' JAMALUDDIN H. AHMED, J.-The three appellants were tried alongwith two other acquitted accused Miro and Allah Parto and were convicted for offences under section 307/149/143/3a2/149, P. P. C., by the Sessions Judge, Dadu I and they were sentenced to seven years rigorous imprisonment with fine of Rs, 300 or in default six montes rigorous imprisonment, twelve months rigorous imprisonment, and death, for those offemea respectively. They have now filed this appeal against the said conviction and sentence and the case is also otherwise referred for confirmation of the death sentence.
2. Briefly narrated the case of the prosecution is that the incident in which three persons Mohammad Bachal, Allah Bux and Haji Khan lost their lives, had taken place on 17th July 1973, at about 4 p.m. On the inspection path over Pyaro Canal, at a distance of about four miles from Rukkun Police Station in Dadu District. TLe three deceased were related to each other. Deceased Mohammad Bac;ail who was an "Abdar" at Ivlirpurkhas, was the brother of deceased Haji Khan, a School Teacher, Deceased Al!Ah Bux, a Police Constable at Dadu Police Station, was their nephew. A direct complaint had been filed by one Qamaruddin Abro against deceased Muhammad Bachel and others n account of the murder of his brother Shamsuddin, a Tapedar. This comp.a.e' was pending in the Court of Civil Judge and F. C. M., Dacha was as he committal Court. On the day of incident, i,e, 17th July 1973, deceased Mohammad Bachal who was on bail had come from Mirpuikhas to attend the date of bearing in that case at Dadu. Deceased Allah Bux, his nephew also ent over there and joined him in the Court. Complainant Taj Khan and others I e. Ali Mohammad, Mohammad Murid, L.Al Bux, Dodo and deceased Haji Khan, who all lived in village Suchero also went to Dadu to hear the case in that Court. They first proceeded on foot to Pyaro Goth Railway Station, from where they boarded a train for Dadu. Ali Mohd. Had come on his bicycle which he left with a relation who lived in a quarter near Railway Station Pyaro Goth. This Railway Station is at a distance of 16 miles from Dadu. Having come to Dadu, they all met deceased Mohammad Bachal and Allah Bux in Court. As the case did not proceed all of them came back to Pyaro Goth by train where they reached at about 2-30 or 2-45 p.m. Deceased Allah Bux was in his police uniform and was carrying his service rifle with himself. The others were empty-handed. Ali Muhammad brought his bicycle from his relation. Deceased Mohammad Bachal, Allah Bux and Haji Khan alongwith complainant Taj Khan hired a tongs of one Malook and got into the same. Raj Khan, Mohammad Bachal and Malook were in the front seat while Allah Bux and Haji Khan occupied the rear seat of the tonga. Mohammad Murid, Lal Bux and Dodo proceeded on foot adopting a short-cut route.
They also reached the tonga and All Mohammad on the bicycle, on the bridge of the canal, whereafter all proceeded together over the inspection path. They had covered a distance of about I furlongs from the bridge when the incident took place, in which five persons including the three appellants, each armed with a gun emerged from the jungle side and attacked the Tonga. Two persons came from the front side and three from behind and fired with their guns at them and caused murder of the three deceased persons. Complainant Taj Khan and Malook, the driver of the Tonga were also injured. Some pellets also struck the Tonga and the horse. Ali Mohammad left the bicycle and concealed himself in the nearby sugarcane cultivation after jumping over the Minor.
The culprits then took up the dead bodies of deceased Mohammad Bachal, Allah Bux and Haji Khan and threw them in, the Canal. Dodo, Muhammad Murid and Lal Bux had been watching the incident from a distance but they did not come near as they had been threatened. After the culprits went away Taj Khan went in the Tonga of Malook to Rukkan Police Station and lodged the first informstion report which was recorded at 6-30 p m. By A. S. I. P. Mohammad Achar.
SLtbsequently the complainant and others made applications to the Lew Minister, Government of Sind and also to the Inspector-General of Police, Sind, complaining that the F. I. R. Was not correctly recorded by the police and also that the case was not being properly investigated.
