AJMAL MIAN, J.---The appellants, namely, Ahmed Khan son of Rasool Bakhsh Dahar, aged 65 years, Nusrat Hussain son of Ahmed Khan Dahar, aged 24 years and Amjad Hussain son of Ahmed Khan Dahar, aged 21 years have filed present appeal against the convictions and sentences awarded by the learned Sessions Judge, Larkana, through his judgment, dated 24-8-1981 for murdering Abdul Ghani son of Haji Misri Khan Dahar, in Shahi Bazar Badah Town. Appellant No.1 is the father, whereas appellants Nos.2 and 3 are the sons of appellant No.1. Appellant No.3 has been convicted under section 302, P.P.C. And has been sentenced to death. He has also been ordered to pay a fine of Rs.2,000 or in default of payment of fine to suffer further R.I. For 6 months, whereas appellants Nos.1 and 2 have been convicted under section 302 read with section 34, P.P.C. And have been sentenced to life imprisonment each and also to pay a fine of Rs.2,000 each and in default of payment of fine further R.I. For 6 months each. It has also been ordered that in case of recovery of the aforesaid fines imposed against the appellants, the same should be paid as compensation under section 544-A, Cr.P.C. To the heirs of deceased Abdul Ghani son of Haji Misri Khan Dahar. The learned Sessions Judge has also made a reference to this Court for the confirmation of the death sentence awarded to appellant No.3.
2. The relevant facts, leading to the filing of the above appeal are that P.W.3 Muhammad Ismail son of Haji Misri Khan Dahar lodged a complaint on 15-2-1980 at 16-30 hours at the Police Post Badah situated 2 furlongs from the place of Vardat against the present appellants under section 302/34, P.P.C. And 13-D, Arms Ordinance. It was alleged that about a month back the complainant had got his brother Abdul Ghani betrothed with the daughter of Serai Muhammad Khan Dahar resident of Badah, on which Serai Ahmed Khan Dahar resident of Bothro, Taluka Mehar, brother of Serai Muhammad Khan got annoyed. 1t was further alleged that Ahmed Khan Dahar was asking the complainant party that if they would take the hand of his niece, he would see to them and would get them murdered. It was also stated that 3 days back the complainant got the girl made to sit betrothed to his brother in `Vanvah' for marriage purpose. It was further stated that today at 3 p.m.
The complainant, his brother Abdul Ghani and Muhammad Khan son. Of Gulab Khan went to Serai Muhammad Khan for settlement of marriage talks and after consultation with Muhammad Khan, they all four went to Badah Town for inviting their friends for marriage. It was further stated that when they reached Shahi Road in Badah Town near the shop of Ibrahim Muhajir, one jeep came and stopped. It was also stated that Serai Ahmed Khan son of Rasool Bux Khan Dahar and his sons Amjad and Nusrat were sitting in it. Serai Ahmed Khan was armed with a double barrel gun, whereas Amjad and Nusrat were armed with pistols. It was further averred that suddenly Amjad got down from the jeep and gave Hakal and fired his pistol from behind at the complainant's brother Abdul Ghani, who fell down due to pistol shot. It was also alleged that Serai Ahmed Khan fired in the air with a gun and Nusrat fired his pistol in the air and gave Hakal not to come near them otherwise they would murder the complainant party. It was also stated that due to fear the complainant party did not go near them. It was further stated that Amjad got into the jeep, but while he was getting into the jeep, his pistol and one live cartridge fell down and thereafter, all the 3 accused went away in jeep towards southern side. It was also stated that thereafter the complainant saw that Abdul Ghani had pistol shot injury on his back, which was bleeding and because of that he had expired. It was further stated the complainant made Serai Muhammad Khan son of Rasool Bux and Muhammad Khan son of Gulab Khan Dahar to sit over the dead body and he himself came to lodge the report. It was also stated that pistol and live cartridge were lying at the place of Vardat and that the accused had murdered complainant's brother Abdul Ghani because Serai Ahmed Khan and his sons Amjad and Nusrat were annoyed over this brothel. The above report was recorded by P.W.5, A.S.I.P. Police Post Sajjad Hussain in the Roznamcha. After that he forwarded true copies of the Roznamcha to the S.H.O. Dokri through Constable Raza Muhammad for registering the crime F.I.R. And for compliance under section 157, Cr.P.C. It seems that the above report was incorporated under section 154, Cr.P.C. Exh.28.
The prosecution case rests entirely on three alleged eye-witnesses, namely, P.W.3. Muhammad Ismail the complainant and brother of the deceased, P.W.4, Muhammad Khan son of Rasool Bux Khan (brother of accused Ahmed Khan) and P.W.6, Muhammad Khan son of Gulab Khan. In addition to the above eye-witnesses, the prosecution has also examined P.W.1 Manzoor Hussain (who had carried the dead body for post-mortem to P.W.7 Dr. Khan Muhammad) P.W.2, Abdul Ghafoor, one of the Mashirs, to the place of Vardat and inquest report Exhs.11 and 12 respectively, P.W.5 Sajjad Hussain A.S.I., who recorded the report in the Roznamcha at the Police Post Badah, P.W.7 Dr. Khan Muhammad, who carried out the post-mortem and prepared post-mortem report Exh.20, P.W.8 Khan Muhammad the second Mashir to the aforesaid Mashirnama of the place of Vardat and inquest report, P.W.9 Dhani Bux Tapedar, who prepared the sketch of the place of Vardat Exh.28 and P.W.10 Haq Nawaz, the S.H.O., who took over the investigation from A.S.I. P.W.5 Sajjad Hussain and completed the investigation and submitted the challan. It may be observed that Ali Mardan, Head Constable incharge of Malkhana of Dokri Police was examined as a Court -- witness in order to ascertain whether the two invitation cards of the marriage allegedly recovered from the place of Vardat were received by him with the case property.
The prosecution has also produced aforesaid Mashirnama of Vardat, Exh.11, aforesaid inquest report Exh.12, entry of Roznamcha Exh.15, aforesaid post-mortem report Exh.20, case property list Exh.24, Mashirnama of arrest and personal search of all accused Exh.29, Chemical report Exh.30, Ballistic report Exh.31, which is of no help being neutral.
