Appellants Javed, Muhammad Aslam, and Muhammad Siddique, all Jat by caste, were tried by Mr. Abdul Ghafoor Magsi, 1st Additional Sessions Judge, Sanghar, for the offence under section 302/34, P.P.C. Who vide judgment, dated 16-8-1989 found them guilty for the said offence and sentenced each of them to imprisonment for life and to pay a fine of Rs.10,000 or in default to suffer R.I. For one year. The benefit of section 382-B, Cr.P.C. Was also extended to them while computing the sentence. By this appeal filed under section 410, Cr.P.C. The appellants have challenged their conviction and sentence.
2. The case of the prosecution as unfolded in F.I.R. Is that on 6-10-1982, at about 4-30 p.m.
Deceased Ali Sher, a relative and a servant of complainant Imam Bux passed from the lands of one Qabool Khaskheli with the herd of goats, when appellants Javed, Muhammad Aslam, both sons of Muhammad Siddique and their father Muhammad Siddique son of Muhammad Ibrahim, who were coming from their paddy cultivation objected to it. It is alleged that appellant Muhammad Aslam abused him by stating that this land was purchased by them. Deceased Ali Sher took exception to the abusive language, whereupon the appellants, who were armed with hatchets flew into a passion and started giving blows by hatchet to deceased Ali Sher. Deceased Sawan, a cousin of complainant Imam Bux, who was standing at some distance rushed to the place of occurrence and he too was given hatchet blows. The incident was witnessed by complainant Imam Bux, who was standing on the lands, which were on lease with him alongwith P.Ws. Waloo Shar and Amb Depar. All of them challenged the appellants and proceeded towards the place of incident. On seeing them the appellants bolted away. Both Ali Sher and Sawan, who had fallen down went unconscious. Both of them were carried to Sanghar Police Station, where complainant Imam Bux lodged F.I.R., which was recorded for the offence under section 307/324/504/34, P.P.C. At 5-45 p.m.
Since the condition of both Ali Sher and Sawan was precarious, they were shifted to Civil Hospital Sanghar. Sawan died at 6-25 p.m. While complainant Imam Bux was still at the police station. Nazir Ahmed Samejo, S.H.O. Sanghar Police Station recorded the F.I.R. And referred both Ali Sher and Sawan to Civil Hospital, Sanghar. He then examined P.Ws. Waloo and Amb, who had come to police station alongwith complainant Imam Bux. After receiving the information that Sawan has expired in the hospital, the Police Officer reached there and held inquest in respect of deceased Sawan. His dead body was then handed over to Medical Officer for post-mortem examination. On 7-10-1982 the Police Officer inspected the place of Wardat, which is situated at a distance of 300 paces from the house of P.W. Waloo. The blood-stained earth was secured from that spot and such memo.
Was prepared in presence of Mashirs Rano and Umar. The Investigating Officer then arrested the appellants and recovered blood-stained clothes and blood-stained hatchet from the possession of appellant Javed. Both these articles were sealed on the spot in presence of same Mashirs, and were sent to Chemical Examiner, Karachi, for report. On 16-10-1982 deceased Ali Sher died while on way to Civil Hospital Hyderabad. His dead body was brought back to Sanghar Police Station, where Haji Khan A.S.I. Held inquest. It was then despatched to Medical Officer, Civil Hospital Sanghar for post-mortem examination. On 18-10-1982, 164, Cr.P.C. Statements of Waloo and Amb were recorded by City Magistrate Sanghar. After completing the investigation the appellants were sent up to stand trial.
3. The appellants pleaded not guilty and claimed a trial. At the trial the prosecution examined complainant Imam Bux (P.W.1), Waloo (P.W.2), Amb (P.W.3), Lal Bux (P.W.4), Rano (P.W.5), Daleel Khan (P.W.6), Dr. Nisar Ali (P.W.7), Dr. Najamuddin (P.W.8), Abdul Nabi, Tapedar (P.W.9) and Nazir Ahmad Samejo S.H.O. (P.W.10).
