TUFAIL ALI A. RAHMAN, C. J.-----This case arises out of the murder of one Kabool son of Sachal Dedo upon the 3rd of January, 1970 at 3-00 p. m. In the town of Rohri. In stating the prosecution case some difficulty arises because there were two sets of eye-witnesses and although, in major parts of the story, their depositions are much to the same effect there are nevertheless material differences between the two versions given, differences, which have affected the result in the trial Court. While therefore I am stating the prosecution case I am referring to the case set up in the first information report and in the main relied upon by the prosecutor in the trial below though not precisely the one which has appealed to the learned trial Judge.
According to this case the deceased Kabool and his cousin Muhammad Jurial, who lived in a village called Khari Mumbrani to Taluka Rohri left for Rohri for making some purchases and about 3 o'clock on that day they were returning alongwith Jan Muhammad who is also a cousin of the deceased and who met them in Rohri, to their village. While they were still in the town, that is to say, near the shop of one Nizamuddin Memon they came across three persons namely Moharram son of Darya Khan, his brother Jiand and one Mumtaz Umrani who is admittedly not related to either of the two. Of these, it is alleged that Mumtaz and Moharram were both armed with 12 bore pistols while Land had a hatchet in his hand. Moharram is said to have challenged Kabool telling him that he had enjoyed all this time and that the day of his death had finally arrived. The reference to enjoyment will be clearer when I state the motive alleged. Moharram then fired at Kabool with the pistol which hit him on the right side of his chest and Kabool, in an attempt to obtain shelter, ran towards the shop of Nizamuddin when he received another injury by a pistol shot by Mumtaz. No further firing by pistols took place but what can only be described as a savage dismemberment of the body was then effected by hatchet wounds as a result of which the head was completely cut off, the right and the left legs both cut off from above the ankle joint, and the two hands also cut off' from above the wrist joint. Of the limbs cut off and the head, when finally the police arrived, only the left hard remained with the body while the remaining had been taken away by the culprits apparently as a trophy. Some other witnesses are mentioned in the first information report but since only two of them were examined I specifically mention these only; they are Hussain Bux and A.I Sher. This Hussain Bux is Hussain Bux son of Taj Mohammad a Dedo by case like the deceased and indeed admittedly his maternal uncle. These are mentioned as among the various persons who, although not belonging to the party of the deceased, actually witnessed the crime happening to be in the town at about the same time. At the trial the prosecution examined another Hussain Bux and this Huasain Bux is the son of Dhund and a Memon by case and I propose, therefore, to avoid con--fusion between the two, to refer to them invariably as Hussain Bux Dedo and Hussain Bux Memon respectively; it would have been as well for the clarity of the judgment of the trial Court if the learned trial Judge had also observed some such precaution as he might as well have refrained from describing people as P. W. So and so when, although mentioned in the first information report as witnesses, they have not actually been examined. A.I Sher is mentioned as one of those who saw the incident in common with Nizamuddin as one of the shopkeepers and it is to be remembered that Nizamuddin is the person who owns the shop into which the deceased went in order to obtain shelter; it transpires that Hussain Bux Memon and Nizamuddin are co- owners of this particular shop.
3. The first information report then goes on to recite the fact that, about two years before the incident one Kamal Jiskani who was the uncle of Moharram bad been murdered by the deceased Kabool, who had in fact been tried but was acquitted; the present murder is alleged to be in vengeance for the former.
4. Jurial then went to the Rohri Police Station which is only one mile away from the scene being indeed in the same town and lodged a first information report which bears the time 3-30 p .m.; it was recorded by prosecution witness Shahbaz Dino who was the Head Constable in-charge, the S. H. O. Muhammad Afzal being at that time in the office of the Superintendent Police, Sukkur. However the latter officer was immediately Informed and it is to be remembered that Sukkur and Rohri are virtually sister towns with only the river Indus dividing them and the S. H. O. Came immediately to the scene.
