1. MUHAMMAD YAQUB ALI, C. J.---Bangah, appellant, was tried along with his brother Mir Dost and two sons Ghulam Shabbir and Sahibdino for the murder of one Murad. The Additional Sessions Judge. Sukur, found the appellant guilty and sentenced him to death but acquitted the other three by giving them the benefit of doubt.
2. On appeal and reference a Division Bench of the High Court of Sind & Baluchistan maintained the appellant's conviction and confirmed the sentence of death. Leave to appeal was granted to the appellant on a jail petition to consider whether his conviction proceeded on correct principles for the appraisement of evidence.
3. It was urged that the distinguishing feature in the case on which the appellant's conviction rested was his arrest on the spot which appeared doubtful in view of the statement of P. W. Bhadur that the appellant was arrested from the house of Razi Khan as claimed by him and that the hatchet allegedly recovered from the petitioner did not bear any blood stains although it was so mentioned in the recovery memorandum Exh. 13.
4. We have examined the evidence and find that the petitioners' conviction and sentence are based on evidence which is free from any blemish. In examination in chief P. W. Bhadur stated unequivocally that after the deceased was attacked by the appellant and his acquitted companions, the assailants; ran in the Western direction. The witness and P. W. Kashmir, brother of the deceased, however, succeeded in apprehending the appellant while the other' three escaped.
5. The appellant was disarmed of the hatchet and suffered simple injuries in the attempt to catch hold of him. Injuries contemporaneous with the assault on the deceased were found on the person of the appellant. Before the committing Magistrate, P. W. Bhadur stated, 'the accused Bangah was arrested from the house of Razi Khan. Police came over there by jeep at about 12 in the noon.
6. Accused remained in our custody for over 1 -- hours. He was tied down with turban'. The statement of P. W. Bhadur did not, therefore, yield to the inference that the appellant was not apprehended at the spot as alleged by the prosecution and that he was arrested by the police ins the first instance from the house of Razi Khan which is close to the place of occurrence. On the contrary P. W. Bhadur in the same breath made it clear that he had been tied up with a turban and remained in their custody for over 1 --hour before the arrest by the police. The proper tenor of P. W. Bhadur's statement is that when the police arrived at the spot the appellant was present in the house of Razi Khan tied down by a turban.
7. Similarly it is not correct that no blood was found on the hatchet recovered from the appellant. The chemical examiner's report (Exh.20) appears at pages 24 and 25 of the sessions Court's record. The description of the articles contained in the parcels is as follows;----
(1) Wooden latheParcel No. 2 The result of chemical analysis given below is; Article No. 1 (one) is stained with human blood.
8. No blood is detected on Article No. II (two). No wooden lathi was taken into possession or sent to the chemical examiner in the case. There is no such exhibit on the file. The trial Court concluded that the chemical examiner had deliberately falsified the report and that there 'appears to be intentional bungling or grave negligence while drafting the report.' Since the chemical examiner was not questioned it could not be positively said that there was 'intentional bungling' but a more charitable view is that the description Article (1) and Article (2) refers to parcels which contained the hatchet and lathi. In this connection it is signification to mention that the appellant did not deny having produced the hatchet before the police. Before the inquiry Magistrate he stated, 'I was taken away from my house and hatchet was given in my hands when I was produced before the police. He added 'that is 'the reason why the hatchet had no blood stains'. It was meaningless to give a hatchet in the hands of the appellant which had no blood. Apparently, the statement made before the Committing Magistrate was based on the report of the chemical examiner that there was no blood on Article No. 1. During the trial he denied that the hatchet was secured from his possession by the police. As we read the evidence, the recovery of hatchet, and the presence of human blood on it were proved though there was some mix up in the office of the chemical examiner and the report drawn by him. On a closer analysis we are left in no doubt that 'Article 1' in the report means the Article recovered from parcel No. 1 at serial No. 2 and not the lathi received from parcel No. 2 at serial No. 1.
9. Both the grounds on which leave to appeal was given thus fail. We have, however, also taken into consideration the remaining evidence on which the appellant's conviction is based and find it quite trustworthy.
10. The occurrence took place on 17th June 1969, at about breakfast time in village Kabil Khan, Jagirani.
11. Taluka Robri, Province of Sind. Muhammad Murad deceased aged 25 years, was going along with his cousin P. W. Gul Bahar from their nearby house to pick vegetables from the field when the appellant and the acquitted accused came out of the abandoned house of Taju, where they were lying in ambush and gave a Hakal. The appellant and Shabbir were armed with hatchet while Sahibdino and Mir Dost carried lathis. The deceased and Gul Bahar tried to run away but the former was overtaken at a distance of 128 feet from his house and assaulted by all the for accused.