All the accused pleaded not guilty.
3:It may be pertinent to refer to the testimony of the above witnesses.
(a) P.W.3 Muhammad Ismail has reiterated the facts stated by him in the report Exh.15 and reflected in the F.I.R. Exh.28. In his cross--examination, he has stated that betrothal ceremony of his brother had taken place about a month before his murder and since then the accused continued to issue threats to them. He has further stated that Serai Ahmed Khan personally on 2 or 3 occasions had issued threats to him by telling him that they should not get the girl or else his brother would be murdered. He has also stated that the accused were also sending him threats through others, who were known to him. He has further stated that Serai Ahmed Khan had sent threat to him through Gulab and Umar Mirbahar. He has further deposed that their house was situated near the house of the accused, which was surrounded by the hedges, whereas the house of the accused was surrounded by walls. He has admitted that P.W. Muhammad Khan son of Gulab Khan was related to his brother Muhammad Hussain through 3 matrimonial alliances mentioned by him. He has also stated that deceased Abdul Ghani used to reside with him, whom he had maintained and educated till he joined the service of the K.D.A. In Karachi. He has also deposed that the deceased had come to him for marriage purpose in the morning of the day of incident.
(b) P.W.4 Muhammad Khan aged 68 years elder real brother of accused Ahmed `Khan has corroborated on all material facts the testimony of P.W.3 Muhammad Ismail. He has deposed that `Vanvah ceremony' was performed 3 days before the incident and the name of his daughter, who was betrothed to Abdul Ghani was Miss Tasneem. He has further deposed that on 15-2-1980 before the incident, complainant Muhammad Ismail, his brother Abdul Ghani and P.W. Muhammad Khan son of Gulab Khan had come to see him and they told him that they had to invite friends and relations to the marriage party, and therefore, he should accompany them for this purpose.
Thereupon, he accompanied the complainant, Abdul Ghani and P.W. Muhammad Khan son of Gulab Khan and sent to Badah Town. He has also deposed that when they reached in the Bazar near the shop of one Punjabi (whose name he did not remember), one jeep came behind and stopped near them. He found his brother Ahmed Khan and his sons Nusrat and Amjad were sitting in the jeep. Accused Ahmed Khan had double barrel gun in his hand, whereas accused Nusrat and Amjad had pistols in their hands. After that Amjad got down from the jeep and challenged and fired the pistol at Abdul Ghani, who was hit on his back and thereupon lie fell down. He has further deposed that accused Ahmed Khan and Nusrat- fired from their fire-arms in the air and accused Amja4 Khan challenged them and remarked that whosoever-.'would come near them, he would be murdered. He goes on to state that thereafter accused Amjad Khan got into the jeep and while doing so, Amjad's pistol and one live cartridge fell on the ground near the jeep. He has also stated that he had promised to give his daughter in marriage to deceased Abdul Ghani, on this his brother accused Ahmed Khan, and his sons got annoyed and because of that they had committed the murder of Abdul Ghani. He has further deposed that the accused told him before the incident that if he would give his daughter to Abdul Ghani, they would commit his murder. He has further deposed that because of the above threats he and P.W.3 Muhammad Ismail shifted to Badah from their village Bothro, where the accused were still residing.
(c) P.W. Muhammad Khan son of Gulab Khan refused to give statement about the incident before the learned Sessions Judge on the ground that he was under fear. However, when on 12-4-1981, he was ordered to be remanded to the judicial custody and to be sent to District Jail for 7 days on the condition that he could be released on his furnishing solvent surety in the sum of Rs.1,000 and P.R.
Bond in the like amount for his appearing before the Court for evidence on 19-4-1981, he showed his willingness to give evidence on the same day, when the above order was passed i.e. On 12-4-1981.
He has deposed that about 14 or 15 months ago in the evening after offering Juma prayers in old Badah Town, he, Abdul Ghani and Muhammad Ismail went to Muhammad Khan son of Rasool Bux, who is brother of accused Ahmad Khan. He has further deposed that Abdul Ghani and complainant Muhammad Ismail had to consult Serai Muhammad Khan and they had to distribute the invitation cards. He has also deposed that they had consultation with P.W. Serai Muhammad Khan and after half an hour they all including Serai Muhammad Khan came out from the Otaq. He has further deposed that he was going ahead of them while Muhammad Ismail, Abdul Ghani and Muhammad Khan came after him, and when they covered 50 or 60 paces distance from the Otaq of Muhammad Khan on foot, he heard pistol shot report and thereupon, due to fear he ran away, but after a short while he came back to the Vardat and found Abdul Ghani was lying murdered. He has also stated that he did not see any of the culprits because by the time he had returned they had disappeared. He has further deposed that he found one country-made pistol lying at 3 paces distance from dead body of Abdul Ghani, who had pistol shot injuries and from whose body the blood was oozing out. He has also deposed that he found Muhammad Ismail and Muhammad Khan available at the vardat he came back.
It may be observed that in reply to a question put by D.P.P. Namely `what names were given to you by Muhammad Khan and Muhammad Ismail", the above witness has deposed that Muhammad Khan and Muhammad Ismail had given names of accused Ahmed Khan, Nusrat Hussain and Amjad Hussain and that they further told him that Amjad had fired pistol at Abdul Ghani. The above reply to the above question was recorded subject to the objection of the learned counsel for the accused on the ground that no such question was put to P.Ws. Muhammad Ismail and Muhammad Khan son of Rasool Bux Khan. In his cross-examination he has stated that Muhammad Hussain a brother of complainant Muhammad Ismail was married to Mst. Rahmat a real sister of his were Mst. Alam Khatoon, both daughters of Allah Warayo. He has further stated that Mst.
Hameedan, his niece and daughter of his brother Muhammad Uris was married to Ghulam Hyder son of Muhammad Hussain brother of the complainant. He has also stated that Mst. Sharifan daughter of Muhammad Hassan was married to Nizamuddin, son of his brother Muhammad Uris.
He has further stated that he knew Ghulam Hussain son of Achar Lashari, who was servant of accused Ahmed Khan, who had filed a false case against him for the abduction of Mst. Zainab and that he and his son Qamaruddin were accused in that case but they were acquitted in that case.
