QAISAR AHMAD HAMIDI, J.-Appellants Ibrahim, Ramzan and Khan, all Jatio by caste were tried by II Additional Sessions Judge, Nawabshah, for the offence under section 302-307-504-114/34 P.P.C, who found them guilty and vide #tbs judgment dated 18.2.1991 sentenced each of them as follows:-
(i) under section 302 P.P.C, for the murder of Shahmir Life imprisonment and to pay a fine of Rs.
10,000/- or . In default to suffer R.I for six months.
(ii) under section 302/34 P.P.C, for the murder of Allah Bux Life imprisonment and to pay a fine of Rs.
10,000/- or in default to suffer R.I. For six months.
(iii) under section 307/34 R.I for five years and to pay P.P.C, for attempting to commit murder of P.W. Sarang. a fine of Rs. 5000/- or in default to suffer R.I for three months. #the For the Respondent: S.ZA. Qureshi, Advocate, for A.G. {{TABLE MISARRANGED}} All the substantive sentences were ordered to run concurrently. Rs. 10, 000/- out of fine, if realised were ordered to be paid to legal heirs of both deceased Shahmir and Allah Bux each and Rs.
5000/- were to be paid to injured Sarang. The benefit of section 382-B Cr.P.C, was also extended to the appellants. By this joint appeal filed under section 410 Cr.P.C, the appellants have challenged their conviction and sentence.
2. The prosecution story lay within a very narrow compass. The parties who belong to the same tribe resided in village Razi Khan Jatoi, Taluka Sakrand. Complainant Moula Bux had a dispute over agricultural land with the appellants. It is alleged that on 12.8.1985 at about 6 P.M. Complainant Moula Bux was standing at public street near the Otak of Faiz Muhammad Jatoi alongwith his nephew deceased Shahmir, P.Ws. Muhammad Usman and Sher Muhammad when the appellants who were armed with hatchets emerged there. Appellant Ramzan then abused deceased Shahmir expressing that he was making complaints to NEK MARDS in respect of dispute over the land without any reason and that he would not be spared now. Saying so appellant Ramzan is said to have caused hatchet blow to deceased Shahmir on his chest who fell down and died on the spot.
The cries raised by complainant Moula Bux attracted deceased Allah Bux and P.W. Sarang who intervened, whereupon appellant Ibrahim caused hatchet blow on the head of deceased Allah Bux and appellant Khan gave hatchet blow on the head of P.W. Sarang. Both of them fell down and went unconscious. The appellants then went away to their respective houses situated a few paces away from the place where the incident took place. Complainant Moula Bux rushed to Kazi Ahmed P.S. For report leaving deceased Shahmir and injured Allah Bux and Sarang at the place of wardat.
Zafaruddin Ahmed S.H.O, recorded the FIR on the same day at 8-50 P.M. He then repaired to the place of occurrence and inspected it in presence of mashirs Muhammad Alam and Fakir Muhammad. The dead- body of Shahmir was then despatched to M.O. Rural Health Centre, Kazi Ahmed for post-mortem examination. Injured Allah Bux and Sarang were also referred to the same medical officer for examination, treatment and certificate. Allah Bux who was referred to Peoples Medical College Hospital Nawabshah died on 16.8.1985 and his autopsy was performed by Dr. Muhammad Tarique. On 13.8.1985 the police officer arrested appellant Ibrahim and on 18.8.1985 recovered blood-stained hatchet from his possession which was lying in his house. On 17.8.1985 the police officer arrested appellants Ramzan and Khan and recovered blood-stained hatchets from their possession. All the blood-stained articles were sent to Chemical Examiner, Karachi, who found them stained with human blood. After completing the investigation all the three appellants were challaned.
3. On 13.8.1985 Zafaruddin Ahmed S.H.O, recorded counter FIR lodged by appellant Ibrahim, the translation of which is as follows:- "Complaint is that I am a hari. Allah Bux is my relative and we are residing in the same village. Allah Bux and others used to stand in the street. We prevented them, whereupon they got annoyed.
