at the spot and saw the incident. In cross- examination complainant became specific and stated that Shahwali gave her husband only one Lathi blow to make it consistent with medical evidence. She was confronted with F.1.R. In which she had stated that Shahwali gave her husband Lathi injuries.
Complainant improved her statement in cross-examination and stated that with one blow Lathi got broken. She was confronted with F.I.R. Wherein she had not stated so. In trial Court complainant stated that Bakhshal was armed with revolver, while in F.I.R. She stated that Bakhshal was armed with pistol. With all these infirmities in the evidence of complainant, as stated above, we are prepared to hold that she was present in the house at the relevant time for the reason that her presence is well-accounted for by the fact that she filed F.I.R. Promptly at the police post within one hour, which is a recorded fact. Distance between police post and spot is five miles. Complainant has explained that she went on foot with Inayat Ali one mile then hired Suzuki Van from Fakir mill and then proceeded in it to the police post. Complainant is interested witness because she is wife of deceased and in F.I.R. Enmity is alleged that this murder was committed by way of vendetta of previous murder of Ghulam Muhammad, who was related to the appellants, allegedly committed by deceased. In the circumstances, I shall accept her evidence as eye-witness only when there is independent corroboration in this case. It is held by Supreme Court of Pakistan in the case of Ahmed and others v. State 1982 SCMR 1049 that independent corroboration is not only necessary in the case of interested witness but also where ocular testimony by itself is not so sound and doubt-free as to independently suffice for conviction.
' Likewise presence of eye-witness Mst. Waziran at the spot at the time of incident is well- accounted for on the ground that she was injured in the incident and her injuries are medically proved. She is also a natural witness for the reason that incident took place outside her house. At the same time she is interested witness also for the reason that she is wife of Inayat Ali, who is closely related to the deceased as claimed by this witness in her deposition. Intrinsic worth of evidence of this injured eye-witness is still to be determined in the light of infirmities and discrepancies in her evidence in order to find out whether she has spoken the truth and can be relied upon without corroboration.
' In the trial Court examination-in-chief of this witness P.W.2 Mst. Waziran is almost same as of P.W.1 Mst. Naziran and in the same manner after narration of story of incident she has mentioned at the end that at the time of incident Inayat Ali, Panjal and her mother-in-law Mst. Allah Bachai were present and they also saw the incident. Slid has made a false claim in her deposition that in Ranipur hospital she was admitted and treated for 15 days. On the other hand, P.W.6 Dr. Mumtaz Hussain, who examined her testified in the Court that her injury was simple and after treatment she was discharged on the same day and she never came again to the hospital. In her evidence she stated that Shahwali gave 5-6 Lathi blows to Atta Muhammad. This assertion is belied by the doctor, who had deposed that deceased had sustained one bruise 6 c.m. x 1 c.m. On right lumber region of abdomen. This witness further stated that Lathi was five feet long and two inches in diameter. She further demonstrated that Lathi was as thick as wrist of her arm. Parcels of case property were got opened and Lathi was seen. It was a small about one foot long broken piece of Lathi covered by brown skin of animal. It was not as thick as wrist of even a young lady as claimed by this witness. Both the counsel present stated that it was a piece of bamboo Lathi. Two reasons go against the claim of this witness. Firstly if the Lathi was five feet long and broke by the impact of blow, then it should have broken from the middle and the piece recovered from the spot should have been about 2-1/2 feet instead of about one foot. Secondly as per post-mortem report bruise 6 c.m. x 1 c.m. Was on lumber region of abdomen as such it is not probable that Lathi could get broken if struck at such soft part. Normally Lathi can get broken if it is struck on hard part of human body like skull or bone part or other part with thick muscle but then impact of injury would also be more severe and not a bruise.
' Injured eye-witness Mst. Waziran also testified before the trial Court that on the day of incident police only enquired from her whether Atta Muhammad was related to her and who caused injuries to her and what were the names of assailants. She specifically stated that police did not ask her further questions. By saying so she gave the impression that her full and detailed statement was not recorded by the police for the reason that she was so seriously injured that she had to be admitted in the hospital for 15 days. As against that P.W.11 A.S.I. Nizamuddin deposed in the trial Court that on the day of incident at the spot he prepared memo. Of injury of Mst. Waziran and recorded her statement and sent her to the hospital. Mst. Waziran also claimed in her evidence that she was sent to Ranipur hospital along with deceased in the same police van and both were examined by the doctor at the same time. Investigating Officer Nizamuddin stated in his evidence that he sent deceased and injured Mst. Waziran to the hospital separately. P.W.8 Muhammad Ali Corpse-bearer stated in his evidence that he took dead body to the hospital from the spot and denied categorically that he also took injured witness to the hospital. In the evidence of doctor and post-mortem report time of arrival of dead body in the hospital is not mentioned but it is stated specifically that post-mortem was performed at 9 p.m. About Mst. Waziran doctor stated positively that he received her in the hospital for treatment at 5 p.m. This clearly shows that injured eye-witness Mst. Waziran spoke lies in her statement on oath caring very little for the sanctity of truth even on oath.
