1. ' NAZIM HUSSAIN SIDDIQUI, J.--- Appellants Muhammad son of Haji Nasir Chandio, Umar son of Ali Chandio, and Ali Khan son of Dodo Chandio were tried by learned Sessions Judge, Thatta and were convicted under section 302/34, P.P.C. And sentenced to death and to pay compensation of Rs,1,00,000 to the heirs of deceased Khamoon, under section 544-A, C .P.C.,. Or in default thereof each of them to suffer imprisonment for the period of 6 months vide judgment dated 13th November, 1991, which has been impugned in this appeal. Learned Sessions Judge has submitted proceedings before this Court, under section 374, Cr.P.C., for confirmation of death sentence. The appeal and reference for confirmation of death sentence are being disposed of by this judgment.
2. ' The report in this case was lodged on 19-4-1990 at 1-00 a. m. In the night at Police Post Ghulamullah, showing the date of offence 18th April, 1989 and time as 10-30 p. m. The scene of offence was Katcha Track near village Bachayo Machi at a distance of 4 K.M. From said Police Post.
3. The report was recorded by Kehar Khan Khoso A.S.I. Incharge of said Police Post. He sent a copy of the report to Police Station Mirpur Sakro for its incorporation in 154, Cr.P.C. Book, which was done.
4. The motive as shown in the report is that on 17-4-1990 deceased Khamoon and Kandero Chandio had fought over grazing of the cattle.
5. ' The case of prosecution, in brief, is that on the day of occurrence complainant Gulloo and deceased Khamoon, after taking tea at the hotel of Muhammad Goondar, were returning to their village, via Katcha Road, and when at 10-30- p.m. They reached near their village they found appellants Ali Khan, Umar and Muhammad, duly armed with the hatchets, standing there and they were identified by the complainant party in the light of a torch. It is alleged that the appellants challenged the deceased saying that he had beaten their relative Aslam son of Kandero Chandio, as such, they would take revenge from him. The complainant tried to pursuade them not to kill the deceased, but with no result. The appellants had caused injuries on head and other parts of the body of deceased with sharp side of the hatchets. Deceased fell down. The complainant raised cries, which attracted P.Ws. Gul Muhammad son of Natho and Rabu son of Soomar. Thereafter, the appellants decamped from there and took away their hatchets. After leaving P.Ws. Gul Muhammad and Rabu as a guard over the dead body, the complainant went to said police post and lodged the report, which was registered under section 302/34, P.P.C.
6. ' The investigation of this case was conducted by Kehar Khan Khoso A.S.I. And Durban Ali A.S.I. After 15-20 minutes of registration of above report, appellant Muhammad appeared at the said Police Post and lodged his report against the complainant and the deceased, which was also noted down in the Station Diary. Said report is as follows:-- "Complainant Muhammad so n of Haji Nasir by caste Chandio, resident of village Dhanidino Chandio, Deh Kathore, Taluka Mirpur Sakro.
7. ' Accused Khamoon son of Aachar, Gulloo son of Jamoo b/c Machhi, resident of village Bachayo Machhi, Deh Karampur, Taluka Mirpur Sakro.
8. ' Date of offence 18-4-1990 at 22-30 hours, place of offence, Katcha Road, near village Bachayo Machhi Deh Karampur, Taluka Mirpur Sakro at the distance of 4 Kilometres from P.P. To southern side.
9. ' Report that I do the work on the land of Hassan Chandio, and reside on the abovementioned address. I, Umer and Ali Khan all these three were returning to our house after taking tea from the hotel of Ghulam Chandio, and when at 10-30 hours, in night, we-reached on Katcha road near the village of Bachayo Machhi, every one Khamoon Machhi and Gulloo Machhi came behind of us and said to us that you have unnecessarily caused the blows to one of our relatives Aslam son of Kandero on 17-4-1990. On saying so, Khamoon abused me and threw me on which I fell down, due to which I sustained injury on the "Rann' of by a Tadi and Gulloo Machhi also caused me kicks and fists blows. We also caused now the blows to Khamoon. Then Umer and Ali Khan have rescued me.