(d) P.W.2 Abdul Ghafoor, one of the Mashirs to Mashirnamas of Vardat Exh. II and inquest report Exh.12 did not support the prosecution case before the learned Sessions Judge. He has deposed that about 12 months back he was made Mashir with co-Mashir Khan Muhammad. He has further deposed that police did not see the place of Vardat in his presence as he was lying ill, on that day.
He goes on to state that at about sunset time a police constable came and took him to the Badah Police Post, where the police obtained his signatures on blank papers. He has denied the contents of the Mashirnama of the place of Vardat. He was declared as hostile by the D.P.P. And was cross- examined. However, he adhered to his statement made by him in his examination-in-chief. He was also cross-examined by the defence counsel and in reply to that he has stated that his shop is situated in Shahi Bazar and that he has seen the shop of Ibrahim Muhajir. He has also stated that near the shop of Ibrahim Muhajir there are shops of Hafiz Ibrahim, Lachmandas, Rabrakhio Kolachi, Allahwarayo Noonari, Abdul Rahim, Ishaque Nbhar and Ramzan Khokhar. He has further stated that near the shop of Ibrahim Muhajir, there are hotels of Abdul Khaliq Pathan, Muhammad Khan and Muhammad Ramzan Chano. He has also stated that his shop was about, 100 paces away from the shop of Ibrahim Muhajir.
(e) The second Mashir to the Mashirnama of Vardat and inquest report, namely, P.W.8 Khan Muhammad has deposed that about 12/13 months ago the police had made him Mashir of Vardat in the case with co---Mashir Abdul Ghafoor. He has further deposed that the Vardat was near the shop of Ibrahim Muhajir in Badah Town, where the dead body of Abdul Ghani was lying, had injuries of pistol shots. He has further deposed that there was also blood at the place of Vardat, which was secured by the police and sealed. He has also deposed that one pistol country-made was lying at a distance of about 30 paces away from the dead body, which contained empty cartridge in its barrel which was secured. He has further deposed that the pistol and the empty cartridge were secured by the police. He has also deposed that some papers were lying at the place of Vardat but he was not in a position to say, what were those papers but the police had secured the same. He has further deposed that the police had prepared the Mashirnama, which was read over to them and they signed thereafter. He has produced Mashirnama as Exh.11 and inquest report Exh.12. It may be observed that he was not cross examined by the defence counsel.
(f) P.W.7 Dr. Khan Muhammad has deposed that on 15-8-1980 he was working as the Medical Officer at Rural Health Centre, Badah, when the police sent to him the dead body of deceased Abdul Ghani son of Haji Dakar for post-mortem examination through Police Constable P.W.1 Manzoor Hussain of the Police Post Badah, which was identified to him by Abdul Latif son of Ali Sher and Muhammad Ismail son of Haji Misri, close relatives of the deceased. He has further deposed that the dead body was of a male, Muslim, aged about 26 and that it was of an ordinary built with rigor mortis not present nor lividity was present. He has also deposed that he started post-mortem on the same day at 5-15 p.m. And finished it at 7-15 p.m. On external examination, he found the following injuries on the dead body:
(1) `Eight entrance wounds on the left below injuries angle of the scapula with charring of margins 5 m.m. x 5 m.m. Each'."
On internal examination of the dead body, he found the following damages: "(1) 8th and 9th ribs were fractured. Both the lungs were perforated alongwith their pleura- pericardium and heart were perforated.
(2) There was semi-digested food material in the stomach."
He opined that the death was due to shock and haemorrhage consequent upon above fire-arm injuries, which appeared to have been caused by discharge of fire--arm such as gun or country- made pistol and that all the injuries were ante---mortem and were collectively sufficient to cause death of this deceased. He has further stated that six pellets were recovered from the dead body, which were lying with him. He also opined that the death was instantaneous and the probable time between death and post-mortem was about 2-1/2 hours. In his cross--examination, he has stated that he found semi-digested food in the stomach of the deceased and that probable time between the time of taking last meals by the deceased and his death would be about 2-1/2 hours.
(g) P.W.5 A.S.I. Sajid Hussain has deposed that on 15-2-1980, he was working as A.S.I.P. Badah Police Post when at 4-30 p.m. Complainant Muhammad Ismail came to the police post and lodged the report with him which he recorded in the daily diary at entry No.8 and read over the same to the complainant and obtained his signature, which is Exh.15. He has further deposed that he sent the copy of the report to S.H.O. Dokri Police Station for registration of the police crime through Police Constable Raza Muhammad and then went with the complainant to the scene of offence, which was in the Bazar in Badah Town, in front of the shop of Muhammad Ibrahim Muhajir, which was pointed out to him by the complainant. He has also deposed that he saw the same in presence of Mashirs Abdul Ghafoor and Khan Muhammad, where the dead body of Abdul Ghani was lying at the Vardat, which had fire-arm injuries and from which the blood was coming out. He has further deposed that there was also blood-stained earth, which he secured and sealed it in a parcel. He further found a pistol with empty cartridge lying in its barrel, which he also secured and scaled it in parcel. He also secured a live cartridge from the Vardat and 2 invitation cards. He has also stated that he prepared the Mashirnama, read over to the Mashirs and obtained their signature, Exh.11. He has further deposed that he held inquest report in presence of the same Mashirs and prepared the same Exh.12. He has also stated that he sent the dead body for post-mortem examination through Police Constable Manzoor Hussain and thereafter, S.H:O. Haq Nawaz Khan of Dokri Police Station arrived. Thereupon, he gave the case papers to him for further investigation. He has also deposed that the property, namely, country-made pistol, cartridge, earth and live cartridge in Court are the same. He was recalled and reaffirmed on the following date of hearing in order to enable him to produce the two invitation cards. On the following date of hearing, he deposed that he had also recovered the invitation cards from the Vardat, which he had given to S.H.O. Mr. Haq Nawaz of Dokri Police Station. In his cross-examination he has stated that the cards were not available in the Court and that when he went to the place of Vardat, he found some shops were open and some were closed. He has denied the suggestion that he had not recovered the two invitation cards from the place of Vardat.