3. A. S. I. P. Mohammad Mbar, after recording the F. I. R. Examined the injuries on the person of complainant raj Khan and prepared a mashirnama thereof. He secured his blood-stained shirt which had holes, in the presence of Mashirs Limo and Muhammad Usman. He also examined Malook the Tonga driver and prepared a mas Vrnama of four gunshot injuries on his person. He also secured his shirt which was blood-stained and had holes on it. Both of them were given two letters for medical treatment and certificate. He then proceeded to the Wardat and prepared a mrseirnama in the presence of Mashirs Noor Muhammad and Dhaui Bux. He found three dead bodies of deceased Mohammad Bachal, Allah Bux and Haji Khan in the lawn on the bank of the Canal. A service rifle and 4 empties of bullets of rifle were also lying on the inspection path. Besides these, three empty shells of c rtridges were also lying nearby. He secured netre articles and blood- stained earth. He then sent the dead bodies to Civil Hospital, Dadu for post-mortem examination and on 18th July 1973, he banded over the case papers to the S H 0. For further investigation. On 27te July 1973, under the instructions of the S. H.
0. He got 164, Cr. P. C. Statement of Malook recorded and also arranged an identi fication test of the three appellants through Malook in the presence of the Head Munshi & 3rd Class Magistrate, Dadu.
Bhaledino and Kadar Bux had acted as Mashirs of that identification test.
' As the S. H.
0. Khan Mohammad verified the investigation already done in the case, he recorded the statement of Malook on 19th July 1973 and on 20th July 1973 arrested the three appellants in the presence of Mashirs Jan Mohammad and Ghulam Hussain. During interrogation appellant Hassan volunteered to produce a gun and he produced the same on 21st July 1973, in the presence of Mashirs Jan Mohammad and Ghulam Hussain. This gun S. B. B. L. No, 18436 was lying inside his house under the bedding and smelt of gun-powder. He arrested the acquitted accused Miro and Allah Parto on 25th July 1973, in the presence of the same Mashirs and handed over the papers to his successor on 29th July 1973 on account of his transfer.
' As appellant Hassan did not have the licence for the gun that he had produced, the S. H. O.
Registered a separate case against him under section 13-D of the Arms Ordinance.
' On 4th August 1973, A. S. I. Araz Mohammad took up the investigation of this case under the directions of Inspector, C. I. A. He inspected the Tonga of Malook driver, and found blood-stain marks on the wooden bonnet of the Tonga besides pellet marks on sorae parts of the Tonga, after which he prepared a mashirnama in the presence or odashirs Ramzan and Mani Bux. He also found a number of pellet injuries on the chest of the horse which appeared to be healed. There were also signs of the presence of the pellets under the skin of the horse. He secured the umbrella which also had 10 holes caused by the pellets. Witness Malook being a lame person was using a wooden crutch which had two pellet marks just below the handle. A mashiraama of all the articles was prepared by the A. S. T.
' On 31st July 1973, Wahid Bux, Inspector, C. I. A. Took up the investigae tion of this case and he recorded further statements of Taj Khan, All Mohammad, Murid Khan, Dodo and Lal Bux on 4th August 1973. He sent A. S. I. Araz Muhammad to examine the horse and Tonga and also to make necessary investigation. Oa 7th August 1973, he took the Veterinary Surgeon, Dadu and got photographs of the injuries on the horse and the pellet marks on the Tonga prepared. The Assistant Veterniary Surgeon inspected the horse, removed a pellet from one of the healed-up wounds and issued a certificate. He also went to the place of incident and found some pellet marks on a 'babool' tree of which he got a photograph prepared. He therefore handed over the papers of the investigation to the Crime Branch.