4. The appellants met the charge with a denial professing innocence. According to them both deceased Ali Sher and Sawan had fought with each other and on account of enmity with complainant Imam Bux, they were involved in this case falsely. The appellants did not examine themselves on oath. They also led no defence.
5. On the assessm ent of evidence available on record, the learned Additional Sessions Judge found the appellants guilty for the offence with which they were charged, and convicted them accordingly. It is in these circumstances that the present appeal has been filed.
6. I have heard Mr. A.Q. Halepota, learned counsel for the appellants and Mr. A.K. Jatoi, learned counsel for the State. The latter has supported the impugned judgment.
7. The case of the prosecution mainly rests upon the direct testimony consisting of complainant Imam Bux (P.W.1), Waloo (P.W.2), and Amb (P.W.3), who claimed to have witnessed the incident. The evidence of recovery of blood--stained clothes and hatchet from the possession of appellant Javed was disbelieved by the trial Court.
8. The perusal of the record shows that complainant Imam Bux (P.W.1), who is Shar Baluch by caste, and the appellants, who are Punjabi Jat by caste owned agricultural land adjoining to each other and although the appellants have alleged enmity with complainant Imam Bux (P.W.1) over the lands and rotation of water, there is no scintilla of evidence on record to substantiate it. Even otherwise the incident took place all of a sudden without any premeditation, and consequently the evidence adduced by the prosecution has to be examined in this context.
9. Complainant Imam Bux (P.W.1) is a Zamindar by profession. On the relevant day he was standing on the lands, which were on lease with him. Waloo (P.W.2) who is his caste-fellow, was also present there as he had come to him to seek permission for cutting the grass. In the meanwhile Amb (P.W.3), who is Depar by caste also arrived there as he had some work with Waloo (P.W.2).
Deceased Ali Sher, who was a grazier of complainant Imam Bux, was standing with the goats on the lands of Qabool Khaskheli. Deceased Sawan was diverting water to the lands of complainant Imam Bux, and was standing at a distance of about one Jareeb from the place where complainant Imam Bux was standing. The evidence of complainant Imam Bux (P.W.1) further shows that at about 4-30 p.m. All the three appellants, who were armed with hatchets arrived at the place where deceased Ali Sher was standing with the goats, and they objected to his grazing the goats there saying that this land was purchased by them. The evidence of complainant Imam Bux also shows that deceased Ali Sher took exception to the abuses given by the appellants, whereupon they caused him hatchet blows. On seeing this deceased Sawan rushed to a place of Wardat, and he too was given same treatment. It was in these circumstances that complainant Imam Bux proceeded towards the place of incident alongwith Waloo (P.W.2) and Amb (P.W.3), and on seeing them the appellants decamped. They found both Ali Sher and Sawan, who had gone unconscious bleeding from their wounds. Both of them were carried upto the road on cots and from there shifted to Sanghar Police Station situated at a distance of 7 miles from the place of occurrence where complainant Imam Bux lodged F.I.R., which was recorded at 5-45 p.m. Within 1-1/4 hours of the incident. The names of all the three appellants and the witnesses find place in the F.I.R., which was lodged without any loss of time before there was any time for concocting a false story.
Complainant Imam Bux "P.W.1) has testified the same facts which were unfolded by him in F.I.R.
(Exh.7), although with some more details. He has been supported fully by Waloo (P.W.2), and Amb (P.W.3). Out of them Amb (P.W.3) is Depar by caste and is in no way connected with the parties. He gave an account which is atarnished by exaggeration and which finds corroboration from the circumstances of the occurrence.
