1. ' ALI MUHAMMAD BALOCH, J.--- All the six appellants have filed this joint appeal against their conviction and sentence passed by Additional Sessions Judge, Thatta on 28-7-1993. The appellants were found guilty of murdering Ali Sher Rahookro and causing injuries to his father Muhammad and to his brother Maqbool. They were sentenced as under:-- ' Accused Ali Hassan ' Accused Amir Bux, ' Aslam, Ghulam Mustafa, Ghulam Nabi and Habibullah ' Sentenced to death and to pay a sum of Rs,50,000 as compensation to the legal heirs of deceased Ali Sher, in default to undergo R.I. For 5 years.
2. ' Sentenced to undergo imprisonment for life under section 302, P.P.C. And 5 years for offence under section 307, P.P.C.
3. ' They were all ordered to pay Rs,20,000 each as compensation to injured P.Ws. Muhammad and Maqbool. In default, they were ordered to undergo further R.I. For 2 years.
4. ' Additional Sessions Judge, Thatta has also made a reference for confirmation of sentence of death awarded to appellant Ali Hassan. The reference and the appeal were heard together and the learned counsel Mr. M.A. Kazi has argued on behalf of all the appellants while Mr. Sulleman Habibullah has appeared as Advocate for A.-G. On behalf of the State.
5. ' The accused are Khushiks by caste while the complainant party is Rahookra by caste. They are neighbours, living in separate villages in Taluka Ghora Bari, District Thatta. Deceased Ali Sher, was brother of P.W. Maqbool and P.W. Mir Hassan while P.W. Muhammad is their father. In his F.I.R.
6. Lodged with Police Post Pir Patho on 10-8-1987 P.W. Muhammad had stated that buffaloes belonging to him and his relations P.Ws. Amin and Hashim, had trespassed in the paddy crop of Khair Muhammad Khushik during the night preceding the incident. Khair Muhammad Khushik had taken the buffaloes to the cattle pound at Dervesh. In the morning, Muhammad, accompanied by his sons Ali Sher, Maqbool and Mir Hassan, and his relations P.Ws. Amin and Hashim, were returning to their village after getting their buffaloes released from the cattle pound on payment of penalty.
7. At about 9-30 a.m., when they reached near village Aroo Khushik, they found all the accused persons standing in front of them on the Katcha path. Accused Ali Hassan was armed with a pistol while accused Amir Bux had a hatchet. Remaining accused namely Ghulam Nabi, Ghulam Muhammad, Habibullah and Aslam were armed with Lathis. The accused and the P.Ws. Had an altercation, and accused Ali Hassan fired his revolver directly hitting Ali Sher, Amir Bux gave hatchet blows to P.W. Maqbool and deceased Ali Sher. The rest of the accused caused Lathi blows to Muhammad, Ali Sher and Maqbool. On the cries of the injured and on intervention of P.Ws. Amin and Hashim the P.Ws. Were saved from further damage, and the accused left for their village. It was noticed that Ali Sher had expired due to injuries. Other villagers reached there, P.W. Muhammad leaving the dead body of Ali Sher on the site, in supervision of the rest of the P.Ws., went to the police post and lodged the report. All the six appellants were arrested and challaned. They faced the trial as they were all charged for causing the death of Ali Sher after having formed unlawful assembly, being armed with deadly weapons and were also charged with attempt to commit the murder of P.Ws. Maqbool and Muhammad. The accused had denied all the allegations against them in their statements under section 342, Cr.P.C. And stated that they have been falsely implicated on account of a dispute over land between P.W. Muhammad and Soomro Khan, Khushik. In their defence, accused examined some witnesses to disprove a part of the statement of the P.Ws. To the extent that no cattle of complainant and P.Ws. Was impounded or got released from the cattle pound of village Dervesh. The trial Court, however, believed the evidence of the prosecution which comprised of ocular testimony of P.Ws. Muhammad, Maqbool and Ali Hassan, in addition to the evidence of the Medical Officer and the Investigating Officers. The trial Court passed the sentence as stated above, against which this appeal has been filed by the appellants claiming that the evidence of the P.Ws. Should not be believed and accused be acquitted whereas the reference made by the trial Judge under section 374, Cr.P.C. Seeks confirmation of the death sentence awarded to the appellant Ali Hassan.