5. The entire investigation in this case has been carried out by the S. H. O. Muhammad Afzal and, upon the day of the incident itself, besides preparing the mashirnama of the scene of offence, the inquest report and sending the dead body for post-mortem examination he mainly concerned himself with recording the statements of witnesses, among whom might be mentioned as of special importance the names of Janan (i.e. Jan Muhammad to whom I have earlier referred)
Hussain Bux Memon, Hussain Bux Dedo and A.I Sher. Others mentioned in the F. I. R. Also apparently were examined and the S. H. O. Does name them. Nothing of any significance appears to have been done on the 4th but upon the 5th of January, 1970 it seems that all the three persons named as accused in the first information report, namely, Moharram, Mumtaz and Jiand were arrested.
Moharram when arrested was found to wear a shirt and a loin-cloth which appeared to be blood- stained and were, therefore secured by the police. He is then alleged to have taken the police to two places, the first being near the canal where it is said that the limbs of the deceased were thrown into the water and the second a place from where a pistol, country made, but in working order, smelling of powder, was recovered. Rand on being arrested was also found to wear a Malashia shirt which appeared to have been blood-stained and was therefore secured and then went on to lead the police to the roof of his house and produced a hatchet which again was secured it being suspected to be blood-stained. On the 6th Mumtaz, upon being arrested, led the police to a place from where a pistol was recovered; this again was country-made and in working order. In his case there is no allegation that he was wearing any clothes which were seized. It might be convenient here to say that of all the articles recovered as being suspected of bearing blood stains the Chemical Analyser has found that the Malashia shirt said to be worn by hand, although it bore stains of blood the blood was disintegrated and it could not be discovered whether or not it was human. The remaining articles were all found to be stained with human blood. That entirely completes a narration of the investigation and nothing thereafter appears to have been done but the accused persons, namely, Mumtaz, Moharram and Jiand were sent up to a Magistrate for committal proceedings upon the 16th January, 1970. The only step that was taken in the meantime by the S. H. O. Appears to be to have the statements of some of the witnesses recorded under section 164 by a Magistrate; if indeed he thought the statements of witnesses under that section was a necessary step to be taken then the earlier be had taken it the better. It is true of course that in the meantime he received the post-mortem notes but this surely could not have been as late as the 14 or the 15th. It is also true that he sent the weapons and the clothes to the Chemical Examiner as also the pistols to the Ballistic Expert but these in any case were received by him long after the 16th of January 1970. The delay does not appear to affect the veracity of the evidence in this case but I think police officers should realise that when the law says that an investigation must be completed within 14 days and the accused then sent up for trial or let it does not follow that they are under any obligation to wait for the 14 days; the spirit of the law underlying the Criminal Procedure Code is to keep to the minimum the period of time during which a person is in custody without being convicted and before that, without being even commenced to be tried, but it seems to me that the S. H.O. Regarded, as the police are wont to regard the period of 14 days as a kind of limitation prescribed within which steps may be taken and that there is no necessity of explaining why they were not taken earlier when they could easily have been so taken. This is quite apart from the fact, a matter which does not arise in the present case; of evading the statutory provisions with regard to the 14 days limit by submitting what are commonly called interim charge-sheets.
6. In due course the three accused were sent up to the Court of Sessions where the learned Addl.
Sessions Judge, Sukkur sitting at Khairpur tried them and acquitting Rand, found the other two guilty of offences punishable under section 302 of the Pakistan Penal Code read with section 34 and sentenced them both to death. Both of them have appealed and we are also called upon to examine the case for the purposes of the confirmation of the sentence of death.
7. The statements of the accused persons were a complete denial including a denial of the recoveries alleged to have been made from them and of the motive; except in the case of the acquitted accused Hand however in whose case evidence was led on behalf of defence. In his case two witnesses were examined for the purposes of proving an alibi and this has appealed to the learned Judge, who at one place in his judgment plainly holds that the evidence clearly shows that the appellant was where he claimed to be at the relevant time. The general tenor of his judgment however appears to be that he had other doubts about the presence of Band also and, elsewhere in the judgment, as clearly he states that the case of Rand is doubtful and the acceptance of his alibi therefore does not recoil upon the question whether the other two accused persons participated in this crime, though he does not use precisely that language. Although therefore Band is acquitted since he led evidence of alibi it will become necessary in this case to see what effect, if any, that should be allowed to have upon an appreciation of the evidence against the appellants.