12. The alarm raised by the deceased and P. W. Gul Bahar attracted P. W. Muhammad Sharif, father of Murad deceased, P. W. Kashmir, his brother and P. W. Bhadur, a neighbour. On seeing these P. Ws.
13. The appellant and his companions took to their heels. They were chased by P. Ws. Kashmir and Bhadur and they succeeded in catching hold of the appellant. He was disarmed of the hatchet and tied down with a turban. In the attempt to capture him the appellant suffered minor injuries as disclosed in his medical examination.
14. P. W. Muhammad Sharif first went to Kabil Khan, his Nekmard, and then proceeded to the Police Station Dubar, taking with him Murad in injured condition on a bullock cart. Among others Murad had suffered a hatchet injury at the head at the hand of the appellant which made him unconscious. After the F. I. R. Was recorded at 2-12 p.m, Murad was taken to hospital where he died at 12-30 a.m. (night) on 21st June 1969.
15. According to P. W. Muhammad Sharif he had married a cousin of the appellant since 30/40 years prior to the incident. The appellant demanded the hand of a girl in exchange but Muhammad Sharif did not oblige him., This grievance was said to be the motive for assault. According to the defence Muhammad Sharif had declared Badlo, the son of appellant's cousin a Karu with his daughter in law. The appellant claimed that he had gone to Razi Khan and taken oath before him that Badlo was not a Karu but at that time the complainant and his party came there and 'fought with me and assaulted me'. He did not admit having caused any injury to the deceased. There is evidence that blood-stained earth was recovered from the open space opposite to the house of Taju where Murad deceased was subjected to an assault by the app.-llant and the acquitted accused.
16. During the trial the aforementioned 4 P. Ws. Deposed to the incident. Of them Bhadur is wholly independent and no reason was even suggested by the defence as to why he deposed against the appellant. The account given by the P. Ws. Was consistent and we find no reason to interfere with the appraisal of their evidence by the High Court.
17. The appellant had caused the fatal blow with a hatchet on the head of the deceased. Besides the ocular evidence his guilt was proved by his arrest at the spot and the presence of some injuries on his person which were contemporaneous with the incident in which Murad bad lost his life. The conclusion reached by the Sessions Judge and upheld by the High Court, therefore, is not open to exception.
18. In conclusion we find no merit in the appeal and dismiss it maintaining the conviction and sentence of death awarded to Bangah, appellant, for the offence under section 302, P. P. C.
19. DORAB PATEL, J.-I have had the advantage of reading the judgment to be pronounced by my Lord the Chief Justice, but with the utmost humility and respect I have to state that I am unable to agree with it.
20. The appellant was tried with his two sons and his brother for the murder of Muhammad Murad deceased. The prosecution case was based on ocular evidence which was corroborated by the evidence of P. W. Qabil Khan, the local nekmard, the evidence of the recovery of a blood-stained hatchet from the appellant and of his arrest on the spot.
21. The eye-witnesses were the father of the deceased P. W. Muhammad Sharif, who lodged the F. I. R., P. W., Kashmir, the brother of the deceased. P .W. Gul Bahar, a cousin of the deceased and P. W.
22. Bhadur, who lived in the village, but was not related to the deceased. All the eye-witnesses, including P. W. Bbadur, attributed specific overt acts to each of the for accused and further said that P. Ws. Bhadur and Kashmir had chased the assailants, captured the appellant and detained him whilst P. W. Muhammad Sharif went and informed the nekmard and then lodged the F. I. R. And finally, according to the eye-witnesses, when P. W. Fazal Karim the local S. H. O. Came to the wardat to commence the investigation, they (the eye-witnesses) produced the appellant, who then produced his blood-stained hatchet, which was secured by the Investigating Officer and forwarded to the chemical analyser for a report. And as explained by my Lord the Chief Justice, the hatchet was found to be stained with human blood and the finding to the contrary by the Sessions Court or by the High Court is erroneous.
23. The prosecution case seems formidable at first sight, but as pointed out by the learned Sessions Judge, it is completely falsified by the medical evidence and is also inconsistent with the corroboratory evidence of P. W. Qabil Khan, the nekmard who was also the marote of P. W.