The fact that eye-witness sustained injuries at the time of incident, which are medically proved would show beyond dispute presence of such witness at the spot at the time of incident but this does not necessarily prove that such eyewitness has spoken the whole truth. If evidence of such witness suffers from infirmities or contains inconsistencies or lies, then evidence of such injured eyewitness cannot be implicitly relied upon unless there is independent corroboration available on the record to supplement it, This view finds support from cases Saeed Ahmad v. Zammured Hussain and others 1981 SCMR 795 and 797, Sahib Masih and others v. State 1982 SCMR 178 and 183-D and Abdul Hameed and another v. State 1985 P Cr. L J 1992 and 2000.
' Now I take up evidence of remaining two eye-witnesses namely P.W.3 Inayat Ali and P.W.4 Muhammad Panjal. It may be recalled as stated in earlier part of this judgment that Mst. Waziran wife of P.W. Inayat Ali had stated in the opening part of her deposition that deceased Atta Muhammad was closely related to her husband. This fact is denied by P.W.3 Inayat Ali, who has contradicted his wife by saying that deceased Atta Muhammad was only on visiting terms with him and he knew him since his childhood. This witness Inayat Ali pretended that he did not remember name of father of deceased but when it was suggested by defence counsel in cross- examination that the name of father of deceased was Abdullah, the witness agreed with him. This witness then admitted in his evidence that his wife Mst. Waziran is related to Mst. Naziran wife of deceased and Mst. Naziran used to visit his house frequently like a family member. He also admitted that other name of Mst. Naziran is Razul. He then claimed that he did not know name of father of Mst. Naziran and when it was suggested by the defence counsel that it was Kaiser, the witness persisted that he did not know.
' Version of incident as given by this eye-witness Inayat Ali is different from version given by two lady eye-witnesses mentioned above. According to lady eye-witnesses all appellants came inside the house, caught hold of deceased by collar, gave him slaps and dragged or pulled him outside the house, where Bakhshal fired at him from his revolver then Jani gave him knife blows and Shahwali gave him Lathi blows. Version of this eye-witness is that when appellants entered the house, Shahwali was armed with knife and again said Shahwali had a Lathi. Jani caught hold of Atta Muhammad by neck and gave him knife injuries and then dragged him out of the house.
Outside Bakhshal fired at Atta Muhammad from revolver at his chest and then Jani and Bakhshal gave knife blows to Mst. Waziran. After giving injuries to Mst. Waziran, Jani gave knife injuries to Atta Muhammad. Shahwali also gave Lathi blows to Atta Muhammad, who died at the spot. Appellants ran away raising slogans that they had taken revenge of murder of their uncle Ghulam Muhammad, which took place 15 years ago. Obviously version of incident given by this witness is in contrast with version of lady eye-witnesses. According to this witness half of incident took place inside the house and knife injuries were given to deceased by Jani inside the house and thereafter Atta Muhammad was dragged out. After knife injuries Atta Muhammad is expected to fall down wounded and bleeding but neither dragging marks were found nor trail of blood was found inside the house as per Mashirnama of Vardat Exh.15-A. Even Mst. Waziran also does not say that she was given knife injuries by Jani and Bakhshal jointly as according to her and Mst. Naziran Bakhshal was not armed with knife and he was attributed role of firing one shot from revolver at Atta Muhammad and that too in the beginning outside the house at the start of attack.
' If evidence of Inayat Ali is read in juxtaposition with evidence of eye- witnesses Mst. Waziran and Mst. Naziran, unavoidable impression would appear to the effect that Inayat has not seen the incident and was not present at the spot. He was probably working in the shop of Haji Shall Muhammad in Fakir Mill area, where Mst. Naziran went on foot after incident and took him in Suzuki Van which was hired from there to Police Post Kumb. It is admitted by Inayat Ali in his cross- examination that Mst. Naziran is related to his wife Mst. Waziran and used to visit his house frequently like a family member. In such circumstances, she is expected to know where he worked and could walk small distance of one mile to take him to the police post. If Inayat Ali was present at the spot and had seen the incident as claimed by him, then in all probability he would have himself filed report instead of assigning this role to a lady, even if she was wife of deceased. P.W. Inayat All does not claim that his police statement was recorded at the police post. If he had seen the incident he would have asked Investigating Officer to record his 161, Cr.P.C. Statement at the police post. P.W.1.1 Nizamuddin, Investigating Officer has not said in his evidence that when Mst. Naziran came to police post, she was accompanied by P.W. Inayat Ali. He further stated that after writing the report he proceeded to the Vardat accompanied by complainant Mst. Naziran. In fact perusal of Mashirnama of Vardat Exh.15-A also shows that Wardat was pointed out by complainant Mst.
