' This appeal is directed against the judgment passed by the learned 1st Additional Sessions Mudge, Larkana in Sessions Case No.400 of 1991 whereby the appellants/accused were convicted under section 302(b), P.P.C. And sentenced to undergo life imprisonment.
2. The brief facts of the case per F.I.R. No.47 of ,1991 of P.S. Dokri are that on 19-6-1991 between 9 and 10 a.m., the complainant Ali Navvaz had gone with his younger brother Elahi Bux to Badeh Town in connection with their work. After finishing the same they were leaving for their village in their donkey-cart when they came across their relations and co-villagers Karim Bux and Abdul Wahid who also joined them. Elahi Bux was driving the donkey cart and on the way he stopped at the intersection of Badeh-Radhan Road in order to obtain water from a hand pump when suddenly accused Man Muhammad, Allah Bux and Muhammad Bux all armed with hatchets emerged from the northern side. Man Muhammad challenged Elahi Bux that he would not be spared whereafter all the three accused fell upon the latter and inflicted hatchet blows on him. The complainant and the other challenged the accused upon which they ran away. The complainant party then saw that Elahi Bux and succumbed to his injuries which were evident on his neck, head and other parts of his body. Then the complainant leaving the witnesses over the dead body went to inform Ghous Bux the Nek-mard of his village who advised him to file the report which was done by the former. The motive behind the murder, as disclosed by the complainant, was that accused had suspected the deceased as having had a hand in the murder of Nabi Bux their relative.
3. The police arrested all the three accused on 30-6-1991. On 2-7-1991 and 3-7-1991 the crime weapons viz. Three hatchets were secured on the pointation of all three accused. The Investigating Officer, finally challa.Ned all the accused before the Court of F.C.M., Larkana, who sent them for trial before the learned Sessions Mudge as it was a murder case. The charge was framed against all the accused who pleaded not guilty and claimed their trial.
4. The prosecution in support of its case examined 8 witnesses P.W.1 complainant Ali Nawaz at Exh.7 who produced copy of the F.I.R. At Exh.8. P.W.2 eye-witness Karim Bux at Exh.10 who produced his 164, Cr.P.C. Statement at Exh.11, P.W.3 eye-witness Abdul Wahid at Exh.12 who produced his 164, Cr.P.C. Statement at Exh.13, P.W.4 Medical Officer Dr.Amjad Ali Shah at Exh.14, who produced the post-mortem report at Exh.15, P.W.5 Mashir Muhammad Hassan at Exh.16 who produced Mashirnama of Wardat at Exh.17, Danistnama at Exh.18, Mashirnama of arrest of all three accused at Exh.19, Mushirnarrtas of securing crime weapons viz. Hatchets from accused Man Muhammad, Allah Bux and Muhammad Bux at Exhs.20 to 22. The prosecution also examined P.W.6 Investigating Officer, A.S.-I. (now S.-I.P.) Ubedullah. Magirani at Exh.23, P.W.7 corpse bearer P.C. Abdul Ghani at Exh.25 who produced receipt regarding delivery of the dead body at Exh.25-A and P.W.8 Tepedar Ali Nawaz at Exh.26 who produced sketch of Wardat at Exh.26-A. Thereafter the prosecution closed its side vide statement filed by the learned D.D.A. At Exh.27 on 25-4-2001.
5. All the three accused, when examined under section 342, Cr.P.C. On 27-4-2001, denied the case of the prosecution and pleaded innocence. According to them they had been falsely implicated by the complainant party due to enmity. However, they neither examined themselves on oath as provided under section 340(2), Cr.P.C. Nor did they produce any witness in their defence. Accused Man Muhammad remained absent from the Court on 7-9-2001 and thereafter never appeared before it due to which he was declared an absconder on 17-10-2001.
6. In support of the appeal Mr. Habibullah Ghaury has submitted that the pieces of evidence available against the appellants are:--
(a) ocular account;
(b) medical record;
(c) recoveries;
(d) motive.
7. As regards the ocular account learned counsel has firstly submitted that although the eye- witnesses have fully supported each other the fact remains that they were related and hence false implication cannot be ruled due to the admitted enmity between the parties as per the F.I.R. Itself.