10. Now I appear and report for justice, and letter for treatment.
11. ' Note.-- Above complaint of complainant recorded on his verbatim and read over to him, who accepted it be correct and marked his left thumb-impression."
12. ' Appellant Muhammad had an injury on left thigh. His report was recorded as non-cog. Appellant Muhammad was arrested in presence of Mashirs, Muhammad Saddiq H.C. And Wali H.C. Thereafter, A.S.I. Visited the scene of offence, where the dead body of deceased Khamoon was lying. He secured blood-stained earth from there and prepared necessary Mashirnama in presence of Mashirs Muhammad and Ayub. Then came the Inquest Report. He visited scene of offence at 2-00 a.m. On 19-4-1990. It is alleged that appellant Muhammad had taken the police party to jungle near Chandio Goth and from there produced a hatchet from Khubar Bushes, which was blood- stained. On 19-4-1990 at about 5-30 p.m. He arrested appellant Umar, who also produced a blood- stained hatchet. He recorded statements of P.Ws. Gul Muhammad and Rabu. Thereafter, he handed over the case papers to Din Muhammad S.H.O. Shoro, as he was transferred. Qurban Ali A.S.I. Arrested appellant Ali Khan on 23-4-1990 and prepared necessary Mashirnama. It is alleged that appellant All Khan, after his arrest, voluntarily led the police and Mashirs, towards jungle and from there produced a blood-stained hatchet.
13. ' At trial the prosecution examined complainant Gulloo Exh.9, P.W. Gul Muhammad alias Gulloo son of Natho Exh. 10, Dr. Saeed Ahmed Exh.11, P.W. Rabu Exh.12, Muhammad Mashir Exh.13, Muhammad Siddiq H.C. Mashir Exh. 14, Kehar Khan A.S.I. Exh.15, Qurban Ali A.S.I. Exh.16, Muhammad Moosa Tapedar Exh.17. The prosecution closed its side vide statement at Exh.18.
14. ' Dr. Saeed Ahmed conducted autopsy of the dead body of deceased Khamoon and found the following injuries:--
(1) An incised wound measuring about 12 c.m. x 3 c.m. x bone deep cutting the right scapula, third, fourth, fifth and 6th ribs back of the right side chest.
(2) Incised wound measuring about 10 c.m. x 3 c.m. Muscle deep on the right hip.
(3) An incised wound measuring about 8 c.m. x 2 c.m. x muscle deep on the right hip adjacent to No,2 injury.
(4) An incised wound measuring about 4 c.m. x 5 c.m. x skin deep on the back of left side of the chest.
(5) Lacerated wound about measuring 3 c.m. x 1 c.m. x skin deep on the right side of the forehead.
(6) Lacerated wound measuring about 2 c.m. x 1 can. x skin deep on the right side of the forehead."
15. ' Dr. Opined that all the injuries collectively and injury No,1 individually was sufficient in the ordinary course of nature to cause death, which occurred due to shock and haemorrhage. The death was instantaneous.
16. ' The appellants in their statements recorded under section 342, Cr.P.C. Admitted that a day prior to the incident there was a quarrel between deceased Khamoon and Kandero Chandio and such report was lodged at Police Station by Kandero Chandio. Appellant Muhammad denied to have lodged report at P.P. After 15-20 minutes of the report lodged by the complainant. The defence plea of the appellants is that Sahib Dino Gaho, who at the relevant time was a Minister in Sindh Cabinet, had got them falsely involved in this crime. They have also pleaded that Sahib Dino Gaho and his brother-in-law Khan Sahib Pir Muhammad Gaho, wanted them to vacate their land. The appellants did not examine themselves on oath. Appellant Muhammad examined Muhammad Soomar telephone operator in defence, while the remaining two appellants did not produce any witness in defence.