Naziran. Wardat could have been pointed out by Inayat Ali because incident took place inside or outside his house and Mst. NaZiran was only a guest. I, therefore, view this assertion with doubt that Inayat All accompanied Mst. Naziran to the police post and if he did that then he had not seen the incident, that is why he did not offer to lodge report himself or point out Vardat himself and deliberately kept a low profile. Record shows that police statement of Inayat Ali was recorded on 20-61986 at the spot.
' Eye-witness Inayat Ali also stated in his evidence that Bakhshal fired several shots but only one shot hit Atta Muhammad but then no .Crime empty was recovered from the spot. He also stated that after firing-no body caused any injury to Atta Muhammad. This assertion is opposed to the version of lady eyewitnesses. This witness further claimed in his evidence that his wife injured Mst.
Waziran remained admitted in the hospital for 15 days. He also asserted that Lathi was two meters in length and was 2-1/2 to 3 inches thick. Evidence of this witness does not inspire confidence and is ruled out of consideration.
' Last eye-witness examined by the prosecution is P.W.4 Muhammad Panjal. He has admitted that he is Phosphate of Inayat Ali and deceased Atta Muhammad was also related to him. His version of incident as stated in his evidence is same as that of lady eye-witnesses. According to him deceased was caught hold by neck by slapped and taken outside the house and then Bakhshal first fired from his revolver at Atta Muhammad and then Jani gave him knife blows and then Shahwali gave him Lathi blows. Jani also gave knife injury to Mst. Waziran. He has stated that police recorded his 161, Cr.P.C. Statement after 8 days of incident. According to Investigating Officer Nizamuddin, he recorded police statement of Panjal on 23-6-1986. This witness deposed that after incident he went to Sobho Dero to inform brother of deceased as asked by complainant. He went there and came back same evening and then went to the hospital and brought back dead body. In such circumstances, his statement could have been recorded on the same day of incident or on the following, day. There is no satisfactory explanation for delayed recording of police statement of this witness. If there is considerable delay in recording of 161, Cr.P.C. Statement of a witness and delay is not satisfactorily explained then it would be open to adverse inference that delay was used to bring statement of that witness in line with prosecution case. Evidence of such witness cannot be given sanctity as is generally given to the evidence of a witness whose statement is recorded promptly without delay. Reference can be made to the case of Asfandyar v. State PLD 1978 Pesh.
38.
' Now so far ocular evidence is concerned, it would appear that evidence of all the four eye- witnesses is deficient quality-wise and suffers from such serious shortcomings and infirmities that it cannot be accepted and relied upon unless there is independent corroboration. I have ruled out of consideration evidence of P.W. Inayat Ali. Evidence of remaining three eye-witnesses is also unsatisfactory and does not inspire confidence for reliance without corroboration. It is settled rule now that one tainted piece of evidence cannot corroborate another tainted piece of evidence, so I am not allowed to say that one eye-witness would corroborate the other.
' For the purpose of corroboration, medical evidence is not of much help for the reason that it does not provide corroboration qua accused. It may support assertion as to what injury was caused with what weapon but not the fact as to which accused caused what injury. Apart from that there is conflict between ocular evidence and medical evidence on one important point. All eye-witnesses except Panjal stated in the trial Court that incident took place immediately after lunch and deceased also took lunch. As against that finding of the doctor in the post-mortem report is that stomach of deceased contained semi-digested food and watery fluid. Finding of the doctor has given a lie to the assertion of eyewitnesses. In such circumstances of conflict, the Court would prefer medical evidence because doctor is not motivated and his finding is based on sure and indisputable scientific theory. In support of the proposition reference can be made to the case of Yousif v. State PLD 1988 Kar.
521.
' Another important piece of evidence for the purpose of corroboration is recoveries of crime weapons. In this case according to the prosecution appellant Bakhshal fired his revolver at Atta Muhammad but from the Vardat no crime empty was recovered as such revolver recovered allegedly at the instance of Bakhshal was not sent to the Ballistic Expert. Doctor has deposed that during post-mortem examination, he recovered one bullet from the dead body, which was scaled in the bottle and sent to the police. Even that bullet was not sent to the Ballistic Expert along with revolver for his finding whether it could be fired from that weapon. So there is no evidence with prosecution to connect revolver recovered with commission of crime to prove that from this revolver shot was fired at Atta Muhammad.
' It is the case of prosecution that appellant Jani caused injuries to deceased and Mst. Waziran with knife/dagger and he produced that knife about which finding of Chemical Examiner is that the same was found to have been stained with human blood. Knife was recovered on 26-6-1986 and parcels were received in the laboratory on 8-9-1986 after delay of about 2-1/2 months. No explanation is given for this delay. In order to prove recovery of revolver and knife prosecution has examined P.W.9 Mashir Shahmir. It is deposed by this Mashir in the trial Court that all the three appellants were arrested in his presence from the house of Mevo Gopang in village Tradi. Appellant Bakhshal produced revolver, which was lying under the root of palm tree in the house of Mevo.
