' Z. A. CHANNA , J.-The appellant, Muhammad Shari?, was tried alongwith 4 other persons by a learned Additional Sessions Judge, Nawabshah, in respect of offences under sections 148 and 302 read with section 149, P. P. C. And while the 3 co-accused, namely, Karam Ali, Imam Bux and Gul, were acquitted, the appellant and another co-accused, Saindad, were convicted by the learned Additional Sessions Judge of an offence of murder under section 302 read with section 34, P. P. C.
And each of them was sentenced for the said offence to imprisonment for life. Saindad, who alone had originally appealed against his conviction and sentence, has since died and his appeal accordingly abated. After the abatement of his appeal, the appellant, on 23.2-1976, filed an appeal to challenge his conviction and sentence. Since the appeal was very belated, it was admitted subject to the question of condonation of delay being considered at the time of the hearing of the appeal. By a short order, dated 10-11-1977, we had dismissed the appeal, we now proceed to give reasons in support of this order of ours.
2. The prosecution case, shortly stated, is that on 17-12-1970, the deceased Haji Bago, the latter's wife, Mst. Hassi, first informant Soomar and Allahwassyo were returning to their village from Deran Polling Station, where they had gone for casting their votes for the National Assembly elections when on the way, in Survey No, 806 of Deh Deran, they are said to have been attacked by the appellant, Saindad, Gul and Imam Barr, who were hiding in the adjoining jangle and all of them are alleged to have given hatchet blows to the deceased at the instigation of acquitted accused Karam Ali. Haji Tooh attempted to rescue the deceased who was his son-in-law, but he too was given hatchet blows by the assailants of the deceased. After causing injuries to the deceased and HO Toob, the appellant and his companions are said to have run away. Haji Bago succumed to his injuries on the spot. Leaving Haji Tooh and the dead body at the scene of offence, first informant Soomar wont and informed Muhammad Bux Dharejo at Deran about the incident and on his advice he proceeded to Qazi Ahmed Police Station where his report was recorded at 4-50 p.m.
While the incident is said to have taken place at 3.00 p.m.
3. The investigation in the case initially was taken up by S. H.
0. Mehrab Khan who had recorded the F. I. R. Ho accompanied first informant Soomar to the scene of offence where he found the dead body of Haji Bago. He sent the dead body to Medical Officer, Satrand, for autopsy and secured blood-stained earth from the wardat. He then recorded the statements of Haji Tooh and Muhammad Bux whom he found at the wardat. As there were injuries on Haji Tooh, he sent him to the Medical Officer, Qazi Ahmad, for treatment. On the following day, the S. H.
0. Arrested appellant Sharif and Saindad. At the time of his arrest, Shari? Is stated to have been wearing a shirt which had blood stains on it and consequently the S. H.
0. Seized the same in the presence of the mashers. On the same day, the appellant led the police and the mashir to his house and produced a blood-stained hatchet which the S. H.
0. Secured and sealed. It appears that the complainant party were not satisfied with the investigation conducted by S. H. 0, Mehrab Khan for first informant Soomar, on 25-12.1970, submitted an application to the D. I.G. Police against the S. H.
0. Stating that though two persons, by name Gul Khoso and Itnambux, had participated with the other assailants in the fatal assault on deceased Haji Bago, the S. H. O. Had omitted to mention their names from his first information report and had not arrested them. In consequence of this allegation the investigation was later entrusted to D. S. P. Muhammad Ayub. He recorded the statements of Allahwasayo, Haji Tooh and others. Under his orders, Gut and Imam Bus were arrested. On completion of the investigations the appellant and the 4 co-accused were chailaned.
4. The autopsy on the deceased was conducted by Dr. Jamilur Rehman, who found the following external injuries on the person of the deceased :- "(1) An incised wound vertical 6' x 1" x cutting the skull bone, extending from right forehead, frontal region and going to right parietal region. The brain matter was also visible.
(2) Incised wound 6' x x cutting the left side of the face 1" below the left ear and also cutting the neck horizontal. The face was cut and wourd was opened into buccal cavity and also cutting the left mandible and last two molar teeth. The posterior end of wound was 3' deep. The main blood vessels and muscles of the neck were also cut. The wound was deep upto vertebral column at the second cervical vertebrae.