Today in the evening time I was in my house, when I heard cries from the street raised by my cousin Khan and Faiz Muhammad Jatoi. On cries I, Ramzan son of Jamal Jatoi, Ali Bux son of Jeewan Jatoi and Rindo son of Jamal Jatoi went there running. We saw that Peero son of Imam Bux, Mooso son of Imam Bux, Allah Bux son of Muhammad. Ali Jatoi were armed with lathis, and Hussain son of Dino Jatoi was armed with hatchet. They were giving lathi blows to my cousin Khan son of Khuddan. I asked them, this is not fair, upon which Hussain son of Dino gave hatchet injury which struck on my head and others gave lathi blows to me. In the meantime Sarang son of Sawan, Hamzo son of Haji, Wadho son of Fakeero, Mohram son of Sultan, Moula Bux son of Shahmir and Shahmir son of Sultan Jatoi came there running. They were armed with lathis. As soon as they came, they started giving lathi blows to me and my cousin Khan, which hit me and my cousin Khan on the head and other parts of body. Thereafter we requested to accused person on Holy Quran who then spared us. Shahmir, Sarang and Allah Bux also received injuries in the scuffle and Shahmir died. Thereafter due to odd-horns I remained in the village. In the morning I left the house and have now come for report. My complaint is that the above accused duty armed with lathis and hatchets caused me and my cousin Khan Jatoi Lathis and hatchets injuries."
4. Appellant Ibrahim who had injuries on his person was also referred to M.O. Rural Health Centre, Kazi Ahmed, for examination and certificate. After completing the investigation the accused in the counter case were also challenged.
The appellants met the charge with a denial. Appellant Ibrahim has admitted to have lodged counter FIR (Ex 35), but has denied the presence of injuries on his person. They did not step into the witness box in disproof of the charge and also led no evidence in defence.
5. On the assessm ent of evidence available on record the learned Additional Sessions Judge found the appellant guilty and convicted them accordingly. On the same day the accused in the counter case were acquitted. It is in these circumstances that the present appeal has been filed.
6. I have heard Mr. Abdul Mujib Pirzada, learned counsel for the appellants and Mr. S.ZA. Qureshi, learned counsel for the State. I have also gone through the record of this case carefully.
7. The fact that deceased Shahmir and Allah Bux died on account of hatchet injuries and a murderous assault was made on Sarang (P.W-8) by means of hatchet is not in controversy.
Besides the evidence of Moula Bux (P.W-1), Muhammad Usman (P.W-2), Sher Muhammad (P.W-3), and Sarang (P.W-8)X which I will discuss at the proper time, there is evidence of Dr. Fazal Muhammad (P.W-6), and Dr. Muhammad Tarique (P.W-7) to this effect. This position is not even disputed by the appellants and the counter FIR (Ex 35) lodged by appellant Ibrahim is self explanatory.
8. The case of the prosecution mainly rests upon direct testimony consisting of Moula Bux (P.W-1), Muhammad Usman (P.W-2), Sher Muhammad (P.W-3), and Sarang (P.W-8). The evidence of recoveries of blood-stained hatchets from the possession of the appellants was, however, not relied upon by learned Additional Sessions Judge and I think rightly. Out of the above witnesses, injured Sarang (P.W-8) has not supported the case of the prosecution, why ? No body knows. The incident took place at 6 P.M at a place where all were known to each other. Obviously, therefore, Sarang (P.W-8) made an obliging statement as both the parties belong to the same tribe, viz. Jatoi.
There is, however, no reason to suspect the words of Moula Bux (P.W-1), Muhammad Usman (P.W- 2), and Sher Muhammd (P.W-3) who are residents of the same village and their presence at the relevant time can not be said to be by chance. It appears from the record that the appellants who had strained relations with complainant Moula Bux and others over the dispute on land, prevented them from standing near their houses, which unfortunately culminated into this, incident.