' At the Wad, the eye-witness account of the occurrence was furnished by P. Ws. Taj Khan, All Muhammad, Mohammad Malook, Mohammad Muriel and Lal Bux. P. W. Dhani Bux acted as Mashir of the place of incident, in whose presence the blood-stained earth, a rifle alongwith four empty shells and three other empty cartridges were secured and sealed by the police ; three dead bodies of the deceased besides three caps, three pairs of shoes, one handkerchief and one watch were also found on the 'Sarzamin' P. W. Jan Mohammad acted as the Mashir of the arrest of appellant Sailer, Hassan and Ali Mohammad. In his presence appellant Hassan volunteered to produce gun, which he took out from underneath the bedding in his own house and which was seized by the Investigating Officer under a mashirnama, Exh.
44. The gun and the cartridges were sent to the Ballistic Expert for examination, who was examined to say that the cartridges bad been fired from the gun bearing No, 183436 which had been produced by appellant Hassan. P. W. Dhani Bux had also acted as a Mashir of injuries on the horse belonging to P. W. Malook besides pellet marks found on the Tonga and the clothes of P. W. Malook.
The horse was also examined by P. W. Mohammad Bux, a Veterinary Surgeon. The prosecution also examined P. W. Nizamuddin, who produced the case papers of the complainant filed by Qarnar Din against Ghulain Hussain and others, the hearing of which was fixed on 17-7-73. An identification test of the three appellants had also been arranged in presence of P. W. Mohammad Aslant, Head Munshi & T. C. M., in whose presence Mashirs Qadir Bux and Bhalidino, P. W. Malook had picked out the thre e appellants successfully. P. Ws. Mohammad Achar, Arz Mohammad, Nit z Abu ad and Khan Mohammad, Police Officers, were also examined as they had conducted the investigation of this case.
' Dr. Sher Mohammad, who held the post-mortem examination of the three dead bodies, found the following injuries "1. Mohd. Bachal son of Arz Mohd:
(1) Fire-arm injury in diameter x bone deep on it. Side of face.
(2) Fire-arm injury in diameter on the right side of front of chest.
(3) 2 (Two) fire-arm injuries each measuring 4' diameter on anterior and lateral aspect of right upper arm ; the injuries being 4' apart from each other.
(4) Fire-arm injury 1;' x 1' on the right lateral aspect of the chest.
(5) Fire-arm injury 4' x on the back of right shoulder.
(6) Fire-arm injury rare a bone deep on the right occipital region (exit wound on injury No, 1).
(7) Fire-arm injury x on the left side of back side of chest."
2. Allah Bux son of Mureed Khan Brahmani 4'01 S (five) wounds each I" x on the left side of front of chest in an area of 5' x 3'.
(21 4 pellet wounds each f' x fr on the lateral aspect of left upper-arm.
(3) 6 pellet wo mds each V' in diameter on the left shoulder.
(4) 1 pellet wound }' in diameter on left lumbar region posteriorly.
(5) Multip'e pellet wounds on toe whole of face. One pellet wound was secured from the back,"
3. Haji Khan son of Arz Mohd : "(1) Fire-arm injury 1' in diameter on right side of back (wound of entrance).
(2) Fire-arm injury x 1 on the top of right shoulder.
(3) Fire-arm injury 1' x x brain deep on the top of scalp, (wound of entrance). Skull was fractured into several places. Brain was completely lacerated and was coming out of the skull wounds. All the wounds mentioned above were ante-mortem."
' He had also examined P. W. Malook and P. W. Taj Khan complainant and had found the following injuries on their person
1. Malook son of Mohd. Ramza4 '2(1) Pellet wound 1/8' X 1/8' on the dorsem of right wrist.
(2) Pellet wound 1/8' in diameter on front of abdomen over the opigastrinm.
(3) One pellet wound 1/8" in diameter on right lumbar region anteriorly.
(4) Two pellet wounds on the lateral aspect of right knee joint. The wounds being 1' apart from each other.
(5) Pellet wound 1/8' in diameter on front of right shoulder."
2. Injured Taj Khan son of Allandino "(1) One pellet wound 1/8' in diameter on front of chest right side."
' In their statements at the trial, the appellants denied to have participated in the commission of the crime. Appellant Sallar further denied that he was picked out in the identification test by P. W.