(h) The P.W.10 Haq Nawaz has deposed that on 15-2-1980, he was working as the S.H.O. Dokri Police Station when he received a copy of F.I.R. Fled by complainant Muhammad Ismail Police Post Badah through Police Constable Raza, which he registered in 154, Cr.P.C. Book, which is produced as Exh.28.
He has further deposed that thereafter he went to the place of Vardat and found A.S.I.P. Sajjad Hussain investigating the case, from whom he received the case papers, which he verified. He has also deposed that he had recorded the statements of Muhammad Khan son of Rasool Bux and Muhammad Khan son of Gulab. He had also examined shopkeepers Hafiz Ibrahim, Rab Rakhio, Allah Warayo, Abdul Rahim, Muhammad Ramzan, Muhammad and Lachmandas on 16-2-1980 and on 22-2-1980. He arrested accused Ahmed Khan, Nusrat Hussain and Amjad Hussain in presence of Mashirs Abdul Rasool and Ali Gohar and prepared Mashirnama of arrest Exh.29. He has further deposed that all these accused had appeared before him at Dokri Police Station. He has also deposed that on 8-3-1980, he challaned the case before the Extra-Joint, C.J. And F.C.N., Larkana. He sent blood-stained earth secured from the place' of Vardat to the Chemical Analyser for analysis of which he received report in positive Exh.30. He also sent the empty cartridge and country-made pistol in sealed parcels which were secured from the place of Vardat to the Forensic Laboratory for examination and report and in respect of which he produced ballistic report Exh.31. He has also deposed that A.S.I.P. Sajjad Hussain had given him 2 invitation cards, which were secured from the place of Vardat which he alongwith other property sent to W.H.C. Of Dokri Police Station. In his cross-examination he has stated that invitation cards were not available in the Court on the date of recording of his statement.
(i) Ali Mardan son of Ghulam Nabi was examined as a Court-witness Exh.23. He has deposed that he was working as W.H.C. At Dokri Police Station since 4-3-1979 and that he maintained Register No.19 in respect of the case property received from the Investigating Officer. He has further deposed that he has brought Register No.19 with him and that he had seen the case property of the case, which he entered in Register No.19 as case property in Police Crime No.5 of 1980 of Dokri Police Station at Entry No.1. He has further deposed that he had received one country-made pistol, one empty cartridge, one live cartridge and a sealed parcel containing blood-stained earth and that empty cartridge was also in the sealed parcel and so also the pistol. He has produced the entry in the register as Exh.24. He goes on to state that empty cartridge and country-made pistol duly sealed were sent to Forensic Laboratory for examination while the live cartridge has been sent to Court of Session under certificate 135. He had also stated that he had not received two invitation cards with envelopes as case property of this case, and that had he received those invitation cards, he would have mentioned the same in Register No.19. In his cross-examination, he has stated that in the Malkhana only such properties are kept which are entered firstly in the Register No.19 and that in the Malkhana no property is lying which is not entered in Register No.19. He has also stated that no property has been lost or misplaced and that whatever property is mentioned in Register No.19 has been traced out in the Malkhana.
(j) It may be pertinent to refer to the Mashirnama of Vardat as it has assumed some importance on account of the submissions made by the learned counsel for the parties. Mashirnama of Vardat Exh.11 indicates that the Vardat was situated in Shahi Bazar in Badah Town near the shop of Ibrahim Muhajir, where the dead body of deceased Abdul Ghani son of Haji Misro Dahro was lying straight on a piece of gun bag head towards north, feet towards south. The deceased had silken shirt of Boski colour on his person having 8 holes on back, side. The shirt was blood--stained. The deceased was also wearing a white Banyan, which had 8 holes on back, side and was also stained with blood. The deceased had also one handkerchief on his back with white and red lines which was stained with blood. The deceased's white trouser was also stained with blood. One country- made pistol with wooden butt was lying at a distance of 3 paces from the dead body. The butt of pistol was engraved. It was open and it was found that it contained No. .12 bore fired empty cartridge of plastic of Eley Company. The pistol had smell of fresh fired cartridge and pistol were secured and sealed and so one live cartridge of .12 bore of Shaheen Company engraved was lying at a distance of one pace from the place where pistol was lying. This was secured by police. Two envelopes were lying at a distance of two paces towards its west, one envelope of gray colour contained name of Mehar Ali Sanjrani, another envelope of green colour mentioned the name of Muhammad Moosa Bhatti. Inside the envelope invitation, was written by Muhammad Ismail. Both these envelopes were secured by police. There were shops near the place of Vardat of the persons mentioned in the Mashirnama.
4. (a) Mr. A.K. Brohi, who was assisted ably by Mr. Muhammad Hayat Junejo in support of the above appeal has made the following submissions:
(i) That the crime in question was an un-witnessed crime.
(ii) That the alleged eye-witnesses cannot be relied upon without independent corroborative piece of evidence on account of the fact that they were on inimical terms with the accused and that they were interested persons.
(i.e) That in any case the possibility of exaggeration of the number of accused cannot be ruled out and, therefore, it is not possible to fix the responsibility of the murder on any of the 3 accused.
(b) On the other hand Mr. Kazi Akhtar, for the complainant party and Mr. Makhdoom for the State have contended as follows:
(i) That the crime was a witnessed crime:
(ii) That since the defence has not been able to bring anything on record to indicate that P.W.3 Muhammad Ismail was on inimical terms with the accused, his testimony alone is sufficient to maintain the conviction particularly, when it is corroborated with the evidence of P.W.4 Muhammad Khan son of Rasool Bux; (i.e) That there was no possibility of any exaggeration of the number of the accused or the concoction of the complainant as the offence was committed at 4-00 p.m., whereas the report was lodged within half an hour at 4-30 p.m. At the Police Post Badah, which was situated two furlongs from the place of the Vardat.
(iv) That the testimony of eye-witnesses also stands corroborated by the motive and the medical evidence.