Hence independent corroboration of the eye-Witnesses account was necessary which is missing in the case. Secondly, no independent witness was examined although admittedly the place of incident was located in a thickly-populated area. In support of this submission learned counsel has relied upon:-- ' Muhammad Irshad v. The State 1999 SCM R 1030; Asadullah v. The State 1999 SCM R 1034 and Asgher v. The State 1999 PCr.LM 20. Secondly, learned counsel has submitted in this regard that the eye-witnesses have improved their ersion of the incident in their eposition as opposed to that given n their police statements, which gain caused a doubt on their estimony. In this connection, he as relied upon Inayatullah v. The tate 2002 PCr.LM 34 and Saeed uhammad Shah v. The State 1993 CMR 550.
8. Secondly, as to the medical on the record, per learned counsel contradiction between this and the count since the F.I.R. Was lodged hours on 19-6-1991 whereas the took place at 1700 hours. The n of the dead body as well as the incident was done at 2140 hours. However, as opposed to this the MLO says that he received the dead body at 1900 hours, started the post-mortem examination at 2000 hours and finished the same at 2100 hours. Again per the memo. The dead body was discovered on the roadside whereas according to the F.I.R. The deceased had gone to the water pump for fetching water after alighting from the donkey cart. Hence per learned counsel the benefit of these contradictions in the prosecution case must go to the accused. So also the late filing of the F.I.R. Can only mean that it has been done after deliberation etc.
9. Next as to the recoveries of hatchets, learned counsel has submitted that this has been shown to be on 2-7-1991 from an open area which is quite doubtful since both the witnesses of recovery are related to the complainant and are common in the entire investigation. In this connection one of the witnesses P.W. Muhammad Hussain has admitted in his cross-examination that the police obtained his left thumb-impression on blank papers. Finally as regards the recovery learned counsel has submitted that the hatchets were not sent for any test in order to establish whether they were stained with human blood.
10. Finally as regards the motive, per learned counsel, this was disbelieved by the learned trial Court and hence the case is one of acquittal. In any event the enmity is stated to be against Mummo who is the alleged murdered of Nabi Bux the brother of the appellant whereas the deceased was done to death who allegedly only had a hand in such murder. Learned counsel therefore submits that the benefit of this unexplained contradiction in the prosecution case against must go the appellant/accused.
11. On the other hand Mr. Muhammad Ismail Bhutto appearing for the State has submitted that as regards the delay in the F.I.R. This has been explained by the complainant viz. That firstly he went to his Neikmard who thereafter advised him to file the F.I.R. Secondly per learned counsel according to the post-mortem report the duration between the death and beginning of the post-mortem was three hours which means that the incident took place at around 5-00 p.m. And the same is corroborated by the F.I.R. Hence there is no contradiction between the ocular account and the medical evidence.
12. Next learned counsel has submitted that the complainant and the eye-witnesses have fully supported the prosecution case and just because they were related to the deceased does not mean that their evidence can be discarded. In support of this submission he has relied upon: Sharafat Ali v. The State 1999 SCM R 329, Muhammad Ikram v. The State 1999 SCM R 406, Mir Hassan v. The State 1999 SCM R 1418, Faiz Muhammad v. The State NLR 1990 SC 267 and Saeed Akhtar v. The State 2000 SCM R 383 = 2000 PSC (Cr1.) 153.
13. As far as the recovery is connected learned State counsel has submitted that according to Mashirnama the crime weapons were blood-stained which is sufficient in the circumstances of the case to presume that this was the blood of the deceased as the accused had led to the recovery.
14. Finally as to the motive per learned State Counsel this cannot be the deciding factor in this case for which he has cited Shafoo v. The State 1968 SCM R 719 as well as Saeed Akhtar v. The State (supra).