Malook. He admitted that Qamardin was his caste fellow but denied any relationship with him. He further denied that they had any motive to take revenge of the murder of Shamsuddin. According to him, he Lad teen involved in this case due to enmity as he had been forcibly ejected from his house and his property had been taken away ; for this he had filed a case against P. W. Taj Khan, Ali harrnrad red others which vas still pending. According to him, the incident Lad not ten witnessed by anybody and that he had been involved the to conspiracy. Appellant Ali Muhnmmcd's care was also similar as appellant Sailer Ras his n actor al uncle. He timed that deceased Bachal and his party had several creaks of Brahnani and Patuja castes. As the real culprits in this case had not been identified he and his relations had been falsely implicated. Appellant Hassan also gave the same story and stated that he had been falsely implicated as appellant Sallar was his father.
About the production of the gun by him and the opinion of the Ballistic Expert, he simply stated that he had no knowledge.
' The trial Court after examining the evidence of the eye-witnesses reached the conclusion that P.
Ws. Ali Muhammad, Mohammad Murid and Lal Bux, besides being closely connected to the deceased, were also not well-disposed towards the appellant on account of the past enmity. Tne complainant, Taj Khan, an eye-witness, though denied to be a relation of the deceased, was, however, found by the trial Court to appear to be related or at least well connected with the deceased. The trial Court, therefore, considered it necessary to search for corroboratory circumstances which could lend support to the ocular evidence. So far P. W. Mohammad Malook, the Tonga driver is concerned, he was an independent witness, but he had not supported the prosecution case fully. Mr. Muhammad Hayat Junejo, in view of the above state of evidence, severely criticised the circumstances in evidence which had been considered by the trial Court as lending corroboration to the evidence of these witnesses. He pointed out that the first information report which, in the first place, had been taken as a piece of corroborative evidence, could not have been so considered. In his submission, the first information report was based on the state lieut., which came from the same source, that is P. W. Taj Khan, whose evidence was found to be deficient in credibility. This is so, but a previous statement can always be used for assessing the evidentiary value of the statement made by the witness in Count and the trial Court has done nothing more than that. It may be mentioned that the witness was no satisfied with the conduct of the police officers of Rukkan Police Station. Qamaruddin, a police officer himself was a brother of deceased Shamsuddin, whose murder earlier was the motive for the appellants in committing this crime. The complainant had, therefore, made representations to the Law Minister and also the Inspector-General of Police subsequently as a consequence of which the investigation was entrusted to the C. I A. In spite of this, the statement of the complainant made in Court, if found in consonance with his earlier version in the first information report, would on that account be validly treated as credible and the trial Court was not in error to have used the first information report for arriving at that conclusion. The various aspects of the evidence of the complainant were considered in detail in the background of his prior statement. In this assessment, the trial Court gave the necessary benefit of doubt to the two co accused Meero and Allah Parto, who were tried alongwith the appellants but were acquitted. Their names did not appear in the first information report, which according to the trial Court, was recorded without any loss of time keeping in mind the explanation for the delay that had taken place. The learned counsel also referred to the discrepancies between the first information report and the subsequent representations made by the complainant. However, the benefit of these discrepancies was given by the trial Court to the two co-accused as stated earlier.
' The complainant, Taj Khan, and P. W. Malook being themselves injured, their presence at the time of occurrence cannot be distelieved. Complainant Taj Khan knew the appellants before while P. W.
Malook did not know them. The presence of marks caused by fire-arm on the Tonga and also the pellet injuries on the horse belonging to Malook lend corroboration to both of them. P. W. Malook obviously had attempted to favour the defence but the fact remains that he had been put to identification test, in which he had picked Out the appellants successfully and this was proved by Mohammad Aslam Head Munshi and T. C. M. Who acted as Mashir, and the Investigating Officer Mohammad Achar. The incident had taken place during day time and P. W. Malook has admitted to have seen the occurrence. He had received pellet injuries on his shoulder, stomach and hand. He deposed to the fact of deceased Bachal, Allah Bux and Haji Khan receiving gunshot inj iries and falling down. He also saw the culprits firing at witness All Mohammad, who jumped across the minor and ran away. In spite of this, he stated that the first person who emerged from the bushes was having his face muffled, but he saw him carrying a gun and then firing at him and the complainant party. He saw other parsons also emerging from the bushes and firing similarly.