5. (a) As regard Mr. A.K. Brohi's contention that the crime was un-witnessed crime, it may be observed that in support of his above contention, he has referred to the testimony of Muhammad Ismail, P.W. Muhammad Khan and P.W. Sajid Hussain and also to the sketch prepared by Tapedar P.W.9. Dhani Bux and has pointed out that the above witnesses have admitted the factum that the incident had taken place in a Bazar where there were numerous shops and some of them were open even on Friday at the time of incident. It has been vehemently urged by him that if in fact the crime had been witnessed, there would have been some independent witnesses of the locality. To fortify his above contention, he has referred to the case of Karam Dad v. Abdullah Khan and 2 others reported in 1973 SCMR 12, the case of Bachal v. The State reported in PLD 1978 Kar. 710. On the other hand Mr. Kazi Akhtar, learned counsel for the complainant party has referred to the case of Sharif v. The State reported in 1977 P Cr. L J 237 and the case of Ghulam Mohyuddin Muhammad Pansh v. The State reported in 1976 P Cr. L J 311:
(i) In the above Supreme Court case, reported in 1973 SCMR 12, the Supreme Court while declining to grant leave to appeal against the judgment of the Lahore High Court observed that in spite of fact that the incident had taken place in a busy cattle fair in presence of hundreds of persons yet no independent witness was produced by the prosecution, which circumstance casts suspicion on the prosecution case, and, therefore, High Court was justified in giving benefit of doubt to the accused.
(ii) Referring to the Karachi case reported in PLD 1978 Kar. 710, it may be observed that in the above case the incident had taken place in a busy hotel but none of the witnesses, from the locality including the owner of the hotel was examined by the prosecution as eye-witnesses. There were contradictions in the testimony of the interested witnesses produced by the prosecution and there was no recovery of incriminating articles to corroborate evidence. Evidence of motive and dying declaration were ruled out of consideration. In these circumstances, it was held by a Division Bench of this Court that the accused were entitled to benefit of doubt.
(i.e) Reverting to the case reported in 1976 P Cr. L J 237, it may be stated that D.B. Of the Lahore High Court inter alia observed that people although actual witnesses to the incident refrain to associate themselves in police investigation and that failure on the part of prosecution to associate independent persons available during the course of investigation would not in such circumstances destroy evidence of witnesses who happened to be related to the deceased. It was further observed that it is a matter of common knowledge that even in places like towns or cities, where persons are more conscious of their civic rights, people refrain to associate themselves from the police investigation although they happened to be witnesses to the incident.
(iv) Whereas in the case reported in 1976 P Cr. L J 311, another D.B. Of the Lahore High Court comprising of Aslam Riaz Hussain and Mazharul Haq, JJ. Observed that people generally hesitate to come forward as witnesses in criminal case for obvious reasons and, therefore, failure of the prosecution to produce nearby shopkeepers and the residents of the Mohallah, does not necessarily lead to an adverse inference against the prosecution. It was further observed that related witnesses said to have witnessed the occurrence having withstood the test of cross- examination and their testimony having been corroborated by reliable circumstantial evidence the Court can rely upon such evidence.
(b) It is true that in the instant case the incident had taken place on the road, where there were many shops. It is also true that though the incident had taken place on Friday after Juma prayers at about 4 p.m. But there were some shops open. From the testimony of P.W.10 Haq Nawaz S.H.O. It seems that, he had examined shopkeepers Hafiz Ibrahim, Allah Rakhio, Rab Rakhio, Allah Warayo.
Abdul Rahim, Ramzan and Lachmandas on 16-2-1980 i.e. On the following day of the incident, but the prosecution has not examined any of the above witnesses. But at the same time barring the shop of Hafiz Ibrahim, it has not come on record that the shops of the other aforesaid persons examined by P.W.10 Haq Nawaz were open at the time of the incident. Be that as it may, in our view simpliciter the fact that the prosecution has failed to examine any independent witness of the locality itself will not be sufficient to discredit the testimony of the prosecution witnesses related to the deceased if after reading of their testimony, the Court is satisfied that they have spoken the truth and there are no inherent infirmities and/or improbabilities. It cannot be overlooked that the people are hesitant to appear as prosecution witnesses in murder cases in order to avoid the incurrence of displeasure of the accused party. It is not unknown that prosecution witnesses after their appearance as witnesses, in murder cases were murdered by the accused parties.
(c) It was also urged by Mr. A.K. Brohi that if the prosecution version that there were invitation cards, which were to be distributed by P.W3 Muhammad Ismail, P.W.4 Muhammad Khan son of Rasool Bux Khan, P.W.6 Muhammad Khan son of Gulab Khan and deceased Abdul Ghani is to be disbelieved, the foundation of the prosecution case falls through as the prosecution has not brought any other plausible reason on record of the above alleged eye-witnesses and of the deceased being together on the fateful day. In this connection, it may be observed that the learned Sessions Judge had adjourned the examination-in-chief of P.W.5 A.S.I.Sajjad Hussain from 22-3-1981 to 11-5-1981 in order to enable him to produce two invitation cards but in spite of this opportunity, he was unable to produce the same as' pointed out hereinabove. Furthermore, the learned Sessions Judge also examined Ali Mardan son of Ghulam Nabi, the H.C. Incharge of Malkhana of Dokri Police Station in order to ascertain, as to whether in fact with the case property, the two invitation cards were also received, but the above witness has stated that in fact he IV, had not received any invitation cards alongwith the case property. It may be observed that though the two invitation cards, which were said to have been found from the place of Vardat Exh. II have not been produced before the Session Court, but there is unanimity in the testimony of P.W Muhammad Ismail, P.W. Muhammad Khan son of Rasool Bux Khan, P.W. Muhammad Khan son of Gulab Khan, on the question that they were going together to extend invitation of the then impending marriage. Furthermore, both P.W.5 Sajjad Hussain and Haq Nawaz S.H.O. Have deposed that in fact 2 invitation cards were recovered from the place of Vardat. Even if we were to hold that the prosecution has failed to prove that in fact two invitation cards were found from the place of Vardat, in our view there is still sufficient evidence on record to conclude that the above witnesses in fact had gathered as stated by them at the house of P.W. Muhammad Khan son of Rasool Bux Khan and from there they had proceeded for inviting guests. It may be pertinent to observe that the factum that deceased Abdul Ghani was betrothed to Miss Tasneem daughter of P.W.4 Muhammad Khan son of Rasool Bux Khan about a month before incident, the fact that about 3 days before the incident `Vanvah ceremony' had taken place (i.e. The bride was kept in seclusion in preparation of the coming marriage ceremony) and the fact that deceased Abdul Ghani, who was working as an Assistant Engineer in the KD.A. At Karachi had reached the house of P.W.3 Ismail his elder brother on the day of incident stand proved and remained un-rebutted. Therefore, the version given by the above 3 witnesses that they had come out together at about 4 p.m. With the intention to extend invitation is not highly improbable but is probable which cannot be rejected.