8. As will have been gathered from the narration of the prosecution case as I have given it the case for the conviction of the appellants depends almost entirely upon the evidence of the five eye- witnesses except that in the case of Moharram there is the fact of the recovery of shirt and loin- cloth which he was wearing at the time when he was arrested and which have been found to be stained with human blood. It is true that Jiand also had produced a hatchet which has been found to be stained with human blood and also that the shirt that he was wearing was stained with blood although the Chemical Analyser could not on account of its disintegration say whether the blood was human. The case however of Jiand is not before me and this circumstance therefore is hardly corroboratory evidence against the appellants; on the contrary the question would arise whether in accepting one version or the other of the prosecution case his attribution of the discovery of a hatchet to Rand fits in with the facts satisfactorily found or militates against them. It is also true that both Mumtaz and Moharram are alleged to have led the police to two different places from where a country-made pistol which was recently discharged was found but since it has not been found possible by means of expert evidence to connect either of these against the appellants.
Indeed it was argued before us that the alleged discoveries were proof of the falsity of the prosecution case but that argument rests upon the foundation that one and one only of the culprits could have been armed with a pistol, and, although I do not at this stage, accept the argument, it is clear that, assuming even that the argument being correct, it leads to no such conclu--sion. The fact that a person is in possession of a weapon, whether legally or otherwise, it is no proof that he was concerned in a crime in which a weapon of that kind was used is equally no proof that he did not take part in such a crime. It is a circumstance therefore that upon the whole I am inclined to reject as entirely valueless for my present purpose. The case therefore must depend essentially upon the assessm ent of the truthfulness of the witnesses and, since as I have already stated there are differences upon certain fairly important questions in this case, finally upon the resolution of the differences and the conclusion that is eventually reached as to what facts may be stated to be established beyond any reasonable doubt and it is upon these facts as finally found that the convictions would have to be maintained or reversed.
9. Of the five eye-witnesses in this case three namely Muhammad Jurial, Jan Muhammad and Hussain Bux Dedo are related to the deceased while the other two, Hussain Bux Memon and A.I Sher, are not and it would be convenient to refer to each of these groups collectively as the related and the unrelated witnesses respectively. Learned counsel who appeared for the appellant before us argued that the version of these two sets of witnesses were contrary and therefore we should without anything further reject the entire ocular testimony and since the only circumstantial evidence against one of the appellants being obviously insufficient to sustain a conviction there should be an acquittal in this case. He of course raised other arguments with which I will deal in their proper context but so far as this particular contention is concerned I feel free to say even at this early stage, that the argument that the evidence of witnesses must be rejected merely because there are contradictions is founded upon a principle of assessment, if it can be called a principle at all, which is to my mind as unrealistic as it is facile and mechanical. I consider it is the duty of a Court to scrutinise the entire evidence giving such contradictions their due weight, making allowances for the frailty of human memory as also for motivated falsehood and then deciding how much can be safely accepted as true beyond reasonable doubt which is the standard of proof accepted by our Courts in criminal cases. It is worthwhile however to notice just now the major difference in the versions given by the related and the unrelated witnesses.
According to the related witnesses Moharram having challenged the deceased, fired at him on account of which the deceased ran towards the shop of Nizamuddin and in the meantime Mumtaz fired at him; when the deceased finally reached inside the shop of Nizamuddin, Moharram fired yet again. All the three-named culprits then dragged him out whereafter Jiand chopped him up. The only small minor variation is that Hussain Bux Dedo does not mention that Mumtaz did any firing.
On the other hand Hussain Bux Memon says Kabool running towards his shop followed by Mumtaz and Moharram who fired at him with the result that he fell down inside the shop. The culprits that is to say, Moharram and Mumtaz then dragged him outside where him up. A.I Sher who also is a shopkeeper gives much the same account except that he says that his attention was first drawn by . . . . . The noise of the fire on shots. The main differences therefore are that while the related witnesses mention three culprits of whom they attribute pistols to Moharram or Mumtaz, the present appellants and a hatchet to the acquitted accused, the unrelated witnesses, on the contrary, say that they were first attracted by the commotion caused either by the firing or by the deceased running up to the shop; there is hardly any difference between the two as people are unlikely to remember, in an unexpected and dramatic event of this kind, which preceded the other.
Neither of the unrelated witnesses mentioned the presence of the acquitted accused at all and neither attributes specifically what each of the culprits did. In both cases their reference to the dismemberment of the body is to the fact that "they" meaning the culprits did so.