(3) Incised wound oblique 3' x 4" x muscle deep on the back in the right side of the neck."
5. On internal examination, the Medical Officer found the skull bone and the brain matter cut under injury No,
1. He also found that there was a clot of blood under the right parieto-frontal region. In the opinion of the Medical Officer, the erobable time between the injuries and death was instantenous and that between death and post-mortem was about 18 hours. He further opined that the injuries on the deceased were caused with a sharp-cutting weapon, such as a hatchet, and that external injuries Nos. 1 and 2 were individually sufficient to cause death.
6. So far as Haji Tooh is concerned, he was first examined by Dr. Bashir Ahmad and thereafter, at the request of D. S. P. Muhammad Ayub, by Dr. Muhammad Shull', Medical Officer, Nawabshah.
According to Dr. Bashir Ahmad there was only the following injury on Haji Tooh : - "Contused wound 24" x x subcutaneous on the top of the head slightly towards left side."
Dr. Muhammad Shull', on the other hand, has testified that he found the following two injuries on the person of Haji Tooh "(1) Contused wound 1' x x scalp deep over right parietal region. (2) Abrasion r x over right parietal region."
7. The same doctor also examined Allah Wasayo on whom he found the following injuries t- "(1) Healed scar about 14' over the left buttock.
(2) Healed scar about 14" in the back of the left side."
8. In the opinion of Dr. Muhammad Sherif, the injuries both of Haji Tooh and Allah Wasayo were simple in nature.
9. The learned Additional Sessions Judge came to the conclusion that the case against the co- accused, Imambux and Gul, was not established mainly because their names did not transpire in the F. I. R. Or even in the original statement of Haji Tooh, and that further no recoveries were made from these two co-accused which might have corroborated the testimony of the ocular witnesses.
He also acquitted co-accused Karam All as he found hat no overt act had been established against him and on the contrary he is said to have been in the company of the complainant party when it was attacked. He, however, convicted the appellant and Saindad on the basis of the ocular testimony, which, in his opinion, was corroborated by the recovery of blood-stained hatchets at their pointation and recovery of bloodstained shirt from appellant Shari?.
10. Since the judgment in the case was delivered on 17-7-1973, while the appeal was preferred on 23-2-1976, the appeal is belated by about 21 years. The appeal was also admitted subject to the condition that the question of limitation would be considered at the time of the final hearing of the appeal.
11. Mr. Manzoor Hussain, the learned counsel for the appellant, has submitted that in cases where the accused has been sentenced to death or imprisonment for life, delay in the filing of appeal, even if it is for a long period, should ordinarily be condoned. In support of his contention, the learned counsel has relied upon the decisions reported in Sarwar v. State (1) Rasool Bux v. State (2) and Muhammad Din v. State (3). In the Lahore case, the appeal was filed from jail after a period of 237 days. Neither an application was made for the condonation of delay nor did the appellant give any sufficient cause to condone the delay. Nevertheless, the Lahore High Court converted the appeal into a revision, as in its opinion the conviction of the appellant on the facts of the case was not justified. The decision in this case thus seems to have proceeded on the view that in the absence of satisfactory reasons for condonation of delay, a belated criminal appeal is not entertainable, but may, in appropriate cases, be converted into a revision, if the facts of the case show that no case for the conviction of the appellant is made out and his conviction is illegal. In the Quetta case, the appeal filed by the appellant was time barred, though the period which had elapsed between the passing of the judgment and the filing of the appeal has not been specified.
In that cage, the sister of the appellants had filed an a davit that she had fallen ill after the conviction of her brothers and thus could not file the appeal in time. It was held that in view of the fact that the appeal was against the sentence of transportation for life, it would not be proper to dismiss it on the ground of limitation. In Muhammad Den's case, six petitions for leave, which were heard alongwith 16 connected petitions for leave, were found to have been made much beyond time. However, the petitioners, who were convicted for capital crimes, prayed for condonation of delay. Their Lordships of the Supreme Court observed that consistently with their practice, they were condoning the delay and deciding the petitions on merits, in view of the facts that the petitioners were convicted for capital. Crimes. We may also refer to the case of Abdul Ghanl v.
