1. ' MUHAMMAD ROSHAN ESSANI, J.---The appellants Imam Bux son of Gullan Khoso, Usman son of Rawat Khoso. Liaquat son of. Hussain Khoso and Chanesar son of Ibrahim Khoso were tried by learned IIIrd Additional Distric.t and Sessions Judge. Dadu for offence under section 302. P.P.C. Read with section 34. P.P.C. By the said judgment. Dated 12th March, 1996. The appellants were found guilty and they were convicted. Under section 302. P.P.C. Read with section 34. P.P.C. All the four appellants named above were consequently sentenced to death and to pay fine of Rs,10.000 each or in default of payment of fine they were ordered to suffer R.I. For six months more. They were further ordered to pay Rs,20,000 each to the heirs of the deceased by way of compensation under section 544-A, Cr.P.C. Or in default of such payment ordered to suffer R.I. For one year. The appellants have challenged their conviction and sentences in the above appeal filed by them.
2. There is also a reference from the trial Court for confirmation of death sentence awarded to the appellants.
3. ' By this judgment we propose to decide both this appeal and reference for confirmation of death sentence.
4. ' The F.I.R. In this case was lodged by Nawab son, of Umed Ali Khoso on 23-5-1981 at 10-00 a.m. At Police Station Mehar. The case of prosecution as narrated in the F.I.R. Was that Hidayatullah who was posted as Tapedar at Tapa Butra in Taluka Khairpur Nathan Shah used to reside in his village.
5. He. However, used to attend his daily duty and return back in the evening. On the day of incident Hidayatullah left his village in the morning to board a bus for his place of duty. Hidayatullah was brother of the complainant Nawab. Shahzado who is son of the complainant, who was in villa on account of Friday being holiday also left for Larkana. He too had to take a bus. Shahnawaz son of Allah Bux Khoso also accompanied Hidayatullah. At about 9-00 a.m. On that day, while the complainant was sitting in Otak he was informed by Shahnawaz that while he and Hidayatullah were going on the bank of Gul Muhammad Wah towards roads for boarding bus they also saw Shazado going on the bank of Gul Muhammad Wah. Shahnawaz further informed the complainant that they found a donkey-cart parked under the shade of a tree and that when they reached near the said donkey cart, they found appellant Liaquat standing there with rein of donkey in his hand.
6. They also saw that 3 persons were lying in the said donkey-cart. Shahnawaz further informed the complainant that when they reached near the said donkey-cart the other 3 persons got up and they were identified to be appellants Imam Bux son of Gullan Khoso, Chanesar son of Ibrahim Khoso and Usman son of Rawat Khoso. All the three had guns. Appellant Liaquat pulled hatchet from donkey cart. All the four appellants came running towards them whereupon they raised cries, which attracted Shahzado, who ran and came towards them. Shahnawaz then informed the complainant that Imam Bux (appellant herein) fired upon chest of Hidayatullah from his gun and Liaquat (appellant herein) caused sharp-sided hatchet injuries on the face of Hidayatullah. The other two appellants Chanesar and Usman aimed their gun and fired straight upon Hidayatullah.
7. Thereafter, all the four appellants ran away leaving their donkey cart at the scene of offence.
8. Hidayatullah died as a result of injuries sustained by him. Upon the receipt of this information complainant proceeded to the scene of offence alongwith Shahnawaz where he found that his brother was dead. The complainant then made inquiries from his son Shahzado who was sitting over the dead body. He too narrated the above facts to the complainant. He then left both Shahnawaz and Shahzado to look after the dead body of Hidayatullah and left for report. In his F.I.R.
9. The complainant stated that the accused (appellants herein) had enmity with them on account of previous murder of Ibrahim father of Chanesar and his brother-in-law Qalandar Bux. After the registration of F.I.R., in terms material particular whereof have been mentioned above the police started investigation. P.W. Abdul Hameed recorded F.I.R. Of this case. He proceeded to the scene of offence and prepared Mashirnama of Vardat as Exh.24. He held inquest over dead body of Hidayatullah and prepared such report, which is Exh.25. He then examined P.W. Shahzado and Shahnawaz. He then went to the village of accused/appellant and arrested Imam Bux from Otak of village and prepared such Mashirnama, which is Exh.26 Appellant Imam Bux voluntarily produced gun used in the commission of this offence. The appellant Imam Bux led police party to his house and produced a single-barrel gun. There was a smell of fresh gun powder in the barrel of the said gun. Such Mashirnama was prepared which is Exh.27. Thereafter, accused/appellant Usman appeared before him at the said Otak. He too was arrested vide Mashirnama Exh.28. Usman also produced his single-barrel gun from his house which was secured vide Mashirnama Exh.29. The accused/appellant Liaquat also appeared at the said Otak where he was arrested vide Mashirnama Exh.30. He produced a hatchet, which was blood-stained from his house. This hatchet was secured vide Mashirnama Exh.31. Accused/appellant Chanesar was arrested by Sanghar Police in some other case. Since he was required in this case P.W. Abdul Hameed. Investigating Officer of this case called him from Sanghar and interrogated him on 22-7-1981. Chanesar voluntarily produced a gun from his house which was secured vide Mashirnama Exh.32. Appellants Imam Bux, Usman and Liaquat were produced before P.W. Khemchand Mukhtiarkar and F.C.M., Mehar for recording their judicial confessions. All the appellants gave judicial confessions which Were produced by P.W. Khemchand as Exhs.40, 41 and 42.