10. Now in regard to the related witnesses counsel's main argument of course is that they are related to the deceased and hostile to them, the hostility of course in question being the motive which the prosecution has alleged. It is interesting to note however that each of the accused persons denied this motive in very bald terms merely by stating that it was false. The question of course was not put to Mumtaz at all, since unrelated as he was to Kamal jiskani, the motive could hardly effect him. Neither Jiand nor Moharram with whose case we are of course concerned just not explained what he meant by this falsity, that is to say, whether he meant that no such murder has taken place at all or that the deceased was not tried for it of that in any case it had nothing to do with him. And yet in each case including that of Mumtaz an enmity with the Dedas, that is to say with the prosecution party, is alleged and what is more generally in regard to the prosecution witnesses including the unrelated witnesses also it is stated that they are interested, related inter se acid inimical to the accused persons. Now of course if the motive is false in the sense that the facts which constitute the motive are themselves incorrect it might leave the prosecution without a discoverable motive but if it is otherwise satisfactorily established that the accused committed the murder this would not matter. On the other hand the string of such a finding would be that the witnesses would have to be held to be completely disinterested at least in the sense that they are not hostile to the accused persons though of course the related witnesses would be interested in the deceased. It seems to me to be a pity that the prosecutor could not establish the facts of the earlier murder by any better means then the oral evidence of these witnesses; surely certified copies of the judgment in that case should not have been difficult to procure. As I have had occasion too often to say, however, it has become currently the fashion to present cases in Court without that careful documentation which I think it is the duty of a public prosecutor both to the Court and to the prosecution to display particularly in such a serious case as murder. Nevertheless, since it is the case of the prosecution itself that there was this previous incident of murder and that it was the cause of the present one, the witnesses who are related must be regarded as being hostile at any rate to Moharram and his brother the acquitted accused Jiand, Mumtaz who is not related to the other two accused persons would not of curse be within the pale of this enmity; the prosecution have not chosen to say why Mumtaz should join in the crime but so far as that goes all the real criticism against the prosecu--petition comes to is in rely this that no motive has been shown against him. Stretching the argument in favour of Mumtaz however, if it is the prosecution case that Mumtaz would lead his support to Moharram by reason of some other interest that he had in the latter, possibly one of friendship, then in his case too the evidence of the related witnesses should be regarded as that of hostile persons. It has already been noticed that Mumtaz himself does attribute enmity with the witnesses though he gives no details whatever. Dealing however with hostile witnesses the Curt is entitled, and indeed even bound, to scrutinize their evidence with special care particularly to see whether there is any danger of their having added to the list of genuine culprits others but I really cannot accept the argument that the learned counsel put forwarded that having shown that they are hostile witnesses their evidence must be rejected out of hand.
10. The first question that I propose to consider about the related witnesses is the likelihood of their being at the scene. Learned counsel for the appellants argues that the witnesses are chance witnesses; now I must confess for my own part that I have never fully under stood the meaning of the phrase "chance witnesses" as it is commonly and freely used in our Courts and the easy assumption that is made that by itself, it suffices completely to reject their evidence. If by the expression is meant a witness who is unable to explain why he was present at the scene of offence at the time when the incident occurred, I do of course understand that such a witness should be regarded with suspicion and that his evidence should not be lightly accepted. But surely by the expression one cannot mean a witness who is not according to the normal routine that he . . . . . . . . . . . . Follows expected necessarily to be at the place and time which he alleges that he was; if a murder was to take place, let us say in a busy street in Karachi, there are likely to be hundreds of people who might have good reason to be there but whose ordinary routine would not include their being there at that particular time or the day in the normal course. There might be people who have come to shop, others on their way to different parts of the city and possibly even persons who having nothing better to and were merely sight seeing. If one has to go from one point in a town to another and can do so by two different routes most of us would be hard put to say why we chose one route and not another. It is true of course that people like shopkeepers would not merely have a reason to be there but that their presence is almost guaranteed by the fact that they had need to be there and that it is in their normal routine to be there. It does not follow that every one else who does happen to be there is a chance witness and therefore a perjured witness. The point of the matter really is; does the witness satisfactorily explain why he was there at that particular time? It is obvious that on this criterion the question whether the incident took place in a busy, locality like a street in a town which is