24. Muhammad Sharif. Further, as I will show, it is also inconsistent with the prosecution version of the capture of the appellant. Therefore, on a careful appreciation of evidence, the learned Sessions Judge held that the ocular evidence was not fit to be believed without corroboration, and it is relevant to point out that he did not make any exception in favour of the evidence of P. W. Bhadur although that witness was not related to the deceased. Next, as to the question of corroboration the learned Sessions Judge held that the ocular evidence was corroborated against the appellant by the recovery of the hatchet and by the injuries to the appellant at the time of his capture by two eye-witnesses therefore, he convicted the appellant under section 302, P. P. C. And sentenced him to death. But as the ocular evidence was not corroborated against the other three accused, he held that they had been falsely implicated, and acquitted them.
25. The appellant filed an appeal in the High Court of Sind & Baluchistan against his conviction and sentence and his case also came by way of confirmation of the sentence of death under section 374, Cr. P. C. However, the State did not file an appeal against the acquittal of the three other accused, and I would recall here that two of the other accused were the sons of the appellant whilst the third accused was his brother. Be that as it may, the learned Judges of the High Court held that the evidence of the three eye-witnesses who were the relations of the deceased was "corroborated by that of P. W. Bhadur". They also held that the evidence of the eye-witnesses was corroborated by the arrest of the appellant and the recovery of a hatchet from him. Therefore, they dismissed the appeal.
26. The appellant then filed a petition from jail and leave was given by this Court on 6-1-72 principally because "three of the petitioner's co-accused have been acquitted on almost the same prosecution evidence". And, in my humble opinion, this was also the principal question before the High Court, because no appeal or revision had been filed against the acquittal of the sons and brother of the appellant. But unfortunately this aspect of the case escaped the attention of the learned Judges of the High Court who, after referring to the evidence of the for eye-witnesses including P. W. Bhadur, observed "the evidence of the other three eye-witnesses is, therefore, corroborated by that of P. W. Bhadur". It is true that the other three eye-witnesses were related to the deceased whilst P. W. Bhadur was not. But the evidence of a witness cannot be rejected merely because he is related to the deceased, nor can the evidence of a witness be accepted as gospel - -truth merely because he is not related to the deceased. The question always is of the veracity of the witness, and, in the instant case, that had to be tested by the evidence on the record. The learned Sessions Judge had found that all of the eye-witnesses including P. W. Bhadur had falsely implicated three out of for accused. Not only had this finding become final, but it was based on a correct appreciation of evidence. Therefore, as P. W. Bhadur had given the same false evidence as the other three eye-witnesses, the learned Judges erred in law in holding that the evidence of the other three eye--witnesses was corroborated by that of P. W. Bhadur. One piece of tainted evidence cannot corroborate another piece of tainted evidence and as P. W. Bhadur had given the same false evidence, his evidence required corroborant--tion as much as that of the other eye- witnesses.
27. Further, even on the principle that the grain has to be sifted from the chaff, it needs some sifting to accept the evidence of eye-witnesses who have falsely implicated three out of the for members of a family. Therefore, the ocular evidence cannot be accepted in the instant case unless it is corroborated by independent evidence of a very reliable nature. And the real point in this appeal is whether there is such independent and reliable evidence.
28. I pointed out that P. W. Qabil Khan was examined as a corroboratory witness. He was the local nekmard and a cousin of the first informant, yet he said that P. W. Muhammad Sharif" had come to me at my house at noon time and informed me that Bingah and others had fought with his son". I would pause here to point out that as the occurrence took place at breakfast time and in view of the witness's evidence it is clear that P. W. Muhammad Sharif took a very long time to reach P. W.
29. Qabil Khan. Be that as it may, the statement of the witness that he had been informed that the appellant and others "had fought with his son" is not sufficient to --spell out the ingredient of a charge under section 302, P. P. C. And, I willpresently revert to this aspect of the case.
30. However, according to learned Sessions Judge, the ocular evidence against the appellant was corroborated by the fact of his arrest by P. Ws. Kashmir and Bhadur who had said that the appellant had received injuries at the time when they had caught him. This is one possible explanation of the injuries to the appellant but it is absolutely false. How were P. Ws. Kashmir and Bhadur able to capture the appellant who was armed with a hatchet? P. W. Gul Bahar said that neither P. W. Kashmir nor P. W. Bhadur had any weapon with them and if this evidence be true, the prosecution) claim is too ridiculous to be believed. However, P. Ws. Bhadur and Kashmir said that they had lathis with them, and as the injuries to the appellant could have been caused by lathis I would assume that P. Ws. Bhadur ands Kashmir had lathis with them. But according to both these witnesses as well as the other eye-witnesses, the appellant's son Ghulam Shabbir had a. Hatchet, whilst the appellant's brother and the appellant's son Shahibdino were armed with lathis. Further, according to P. Ws. Kashmir and Gul Bahar, the appellant, his sons and his brother ran away together. This means that the appellant's son Ghulam Shabbir, who was armed with a hatchet, was ' almost next to his father (the appellant) when his father received a lathi blow on his head. As his brother and uncle, also armed with lathis, were with him, it is absolutely inconceivable that P. Ws.