10. The evidence of complainant Imam Bux (P.W.1), Waloo (P.W.2), and Amb (P.W.3) has been assailed by learned counsel for the appellants on the ground that besides being interested they are chance witnesses and had no reason to be present at the Wardat at the relevant time. A chance witness is a witness, who should not normally be where and when he professes to have been. Complainant Imam Bux (P.W.1) claimed to be present on the lands, which were on lease with him. His presence on the lands situated near the place of occurrence at 4-30 p.m. During day time at no stretch of imagination can be said to be by chance, specially when his house is hardly two blocks away from the place of Wardat. Likewise the place of Wardat is hardly 3/4 S.Nos. Away from the house of Waloo (P.W.2), and his presence with complainant Imam Bux at the relevant time was not unnatural. The evidence of complainant Imam Bux (P.W.1) also shows that the village of Amb Depar (P.W.3) is about two S.Nos. Away from the place of occurrence. Thus, the presence of the above witnesses at the Wardat at the relevant time was not by chance. It may be added that whether or not a particular witness is a chance witness depends upon the circumstances of each case, and a person may be a chance witness in his own house at the time when he is supposed to be present on duty. In such a situation the cases reported as Qadar Khan v. The State PLD 1959 Pesh. 25, Sikandar v. The State PLD 1963 SC 17 and Kajal Khan v. The State 1983 SCMR 130 are not attracted to the facts of the present case.
11. As observed above, the incident appears to have taken place all of a sudden over a trifling matter without previous hostility between the parties. In such a situation the fact that the prosecution witnesses are interested in deceased Ali Sher and Sawan has hardly any material bearing. The case of Nazir and others v. The State reported in PLD 1962 SC 269, lays down in clear terms that an interested witness is one, who has a motive for falsely implicating an accused person. Although both complainant Imam Bux (P.W.1) and Waloo (P.W.2) are persons connected with both the deceased, they had no reason to depose falsely against the appellants and there is no basis to suppose that their evidence was not true. The F.I.R. Was lodged as early as possible and there are no important contradictions in their evidence. The learned Additional Sessions Judge was impressed by the testimony and demeanour of all the three witnesses, and I see no reason to differ from the assessm ent made by him. The facts of the cases `' reported as Gehno and 4 others v. The State PLD 1964 Kar. 437 and Muhammad Sadiq v. Muhammad Sarwar and 2 others 1979 SCMR 214, which are cited on behalf of appellants are quite distinguishable. It may further be added that the general observations made by the Supreme Court in a judgment in a criminal case must be understood with reference to the facts of that particular case and an indiscriminate use of such observation is likely to result in miscarriage of justice.
12. An attempt has also been made to show that the medical evidence did not corroborate ocular evidence qua appellants and in fact it was in conflict with the eye-witness account furnished by the above cited witnesses. A reference in particular has been made to the evidence of Dr. Nisar Ali (P.W.7), who had conducted the autopsy on the dead body of Ali Sher, and who was of the opinion that the injuries sustained by him appeared to have been caused by blunt substance like Lathi. The evidence which has come on record makes it clear that the appellants had used hatchets from sharp as well as blunt side and this version gets support from the evidence of Dr. Najamuddin (P.W.8), who had examined Ali Sher, when he was still alive and has testified that the injuries sustained by him appeared to have been caused by some hard and blunt substance like Lathi or back of hatchet. The opinion of an expert is only a piece of evidence, which has to be examined and appraised like any other evidence that might be adduced in the case. Such an opinion must be supported by reasons. The evidence of complainant Imam Bux (P.W.1), Waloo (P.W.2), and Amb (P.W.3), therefore, cannot be suspected simply because of the fact that Dr. Nisar Ali (P.W.7) has opined that the injuries sustained by Ali Sher appeared "to have been caused by blunt substance like Lathi. The bruises and contusions are injuries caused by blunt weapon; such as Lathi, back side of hatchet, iron bar, stones, fists etc. After a careful examination of the evidence on record, I see no force in this contention raised on behalf of appellants.
13. The learned counsel for the appellants has invited my attention to the contradictions and discrepancies appearing in the evidence of the three eye--witnesses. He has in particular referred to the evidence of Amb (P.W.3), who had stated before the trial Court that appellant Muhammad Siddique was armed with a Lathi at the time of incident. I have carefully considered these contradictions, but in my opinion, they are not really contradictions of a nature which could shake the probative value of the evidence, but these were errors in the statements which were bound to appear in the testimony of witnesses deposing to an incident which took place about four years prior to the recording of their testimony.
14. For the above reasons, I hold that there is no force in this appeal, which is accordingly dismissed.
The appellants, who are in custody be informed accordingly.