However, he stated that he hid himself in the hood of the Tonga and raped his head after the firing when he saw the dead b _dies of deceased Bache], Allah Bux and Haji Khan floating in the water.
He admitted that an identification test had been held, in which he picked out three persons but added that he did so because he was beaten by the police and was asked to identify the three persons. In the light of the circumstances, in which this witness had seen the occurrence, the trial Court, after considering his evidence came to the conclusion that he had ample opportunity to see the culprits and that there was no scope for any mistaken identity on his part. Thus the identification evidence was relied upon as against the appellants.
' Now, although, P. W. Mohammad Malook did state at the trial Court that he picked out the appellants in the identification test but that he said, was only on account of coercion of the investigating police, which means he did not point them out as being the culprits involved in the commission of the offence. He also did not identify the appellants, in the trial Court to he the persons who had committed the crime. In such circumstances, the fact that he had picked out the appellants in the identification parade could not be used as evidence against the appellants.
' Although the identification parade in this case was in the presence of a Magistrate, who testified in Court that this witness had picked out the appellants correctly, it has no substantive evidentiary value and could be used only as corroborative evidence. Since the witness did not admit that he picked out the appellants as being the persons whom he saw committing the crime, there is nothing in evidence, to be corroborated. The position however would have been somewhat different if he had admitted to the Magistrate at the time of the test that he had picked out the appellants in the identification parade, as being the culprits of the crime. Although he might have changed at the trial and refused to identify them in Court. In that case the evidence of the Magistrate to that effect would have been material. In the present case the Magistrate did not say that the witness identified the appellants as the persons, who, bad committed the murders. Thus all the evidence relating to the identification test, though admissible is of no material value as against the appellants, and the trial Court was in an obvious error to have used it as such. With all that P. W.
Muhammad Malook does lend support to the other eye-witnesses in so far as the manner and other details of the occurrence are concerned without himself implicating the appellants.
' Referring to the evidence of P. W. All Muhammad learned counsel pointed out that this witness had admittedly been examined by the police on 4th August 1973, though the offence had taken place on 17-7-1973 and further that the cycle, which was left over by this witness at the place of occurence, was neither seen nor secured by the Investigating Officer. The distrust of the complainant party in the investigating police can be a reason for not volunteering to be examined earlier. It is significant that this witness was examined only after the investigation was taken up by the C. I. A. The omission to mention the cycle in the mashirnama of the Wardat is not such a strong circumstance as to make the witness unbelievable for that reason alone His evidence is otherwise consistent with the version of the occurrence given by the rest of the eye-witnesses. His name appears in the first report and it is also stated there that he was coming on a cycle.
' The learned counsel then contended that this, in fact, appears to be an unwitnessed crime for which the names of the appellants had been given as culprits on account of the previous enmity.
In this connection he referred to the presence of four rifle bullets along with the service rifle of deceased Haji Khan. As none of tee eye-witnesses had stated that the rifle had been used during the occurrence, the learned counsel argued that this was an indication to a totally different manner in which the event must have happened. It was possible, according to him, that the service rifle had been used by deceased Haji Khan to commit an offence or even to have fired in defence.
In any case, he contended that the eye-witness account does not fit in with the rifle having been used as none of them has mentioned anything of that nature. In absence of any explanation sought from the eye-witnesses on this score, an inference of such a far-reaching nature, that is of completely disbelieving the eye-witness account cannot be drawn, merely on account of an omission to mention the circumstances to explain the exiseence of the four rifle bullets at the Wardat.