17. ' The ocular account has been furnished by complainant Gulloo, Gul Muhammad, and Rabu. The complainant, in examination-in-chief, reiterated the facts which he had given in his report. In cross-examination, he stated that, he, Rabu, deceased, and Gul Muhammad were at hotel of Muhammad Goondar and were taking tea there. According to him, besides abovenamed P.Ws. 5/6 other persons were present in the hotel. He deposed that his village was 1 or 1-1/2 Km. Away from said hotel. He stated that village of Doso Chandio was about 1/2 furlong away from the place of offence. Village of Lakho Balouch was about 2 furlongs away towards West from the scene of offence. He admitted that P.W. Rabu is his "Massat" and Gul Muhammad is his cousin. According to him, Rabi is Hari of Pir Muhammad Gaho and Gul Muhammad is Hari of Sahib Dino Gaho. He showed his ignorance if Sahib Dino Gaho had contested District Council Election against Rais Bhai Khan Chandio and was defeated. He deposed that he had a torch at that time and he produced it before the Police. He mentioned that his village was about 2/3 furlongs away from the place of offence. He denied 'defence suggestion that deceased was murdered in his own village by unknown assailants and that at the behest of Pir Muhammad and Sahib Dino Gaho he implicated the appellants. P.W. Gul Muhammad deposed that on the day of occurrence, he, Rabu, the complainant, and deceased had taken tea at the said hotel. According to him, the deceased and the complainant told him and Rabu that they were leaving for village and in response he and Rabu told them that they were just following them. He also deposed that the complainant and the deceased were ahead of them. When they reached Katcha road of their village; they heard cries of the complainant. They rushed towards those cries and saw appellants Umer, Ali Khan and Muhammad causing hatchet injuries to the deceased, who died on the spot. He also deposed that the appellants had threatened them. In cross-examination, he deposed that when the complainant and deceased left the hotel it was about 9-45 p.m. He admitted that he had stated, in his 164, Cr.P.C. Statement, that they started towards village from hotel a bit earlier than 10-30 p.m.
18. He mentioned that his village was 1/2 furlong or less than 1/2 furlong away from the place of offence. He deposed that the cries, which attracted them were coming from a distance of 6/7 paces. He stated that 40/50 persons had gathered at the scene of offence after the incident. He mentioned that those persons had come after the police left the scene of offence. He stated that the police arrested appellant Muhammad at the scene of offence. P.W. Rabu supported the prosecution. In cross-examination, he deposed that no person came at the scene of offence inbetween the time of murder and arrival of police. According to him, 20 or 25 their relatives had gathered at the scene of offence after the arrival of police.
19. ' D.W. Muhammad Soomar Telephone Operator Ghulamullah deposed that the record of the calls booked for outside is maintained. He stated that on 19-4-1990 no call was booked by P.P.
20. Ghulamullah for Police Station Sakro from 1-00 a.m. To 6-00 a.m., In cross, he admitted that no record is maintained about the calls booked for the police post for outside. His evidence does not in any way falsify the prosecution version.
21. ' The evidence of recovery of hatchets has been disbelieved by learned trial Judge. Mr. Zubair Qureshi learned State Counsel did not challenge said finding. We are also of the view that said evidence does not inspire confidence and was rightly not taken into consideration by learned trial Judge.