(d) It was also contended by Mr. A.K. Brohi that there are infirmities and discrepancies on the point of invitation. He has drawn our attention to the statement of P.W. Muhammad Ismail made by him in his cross--examination to the effect that on that day before the incident, they had intimated about invitation for marriage to few friends, but he did not remember the names of those persons, whom they had met and invited for marriage, whereas P.W.4 Muhammad Khan son of Rasool Bux Khan in his cross-examination has stated that they did not go elsewhere in between the time when they came out from his house and reached at the place of Vardat and that in between his house and the Vardat, they did not meet any person known to them. He has further stated that at the time of the incident, they had not decided to whom they should invite first and that Muhammad Ismail, the complainant had invitation cards with him, but had not given the same to any one till the incident took place. It is true that there are contradictions in the testimony of the above two witnesses on the point as to whether any invitation card was given by the time of the occurrence of the incident in question. It is also true that the statement of P.W.3 Muhammad Ismail that he did not remember the names of those persons whom they had met and invited for marriage seems to be unimpressive. But the fact that the marriage was to take place within few days from the date of incident cannot be denied. In our view the above discrepancy or the infirmity in the statement on the above point cannot nullify the other aforesaid proved facts, which are very material. It may also be observed that though P.W.6 Muhammad Khan refused to give evidence on account of fear but after the remand order when he made his statement he corroborated the statement of the other two witnesses P.W. Muhammad Ismail and Muhammad Khan son of Rasool Bux Khan on the aforesaid point and stated that they were to invite guests. We cannot also overlook the fact that the witnesses were examined after lapse of some time and, therefore, there were bound to be some contradictions in their testimony. However, the Court is to see whether the contradictions are such which destroy the credibility of the witnesses. If it does not, in that event such contradictions are not material. In that regard reference may be made to the case of Abdul Rashid v. Umid Ali and 2 others reported in PLD 1975 SC 227, in which a F.B. Of the Supreme Court, inter alia observed that- some discrepancies are inevitably bound to occur on account of lapse of memory owing to the intervening period which was more than 16 months in the case'. It was also observed that `of course there have been cases where thoroughly drilled and well-tutored witnesses after going through several rehearsals made statements, which were almost verbatim repetition of their police statements as well as those of each other at the trial and the Courts have been very rightly sceptical about such parrot like reproduction."
(e) It was next contended by Mr. A.K. Brohi that it is highly improbable that the complainant party after having received threats as deposed by the prosecution witnesses, would have come out from their houses unarmed, particularly in view of the fact that P.W.3 Muhammad Ismail as well as P.W.
Muhammad Khan son of Rasool Bux Khan had licences of more than one arms each. On the other hand it has been submitted by Mr. Kazi Akhtar that after the imposition of the Martial Law in 1977 nobody can carry arms without special permission. It is a matter of common knowledge that carrying of arms at public places particularly in the interior of Sindh is prohibited and, therefore, no adverse inference can be drawn from the fact that the complainant party was unarmed while they were going to give invitations.
6. (a) Referring to Mr. A.K. Brohi's contention that the prosecution witnesses were on inimical terms with the accused and they were interested witnesses and, therefore, in absence of any independent corroboration, their testimony cannot be relied upon, it may be observed that there is no doubt that P.W.4 Muhammad Khan son of Rasool Bux and his younger brother accused Ahmed Khan were on inimical terms inasmuch as P.W. Muhammad Khan son of Rasool Bux Khan had lodged a criminal case against Ahmad Khan, his 3 sons and one son-in-law for causing injuries to his stepson Sikandar. Furthermore, one Yaqoob had lodged a counter-case in respect of his injuries in which Muhammad Khan son of Rasool Bux Khan and his stepson Sikandar were accused and Ahmad Khan's son Nusrat was a witness. It is, therefore, evident that there was some background of heart burning between the accused and P.W.4 Muhammad Khan son of Rasool Bux Khan. In this view of the matter the latter's testimony requires corroboration by independent piece of evidence from an unimpeachable source.
As regards the testimony of P.W.6 Muhammad Khan son of Gulab Khan, it may be stated that he has not implicated the 3 present accused as he has deposed that by the time he came back at the place of Vardat after running away upon hearing the gun shots, the accused had left the place of Vardat, and therefore, his testimony does not furnish the requisite corroboration to identify the three accused under reference. It may again be pointed out that the above witness in reply to a question put by the D.P.P. Had stated that P.W.4 Muhammad Khan son of Rasool Bux Khan and P.W.3 Muhammad Ismail had given him the names of accused Ahmed Khan, Nusrat Hussain and Amjad Hussain of the persons, who were involved in the commission of the above offence. In our view it has been rightly contended by Mr. A.K. Brohi that since no question was put to P.W.4 Muhammad Khan son of Rasool Bux or to P.W.3 Muhammad Ismail in order to bring on record that they had narrated the above fact to P.W. Muhammad Khan son of Gulab Khan after he had allegedly returned to the place of Vardat, the above statement being hearsay cannot be relied upon in view of the clear provision of section 60 of the Evidence Act. Reliance has been placed on the case of Khurshid Ahmad v. Qabool Ahmed and others reported in PLD 1964 Kar. 356, in which inter alia it was observed by a Division Bench of the erstwhile High Court of West Pakistan, Karachi Bench that the statement of a witness Yasin Rajput on the basis of the alleged information conveyed to him by complainant Khurshid and other Khurshid P.W.11 was inadmissible as no question was put to the above two witnesses in order to bring on record that they had in fact informed the above witness that the respondents were responsible for the crime. In our view there cannot be any cavil to the proposition that a statement based on information received from another person is inadmissible being hearsay unless the person who had conveyed such information corroborates the factum that he had conveyed the information relied upon by the other person.