Bakhshal could not produce license. Appellant Jani took out blood-stained dagger from the roof of the house of Mevo and produced the same. Both these weapons were recovered on the sixth day of incident. According to eye-witnesses after incident appellants ran away with their weapons.
There was sufficient time for appellant Jani to wash hatchet particularly when recovery was made on the sixth day. Mashir Shahmir is admittedly Gopang by caste and stated that he lived in Bhombhatpur at a distance of 15/16 miles from the house of Mevo. He has also admitted that co- Mashir Tharoo also lived in Sobho Dero which is 10/12 miles away from the house of Mevo. Mashir Shahmir refused in his evidence to say as to how many houses there were in village Tradi. He said he did not know whether there were 50 houses or 200 houses in that village. He also refused to admit that place of recovery of weapons was at a distance of about 50 or 100 paces from the Vardat. He said that he had not put any identification mark on the dagger as such he could not say whether the dagger was sane which was produced by appellant Jani. He has admitted that at the time of arrest of appellants, no male member was present in the house of Mevo except ladies. This Mashir has not said that weapons were concealed in such manner that exclusive knowledge could be attributed to the appellants, who produced the same particularly when there were other inmates of the house present there. Investigating Officer Nizamuddin has admitted that there were about 100 houses in village Tradi. He met Mashir Shahmir and Tharoo at Vardat per chance and joined them in the investigation. Investigating Officer has further categorically admitted that he did not try to get any other person from the village to act as Mashir. Investigating Officer has also admitted that house of Mevo is about 200 paces away from Vardat.
' Investigating Officer also stated in his evidence that appellants lived in village Sono Gopang which is 4 or 5 miles away from village Tradi. He went twice to village Sono Gopang to arrest appellants but without success. Another important feature of recovery of weapons is that house of Mevo is flanked on both sides by houses of Yousif and Ismail, who are brothers of Inayat Ali. This is so stated by Inayat Ali himself in his evidence. This suggestion was put to Investigating Officer in his cross- examination but he avoided reply by saying that he did not remember whose houses were adjacent to the house of Mevo. Appellant Bakhshal stated on oath that Mevo Gopang is brother-in- law of Yousif and denied arrest and recoveries from his house. Relationship was not challenged in cross-examination. Investigating Officer admitted that he did not record the statement of Mevo. In such circumstances, how could appellants be expected to come and take refuge in the house of Mevo and conceal weapons there. This would amount to openly Court arrest and offer weapons of crime to police. Even after taking such big risk Jani would not act so fool hardy not to wash blood from hatchet before placing it neatly for recovery by police. Defence claims that appellants were arrested on the day of incident from village Sono and news was published in the paper. This suggestion is denied by Investigating Officer. In the circumstances stated above padding in the evidence cannot be ruled out. Objection taken by the defence that Mashirs were not from locality and there was violation of section 103, Cr.P.C. Is sustainable. In support reliance is placed on the case of Mumtaz Ahmad v. State 1974 P Cr. L J 137. Both revolver and dagger have been recovered on the sixth day of incident. Lathi is not recovered from Shahwali excepting small broken piece which was secured from the spot. In the circumstances and for reasons stated above, I feel disinclined to rely upon evidence of recovery of weapons being unsatisfactory and not free from doubt.
' Now I come to motive. Motive as stated by prosecution is that some 15 years before the incident one Ghulam Muhammad was abducted and murdered. At the time of incident in the present case, appellants declared that they had taken revenge from Atta Muhammad for murder of their uncle Ghulam Muhammad. It was not pin-pointed which of appellants said that Ghulam Muhammad was his uncle. No further effort was made to prove motive or elaborate it. Appellants have denied relationship with Ghulam Muhammad. Appellant Bakhshal stated in his statement on oath that appellant Jani is his Phuphat and Shahwali is his cousin. It was further stated by him that deceased Atta Muhammad was previously married to Mst. Alam Khatoon, who took divorce from Atta Muhammad and married Kadir Bux. Appellant Bakhshal had further stated that Kadir Bux is his uncle and on that account Atta Muhammad and his relatives were annoyed with them. Appellant Bakhshal has produced copy of plaint filed in suit for dissolution of marriage which is on the record as Exh.24-A. It is held by the Supreme Court in the case of Habibullah and others v. State PLD 1969 SC 127 that murders may be committed wantonly or without motive but if motive is alleged by prosecution and the same is found to be false, evidence of witness on premises of false motive need to be scrutinized. Superior Courts time and again have warned that enmity is double-edged weapon and it cuts both ways. If enmity is enough to motivate a person to commit crime, it is also enough to implicate some person from other side falsely. In this connection, reference can be made to the case of Janib and others v. State 1986 P Cr. L J 583. In the instant case, it can be said that evidence produced by prosecution on the point of motive is not satisfactory and secondly plea raised by defence also has weakened the force of motive alleged by the prosecution.