22. ' Mr. A.Q. Halepota learned counsel for the appellants contended that ocular testimony of the complainant and P.Ws. Gul Muhammad, and Rabu is not of the quality as to justify conviction on a capital charge. He argued that these witnesses, besides being inimical towards appellants are related inter se. He submitted that there are major contradictions, omissions, and improvements in the statements of abovenamed eye-witnesses, as such, they cannot be relied upon. He specifically pointed out that complainant Gulloo, in examination-in-chief, stated that he, Gul Muhammad, Rabu and deceased were at said hotel and were taking tea, but in his report/F.I.R. He did not mention so, and in the report he simply stated that he and deceased after taking tea were returning to their village. About P.W. Gul Muhammad learned counsel pointed out that this witness in his deposition stated that deceased and complainant left hotel at about 9-45 p.m. And after 4/5 minutes he also left the hotel, whereas in 161, Cr.P.C., statement he stated to have started towards village from hotel at about 10-30 p.m. About P.W. Rabu learned counsel pointed out that he stated in his deposition that he (Rabu), deceased, complainant, and Gul Muhammad took tea at said hotel, while in 161, Cr.P.C., statement he had not so stated. In support of above contentions, learned counsel cited (1) Qaimuddin and 7 others v. The State 1971 P Cr. L J 229. (2) The State v. Tariq Mehmood 1987 P Cr. L J 2173. In Qaimuddin case, it was observed that witness making departure from statement given to police and making crude attempt to improve his evidence at trial on material point with a view to bring his evidence in line with. That of other witnesses cannot be considered an independent witness. In the State v. Tariq Mehmood case, a principle of Islamic jurisprudence has been quoted, which says that it is better to acquit a guilty person than to punish an innocent. There is no dispute about above settled principles of law. The points, however, for determination in this case are whether the eye-witnesses were present on the spot and whether they have correctly deposed. It is settled proposition of law that mere relationship is no ground to discard the testimony of a witness nor the contradictions in cross-examination which do not have any effect on the salient features of the case. The circumstances of this case have established beyond doubt the presence of abovenamed eye-witnesses on the spot and it is also proved that these witnesses, on material points have deposed correctly. The occurrence had taken place on 18th April, 1990 at 10-30 p.m. And the report at police post was lodged on 19-4-1990 at 1-00 a.m. In the night, showing the distance between the scene of offence and said police post as 4 Km. Thus, it is clear that the report/F.I.R. Was lodged promptly and there was no question of any deliberation before its lodging. The presence of the complainant at the scene of offence is also proved by the report lodged by appellant Muhammad, which has been quoted above. Likewise, the presence of P.Ws. Gul Muhammad and Rabu at the scene of offence has been satisfactorily proved. After the occurrence, they were found at the scene of offence and were keeping guard over the dead body.
23. They deposed that appellants caused hatchet injuries to the deceased and the fact that the deceased sustained these injuries is corroborated by the medical evidence. They also deposed that deceased expired on the spot and this assertion stands proved from the evidence of the doctor. Irrefutable corroboration of their testimony is found in the report lodged by appellant Muhammad, wherein it has been specifically mentioned that appellants had caused injuries to the deceased. The main thrust of arguments for discarding the evidence of these eye-witnesses is that they have falsely deposed at the behest of Sahib Dino Gaho, who, as pointed earlier, was a Minister in Sindh Cabinet. There is, however, nothing on record to support this allegation. It is proved that these P.Ws. Had witnessed the incident and D their testimony is intrinsically free from doubt or infirmity. They have rightly been believed by the learned trial Judge. We also believe them.
24. ' The contradictions, omissions and improvements pointed out by learned defence counsel are not material. The question whether these eyewitnesses had taken tea together at said hotel is not the moot point of this matter. The crucial point is of their witnessing the incident. Where the improvement is simply an embroidery to the main facts this by itself would not be enough to disbelieve a witness. Honourable Supreme Court has in a number of cases, having regard to the social conditions obtaining in the country, ruled that the principle of "falsus uno falsus in omni bus" cannot be made applicable to the administration of criminal justice and the Courts are under a duty to sift "grain from the chaff."
25. ' Mr. A.Q. Halepota next argued that eye-witnesses have claimed to have identified the appellants in a torch light and as per statement of Kehar Khan A.S.I. Witness Rabu did not produce any torch before him. Complainant Gulloo, however; clearly stated that he had produced torch to the police.
26. Learned counsel submitted that source of identification was torch, which was not produced, as such, the conclusion should have been drawn that P.Ws. Had no torch, and in absence of torch, they could not identify the culprits. On this point he cited (1) Ali Nawaz v. The State 1988 P Cr. L J 1736.