the present case or in a comparatively isolate area in the country-side would have an important bearing on what is a chance witness. Learned counsel's argument is that according to the evidence of the first informant Muhammad Jurial he prosecution witness Jan Muhammad and the deceased had come to `Rohri for purchasing vegetables. The counsel argued that they had no reason to do so and that they were living about two miles away from Rohri. Now in the first place I do not think it is at all unusual for villagers to walk up some two miles or so to a nearby town for buying things but, assuming that vegetables were more easily available nearer their own village, even then it does not necessarily show that they could not have come to Rohri for that purpose. Assuming a step further and holding that it was improbable that they should have done so it still does not follow that they infact did not do so. The argument that a particular allegation is improbable has always seemed to me absolutely futile in the face of unimpeachable evidence that it infact is true. If upon the argument of learned counsel the witness Muhammad Jurial was a chance witness then the deceased Kabool was, as it were, a chance deceased, and yet it cannot possibly be denied that Kabool was murdered in Robri at 3-00 p.m. On the 3rd of January, 1970. It would be strange indeed to hold that because neither Muhammad Jurial nor the deceased had any occasion for coming to Rohri on that particular day, therefore, although it is conclusively proved that the deceased did, it must be held that the witness did not; this is not after all the kind of case where it is alleged that the deceased had some good reason for going and that Muhammad Jurial merely accompanied him for the sake of doing so. The murder did not take place in a desolate place and the body found much later. Whatever view may be taken of the ocular evidence it would be too grossly exaggerated a view to take of the assumed mendacity of the police to imagine that a crime like this could be suppressed or that it was not taken any notice of by the innumerable persons who must have been nearby. I have, therefore, no difficulty what-- ever in holding that Muhammad Jurial was infact there. His presence is further borne out by the fact that he is the first informant at a police station which is within the same town at about a distance of only one mile from the scene.
11. In the case of the witness Jan Muhammad however the argument is somewhat stronger. In the first place although the first informant in his deposition says that the witness accompanied the deceased and himself from their village, according to the version he gave in the first information report, Jan Muhammad met the two in the town and that the deceased had left his own village earlier in the day accompanied by the first informant alone. Jan Muhammad's own deposition in Court was to the same effect as that of the first informant, namely, that all three had left the village together. In his case however also it transpires that he probably did not say so in the course of his police statement. It Is much to be regretted that learned counsel for the defence did not put this contradiction to Muhammad Jurial as to his first information report and although he put it to Jan Muhammad who denied it he did not follow it up by asking the police officer. Technically therefore the evidence is consistent that all three left the village together and the contradiction between the deposition of each and his former statement has not been proved according to law. After all the carelessness with which cases are handled in Sessions Courts is not the monopoly of the Public Prosecutor but learned counsel who appear for the defence are as much guilty of neglecting these details which might well have played an important part in determining the question whether Jan Muhammad was there at all. In a serious case like this I should not like to penalise the accused persons for what is after all a technical omission on the part of their counsel. The record clearly indicates that the previous statements of the witnesses, although not proved in accordance with the evidence all, were clearly contrary to what they have now stated in the trial Court. I will assume therefore that the allegation that Jan Muhammad accompanied the deceased and Jurial from their village in the morning is incorrect. That does not, however, dispose of the question whether Jan Muhammad was actually in Rohri at that particular time. According to the earlier version he had come to Rohri and was in the company of the deceased and the first informant at the time of the murder. I am of course entirely conscious of the fact that these are not substantiative pieces of evidence and that I cannot and ought not to use them for the purpose of establishing that he was so present. His presence to my mind however is guaranteed by the recording of his name as one of those who identified the body at the inquest report. We do not of course know the precise time at which this inquest report was made but we have it from the evidence of the police officer that this was the very first thing that he did when he came to the scene; it will be recalled that he himself was informed at Sukkur and had come to the scene immediate--ly. It is difficult for me to believe that within the very brief period of time that must have elapsed it would have been possible to call Jan Muhammad from his village or even that it would have occurred to anybody to do so merely to get him to identify the dead body. Even if it was necessary in strict law to have the identification by two relations, as it happened, other persons were named in the first information report who are also related and from amongst them indeed Hussain Bux Dedo was examined as a witness at the trial. In regard to Jan Muhammad also therefore I have no doubt that he was present.