' Learned counsel for appellants argued before us that scene of offence is outside in the open street where blood was found and time of incident was 3 p.m. On Friday, which was holiday as such this crime could have been witnessed by outsiders and residents of other houses nearby. Sketch of Vardat Exh.13-A shows that dead body was lying in the street more near to door of house of Varyam than the door of house of Inayat Ali. Other nearby houses in the street are of Manzoor Gopang, Saindad Gopang and Ali Hassan Gopang. In Mashirnama of Vardat Exh.15-A, adjacent to the Vardat house of Mazhar Gopang is also mentioned. Now if one shot or several shots were fired from revolver as alleged by eyewitnesses and there were shouts and cries as well then witnesses from nearby houses should be attracted or passers-by could also see as it was open street.
Question was raised why only inmates of house of Inayat Ali saw the incident and not others.
Investigating Officer has not elaborated on this point because no such question was put to him.
This situation is open to two presumptions. Either because of Friday being holiday all inmates of houses near Vardat were present then many could see incident, then why only inmates of house of Inayat have been produced as eye-witnesses. Alternatively as argued by learned counsel for State neighbors from nearby houses did not come out because it was 3 p.m. In the month of June, which is supposed to be extremely hot in upper Sind and only one shot was fired and that also from revolver which does not make louder sound and at that time all were sleeping that is why persons from nearby houses did not come out because they did not hear anything. This second argument should apply to the inmates of house of Inayat Ali as well. In any case if inmates of house of Inayat Ali were not asleep because of guests, then the prosecution case is that appellants came inside the house of Inayat Ali and there was slapping and dragging of Atta Muhammad from inside the house to the outside and lady witnesses brought out Qur'an Sharif and pleaded them it is expected that there would be hue and cry of considerable intensity when a person was shot and stabbed repeatedly to death to wake up inmates of house of Varyam Gopang, which was nearest to the Vardat because door of that house was only 10 feet away from where body was found, when door of house of Inayat Ali was 46 feet away from the dead body. We do not feel inclined to agree that nobody heard the hue and cry and saw incident except alleged eye-witnesses produced by prosecution. Investigating Officer also has not said that he made attempts but no other witness was willing to give evidence. It is possible that deceased was outside and incident took place outside and on cries lady witnesses came out and saw incident or part thereof but they are not telling the whole truth.
' It was also argued before us on behalf of appellants that in F.I.R. Time mentioned for filing report is 4 p.m. And according to the doctor and medical certificate of Mst. Waziran, she arrived at hospital at 5 p.m. And within such short time of one hour it was not possible for Investigating Officer to write F.I.R., come to Vardat at a distance of 5 miles, inspect Vardat, prepare Mashirnama of Vardat, inquest report, Mashirnama of injuries of Mst. Waziran and then send her with latter to the hospital and she would arrive at the hospital within one ' hour. Even if Investigating Officer came to the spot in police van or other vehicle then one hour's time is too short to complete all these formalities. In this conflict I would again prefer time of 5 p.m.
For arrival of Mst. Waziran in the hospital to be correct and view with hesitation to accept to be correct time of reporting to be 4 p.m. Which again in turn makes time of incident doubtful.
For the facts and reasons stated above, I am of considered view that prosecution has failed in its duty to prove the case against appellants beyond doubt. All pieces of evidence produced are tainted and one piece of tainted evidence cannot corroborate another piece of tainted evidence. I, therefore, give benefit of doubt to the appellants and set aside their conviction and sentences.
Since I have declined to rely upon evidence of recovery of weapons, I set aside conviction and sentence of appellant Bakhshal under section 13(E) of Arms Ordinance. I also set aside conviction and sentence of appellant Jani under section 324, P.P.C. In the result appeal is allowed and reference is rejected. Appellants may be released forthwith, if not wanted in any other case.
' QAISER AHMED HAMIDI, J.--- I have had the advantage of reading the judgment proposed to be delivered by my learned brother Sajjad Ali Shah, J., with profound respect I have not been able to share the conclusion reached by him.
2. Deceased Atta Muhammad resided in Khairpur, where he was working as peon in Treasury office.
His relatives resided in village Trodi, Taluka Kotdiji. P.W. Inayat Ali, a relative of deceased Atta Muhammad was blessed with a son. On 20-6-1986, deceased Atta Muhammad and his wife Mst.
Naziran had gone to his house in village Trodi to greet him. At about 3 p.m., deceased Atta Muhammad was sitting in the Verandah of the house along with his wife Mst. Naziran, Inayat Ali, his wife Mst. Waziran, Panjal and Mst. Allah Bachai, when appellants Bakhshal, Jani and Shahwali entered into the house, out of them Bakhshal had a revolver with him, Jani was armed with a knife, while Shahwali carried a Lathi. They caught hold of deceased Atta Muhammad and forcibly carried him outside the house. Both Mst. Naziran and Mst. Waziran took Holy Qur'an with them and entreated the appellants to spare deceased Atta Muhammad, but with no success. Appellant Bakhshal fired at deceased Atta Muhammad followed by knife blows by appellant Jani. Appellant Shahwali caused Lathi blow to deceased Atta Muhammad, who fell down and died on the spot.