(b) Now the question, which requires consideration is, as whether the defence has been able to bring anything on record to impeach testimony of P.W.3 Muhammad Ismail. It may be observed that nothing has been brought on record in spite of lengthy cross-examination to indicate that this witness had any motive to implicate the accused falsely. It may be pointed out that P.W.3 Muhammad Ismail is an educated person working as an officer in the Local Development Department, Government of Sindh. However, it was contended by Mr. A.K. Brohi that since his brother was murdered, he readily accepted the names of the three accused from P.W.4 Muhammad Khan son of Rasool Bux Khan or that he might have himself thought that the present accused were the persons responsible for the commission of the above crime on account of the fact that he had himself received threats from accused Ahmed Khan. In our view the above submission is based on surmises and conjectures. We are inclined to hold that P.W. Muhammad Ismail is a truthful witness, and therefore, implicit reliance can be placed on his testimony.
Furthermore, his testimony stands corroborated by the testimony of P.W.4 Muhammad Khan son of Rasool Bux Khan the elder brother of the accused Ahmed Khan. In our view simpliciter the fact that P.W.3 Muhammad Ismail happened to be the real brother of the deceased itself would not be sufficient to make him an interested witness. An interested witness seems to be one who has some motive to implicate another person falsely. As we have already observed hereinabove that P.W.3 Muhammad Ismail had no motive whatsoever to falsely implicate the present accused his testimony cannot be discarded or doubted merely because of his relationship with the deceased. It may be mentioned that the learned Sessions Judge while recording the testimony of the above witness made a note to the effect that during the examination-in-chief at the point where he gave the description as to how his brother was murdered, he started weeping bitterly. The remark of the learned Sessions Judge is to the following effect: "At this stage the witness is weeping bitterly."
A literate real brother would not have any motive to leave out the real culprits and to implicate the persons against whom he had no animosity, particularly in view of the fact that the incident had taken place in broad daylight. It was also contended by Mr. A.K. Brohi that admittedly according to P.W.3 Muhammad Ismail's own version accused Ahmed Khan had extended threats to him and because of that he shifted to another village and, therefore, motive to implicate the present accused falsely existed. In our view the fact that accused Ahmed Khan extended threats to P.W.3 Muhammad Ismail to the effect that he would murder his brother Abdul Ghani if he would go ahead with the then proposed marriage to the daughter of P.W. Muhammad Khan son of Rasool Bux Khan, itself would not make him an interested witness or a person on inimical terms. The enmity, if any, was on the part of accused Ahmed Khan and not on the part of the above witness.
Reliance has also been placed by Mr. AX Brohi on the case of Khurshid Ahmad v. Kabool Ahmed reported in PLD 1964 Kar. 356 referred to hereinabove in sub-para. (a) of a Para.6 and also the aforesaid case of Bachal v. State PLD 1978 Kar. 710. On the other hand, Mr. Kazi Akhtar has referred to the case of Nazir and others v. State reported in PLD 1976 SC 269, the aforesaid case of Abdur Rashid v. Umid Ali and others reported in PLD 1975 SC 227 and the aforesaid case of Sharif v. The State reported in 1976 P Cr. LJ 237.
(i) Referring to the above case, reported in PLD 1964 Kar. 356, it may be observed that in the above case, it was held that when eye-witnesses are inter related and are inimically disposed towards accused, the requisite corroborative evidence must be exceptionally strong and sufficient by itself to establish guilt of individual accused beyond reasonable doubt.
(ii) Whereas in the above Karachi case, reported in PLD 1978 Kar. 710 a D.B. Of this Court while considering the question of veracity of the witnesses pointed out that since the deceased was involved in many criminal cases which were pending against him at the time of the incident and the allegations against him were such which would suggest that he was not a man of good character, and that being so the possibility cannot be ruled out, as was contended by the learned counsel for the appellant, that he might have been killed by one or more unknown persons and that the appellant was involved falsely by the complainant Ghulam on account of enmity. In the above background of the facts, it was held that the factum that no independent witness of the locality was examined assumed importance and cast serious doubt on the veracity of the witnesses and raised an adverse inference against the prosecution.
(i.e) Referring to the case reported in PLD 1962 SC 269, it may be mentioned that the Supreme Court while considering the question of interested witness observed that `there cannot be inflexible rule that the statement of an `interested' witness can never be accepted without corroboration. By what was said in Niaz v. The State PLD 1960 (Pak.) 387 it was not meant to lay down any rule of law though it explained for the guidance of Courts the Supreme Court's approach to the problem that generally confronts the Courts in cases of crime by violence.
(iv) As regards the Supreme Court case, reported in PLD 1975 SC 227, it may be stated that in the above case also it was observed by the Supreme Court that `in view of the established rivalry between the parties and clash of interest over land, the witnesses were not wholly disinterested. It may be mentioned in this context that although as a rule of prudence, the Courts have more often than not insisted on independent corroboration before placing reliance on the testimony of interested witnesses yet it is not an inflexible rule to be rigidly and unexceptionally applied. There might be cases in which the witnesses related to the deceased might be otherwise, quite natural, furnishing direct evidence of a convincing nature unless there are reasons to believe that they have an animus against the accused and are giving a rather distorted or exaggerated account which does not inspire confidence, even their uncorroborated testimony may be implicitly relied of course in the context of other relevant circumstances of each case.
(v) As regards the case reported in 1976 P Cr. L J 237 it may be mentioned that a D.B. Of the Lahore High Court observed that mere relationship of a witness with deceased does not discredit his testimony if otherwise true and supported by circumstances.