10. ' The autopsy on the dead body of Hidayatullah was performed by P.W. Dr. Haji Ali Anwar, Incharge Medical Officer Mehar, Taluka Hospital, on 23-5 1981. He found following external injuries on the body of deceased:--
(1) Incised wound 4 c.m. x 2 c.m. x mussel deep on the upper left side. Fracture of four molar teeth.
(2) Incised wound 6 c.m. x 2 c.m. On the right side upper lip. There is fracture of right side of upper law and 2 molar teeth fractured.
(3) Incised wound 9 c.m. x bone deep on the right side of lower jaw and lower lip. Lower molar fracture.
(4) Incised wound 5 c.m. x 2 c.m. x mussel deep on the lower lip and fracture of the lower jaw, 3 molar teeth fractured.
(5) Lacerated punctured wound 4 c.m. In diameter on the chest mid sternum bone. Charring and blackening present (wound of entrance).
(6) 6 lacerated punctured wounds each 2 c.m. In diameter over the left side chest laterally, 1 S.G.
11. Pellet was found with wad were also found and recovered by me.
(7) 8 lacerated punctured wounds each 2 c.m. In diameter. Right side iliac region. Blackening and charring present.
(8) 9 lacerated punctured wounds each 1 c.m. In diameter on upper part of the right thigh. Femur bone of the upper part was fractured (wound of exit). (Corresponding to injury No,7).
12. ' According to Dr. Haji Ali Anwar death was caused due to shock and hemorrhage as a result of injuries caused by hatchet and discharge from fire-arm. In his opinion injury No,5 was sufficient to cause death in the ordinary course of nature and that all injuries were collectively sufficient to cause death in the ordinary course of nature.
13. ' The case of accused/appellants was one of denial and false implication on account of previous enmity due to murders. In his statement under section 342, Cr.P.C. Accused Imam Bux denied that he committed murder of Hidayatullah. He denied that he produced any gun before the police. He denied having made any judicial confession and stated that it was fabricated He stated that he has been victimized and involved in this case on account of previous enmity on account of murders of Ibrahim and Qalandar. He further stated that P.Ws. Were hostile to him. Accused Usman also denied that he committed murder of Hidayatullah. He stated that he did not produce any gun before police. He stated that witnesses were hostile to him. As regards confession accused Usman stated that it was fabricated. He further stated that the deceased was a Revenue Tapedar, Mukhtarkar being a Revenue Magistrate had sympathies with Tapedar, he therefore, recorded a false confession. Accused Usman further stated that he has been implicated in this case due to enmity on account of previous murders of Ibrahim and Qalandar, P.Ws. Were related inter se and hostile to him. He produced copy of a direct complaint filed by one Abdul Karim against Khemchand Mukhtarkar and one other person as Exh.53. Accused Liaquat also denied the commission of offence by him. He denied production of any hatchet by him. As regards confession he stated that it was manipulated and that it was neither true nor voluntary. In his statement under section 342, Cr.P.C. Accused Chanesar denied that he was party to the commission of murder of Hidayatullah. He stated that nothing was secured from him. He further stated that he was involved in this case due to previous enmity With the complainant and deceased Hidayatullah on account of murder of his father Ibrahim and brother-in-law Qalandar. The accused took plea of alibi and stated that at the time of incident he was serving as Junior Security Guard in the Pakistan Steel Mills, Karachi and that he was on duty on the day of incident and at the time of incident. He stated that he wanted to examine Saleem Pasha, Junior Security Officer who was posted in Pakistan Steel Mills, Karachi during the month of May, 1981 and now working as Assistant Manager in Pakistan Steel Mills, Karachi. The appellant/accused Chanesar produced a certificate issued by Saleem Pasha the said Junior Officer on 26-5-1981 as Exh.50. He also produced a photocopy of Attendance Register as Exh.51.