(2) Nawab and another v. The State 1979 P Cr. L J 736. In Ali Nawaz case, it was observed that incident being of dark night and it being not described exact distance wherefrom witnesses had seen and identified in torch light, it was difficult to rely on such statement, as possibility of misjudging identity could not be ruled out. In Nawab case, it was observed that when ocular testimony was inconsistent with medical evidence and identification of accused was extremely doubtful, such evidence could not be relied upon. The facts of the case in hand are distinguishable and the rules laid down in the above-quoted cases are not attracted. Inthis case, P.Ws. And appellants belonged to same village and were well-known to each other prior to the occurrence.
27. Before the occurrence, they conversed and the appellants reprimanded the deceased for having caused injuries to their relative Aslam son of Kandero Chandio. The complainant attempted to appease them. Thus, there was sufficient time for the P.Ws. To identify the appellants. The fact that names of the appellants alongwith their father's name are given in the report further goes on to establish that the appellants were clearly identified. Under the circumstances, even if the torch is excluded. Yet, there is sufficient evidence to show that the appellants were correctly identified on the spot.
28. ' Mr. A.Q. Halepota, learned counsel for the appellants argued that said report was not lodged by the appellant Muhammad and in fact police in order to strengthen the case of prosecution registered said report, showing appellant Muhammad as the complainant. This, however, is not correct. Kehar Khan A.S.I. Emphatically stated about lodging of said report and in cross- examination no question about it was put up to him. If a witness deposes on a fact in examination- in-chief and the correctness of said statement is not challenged in cross-examination, the legal presumption would be that said fact has been admitted by the party, against whom the same has been brought on record.
29. ' Learned counsel for the appellants also contended that counter-report could, at the most, be relied upon against appellant Muhammad and the same could not be used against appellants Umer and Ali Khan. This argument is based on the case reported in Ahmed and others v. The State PLD 1962 Kar.
583. In this case, it was observed that counter-F.I.R. Could be relied upon against accused, who had lodged it and the same could not be used against co-accused. Under Article 19 of Qanun-e- Shahadat, 1984 the facts which though not in issue, are so connected with a fact in issue as to form part of the same transaction are relevant and this rule is known as res gestae. The counter-report was spontaneous and immediate. Legally it is proved that it was lodged by appellant Muhammad.
30. The facts of the counter-report also relate to the same incident. Those facts of the counter-report which are relevant and have been proved by the evidence of the case in hand can be used for the purpose of corroboration which means evidence tending to confirm, support, or strengthen other credible evidence.
31. ' Learned counsel for the appellants submitted that the ocular testimony is in conflict with the medical evidence to the extent that the witnesses claimed that injuries were caused with sharp side of hatchet, while according to the doctor the deceased had sustained injuries which were caused both by sharp-cutting and hard and blunt weapon. He argued that this fact by itself is sufficient to show that these witnesses had not witnessed the incident. In support of this contention, he cited Yousaf v. The State PLD 1988 Kar.
521. In above case, it was observed that where contradiction exists between medical report and ocular testimony it is the duty of the prosecution to clarify its position and in case of conflict between the two testimonies the medical evidence would be preferred. In the case in hand, the deceased had sustained as many as six injuries. As mentioned earlier, 4 of them were caused with sharp side of the hatchet, and the remaining two by hard and blunt weapon, which could be back side of the hatchet. The occurrence took place at night. Though the eye-witnesses were very near the assailants yet, it was practically impossible for them to give the photographic description and details about each blow. In such a situation, the act of causing injuries is done swiftly. Admittedly, deceased had 4 incised and two lacerated wounds. Those lacerated wounds may have been caused with the back side of the hatchets. There is no force in this contention.
32. ' Learned counsel for the appellants also criticised the prosecution evidence on the point of motive.