12. The only remaining of the related eye-witnesses is Hussain Bux Dedo who claims that upon that day he and some others came to Rohri town and just about the time when they reached the scene the incident took place. Now here again I do not see anything incongruous about the witness's having come to Rohri and some of the reasoning which I have expressed in regard to the other related witnesses would apply to him also. Nothing was elicited in his cross-examination which would throw any doubt upon his presence, he too is among the witnesses who was examined by the S. H. O. Upon the day of the murder and indeed almost immediately after the S. H. O. Arrived at the scene. I have therefore come to the conclusion that there is no reason in this case to doubt the presence of the related witnesses. It does not of course follow that they are all witnesses who must necessarily be accepted at their face value but at any rate their proved presence makes their evidence such as must be seriously taken into account and, being properly weighed in the context of the other circumstances of the case, one must consider how much of their evidence can be safely accepted.
13. One fairly objective piece of evidence against which the truth of what these witnesses are stating is the medical evidence and it would be worthwhile reproducing the list of the injuries which the doctor found upon the dead body:-
(1) Head totally cut from the neck and not available.
(2) Right hand cut just above wrist joint and not available.
(3) Left band cut just above wrist joint. Hand was present.
(4) Right leg totally cut just above ankle joint foot not available.
(5) Left leg totally cut just above ankle joint foot not available.
(6) 20 pellets marks on the right side of chest neck and right clevically. Charring present.
(7) Sliced incised wound 5" x 2' x muscle deep on the right thigh front and lateral.
I should have felt happier if the evidence of the doctor had been taken more carefully; he states that injuries were individually as well collectively sufficient to cause death except injury No. 7 which is a sliced incised injury upon the right though. I should have thought that the first injury which the doctor noticed was by itself quite sufficient to cause death and though it would not be for the doctor to say so this is indicative very clearly of the intention of the culprit to cause the death of the deceased. In his post-mortem examination notes the doctor describes the time between the injury and the death as instantaneous. Now in howsoever quick a sequence these injuries were given they were not literally simultaneous. It is at least within the realm of possibility therefore that some of these injuries might have been post--mortem. Nowhere however has the doctor said, either in his deposition or the post-mortem notes which of the injuries were ante-mortem and which were post-mortem. My experience usually has been that when an injury is post--mortem a doctor at least in his post-mortem notes specifies so. If his state--ment that death was instantaneous is therefore to be taken literally, then as--suredly the man died either of the pistol shot which had injured him or the hatchet injury or injuries which succeeded in separating the head totally from the neck. If it be the former the deceased could hardly have run to Nizamuddin's shop. But not only the evidence of the related witnesses but that of the unrelated witnesses also upon whom I am inclind to place much greater reliance as I will presently show, shows that the deceased not only ran towards the shop but fell inside it from where he was dragged outside and then given the hatchet injuries. The other probabilities of the matter would also seem to indicate that the fire-arm injury must have been the first; quite clearly this was given to disable the deceased and to prevent him from running ratter than to actually effect his death. Of course it might have resulted in his death and the culprits might then have gone away but the intention of the culprits whoever they were clearly was not to be satisfied with mere killing; their subsequent conduct shows that they wanted for some reason to mutilate the body. If among the incised injuries the head injury was the first then the likelihood is that at least some of the other injuries were post-mortem. As it is we are left guessing about these matters. But one thing is plain and that is that the injury from a pistol was only one and yet both Jurial and Jan Muhammad describe Moharram as firing twice and Mumtaz once. The only difference which Hussam Bux Dedo makes is that he attributes no firing to Mumtaz.
Upon the medical evidence therefore there is reason to doubt, the accuracy of the attribution of the injuries. Clearly this was a case in which at least two persons were concerned since two different weapons have been used the danger of witnesses who are shown to be hostile which undoubtedly is the case here, is thus limited to their having exaggerated the number of culprits by one. If this were all the evidence I should certainly look for some corroboration external to the evidence of these related witnesses which would give me an assurance that the person whom I am convicting on their evidence was in fact one of the culprits. To say that in this case there was only one pistol used and that therefore the person whose name had been exaggerated must be one of the two who is stated to have used the pistol might be good mathematics but is not I think good assessm ent of oral evidence. Notorioulsy people make mistakes in such matters as the attribution of weapons to particular persons or the attribution of specific parts. Clearly in this case, by mistake or by design, a wrong attribution of the number of shots fired has taken place. Before deciding therefore which is the person who has been falsely implicated in this case or whether upon this evidence one is not sure that any one has been truly implicated the other evidence must also be taken into account. It is possible that that other evidence might by itself establish the facts to the satisfaction of the Court or, at the least, make the probability of one or more individuals having taken part in this crime and their identities as certain as human evaluation of evidence can make them and that after all is the standard of the proof act up by section 3 of the Evidence Act.