' The over ail examination of the evidence thus shows that the two eyewitnesses, Lal Bux and Muhammad Mureed were not believed by the Trial Court with regard to their having seen the occurrence, and for plausible reasons. It was found that they both had probably reached the place after the murders had taken place, and they had merely come to know what had already happened. The other three eyewitnesses, i,e, complainant Taj Khan, Malook and Ali Muhammad had without doubt seen the occurrence. Out of these, P. W. Malook through a totally independent witness had obviously attempted to oblige the appellants at the trial and his evidence could not possibly be used against the appellants as he did not implicate them. The identification test evidence also could not be used to supplement him. P. Ws. Taj Khan and All Muhammad on the other hand, though consistent in their account, are admittedly interested ; and following the rule laid down in the case of Niaz v. State (1), their evidence could not be relied upon against the appellants without corroboration in material particulars. It was observed in that case at page 390 that "Whenever interested persons claiming to be eye-witnesses of an occurrence charge persons against whom they have some motive for false implication, with the commission of the offence, the first question to be considered is whether in fact they saw the occurrence and were in a position to identify the culprits. If there be no reason to doubt they in fact witnessed the occurrence and were in a position to identify the offenders, the further question arises as to whether they can be relied upon for convicting the accused without corroboration. In cases where such interested witnesses charge one person only with the com mission of the offence, or where the number of persons whom they name does not exceed that which appears from independent evidence or from
(I) PLD 1960 SC 387 ' circumstances not open to doubt to be the true number of culprits, their evidence may, in the absence of anything making it unsafe to do so, be accepted without corroboration, for, substitution is a thing of rare occurrence and cannot be assumed, and he who sets up the plea of substitution has to lay the foundation for it. But if the Court finds that the number mentioned by interested persons may have been exaggerated their word cannot be made the basis of conviction and the Court will have to look for some additional circumstances which corroborates their testimony. This circumstance need not be such that it can of its own probative force bring home the charge to tee accused. It should, however, be a circumstance which points to the inference that the particular accused whose case is being considered did participate in the commission of the offence. The force that such circumstance should possess in order that it may be sufficient as corroboration must depend on the particular circumstance of each case. However the circumstance itself must be proved beyond all reasonable doubt."
' In looking out for some such additional circumstances, which could corroborate the testimony of these two eye-witnesses, the only one that seems available is that of the production of gun by appellant Hassan, which had been established by the opinion of the ballistic expert to have been used in the commission of the offence. It has come in evidence that appellant Hassan had been arrested by W. P. 16, S. H.
0. Khan Muhammad, on 20-7-1973, at 8-30 p. m. In the presence of Mashirs P. W. Jan Muhammad and Ghulam Hussain. He was Interrogated, but as admitted by the S. H.
0. He was not a willing to produce the crime weapon on that date. According to him on 21-7-1973, this appellant during interrogation volunteered to produce the gun before him. This statement he made in the presence of the Mashir Jan Muhammad and ehularn Hussain. He then led the Seniors and the S. H.
0. To his house and produced the gun, which was lying inside his house under the bandage. The Mashirnama of securing the gun was prepared at at 9-00 a. m. On 21-7-1973. In his statement appellant Hassan merely denied to have volunteered to produce the gun or even to have actually produced the same. There is nothing in the cross-examination of the Mashir, Jan Muhammad and S. H.
0. Khan Muhammad which could suggest that they were interested to falsely implicate appellant Hassan. Both of them did not know the appellant before and the S. H. O. Denied the suggestion that he foisted the gun on appellant Hassan. The circumstance of volunteering to produce the gun stands proved. But this circumstance could be used to corroborate the testimony of the eye- witnesses only against the appellant Hassan.
' In the result, therefore, the case against the appellant Hassan is proved. He alongwith others is alleged to have fired from rear of the tonga, where Allah Buz and Haji Khan deceased were seated, and they were killed. He then fired a second round hitting the complainant, P. W. Malook besides the horse and the Tonga. The case against the other two appellants cannot be said to be prove beyond reasonable doubt and they aro, therefore, to be acquitted and their appeal is allowed. The sentence of death passed against them is not confirmed.
' The appeal of Hassan, however, is dismissed, and his death sentence is thereby confirmed.
' AGHA ALt HYDER, J.-I agree.