14. ' We have gone through the evidence recorded in this case with the assistance of learned counsel appearing in this case. We have also heard Mr. A.Q. Halepota learned counsel appearing on behalf of the appellants/accused and Mr. Shaukat Hussain Zubedi learned counsel for complainant and Mr. Arshad Lodhi, Assistant Advocate-General, Sindh for the State. Both the learned counsel for complainant and for State argued that the appeal may be dismissed and sentence of death awarded to the appellants may be confirmed.
15. ' The evidence against the appellants/accused consists of the ocular testimony of P.W. Shahnawz and Shahzado coupled with the testimony of the complainant Nawab and that of the recovery of guns from appellants/accused Imam Bux, Usman, Chanesar and hatchet from Liaquat. The appellants Imam Bux, Usman and Liaquat also gave judicial confession before the P.W.
16. Khemchand, Mukhtarkar and F.C.M., Mehar. These judicial confessions have, however, been retracted by all the three appellants named hereinabove. Lastly there is evidence of motive in terms of previous enmity between the complainant party and the appellants on account of earlier murders of Ibrahim and Qalandar father and brother-in-law of appellant Chanesar.
17. ' The complainant Nawab Khan who was examined as P.W.1 is brother of deceased Hidayatullah P.W. Shahnawaz is' brother of wife of the complainant and P.W. Shahzado is the son of complainant.
18. All the three prosecution witnesses are thus closely relatives inter se. Not only that they are closely related with each other but there was enmity between complainant Nawab Khan and deceased Hidayatullah and their other brothers and father on one side and the accused party on the other side on account of previous murder of Ibrahim and Qalandar. The evidence of the complainant shows that in the case relating to the murder of Ibrahim father of appellant/accused Chanesar, complainant, his father and brother were challaned. In the case relating to the murder of Qalander, who was brother-in-law of the appellant Chanesar, deceased Hidayatullah and Haji Muhammad Ali the other brother of complainant were involved. In his evidence before the trial Court P.W.
19. Shahnawaz also admitted that complainant Nawab and deceased Hidayatullah had enmity with accused persons. In the circumstances the prosecution witnesses named above are interested witnesses. Not only that they were related with each other but there was enmity between them and accused persons. It is settled law that when interested persons come forward to give evidence, in a capital offence, conviction cannot be based upon their sole evidence without strong corroborative evidence. The corroborative evidence in this case consists of recovery of guns from the appellants Imam Bux, Usman and. Chanesar and that of hatchet from Liaquat. According to report of Forensic Expert Exh.37 only one 12 bore empty marked, 'C' was fired from 12 bore gun S.B.B.L. No,182. This gun is said to have been produced by appellant Imam Bux. As regards the other two guns produced by Usman and Chanesar no definite opinion can be expressed due to lack of sufficient identifiable data. The perusal of the Chemical Analyser's Report Exh.38 shows that Article No,2, which was a hatchet was examined. The blood on it was found disintegrated and its origin could not be determined. Thus only corroborative evidence in support of ocular evidence is available only against appellant Imam Bux, in respect of whose gun the report of Ballistic Expert is positive. Before other pieces of evidence are discussed, it is necessary to examine evidence of P.W. Muhammad Moosa who is Mashir of arrest and recovery. The perusal of cross-examination of this witness shows the manner in which accused were arrested. It will be advantageous to reproduce the version of this witness in this respect. "We found Imam Bux sitting in the Otak of Deen Muhammad Solia, Imam Bux was sitting all alone. There are about 30 to 40 houses in that village. Complainants are not accompanied us at that time. After recovery of gun from accused Imam Bux when returned to Otak, we found Usman sitting there. Imam Bux was kept under guard of police in the jeep when Usman led us to recovery of gun. On return again we found Liaquat sitting in the Otak. Usman was made to sit in the jeep when Liaquat led us for recovery". The least that can be said about this version is that no criminal would come forward in this manner voluntarily one after the other and get arrested. This is indeed against the natural course of human conduct. In the circumstances, the version regarding the manner in which accused were arrested does not inspire confidence and it is to be rejected. This would also naturally recoil upon the recovery of crime weapons from these three accused.