14. I turn therefore to an examination of the evidence of the unrelated witnesses Hussain Bux Memon and A.I Sher. Against the first of these two the main criticism of learned counsel is that he is not mentioned in the first information report. This is undoubtedly so although the contradiction was not brought out as it should have been between the deposition of the witness as it ought to have been however as I have done in other matters I am not taking this into account against the defence. The first information report however not only mentions Nizamuddin (who has not been examined) but expressly mentions the fact that the deceased ran towards the shop of Nizamuddin in which he fell. 7hat this is true is borne out not only by the evidence of the related witnesses as also of the unrelated witnesses and by the evidence of the S. H. O. Who found the dead body immediately outside the shop in question. There was evidence in fact of the Mashir Dur Muhammad who said that drag marks were found immediately outside the shop and inside the shop. There were clearly marks of dragging of the dead body from the inner room of the shop to the place immediately outside where the corpse was eventually found. Now Hussain Bux Memon is in fact one of the owners of the shop in question being a partner of Nizamuddin. This is stated not only by all the witnesses but is nowhere challenged by the defence. Whatever inferences the defence might persuade us to draw from the non-examination of Nizamuddin, Hussain Bux can hardly be said to be a got up witness. In no sense of the word can he possibly be described as a chance witness. There was no enmity between the appellants and the witness and in their statements under section 342 the accused persons only made a general allegation that all the witnesses were enemies of theirs. It is true however that some questions were put to Hussain Bux which apparently were intended to suggest a case of enmity but so vaguely are the questions put that I at least am quite unable to understand exactly what was suggested. The exact words in the cross-examination of Hussain Bux are "I know Babool Koryo. He is my relative. I know Hooran.
Hooran is cousin of Mumtaz accused. They had filed a case. A.I Sher v as a witness in that case Hooran was acquitted in that case. A.I Sher is my cousin". A.I Sher mentioned is clearly the prosecution witness A.I Sher in this case and he like Hussain Bux, is admittedly a shopkeeper whose shop is only about 40 or 50 feet away from that of Hussain Bux Memon. In his case the cross--- examination is a little more specific. "Baboo Kori is my puphat. Baboo Kori filed a rape case against Hooran. Hooran is puphat of accused Mumtaz. I was a witness in that rape case Hooran was acquitted in that rape case." The facts could have been better brought out but it does seem that there was a previous case but there is nothing whatever to indicate when this case was filed nor how serious the enmity was which developed on that account. The S. H. O. Recorded the statements both of Hussain Bux Memon and A.I Sher on the 3rd January immediately after he had prepared the Mashirnama of scene of the offence and the inquest report. It seems to me improbable in the extreme that in the very short time that must have elaps--ed between the murder an I the departure of Muhammad Jurial for the Police Station sufficient co, salutation could have taken place between two different sets of enemies of the appellants, not themselves related inter se or united by any other common interest, to set up a false and concocted case against any one individual accused person. In point of fact however clearly a common case was not concerted upon. Neither Hussain Bux Memon nor A.I Sher mention the presence of Rand at all. Each talks of seeing the deceased running towards the shop of Nizamuddin followed by Moharram and Mumtaz.
The only difference between the statements of the two unrelated witnesses is that while A.I Sher says that his attention was first drawn by the sound of fire-arms Hussain Bux Memon says that while the deceased was being followed by Moharram and Mumtaz the latter fired at him. Neither specify the number of shots and indeed Hussain Bux Memon expressly says that while Moharram had a hatchet Mumtaz had a pistol. It is true that each talks of two or three or four shots. In an incident like this it is never safe to rely upon the memory of witnesses as to the exact number of shots and indeed neither of the witnesses is really saying so in the sense in which the related witnesses did. Both speak of an approximate number in the context of what it is that they heard and not as stated that any one individual fired at the deceased.