31. Kashmir and Bhadur would have been able to capture the appellant, yet the claim to have captured him without having received any injury from the murderers, who not only outnumbered them but were better armed. Therefore this part of the ocular evidence does, not inspire confidence, and this is another circumstance which supports the finding of the trial Court that the eye-witnesses had falsely implicated innocent persons.
32. On the other hand, the claim of the eye-witnesses that P. Ws. Bhadur and Kashmir had captured the appellant and caused injuries to him as they were trying to overpower him, would be credible and reasonable if they had said that the appellant alone had come and attacked the deceased.
33. But they did not say so, therefore, in my humble opinion, we have to take the prosecution evidence on this question as it is, and because it is absolutely false, it has to be rejected. In any event, I would repeat that as the eye-witnesses falsely implicated three out of the for accused, their evidence on any part of the occurrence cannot be accepted without corroboration by independent evidence of a very reliable nature. Therefore, with the utmost respect and humility, I am unable to agree with the view of my Lord the Chief Justice that the ocular evidence is corroborated by the injuries to the appellant, because the injuries could, for example, have been caused in the manner alleged by the appellant. The appellant's plea was that the prosecution witnesses had attacked him and arrested him in the house of Razi Khan. Although this plea was supported by the evidence of P. W. Bhadur in the lower Court, the other eye-witnesses were not cross-examined on this allegation. The appellant's case thus appears to have gone by default, and the result is that his explanation of his injuries cannot be accepted. But this cannot alter the fact that the prosecution version of the appellant's arrest was false, and on the other hand, there is an obvious explanation both of the recovery of the blood-stained hatchet from him and of the injuries to him, which must be examined in view of the rule laid down in The Crowen v. Safdar Ali (PLD 1953 FC 93). This is that the injuries to the appellants could have been inflicted in the course of a fight with the deceased and the party of the deceased. And the fact of the arrest of the appellant, the recovery of the blood- stained hatchet from him and of the injuries to him do not throw any light on the question whether the injuries to the appellant had been caused during a fight between him and the deceased, or whether they had been caused after the attack on the deceased in some manner which the eye- witnesses did not disclose. It is also relevant to emphasise here that except P. W. Gul Bahar, the other eye-witnesses had to admit that they had rushed to the wardat only after the alarm raised by P. W. Gul Bahar. Therefore, the prosecution evidence of the manner in which the occurrence began rests on the testimony of P. W. Gul Bahar only. In these circumstances, with the utmost respect and humility, I am unable to agree with the view of my Lord the Chief Justice, and I would hold that the recovery of the blood-stained hatchet from the appellant, the fact of his arrest and of the injuries to him do not furnish corroboration of the prosecution case against the appellant.
34. The only other evidence produced by the prosecution in order to corroborate the ocular evidence was that of P. W. Qabil Khan. But as I pointed out this witness only said that P. W. Muhammad Sharif had informed him that "Bangah and others had fought with his son." In my humble opinion, this corroboratory evidence is inconsistent with the claim of P. W. Gul Bahal that the appellant and three others had come and made a wanton attack on the deceased and, on the other hand, it lends support to the possibility~ that there was a sudden and unpremeditated fight between the appellant and the deceased. In this view of the matter, the appellant's conviction under section 302, P. P. C. Cannot be sustained, but the question which remains for consideration is whether the appellant was justified in inflicting hatchet blows which proved to be fatal.
35. I am aware that the appellant, according to mashirnama of his arrest (Exh. 15), had received a hatchet blow on the head and the description of the injury contains the words "blow oozed".
36. However, the appellant has not led any evidence which would bring the case under section 97 of the Penal Code. Therefore, even though the occurrence took place suddenly, the appellant has acted in a brutal and callous manner. I would, therefore, alter his conviction from section 302, P. P.
37. C. To section 304, Part I, P. P. C, and sentence him to ten years' rigorous imprisonment.
38. ORDER OF THE COURT According to the majority opinion the appeal is dismissed maintaining the conviction and sentence of death awarded to Bangah, appellant, for the offence of murder under section 302, P. P.
39. C.