Complainant Moula Bux (P.W-1), Muhammad Usman (P.W-2), and Sher Muhammad (P.W-3) have testified about the details of the incident with specific role assigned to each of the appellants. Their evidence is consistent and the learned counsel for the appellants was not able to pick holes in their testimony. The most important point that the learned counsel for the appellants has been able to bring out is that, on life evidence given by the prosecution witnesses, the place of incident was situated near the houses of appellants which as indicated above was the immediate cause of this incident as the complainant and the witnesses who were standing there were asked not to stand there, resulting into this unfortunate tragedy.
9. Admittedly all the prosecution witnesses upon whom reliance is placed by the prosecution are related to complainant Moula Bux, although the degree of relationship is materially different. There is also no dispute that the relations between the two parties were not cordial. It is not a rule of law that the evidence of a partisan witness should be corroborated by other independent evidence, before it can be accepted. Of course, as a rule of prudence depending upon the facts of a particular case, the Court may insist on corroboration of such evidence. The cases of Niaz vs. The State, reported in PLD 1960 S.C. 387, Shahab Din vs. The State, reported in PLD 1964 S.C. 177, and Roshan and 4 others vs. The State, reported in PLD 1977 S.C. 557, are leading judgments on this point. I cannot do better than quoting the weighty observations made in the last cited judgment:- "As regards the testimony of Mehdi and Raju, P.Ws, thee is also no universal rule that the evidence of an interested witness must be invariably corroborated by independent evidence. If that were so then why should the Court at all take into account the testimony of the interested witness, Secondly, if the presence of a witness is proved beyond doubt and no other independent witness is available in the case, it would result in a grave miscarriage of justice to insist upon independent corroboration. If that was the rule then the accused have only to destroy the evidence which may be used as corroboration and get scot-free regardless of the quantum and quality of the oral evidence provided by the interested witness. It, therefore, depends on the facts of each case and instances are not wanting where this Court has upheld the conviction of the accused based entirely on the testimony of the 'interested' witness."
10. Admittedly appellant Ibrahim had also sustained injuries in this scuffle. The presence of injuries on his person is a clear pointer of his participation in the commission of this offence. The FIR (Ex 35) lodged by appellant Ibrahim again proves the presence of appellants, deceased persons and Sarang (P.W-8) at place off wardat. Thus the version of Moula Bux (P.W-1), Muhammad Usman (P.W-2) and Sher Muhammad (P.W-3) gets support from the counter FIR (Ex 35) lodged by appellant Ibrahim himself. There is, therefore, ho escape from the conclusion that the appellants and none else were responsible for causing the death of Shahmir and Allah Bux and injuries to Sarang (P.W-8) by means of hatchets.
11. I now address myself to the question whether the appellants caused the death of Shahmir and Allah Bux and injuries to Sarang (P.W-8) in exercise of right of private defence or it was a case of exceeding the right of private defence. This plea is raised on the strength of FIR (Ex 35) lodged by appellant Ibrahim. The case built up by the appellants on the basis of this FIR (Ex 35) was not proved and accused Moula Bux, Peeral, Moosa, Hussain, Hamze. Wadhal and Mohram sent up in the counter case were acquitted by learned Additional Sessions Judge vide judgment dated 18.2.1991. The perusal of FIR (Ex 35) also reveals that appellant Khan had sustained injuries by means of lathi and hatchet. No such injury was, however, found on his person. Likewise appellant Ibrahim had only bruise and contusions which could be the result of struggle or fall. There was, therefore, no occasion for the appellants to have exercised the right of private defence. The case of the appellants also does not fall within any of exceptions to section 300 P.P.C. And consequently the argument that the offence against them, if any, will fall under section 304 P.P.C, is devoid of any force. In fact the murders were cruel, ruthless and brutal and the appellants were lucky to escape death penalty.
12. On consideration of the entire evidence as discussed above, I am fully satisfied that the occurrence took place in the manner as indicated above. The appeal has got no merits and is accordingly dismissed. The appellants who are in custody be informed accordingly.