15. I have heard both learned counsel and my conclusions are as follows:--
16. It would be seen that the case of the prosecution basically rests on the eyewitness account. In this regard all the three prosecution witnesses viz. Complainant P.W. Ali Nawaz, P.W. Karim Bux and P.W. Abdul Wahid are unanimous in their deposition that appellant/accused Allah Bux and Muhammad Bux along with absconding accused Man Muhammad had murdered deceased Elahi Bux ruthlessly with hatchets A due to enmity. The ocular account is corroborated by the medical evidence which would establish that the deceased had received as many. As eight incised injuries from a sharp cutting weapon like a hatchet. Further corroboration of the ocular-account is available from the recovery of the hatchets which are three in number at the behest of the accused. Learned counsel for the appellant has laid great stress on the fact that since admittedly all the P.Ws. were interested witnesses (as there was enmity between the parties) hence their testimony should receive corroboration from an unimpeachable source which is lacking in the same. As regards the testimony of an interested on viz. Is out to falsely implicate the accused for one reason or other because mere relationship with the deceased would not ipso facto rule out the testimony of an interested witness. For this proposition reliance can be made on Sharafat Ali v. The State 1999 SCM R 329 and Saeed Akhtar v. The State 2000 SCM R 383 = 2000 PSC (Cr1.) 153). Secondly once it is established that a witness is an interested one his testimony should be received with caution and should be corroborated from an unimpeachable source or otherwise supported by strong circumstantial evidence which might remove the inherent doubt attached to the evidence of interested and partisan witnesses (see Muhammad Irshad v. The State (supra)). Finally such corroboration need not always be from an independent witness supporting the interested witness version but can be sought from any circumstance of the case which would satisfy the mind of the Court that the witness had spoken the truth (see Mir Hassan v. The State) (supra).
17. Applying the foregoing principles as laid down by the Honourable Supreme Court relating to the appreciation of an interested witness testimony it would firstly be seen that the complainant as well as the other prosecution witnesses have admitted under cross-examination that indeed all of them were closely related inter se. As far as false implication is concerned per learned counsel there is sufficient evidence on the record to assume as much since in the F.I.R. Itself the complainant has stated the motive of the murder as being the accused's suspicion that the deceased was involved in the earlier murder of Nabi Bux who was the brother of the accused Qadir Bux. Further under cross-examination the complainant has admitted that the alleged killer of Nabi Bux viz. Jummo is the real brother of Rasool Bux who is the father-in-law of the complainant. In this regard it would be seen that enmity if any would be borne by the accused party against the deceased since the former are aggrieved due to. The latter's involvement in the murder of their near relation and not vice versa so as to give cause to the complainant party to falsely implicate the accused party. Hence, in my view, it cannot be concluded in the circumstances of the case that the witnesses who were all the near relations of the deceased were interested ones. In any event sufficient corroboration is available for the eye-witness account in the shape of the medical report which establishes beyond doubt that deceased died due to the hatchet blows which were as many as eight in number and the seat of the injuries as per the medical report conform to that described to the F.I.R. So also further corroboration is available through the recoveries of the hatchets in question at the pointation of the accused.
18. As regards the alleged contradiction between the ocular account and the medical record it would be seen that per the post-mortem report the time of the deceased's death has been opined to the 1700 hours and this can be verified from the fact that the duration between death and post- mortem is three hours as the examination was started at 2000 hours. However, the post-mortem report does not certify as to what time the dead body was received at the hospital. As opposed to this according to the Mushirnama of the scene of offence Exh.17, this was prepared at 2140 hours and this seems to be the correct time since the F.I.R. Itself was lodged at 2110 hours. Hence the question arises as to how the post-mortem could be performed at 2000 hours when the police arrived at the scene of the offence at 2140. However, in my opinion, this is a minor contradiction in the prosecution case and can be ignored in view of the overwhelming evidence available on the record against the appellant which has been discussed above.
19. Finally, as regards the motive, in my opinion, this is also present in the case since according to the P. Ws. Themselves the appellant had suspected the deceased involvement in the murder of Nabi Bux who was the brother of appellant/accused Qadir Bux. In any event, it would be seen that per well-settled law motive alone can never be the decisive factor in coming to a conclusion whether or not the accused is guilty of a crime. Where the preponderance of evidence after having been assessed by a Court of law either points towards the guilt or innocence of an accused, absence of motive would not of itself be sufficient to come to a contrary conclusion. Reference in this regard can be made to Shafoo v, The State and Saeed Akhtar v. The State (supra).
20. For all the foregoing reasons in my opinion the prosecution has been able to prove beyond any shadow of doubt that the appellant did murder the deceased on the day of the incident. Hence, I