15. The evidence of these two witnesses appears to me far more natural and besides, not being in conflict with the medical testimony, is not open to the attack made upon the related witnesses. The witnesses undoubtedly had g reason to be there and their presence at the scene is established extraneously and satisfactorily. That they are not exaggerating the number of the culprits is plain from the fact that they mentioned only two and the medical evidence clearly shows that that is the minimum number of persons who must have taken part in the attack upon the deceased. I can see no real reason why therefore the evidence of these two witnesses at least ought not to be accepted in full and I have no hesitation whatever in relying upon them.
16. The case of Jiand throughout was that he was not present at the, scene at all. The learned Judge has accepted this case partly upon the evidence of alibi given. This consisted of two witnesses namely Audho Khan and Wasi Abbas. The former was a crane Jamadar in the Loco Shed at Rohri and he deposed that the accused Jiand was working as a Cooli there and that upon the 3rd January 1970 he is shown as being present and that the working hours are from 7 to 12 in the morning and again from I to 4 in the evening. The other witness deposed that the record show that he was present on that day and has been paid his salary upon that basis. Now I am by no means sure that this evidence conclusively establishes that Jiand could not have been present at the incident; the scene of offence is only one mile or so from the Loco-shed and while Audho Khan does indeed say that Rand was all along present on that date I think this must be taken to mean only that, relying upon the record, he assumed so. The physical possibility of his having gone away during the interval is not I think excluded. While there--fore I wholly agree with the learned Judge that the evidence of these two witnesses makes it highly improbable that Jiand could have taken part in the incident the evidence of alibi of is not of that character which conclusively establishes that if the witness named Jiand as being one of those present he is necessarily false. Even if it did it would suffice to show only that in regard to Jiand at least a false person had been implicated, of course with all the necessary consequences which would follow from such a finding.
17. Now so far as the unrelated witnesses are concerned they do not mention Rand at all and proof therefore of his absence cannot affect their veracity. So far as the related witnesses are concerned I have even for other reasons held that their evidence as to the identity of any one culprit would require corroboration. It would indeed seem more probable that if there was exaggeration of one person and one person alone that one would be either Moharram or Jiand since the tendency would be to implicate relations of the known culprit. This it is to be remembered, is not at all a case where by any stretch of imagination it could be held that it was an unwitnes--sed crime and that the entire list of culprits is a wholly concocted one. I find it difficult indeed to believe that if the witnesses related and unrelated saw the incident as they did they would without good and sufficient reason, of which there is no evidence in this case exculpate the known culprit. Besides as I have commented before the place and time of the murder is such that the opportunity either to suppress evidence of the crime or to delay its report to the police does not really exist at all.
18. I am therefore satisfied that the unrelated witnesses can in this case be safely depended upon and even that the related witnesses were definitely present at the tithe of occurrence although on their sole testimony I should have insisted upon some corroboration in the case of each individual accused person. In the present case admittedly such corroboration exists only in the case of Moharram upon whose body at the time of his arrest a shirt and a loin cloth were recovered which have begin found to be stained with human blood. Even in the absence of the unrelated witnesses this would have sufficed to give such corroboration as is necessary because I found that on the whole these witnesses too are telling substantially a truthful story excepting that they have been guilty of exaggerations. The question really is not of much importance inasmuch as I have found unrelated witnesses completely reliable. There were of course other recoveries in this case but my earlier narration of the fact will show that they are completely irrelevant to the case.
19. I have therefore come to the conclusion beyond all reasonable doubt that both the appellants killed the deceased as alleged with the intention of causing his death and that the injuries were in any case sufficient in the ordinary course of nature to cause death. They are therefore clearly guilty under section 302 of the Pakistan Penal Code read with section 34. There remains only the question of sentence. The normal sentence for murder is death and in the present case, so far from their being any extenuating circumstances, I can only regard the manner in which the deceased was hacked up as evidence of extraordinary brutality and I cart find no excuse therefore for giving them any lesser sentence. I would therefore dismiss this appeal, and maintaining the convictions of both the appellants confirm the sentences of death imposed upon them.
FAKHRUDDIN G. EBRAHIM, J.----I agree.