8. ' We have heard the arguments of the learned counsel for the parties at length, and have also examined the record of the case, minutely. The evidence against the appellants, comprises of the eye-witnesses, who are P.W. Muhammad, P.W. Maqbool and P.W. Mir Hassan. In addition to that there is the circumstantial evidence, in shape of recovery of the crime weapon viz. The revolver from the possession of appellant Ali Hassan, recovery of the crime bullet from the dead body of Ali Sher, recovery of blood-stained hatchet from appellant Amir Bux and recovery of Lathis from the remaining accused. There is report of the Chemical Examiner on record certifying that the hatchet produced by appellant Amir Bux bore human blood, while report of the Ballistic Expert produced in evidence shows that the bullet recovered from the dead body of Ali Sher, matches with the bullet, test fired from the revolver which is the crime weapon. The ocular testimony has come from the father and two brothers of the deceased. The trial Judge has believed the ocular evidence as the same stands corroborated by the reports of the Chemical Examiner and the Ballistic Expert. The learned counsel for the appellant has disputed the wisdom of believing the ocular testimony in this case on the ground that the three eye-witnesses, are highly interested witnesses, being a father and two brothers of the deceased, and that the reports of the Chemical Examiner and the Ballistic Expert are not worth placing reliance, in the circumstances of this case.
9. ' No doubt the eye-witnesses in this case are father and two brothers of the deceased, but relationship alone with the deceased shall not .Make them unreliable witnesses. It is gathered from the evidence on record, that the presence of the three eye-witnesses on the scene of the offence was natural, and their presence on the scene of offence cannot be disputed. P.W. Muhammad, the father, and P.W. Maqbool, the brother are themselves injured. The Mashirnamas of injuries on their person prepared by the police on the date of incident are produced before the trial Court, and the Mashir P.W. Sikandar Ali has supported the noting of injuries on the person of the witnesses, by the police, on the day of incident. The medical evidence also establishes that P.Ws. Maqbool and Muhammad had injuries on their person. There is a slight variation in this statement, as the Medical Officer has stated that the P.W. Muhammad, who had not come to the dispensary for treatment and certificate of his injuries on the same day, could not be said to have received injuries on the day of incident. This portion of the statement of the Medical Officer was not believed by the trial Court. We also do not believe this version of the Medical Officer for various reasons. Firstly, Mashirnama of the injuries prepared by police on the day of incident shows nearly the same location of injuries on the person of P.W. Muhammad and there appears no difference in the weapon of offence also. But still stronger ground for discarding this portion of the Medical Officer's evidence, is that there is no existence of any other incident in which P.W. Muhammad was said to have been injured, nor the accused have pleaded in clear terms that the injuries on person of P.W.
10. Muhammad were not caused by enemy hands. Therefore, we believe that both P.Ws. Muhammad and Maqbool had received, injuries in the present incident in which Ali Sher had died. As such, in order to disbelieve the evidence of these two injured eye-witnesses there should be strong grounds. We have not been convinced with the contention that there existed an earlier enmity over land between the complainant party and the accused persons, as no documentary evidence to this effect is produced before the Court, although the contention is that some land was sold by the complainant on behalf of their ladies to one Soomro the father of accused Ghulam Mustafa and that there was dispute on account of that sale. Besides, there is convincing evidence on record that the incident took place as the cattle of the accused had trespassed into the crop of the accused, and the cattle was impounded, and that the complainant party had got it released, and the complainant party was driving the buffaloes to their village, when the accused persons confronted them on the way. This motive is convincing and is also proved by the evidence.
11. ' Therefore, we are of the view that P.Ws. Muhammad, Maqbool and Mir Hassan were present at the time of the incident, and had seen the incident. But for the safe dispensation of justice, we will look for corroboratory evidence to believe or disbelieve the version of these eye-witnesses, as admittedly they are kith and kin of the deceased, and there could be exaggerations to implicate more persons from the accused party, which is not uncommon in our province.
12. ' As regards the role of accused Ali Hassan and Amir Bux, all the three eye-witnesses have stated in unison that Ali Hassan had fired two shots from his revolver hitting deceased Ali Sher and accused Amir Bux had caused a hatchet blow, on the person of the deceased. This portion of their evidence does not C suffer from contradictions and is also corroborated by the medical evidence, as well as the evidence of recovery of the crime weapons viz. Revolver from the possession of accused Ali Hassan, the bullet recovered from the body of deceased, which was found similar to the test bullet fired from the crime weapon, viz. The revolver from the possession of accused Ali Hassan. In case of accused Amir Bux also all the three witnesses have stated that Amir Bux had caused a hatchet blow to deceased Ali Sher, and this fact stands corroborated by the medical evidence, which shows an incised wound on the person of the deceased. Apart from that, the report of the Chemical Examiner lends support to the fact that hatchet recovered from the possession of Amir Bux, was stained with human blood. We have therefore, no doubt in our minds that accused Ali Hassan and Amir Bux had participated in causing the death of Ali Sher, and therefore, they were rightly found guilty for an offence under section 302, P.P.C. By the trial Judge.