Ghulam Sarwar (4). Though that was a case relating to civil litigation, it was observed that sufficient cause "under section 5 of the Limitation Act means "circumstances beyond the control of the party".
12. In the instant case, we have called for a report from the Superintendent of the Jail and we find that there is an entry in the History Ticket of the appellant, recorded on 194-1973, that is, two days after the conviction of the appellant, to the effect tint the appellant did not want to prefer an appeal from Jail as he wanted to prefer an outside appeal, that {{FOOT NOTE}}
(1) PLD 1959 Lah. 50 (2) PLD 1964 Quetta 6
(3) PLD 1977 SC 55 (4) PLD 1p77 SC 1 {{FOOT NOTE}} is, an appeal through an Advocate. The learned counsel for the appellant has also produced before us a copy of an application, dated 15-5-1975, submitted by the appellant to the High Court through the Superintendent of the Central Jail, Hyderabad. In that application, he has stated that he hat been suffering from T. P. And on account of this disease he was in a serious condition. He has further stated therein that he had requested his mother, who was then alive, to file an appeal, who, because of poverty, was unable to do so and on account of his severe illness she could not even inform him of this position. He accordingly requested in that application that his appeal may be considered alongwith that of co-accused Saindad, who had already preferred an appeal. This application was forwarded by the Superintendent of the Central Jail. Hyderabad, to the High Court, under his endorsement No, 7075, dated 22-5-1975, but unfortunately, the original of this application is not traceable in the record of the High Court. This application together with the entry in the History Ticket of the appellant, shows that the appellant had all along been anxious and was making efforts to file an appeal through an Advocate, but by reason of poverty and his illness, he was prevented from doing so. In view of the above special circumstances, and relying upon the authorities referred to above, we would condone the delay in the filing of the appeal, though it is unduly belated and proceed to decide the appeal on merits.
13. We have been taken through the entire evidence in the case by Mr. Manzoor Hussain, but we are not pursuaded to believe that the conviction of the appellant suffers from any infirmity or is based on unreliable or inadequate evidence. Thus main evidence in the case is of the 3 eyewitnesses, Soomar, Haji Tooh and Allah Wasayo. Of these, Haji Tooh had admittedly sustained some injuries in the incident and, therefore, his presence at the scene of offence cannot be doubted. As already stated, he was examined by Dr. Sharif on the very next day of the incident and a contused wound was found on the top of his head. He was subsequently examined by Dr. Sharif, Medical Officer, Civil Hospital, Nawabshah who found on him, besides the above injury, an abrasion on his right parietal region. This witness has fully implicated the appellant and stated that he was one of the culprits who had caused the fatal injuries to the deceased and also caused injuries to him. He is corroborated by first informant Soomar, who was accompanying the deceased and P. W. Haji Tooh at the time of the incident. He too has testified that it was appellant Sharif and his companions who had caused hatchet injuries to the deceased and Haji Tooh. Although P. W. Allah Wasayo also claims to be an eye-witness and his name appears as an eye-witness in the F. I. R. And according to Dr. Sharif he was found to have two injuries on his person, we are not satisfied that he witnessed the incident. According to S. H.
0. Mehrab Khan, he did not find this witness at the scene of offence when he reached there with first informant Soomar. An explanation is sought to be given in the F. I. R. About his absence from the scene of offence after the incident. The F.
1. R. States that while first informant Soomar left for lodging the F. I. R. Allah Wasayo took Mot. Hassi to her village. However, according to the evidence of the witnesses in Court, Mit. Hassi had not accompanied the complainant party when they were returning to their village after casting their votes and was not present at the scene of offence, as she had left earlier in a truck with other ladies after casting her vote. The absence of Allah Wasayo at the scene of offence thus at the time when the police arrived there gives rise to the reasonable belief that he probably was not with the complainant ' party at the time of the incident and consequently could not have seen the incident. This view finds support from the fact that the F. I. R. Does not mention that he had sustained any injuries at the time of the incident. He was examined by Dr. Shari( some 12 days after the incident and all he found were two healed scars on the buttocks and left side back of the witness. These injuries could possibly have been caused by a fall. According to the Medical Officer, the age of these injuries at the time he saw them was 5 days. Since the incident had occurred 12 days earlier, the evidence of the doctor would seem to indicate that these injuries were sustained by Allah Wasayo much later.