33. Precisely stated, the contention is that appellants are not related to Kandero Chandio, as such, the incident of 17-4-1990 has no relevancy so far as the appellants are concerned. Further, it is urged that the dispute between deceased and Kandero Chandio, if any, was their personal matter and on that account the appellants had no grudge against the deceased. Learned counsel submitted that since no motive as alleged is proved, as such, an adverse inference be drawn against the prosecution. On this point he cited (1) Habibullah and another v. The State PLD 1969 SC 127. (2)
34. Rasool Bux and another v. The State 1980 SCMR 225. In Habibullah case it was observed by Honourable Supreme Court that where motive alleged by the prosecution is found to be false, the evidence of witnesses on premises of false motive is to be scrutinised. In Rasool Bux case it was observed that if evidence of motive for crime is flimsy and is coming from the mouth of the witness whose evidence is sought to be corroborated by motive, such evidence is of no corroborative value. It is noted that in the case in hand all the appellants in their statements recorded under section 342, Cr.P.C., have clearly admitted that a day prior to occurrence dispute had taken place between deceased and Kandero Chandio for which a report was lodged at Police Station by Kandero Chandio. So this is an admitted position that aforesaid dispute had taken place. The prosecution proved the motive, which it alleged. The appellants though admitted abovesaid dispute, but neither they said anything about it in their 342, Cr.P.C. Statements nor examined any witness in defence on this point, and nor gave any suggestion in cross-examination to the P.Ws.
35. Saying that they had no concern with said Kandero Chandio. It has come on record in the deposition of the complainant that before the occurrence the appellants had proclaimed that they had come to take revenge about said dispute. Therefore, the motive for the commission of this crime stands proved.
36. ' The next point which requires consideration is quantum of sentence. There was no previous enmity between the appellants and the deceased. Absence of such enmity is an extenuating circumstance, which justifies lesser punishment. On this point reference can be made to the cases reported in (1) Satya Vir v. State AIR 1958 All.
746. (2) Fateh Khan and others v. The State 1984 P Cr. L J 1168. In Allahabad case the following was observed:-- "The absence of cause of enmity between the accused and the deceased is an extenuating circumstance justifying the award of lesser punishment of imprisonment for life."
37. In Fateh Khan case, the following was held:-- "As admittedly there is no background of any previous enmity and the appellants caused one injury each by using the wrong side of the hatchet to the deceased, the learned trial Judge justifiably refrained from inflicting capital punishment, a normal penalty under section 302/34, P.P.C. On them."
38. ' The normal sentence for murder is death, but the Court may if the circumstances so justify, award lesser penalty. This offence seems to have been committed ex facie, due to communal feelings.
39. Since the deceased had beaten a relative of the appellants, therefore, revenge was taken from him. In the instant case, the three appellants had caused injuries to the deceased and it is not known that who had given him fatal blow. In such a situation normally lesser penalty is awarded.
40. On this point, the reference can be made to the cases reported in (1) Barkat and 3 others v. The State 1969 P Cr. L J 518. (2) The State v. Muhammad and another 1976 P Cr. L J 489. (3) Allah Dad etc. v. The State 1981 P Cr. L J 46. (4) Mukhtar Hussain and another v. The State 1985 SCMR 479. In Barkat case, it was observed that fatal injury on deceased was not possibly ascribable to any one or other of several accused, and under such circumstances the accused was awarded lesser penalty. In the State v. Muhammad case, it was held that deceased was given a solitary injury proving fatal and there was nothing to ascertain as to which of accused persons was responsible for the same. For this reason, lesser punishment of transportation for life was awarded to accused.
41. In Allah Dad case also, the above rule was followed. In Mukhtar Hussain case, Honourable Supreme Court had given lesser penalty to the accused and one of the grounds for giving lesser penalty was that it was not clear from circumstances as to who had fired fatal shot at the deceased. In the case in hand it is not clear as to who had given fatal blow to the deceased. Accordingly, we are of the view that the appellants are entitled to lesser penalty viz. Imprisonment for life.
42. ' In consequence, the conviction of all the appellants under section 302/34, P.P.C. Is maintained, but their sentence of death is altered to imprisonment for life. They would also be liable to pay compensation of Rs,1,00,000 as ordered by the trial Court. The benefit of section 382-B is granted to them. The reference made under section 374, Cr.P.C., is rejected. With these modifications, the appeal is dismissed.
43. Sentence reduced.