13. ' As regards the evidence against the remaining accused namely, Aslam, Ghulam Mustafa, Ghulam Nabi and Habibullah, the three eye-witnesses have stated that these accused were all armed with Lathis, and they had caused Lathi blows on the person of the deceased. This is a sort of general allegation against these accused, further particulars as to in what sequence and on what part of the body of the deceased each accused had caused injuries are lacking. Besides, it is also not spelt out by these witnesses in detail as to what was the number of injuries caused by each of the accused. We have already observed that for the safe dispensation of justice we require corroboratory evidence to rely on the statements of these eye-witnesses in respect of these four accused as we have done in case of Ali Hassan and Amir Bux. The recoveries of Lathis from possession of these four accused do not lend any support for corroboratory purpose as all the Lathis recovered from the possession of these witnesses are non-blood-stained.
14. ' Besides, the evidence of the eye-witnesses in respect of the part played by these four accused is at variance to a greater detail. For example P.W. Muhammad has stated that accused Habibullah fired a revolver shot hitting P.W. Maqbool, but P.W. Maqbool does not ascribe any such role to accused Habibullah. Besides, no fire-arm injury is found on person of Maqbool by the Medical Officer.
15. ' In addition, P.W. Muhammad has exaggerated and added a part of the story which was not his case when he lodged the report. P.W. Muhammad stated before the trial Judge that after Maqbool was fired at on his head by accused Habibullah, he asked P.W. Maqbool to run away for shelter in the house of one Aroo Khushik, whose house was situated near the Wardat. According to his exaggerated version, P.W. Maqbool ran towards the house of Aroo Khushik and was chased by the accused (no name of particular accused given in deposition) and that females living in house of Aroo Khushik saved the life of Maqbool. Thereafter P.W. Muhammad, stated that accused Habibullah returned from the house of Aroo Khushik and placed the revolver at the forehead of P.W.
16. Muhammad for 2-3 minutes, without firing it. This part of the story is not subscribed to by the other P.Ws. Viz. Maqbool and Mir Hassan who have not stated anything in respect of this portion of the story. Thus we have tried to sift the grain from the chaff in this case, by believing a part of the evidence of these eye-witnesses and as a result we do not find it safe to rely on the portion of the evidence of these witnesses wherein they stated that the accused Aslam, Habibullah, Ghulam Mustafa and Ghulam Nabi had also participated in the commission of the crime and had caused Lathi injuries to the deceased. For the same reason we do not believe that these four accused had caused Lathi injuries to P.Ws. Muhammad and Maqbool. We are not relying on this portion of the evidence of these eye-witnesses as we do not find it free from reasonable doubt. We are supported in this aspect of the case by case of Ghulam Sikandar and another v. Mamraz Khan and others reported in PLD 1985 SC 11 and the case of Abdul Hameed and another v. The State reported in 1985 PCr.LJ 1992. We have given due consideration and weight to the principle of falsus in uno falsus in omnibus and its application in our country, and we find support from the above-cited cases in arriving at the decision in this case.
17. ' Consequently, we find no reason to take exception with the judgment of the trial Judge finding Ali Hassan and Amir Bux guilty of murder of deceased Ali Sher, while we find that the involvement of accused Aslam, Habibullah, Ghulam Mustafa and Ghulam Nabi is not free from doubt. Therefore, we accept the appeal of accused Aslam, Ghulam Mustafa, Habibullah and Ghulam Nabi and set aside their sentence, while appeal of accused Ali Hassan and Amir Bux is rejected. However, we find that sentence awarded to accused Ali Hassan needs modification. Under the circumstances of this case, it is clear that the incident took place as the cattle had trespassed into the lands of the accused persons and had caused damage to their property. Besides, at the time of incident, there was exchange of abuses and some altercation between the parties, before Ali Hassan fired pistol shots hitting Ali Sher, and Amir Bux caused hatchet blow on his person. Besides, two witnesses P.Ws.
18. Amir and Hashim, who were present at the time of incident but were not examined by the complainant on the allegation that they were won over by the accused party. And lastly, we have disbelieved a portion of the evidence of the eye-witnesses in respect of the 4 accused. We, therefore, do not feel that death sentence to accused Ali Hassan is the proper sentence in this case. We, therefore, alter the death sentence awarded to Ali Hassan, and convert it to life imprisonment. The sentence awarded to accused Amir Bux is maintained. The sentence of payment of compensation by the accused Ali Hassan, to the legal heirs of deceased Ali Sher is also maintained. The sentence of 5 years' imprisonment awarded to accused Amir Bux for offence under section 307, P.P.C. Is set aside.
19. ' Benefit of section 382-B, Cr.P.C. Is allowed to both the convicted accused Ali Hassan and Amir Bux.
20. ' This appeal was decided by a short order announced on 23-7-1995, and these are the reasons for the same.