These circumstances, therefore, incline us to the view that Allah Wasayo in all probability was not with the complainant party at the time of the incident.
14. The testimony of first informant Soomar and Haji Tooh has been assailed by the learned counsel for the appellant on the grounds that not only their evidence is in conflict with the first information report and the statements made by them in the lower Court but further their statements in the Sessions Court contradict each other. No doubt, in the F. I. R. First informant Soomar has implicated only the appellant, deceased Saindad and acquitted accused Karam Ali, while in the committal Court and in the Sessions Court, he has implicated two other persons, namely, Imam Bux, and Gul, but the mere fact that he has falsely implicated two innocent persons would not necessarily mean that his evidence should be altogether B rejected even in respect of those persons whom he had named in the F. I. R. It only means that we should examine his evidence wish care and caution and even with a certain degree of suspicion. In Bakka v. State (1) the contention was raised before their Lordships of the Supreme Court that the eye-witnesses account having been found to be false as against 4 other persons, the same should not have been accepted by the High Court as against the appellant. Repelling this contention, Anwarul Hag, J., as he then was, observed as follows:- "The principle falsus in uno falsus in omnibus has long since ceased to be applied by the Courts in this country, and they have always endeavoured to separate the grain from the chaff. In this case, the Courts below have been very cautious in giving the benefit of doubt to the other four accused, although the nature of the injuries found on the deceased as well as the witness Ilayat Muhammad clearly showed that two kinds of weapons had been employed by the assailants. In any case, as against the appellant, the eye-witness account does not stand alone. It finds strong corroboration from the recovery of the spear, stained with ,human blood. The fatal injury was caused to the deceased by a spear, and to that extent the medical evidence also provides "corroboration against the appellant."
15. Similar criticism has been levelled against Haji Tooh that he has falsely implicated Imam Buz and Gul, whose names do not transpire in the F. I. R. For the reasons which we have given in respect of the testimony of first informant Soomar, we do not consider that this circumstance by itself is sufficient for discarding or disbelieving the testimony of the witness as against the appellant. It might also be mentioned that both according to first informant Soomar and Haji Tooh, the S. H.
0. Had not correctly recorded the F. I. R. And was deliberately trying to spoil their case and for this reason they had made an application to the D. In consequence of which the remaining investigation of the case was entrusted to D. S. P. {{FOOT NOTE}}
(1) 1977 SCMR 150 {{FOOT NOTE}} Muhammad Ayub. The application to the D. I..G. Has been produced where serious allegations against the S. H.
0. Have been made that he has been favouring the accused party. We, however, see no reason why the S. H. O. While recording the names of the appellant, Saindad and Karam All in the F. I. R.
Should have omitted to record the names of the two acquitted accused, Imam Buz and Gul.
16. The evidence of first informant Soomar and Haji Tooh is also assailed on the ground that though the F. I. R. States that Mst. Hassi was with the complainant party at the time of the incident, in their evidence in Court, they have stated contrariwise and alleged that she had left earlier with the other ladies in a truck, after casing her vote. We have already considered this aspect of their evidence and have held that Mst. Hassi and Allah Wasayo were in all probability not present at the scene of offence and had not witnessed the incident.
17. The learned counsel also relied upon the admission of first informant Soomar in the lower Court, with which he was confronted at his trial, that he was passing urine and heard cries of "murder" and when he went there he saw deceased Bago lying dead and the culprits going away. This statement, however, must be read in conjunction with the evidence given by the witness in the lower Court immediately before making the said statement, and where he had stated that he saw all the four accused present in Court giving blows to Haji Bago, who fell down, when Karam Ali was instigating all the time.