Mst. Waziran who tried to intervene was also stabbed by appellant Jani. The appellants then decamped raising slogans that they had taken revenge of murder of their relative Ghulam Muhammad, who was killed by deceased Atta Muhammad about 15 years prior to this incident.
Mst. Naziran, wife of deceased Atta Muhammad then rushed to Police Post Kumb along with Inayat Ali, where her report was recorded in station diary by Nizamuddin A.S.I. At 4 p.m. A copy of the entry of station diary was then sent to Kotdiji Police Station, where it was incorporated in 154 Cr.P.C. Book by Muhammad Khan A.S.I. Nizamuddin A.S.I. Proceeded to the scene of occurrence which was shown to him by complainant Mst. Naziran. The dead body of Atta Muhammad was lying there. The Police Officer secured blood-stained earth and a piece of broken Lathi from the scene of incident in presence of Mashirs Sher Muhammad and Khuda Bux. The dead body of Atta Muhammad was then despatched to Medical Officer Ranipur for postmortem examination. Mst. Waziran, who had sustained injury during the course of incident was also referred to M.O. Ranipur for examination, treatment and certificate. The Police Officer then recorded the statements of Mst. Waziran, Inayat Ali, Panjal, Ali Hassan and Mst. Allah Bachai. On 26-6-1986, all the three appellants were arrested from the house of Mevo Gopang situated in village Trodi in presence of Mashirs Shahmir and Tharo.
Appellant Bakhshal then produced a revolver lying concealed from the house of Mevo Gopang.
Appellant Jani also produced a knife lying concealed from the roof of the said house. Both these articles were sealed on the spot. The blood-stained knife was sent to Chemical Examiner for examination and report and the same was found stained with human blood. After usual investigation the appellants were sent up before the Court of Sessions Judge, Khairpur to stand their trial.
3. The prosecution examined Mst. Naziran (P.W.1), Mst. Waziran (P.W.2), Inayat Ali (P.W.3), Muhammad Panjal (P.W.4), Muhammad Nawaz Tapedar (P.W.5), Dr. Mumtaz Hussain (P.W.6), Khuda Bux (P.W.7), Muhammad Ali, Police Constable (P.W.8), Shahmir (P.W.9), Muhammad Khan A.S.I. (P.W.10) and Nizamuddin A.S.I. (P.W.11).
4. The appellants met the charge by a denial professing innocence. Appellant Bakhshal examined himself on oath (D.W.1).
5. At the conclusion of the trial the appellants were convicted by Mr. Rana Bhangwandas, Sessions Judge, Khairpur and sentenced each as follows:-
(i) Bakhshal: under section 302/34, P.P.C. ' sentenced to death and to pay a fine of Rs,5,000 or in default to suffer R..I. For one year, and to pay compensation of Rs,10,000 to the heirs of deceased or in default to suffer R.I. For six months. under section 13(c) of the Arms Ordinance, 1965 ' sentenced to suffer R.I. For three years and to pay a fine of Rs,1,000 or in default to suffer R.I. For six months.
(ii) Jani: under section 302/34, P.P.C. ' sentenced to death and to pay a fine of Rs,5,000 or in default to suffer R.I. For one year, and to pay compensation of Rs,10,000 to the heirs of deceased or in default to suffer R.I. For six months. ' for six months, and to pay compensation of Rs,1,000 to injured Mst. Waziran or in default to suffer R.I. For six months.
(iii) Shah Wali: under section 302/34. P.P.C. ' sentenced to death and to pay a fine of Rs,5,000 or in default to suffer R.I. For one year, and to pay compensation of Rs,10,000 to the heirs of deceased or in default to suffer R.I. For six months.
6. The appellants have challenged their conviction and sentence by filing this appeal. There is also reference under section 374, Cr.P.C. For confirmation of the death sentence awarded to the appellants. Both the appeal and reference are being disposed of by this consolidated judgment.
7. The prosecution rests upon the following pieces of evidence:-
(a) Ocular account given by four witnesses, namely, Mst. Naziran (MA), Mst. Waziran (P.W.2), Inayat Ali (P.W.3) and Muhammad Panjal (P.W.4).
(b) Recovery of crime weapons, viz. Revolver at the instance of appellant Bakhshal, and knife at the instance of appellant, Jani, which on examination by Chemical Examiner was found stained with human blood.
(c) Motive.
8. The learned trial Judge has implicitly relied on the testimony of all the four eye-witnesses, namely, Mst. Naziran (P.W.1), Mst. Waziran (P.W.2), Inayat Ali (P.W.3) and Muhammad Panjal (P.W.4).