20. ' Now coming to the confession all the 3 appellants/accused Imam Bux, Usman and Liaquat which have been retracted_ by them in the trial Court. All that can be said after carefully perusing evidence of P.W. Khemchand, Mukhtarkar and F.C.M., Mehar is that no reliance can be placed upon these confessions. Firstly all the three accused were produced together for recording their confessions. The perusal of cross-examination of the Magistrate shows that he did not make any note in the confession that warnings were repeated to Liaquat after time given to him for reflection was over. The learned Magistrate also admitted that he did not write in his own hand that the appellant accused Liaquat was not bound to make confessional statement and that he was at liberty to give confession or not. It was also admitted by him that the confessional statement of appellant/accused recorded by him did not contain any note for question asked from the appellant/accused Liaquat as to why he was making confession. The Magistrate was shown all the three confessions. He admitted that he did not note the timing of recording of confession of each accused. The Magistrate was shown confession of appellants/accused Usman and Imam Bux. He was shown question No,1 at page 2 of form of confession of both accused. He admitted that all these questions of both confessions were in his writing and that these two answers are exactly identical. The same was the position with regard to answers to question No,2 on page 2 of both these confessions. In his cross-examination the Magistrate further admitted that he did not make any endorsement in his own handwriting that confessional statement was read over to accused Liaquat and that he accepted it to be correct. He admitted that he did not sign the certificate under section 164(3), Cr.P.C The Magistrate admitted that he did not certify in his own handwriting that examination of accused was taken in his presence and hearing and that record contained a full and true account of the statement made by the accused as required under section 164(2), Cr.P.C. It is admitted by Magistrate that accused Liaquat did not state in his confession that he has produced hatchet before the police but he has stated that prepared to produce hatchet. The Magistrate further admitted that in all the three confessions he had written that the accused persons were given three hours for reflection and that this time is actually incorrect. As regard confession of Imam Bux it was stated by Magistrate that the confessional statement of Imam Bux does not contain a note that warning was repeated to him after time for reflection was over and before it was recorded. It is admitted by him that no note was recorded that accused Imam Bux was informed that he was not bound to make confession and that he was at liberty to give confession or not. It is admitted that no question was asked from accused Imam Bux if he was giving confession because of any promise by police. It is admitted that no endorsement was made by him in his own hand that the contents of confession were read over to accuse Imam Bux and that he accepted the same to be correct. The Magistrate further admitted that he did not append the certificate in the confession of accused Imam Bux in his own hand that it was read over to accused and was admitted by him to be correct and that it contained a voluntary and true account of the statement made by him. No such certificate was appended at the foot of confessional statement that it was given voluntarily. The Magistrate stated that accused Imam Bux did not state in his confession that he produced a gun before the police but he stated that he was prepared, to produce gun before police. Likewise the Magistrate did not append such certificate with the confessional statement of Usman. He admitted that he did not put any question to Usman as to why he was produced by Police. It was admitted by him that no endorsement was made by him that second warning was repeated to accused Usman before recording his confession. He admitted that he did not make a note that the accused Usman was informed that he was not bound to give confession and that he was at liberty to give confession or not. The Magistrate admitted that he did not ask from the accused Usman as to why he was making confession. It was admitted by Magistrate that no certificate was appended at the foot of his confessional statement that it was read over to the accused and that he put his thumb-impression after admitting the contents thereof as correct. In view of this state of evidence of P.W. Khemchand who recorded judicial confessions of all the three accused/appellants named above, no value can be attached to these confessions which have also been retracted by accused. These judicial confessions are, therefore, ruled out of consideration. As regard evidence relating to motive of enmity, it is a double- edged weapon whereas it can be motive for commission of offence, it could as well be reason for false implication of an accused. Besides motive, however, strong cannot provide corroboration to ocular evidence.
21. ' This being the position of evidence there is no reliable corroborative evidence as against appellants (1) Chanesar, (2) Usman, (3) Liaquat. Ocular testimony being partisan and highly interested it cannot alone form basis of conviction of these three appellants. In the circumstances, appellants/accused Chanesar, Usma n and Liaquat are therefore, given benefit of doubt and they are acquitted. The conviction and sentences awarded to them are set aside. They may be released forthwith if not required in any other case. There is, however, corroboration to the ocular testimony available in the shape of recovery of gun from the appellant/accused Imam Bux. The crime empty found from the scene of offence is reported to have been fired from the gun produced by him.
22. Report of ballistic expert in this regard is positive. Consequently the appeal in respect of appellant/accused Imam Bux is dismissed.
23. ' We have given our deep consideration to the quantum of sentence to be awarded to the appellant/accused Imam Bux. The F.I.R in this case was registered on 23-5-1981. The appellant/accused Imam Bux was arrested on the same day. His trial lasted about 15 years whereafter the trial Court announced judgment of conviction. The appeal filed in this Court has been pending since March, 1996 and since the date of conviction, the appellant Imam Bux has been in death cell for more than six years. The trial of case and decision of appeal has unfortunately taken more than 20 years. In view of the prolonged trial we are of the considered view that extreme penalty of death is not called for in this case. We, therefore, alter the sentence of death awarded to the appellant/accused Imam Bux and convert it to suffer the sentence of imprisonment for life. The sentences relating to imposition of fine and payment of compensation under section 544-A, Cr.P.C. Awarded to the appellant by the trial Court except that the imprisonment in default of compensation is reduced to simple imprisonment for six months.
24. ' With this modification in the sentence, the appeal of only appellant Imam Bux is dismissed.