18. The learned counsel for the appellant also assailed the ocular testimony on the ground that whereas one motive bas been shown for the crime In the F. I. R. In their evidense in Court the witnesses have given a totally different motive. In the F. T. R. The motive indicated is that some 2 to 3 months prior to the incident, the appellant had committed rape on Mst. Ghori, wife of Abdullah Zardari, who, in retaliation outraged Met. Basran wife of Akk, who is related to the appellant. In their evidence in Court, however, the witnesses have stated that the dispute between them and the appellant party was that they belonged to rival political parties and because they did not vote for the party supported by the appellant, therefore, they were attacked. We are not impressed by the evidence of the witnesses in regard to the motive alleged by them. If the appellant party was infuriated with the complainant party because of the latter casting their votes for the rival party, then they should have meted out equal treatment to the deceased and his companions. However, the evidence on record shows that the deceased atone was the target of the ire of the appellant party and Haji Tooh only incidentally sustained injuries when he tied to rescue the deceased. It is, therefore, more likely that the appellant party had grudge against the deceased alone and not against the complainant party as a whole which would have been the case if the dispute between them bad been over the casting of votes. The mere fact, however, that the witnesses have stated an incorrect motive for the fatal assault on the deceased would not be sufficient for discarding their evidence, for motive may in certain cases be known only to the assailants and the witnesses may only make surmises as to it. Possibly, the witnesses have altered their evidence on the point of motive in order to gain sympathy and support of the political party which they had support and which had come out successful in the election.
19. The ocular testimony of first informant Soomar and Hsji Tooh finds strong support from the recoveries made from the person of th appellant and at his pointation. S. H.
0. Mehrab Khan has testified the he arrested the appellant on the very next day of the incident and secured in the presence of mashirs the shirt which he was wearing as it had blood stains thereon.
The S. H.
0. Has further testified that thereafter appellant Sharif led him and the 'whirs to his house and produced therefrom a blood-stained hatchet. The S. H.
0. Is supported on the point of recoveries by both the mashirs, Photo and Budho, who have testified that the bloodstained shirt was secured from the person of the appellant in their presence and that further it was in their presence that the appellant had produced the blood-stained hatchet from his house. According to P. W. Photo, the hatchet was produced by the accused from the roof of his house. The evidence of P. W. Photo was assailed on the ground that in the lower Court he bad stated that he did not know if police had secured any incriminating article from the person of accused Sharif and on that account he had been declared hostile. In fact, in his cross-examination to the learned Prosecutor, the witness had specifically denied that police in his presence had secured a blood-stained shirt from the person of the appellant or that the appellant had led the police and him to his house and produced a blood-stained hatchet. It would appear that for some reasons the witness was won over by the accused party in the committal Court but later on he seems to have changed his views and supported the prosecution. At best the evidence of this witness on the recoveries may be discarded. There, however, remains the evidence of mashir Budho which supports the testimony of the S. I. P. Mehrab Khan. It might, however, be mentioned that even mashir Budho in the lower Court has not stated about the recovery of the hatchet though he has admitted that he had signed the mashirnarna about the recovery which would suggest that he had made an obliging statement in favour of the appellant. There was no reason for the S. H.
O.,who was being accused by the complainant party of favouring the accused party, to foist incriminating articles on the appellant and the co-accused. The evidece of S. H.
0. Coupled with that of mashir Budho thus clearly establishes the fact of the recoveries of the blood-stained shirt and hatchet from the appellant.
20. Both the shirt and the hatchet were sent to the Chemical Examiner to the Government whose report is to the effect that they were found stained with human blood. The appellant has not explained how human blood came to be found on his shirt and hatchet. The recovery of the bloodstained shirt and hatchet from the appellant thus strongly corroborates the ocular testimony and these two pieces of evidence, in our opinion, fully establish the guilt of the appellant.
21. We, accordingly, are of the opinion that the appellant was rightly convicted by the learned Additional Sessions Judge of the murder of deceased Haji Bago. This murder took place, as already stated, on 17-12-1970, when the legal sentence for such an offence was death or transportation for life. It was only by the amendment effect in the P. P. C. By the Law Reforms Ordinance, 1972, which amendment came into force on 16-4.1972, that the sentence of imprisonment for transportation for life for murder was substituted by sentence of imprisonment for life. Tho learned Additional Sessions Judge, therefore, did not act correctly in imposing the sentence of imprisonment for life on the appellant for an offence which was committed before such sentence was declared to be a legal sentence. We would accordingly substitute the sentence of imprisonment for life imposed on the appellant by a sentence of transportation for life. With this modification, the appeal of the appellant stands dismissed.