(c) In the instant case as observed hereinabove the defence has not been able to bring on record any material to indicate that P.W.3 Muhammad Ismail had any animus against the accused. His testimony as a whole seems to be convincing, natural and truthful, which inspires confidence. The mere fact that he happened to be the brother of the deceased in our view itself is not sufficient to discard or to insist on corroboration. The cases relied upon by Mr. A.K. Brohi referred to hereinabove are distinguishable in as much as admittedly in the said cases the interested witnesses were on inimical terms with the accused. Whereas the cases relied upon by Mr. Kazi Akhtar particularly the aforesaid Supreme Court case of 1975 indicate that a Court may even rely upon the testimony of an interested witness if it is convincing, natural and truthful in the context of the facts of the case. It may be observed that in respect of an interested witness, there is no rule of law that his testimony cannot be relied upon without corroboration if otherwise it seems to be natural, convincing and truthful. However, as a matter of prudence Courts insist upon corroboration by independent piece of evidence, from unimpeachable source not already tainted with doubts. But in the instant case we are inclined to hold that P.W.3 Muhammad Ismail cannot be termed as an interested witness merely because he happened to be the brother of the deceased. A relationship simpliciter between a witness and a deceased does not make him an interested witness as already observed hereinabove. The defence is required to show something in addition to the relationship to indicate that the witness had motive to implicate the accused falsely.
7. (a) Referring to Mr. Kazi Akhtar's contention that as the F.I.R. Was lodged within half an hour from the time of incident at the police post which was situated at 2 furlongs from the place of Vardat, it excludes the possibility of exaggeration of number of accused and concoction of the case, it may be observed that on the other hand it was urged by Mr. A.K. Brohi that promptitude in lodging of F.I.R. Would not make any difference if the F.I.R. Was lodged by a person whose testimony requires corroboration. Mr. A.K. Brohi has referred to the aforesaid case reported in PLD 1964 Kar. 356 and the case of Bachal v. State reported in PLD 1978 Kar. 710 in support of his contention that promptitude in lodging of the F.I.R. Itself would not furnish any corroboration if the person lodging the same is an interested witness.
(i) In the above Karachi case of 1964 the F.I.R. Was lodged within 15 minutes from the time of incident. It was urged that since the F.I.R. Was lodged within 15 minutes, there was no possibility of exaggeration as the names of the eye-witnesses and the culprits were mentioned in the F.I.R. While dealing with the above contention, it was observed that these circumstances come from the very mouths of the interested prosecution witnesses themselves and, therefore, they are not independent circumstances in the sense that they arise from other sources remote from an wholly unconnected with these witnesses.
(i.e) Whereas in the above Karachi case of 1978 a D.B. Observed while relying upon the above Karachi case of 1964 that the mere fact that the F.I.R. Was lodged after one hour as asserted by the eye-witnesses was not sufficient corroboration of the interested testimony of the complainant.
(b) In our view the promptness in lodging of F.I.R. With full particulars as to the names of the witnesses and the accused involved m the offence will be a material factor to be taken into consideration provided the F.I.R. Is lodged by a person who has no animus towards the accused. If a complainant has animus towards an accused persons, it does not require much time to exaggerate the number of accused person even if the F.I.R. Is lodged with promptitude. In the instant case as we have held that P.W.3 Muhammad Ismail had no animus towards the accused, the promptitude in lodging of the F.I.R. With full particulars as to the accused and the witnesses is a material factor to be taken into consideration.
8. Referring to Mr. Kaza Akhtar's contention that motive and the medical evidence also provide corroboration in the, instant case, in our view the prosecution has been able to primitive disclosed in the F.I.R. Against the accused. Furthermore, medical evidence indicating that the deceased has semi-digested food which according to the opinion of P.W.7 Dr. Muhammad Khan must have been taken about 1/2 hour before the incident supports the time of the incident given by the complainant P.W.3 Muhammad Isma il. However, it was urged by Mr. A.K. Brohi that neither the motive nor the medical evidence can furnish the requisite corroboration in the instant case. It was also urged by him that the opinion of the doctor that the deceased might have taken the meals 2- 1/2 hours before the time of incident was an approximate estimation, which cannot be relied upon for the purpose of determining the time of the incident. It may be observed that some times motive is taken as a piece of corroborative circumstance but at the same time absence of motive or failure on the part of prosecution to prove an alleged motive will not be fatal to a case in which the prosecution otherwise brings on record sufficient convincing evidence to prove the prosecution case to the hilt. It true that the doctor's opinion as to the timing to taking of the meals can be approximate but this approximation in the instant case is in consonance with the time of the incident, and, therefore, it lends support to the prosecution case.
9. Referring to Mr. A.K. Brohi's contention that this Court cannot exclude the possibility of exaggeration of the number of the accused, it may be observed that after having held that P.W.3 Muhammad Ismail is a truthful witness, we cannot hold that he had falsely implicated appellants Nos. 1 and 2. In our view the facts as stated by the above witness seem to be true but the question which requires consideration is, as whether there is sufficient material on record to sustain the convictions against appellants Nos. 1 and 2, namely, Ahmed Khan and Nusrat Hussain. The prosecution witnesses have not attributed any overt act on the part the above accused in connection with the commission of the murder. The only part assigned to these two accused is that they fired in the air to scare the complainant party so that they could escape. Since the alleged firing by the above two accused had not caused any injury either to the deceased or to any other person, in our view their presence at the scene of offence simpliciter may not be sufficient to saddle them with a common intention in furtherance of the commission of the offence as contemplated by section 34, P.P.C. If they had a common intention to kill they might have also fired upon the deceased and so also on the other persons of the complainant party. According to the eye--witnesses accused Amjad had fired only one pistol shot. So, the above offence,, could be committed by one person. In our view, it will be just and proper that these two accused be given benefit of doubt, whereas the conviction and sentence against accused Amjad Hussain be maintained as there are no extenuating circumstances to award lesser punishment to this accused. He has committed the murder of a young Engineer aged 26 years, without any provocation given by the deceased.
10. We, therefore, allow the appeal of appellants Nos. 1 and 2 namely, Ahmed Khan Dahar and Nusrat Hussain and acquit them and order the cancellation of their bail bonds as they are on bail, whereas we maintain the conviction and sentence and fine awarded against appellant No.3 Amjad Hussain, and therefore, his appeal is dismissed, death sentence is confirmed, the reference made by the learned Sessions Judge is accepted.
M.A.K./A-936/L