Mst. Naziran (P.W.1) is the widow of deceased Atta Muhammad. On the fateful day she had accompanied her husband to the house of Inayat Ali (P.W.3) situated in village Trodi. After taking lunch they were sitting in the Verandah of the house of Inayat Ali (P.W.3), when all the appellants duly armed emerged there and forcibly carried Atta Muhammad out of the house where he was done to death. Mst. Naziran rushed to Police Post Kumb situated at a distance of about five miles from village Trodi and lodged the F.I.R. Which was recorded in station diary at 4 p.m. It is significant to note that the names of all the appellants are mentioned in F.I.R. Which was lodged with great promptitude and before there was any time for concocting a false story or consulting the witnesses. This factor again indicates that Mst. Naziran (P.W.1) was in village Trodi along with her husband when her husband was brutally murdered. The version of Mst. Naziran (P.W.1), gets full support from Mst. Waziran (P.W.2), Inayat Ali (P.W.3) and Muhammad Panjal (P.W.4). Out of these witnesses Mst. Waziran (P.W.2) is injured. The presence of injury on her person is a clear pointer of her presence at the time of incident. Her evidence is seriously criticised by learned counsel for the appellants on the ground that she has tried to magnify the case and to improve upon it at different stages. Reference has been made, in particular, to her statement about her stay in hospital which stood contradicted by Dr. Mumtaz Hussain (P.W.6). An attempt was also made to show that the injury sustained by Mst. Waziran (P.W.2) was self-suffered. No such suggestion was, however, made to Dr. Mumtaz Hussain (P.W.6), who examined her and found the following injury on her person:- "One stab wound 1-1/2 c.m. x 1 c.m. x muscle deep on left lateral side of abdomen at the lumber."
9. Mst. Waziran (P.W.2) is a natural witness. The incident took place only few paces away from her house in broad daylight. The appellants were known to her previously. In fact the parties are related to each other and the version of complainant Mst. Naziran (P.W.1) to this effect was not questioned by the appellants in cross-examination.
10. Inayat Ali (P.W.3), husband of Mst. Waziran has also implicated all the appellants. Admittedly he works at the shop of Haji Shafi Muhammad Shaikh situated within the precincts of Fakir Mill at a distance of about one mile from village Trodi. The incident, however, took place on Friday when he was available in his house. Deceased Atta Muhammad had in fact come to congratulate him for having blessed with a son. Therefore, his presence at the relevant time cannot be suspected.
11. Lastly there is evidence of Muhammad Panjal (P.W.4) who has testified as follows:- "The incident of this case has occurred in the house of Inayat Ali, when I, Inayat Ali, his wife Mst.
Waziran, deceased Atta Muhammad and his wife Mst. Naziran were present in the house. Atta Muhammad had come on that day to give congratulation to Inayat Ali as he was blessed with a son. It was about Manjhand time when suddenly accused Bakhshal, Jani and Shahwali came in the house. Shahwali was armed with a knife. Again says that Shahwali was armed with a Lathi, Bakhshal was armed with revovler. Jani was armed with knife. Jani held Atta Muhammad with his neck and dragged him out of the house after slapping him. We also went outside the house to rescue him. Bakhshal showed his revolver and threatened us not to come near them. Bakhshal fired with revolver at Atta Muhammad which hit him. Jani gave knife blows to him and Shahwali gave him Lathi blows on which Atta Muhammad fell down on the ground. Naziran and Waziran took Qur'an Sharif and came out of the house. Jani gave knife injuries to Waziran wife of Inayat. Atta Muhammad died on the spot. Then all the accused after raising slogans that they have taken the revenge of their uncle Ghulam Muhammad ran away from the Wardat. The wife of Atta Muhammad then asked me to inform the brother of her husband at Sobhodero. Then I went to inform him."
12. Muhammad Panjal (P.VV.4) is also resident of village Trodi and his presence at the Wardat at the relevant time could not be by chance.
13. Admittedly all the above four witnesses are related to deceased Atta Muhammad. Mst. Naziran (P.W.1) is his widow. Mst. Waziran (P.W.2) states that deceased Atta Muhammad closely related to her husband Inayat Ali. Inayat All (P.W.3) admits that his wife Mst. Waziran is related to complainant Mst. Naziran, who used to visit his house like a family member. Muhammad Panjal (P.W.4) admits his relationship with Inayat Ali (P.W.3) and deceased Atta Muhammad. All these witnesses had, however, no reason to depose falsely against the appellants. In fact the appellants had come out with the motive of this case. Motive is sometimes secretly nourished and is not known to outside world. The culprits do often commit grave crimes from the most inadequate motive. The record as it stands simply shows that the appellants took into their head to take revenge of a murder which took place about fifteen years back. The witnesses, more particularly Mst. Waziran (P.W.2), Inayat Ali (P.W.3) and Muhammad Panjal (P.W.4) had, however, no reason to depose falsely against the appellants. N The testimony of witnesses who are natural witnesses of an occurrence and whom one would expect to have seen it should not be doubted only because they happen to be related to deceased person. As observed in Nazir and others v. The State reported in PLD 1962 SC 269, an 'interested witness' is 'one who has a motive for falsely implicating an accused person'. While explaining the need for , corroboration in the case of interested witness, it was also observed:- "There cannot be an inflexible rule that the statement of an interested witness can never be accepted without corroboration...."
14. The above case was examined in Khurdo and others v. The State reported in PLD 1963 Kar. 92, by A.S. Faruqui, J., who was pleased to observe as follows:- "The fact that a witness is related does not necessarily make him an interested witness in the sense in which it is understood in law. The fact of relationship is only one of the considerations but the main consideration is whether he had a motive for falsely implicating the accused."
15. The dictum as laid down in Nazir and others v. The State, was followed in Ghulam Ali v. The State, reported in PLD 1967 Kar. 566 and Abdul Majeed v. The State reported in 1969 SCMR 437.
16. The incident took place at 3 p.m. Just adjacent to the house of Inayat Ali (P.W.3), it is not at all possible to imagine that the culprits were not seen by other persons of village Trodi where admittedly there are 100 houses. It is, however, unfortunate that in a case, of this nature the 'so said independent persons' prefer to watch the whole Drama as mute spectators. Perhaps a fear lurks in their mind that in case of acquittal of culprits they should become the next victims.
17. Considering the evidence of all the four witnesses including injured Mst. Waziran (P.W.2) in the light of the observations of their Lordships of the Supreme Court in Nazir and others v. The State referred to above, I am satisfied that there are circumstances which tend sufficiently to satisfy the mind of this Court that the witnesses have spoken truth.
18. Mr. Muhammad Hayat Junejo, learned counsel for the appellants has referred to various contradictions, more particularly about the number of shots fired by appellant Bakhshal and. Lathi blows given by appellant Shahwali. The alleged discrepancies in the evidence of all the four eye- witnesses mostly consist of matters of detail. These are not in themselves proof of fabrication and do not in my view discredit their testimony on the main point to the effect that appellants entered into the house of Inayat Ali (P.W.3), forcibly took deceased Atta Muhammad outside and then killed him mercilessly. Unless the contradictions are on material points and either throw considerable doubt about the witnesses having observed the facts deposed to at all or indicate that they are making a deliberate attempt to misstate them, no serious notice should be taken of them. To support his contention that the case against the appellants is doubtful in nature, the learned counsel for the appellants has referred to a number of authorities, but I do not find it necessary to discuss these authorities, because it is a question of fact in each particular case, whether the evidence produced by the prosecution can, or cannot be considered to be sufficient to establish the guilt of accused persons.
19. The recoveries of incriminating weapons, viz. Revolver and knife at the instance of appellants Bakhshal and Jani respectively do not appear to be natural. The criticism made by learned counsel for appellants has the support of sound reasons. Besides the evidence leading to the recoveries being improbable, the Mashir of recoveries is not from the locality. The recoveries were again made from the house of Mevo Gopang. The said Mevo Gopang was, however, not examined. This piece of evidence is, therefore, ruled out of consideration.
20. Dr. Mumtaz Hussain (P.W.6), who had conducted the autopsy on the dead body of Atta Muhammad found eight external injuries on his person. In the opinion of the Medical Officer, one of the injuries was caused by fire-arm, one by hard and blunt substance and the rest by sharp pointed substance. Their Lordships of the Supreme Court had remarked in Nazir and others v. The State PLD 1962 SC 269, that:-- "Circumstances corroborating the eye-witness may be such as (1) that the number of culprits mentioned was such as would be required for an attack of the kind which is the subject-matter of the proceedings; (2) that the persons named as culprits were such as would be expected to join in the attack."
21. It seems to me that in the instant case the presence of appellants Bakhshal and Jani is proved beyond any shadow of doubt. The role of appellant Shahwali, however, does not appear to be convincing. The manner in which the Lathi is said to have broken during the process of injury caused on lumber region is again not open to reason. If the evidence is shaky against a particular accused and such that he cannot be convicted with a clear conscience, or there are circumstances indicating that he may have committed the offence or may not have, he may always and must necessarily be given the benefit of doubt. Bearing in mind the unfortunate tendency, which is too common in this part of country to implicate as many persons as possible, I extend benefit of doubt to appellant Shahwali for safe dispensation of justice and acquit him from the charge. He is in custody and be released forthwith, if not required in any other case.
22. Having regarding to the above position, I maintain the conviction and sentence recorded against appellants Bakhshal and Jani. The appeal filed by them V is dismissed and the reference for confirmation of their death sentence is accepted. The appeal filed by Shahwali is accepted and the reference against him is rejected.
' We have written separate judgments, we have both acquitted appellant Shahwali, as such his appeal is allowed and to that extent death reference is rejected. He may be set free if not wanted in any other case. So far the remaining two appellants are concerned, there is conflict of opinion between us, therefore, Office is directed to put up this case before learned Chief Justice for nominating a third Judge for resolving the controversy.