1. ABDUL QADIR HALEPOTA, J.-All the appellants named herein were tried for offence under section 302 read with section 34 of the Pakistan Penal Code. The appellants Bagh and Peroz were also charged for an offence under section 13-D of Arms Ordinance. The appellants Bagh and Peroz have been sentenced to death and to pay a fine of Rs. 500 each and in default of payment thereof to suffer rigorous imprisonment for six months more under section 302 read with section 34, P. P. C. And one year's rigorous imprisonment under section 13-D of the Arms Ordinance, whereas the appellants Bangul and Rasool Bux have been awarded a sentence of life imprisonment and to pay a fine of Rs.
2. 500 each under section 302 read with section 34, P. P. C. Sentence to be undergone by the latter two appellants in case of default in payment of fine improved upon them is not mentioned in the impugned judgment. The appellants have filed this appeal against said sentence and the case has also come up to us for confirmation of death sentence under section 374, Cr. P. C.
3. After we had concluded the hearing of this appeal, we came to the conclusion that the conviction could not be sustained. We accordingly announced the judgment allowing the appeal and acquitting the appellants. The reasons for taking this course are following :----- The appellants Bagh, Bangul and . Peroz are brothers inter se. Their cousin sister is married to Naboo brother of the deceased. The appellant Rasool Bux is cousin of the other appellants. He is also son of the sister of the deceased.
4. On 29th September, 1974 the complainant/informant Kouro son of Karim Dino came to Police Post Madeji and lodged a report which was taken down in the daily diary register. The said report was later on sent to the Police Station Gaheja for being incorporated in section 154, Cr. P. C. Book maintained there. The report is in the following terms :---- "I am resident of Mitho Khakhrani. I have got two other brothers namely Nabi Bux and Arbab. Arbab lives with me. I have got buffaloes which I graze myself. Yesterday morning, I took my buffaloes to Madeji Forest for grazing. My brother used to bring noon meals for me in the forest every day. Other graziers of village namely Ghulam Muhammad son of Khan and Roshan son of Muhammad Murad both Khakhranies by caste, were also grazing their cattle along with me. Yesterday at noon-meal time, at about quarter to two, my brother brought my meals and after handing it over to me. He proceeded back home. When he proceeded a little further, the accused Peroz son of Mitho, armed with gun, Bangul son of Mitho armed with hatchet, Bagh son of Mitho armed with gun and Rasool Bux son of Manik who had a hatchet in his hand emerged from the southern side. Bagh gave a `Hakal' (challenge) to my brother Arbab and warned him that you cannot be spared as you have been attempting to murder us and that we are here to finish you today. Saying this, he fired a gunshot at my brother Arbab which hit hird and he fell down. Another shot was fired by Peroz which hit him on his face. Myself, Ghulam Muhammad, and Roshan gave Hakals to the accused who aimed their guns at us and warned us not to come near or else we would also be shot dead. We did not go near then out of fear. Accused then fired in the air and went running towards their village. 1, Ghulam Muhammad and Roshan went towards Arbab and saw that there was a gunshot injury on his chest and another gunshot injury was on his face and he was bleeding. We found that Arbab was dead. I left Ghulam Muhammad and Roshan with the dead body and went to Naudero Police Station yesterday to lodge the complaint. When I reached there I came to know that the scene of offence was situated within the limits of Police Post, Madeji of Police Station, Gaheja and I was directed to lodge my complaint there. Delay in lodging complaint is due to that reason.
5. Accused have murdered my brother as he was trying to take revenge for the murder of his nephew Gulsher from them. Yesterday, finding an opportunity, the accused, in order to save themselves, murdered my brother. I am complainant. Action be taken."
6. According to first information report, the incident occurred on 28-9-1974 at 2-00 p.m. The report was lodged at Police Post, Madeji on 29-9-1974 at 5-15 a.m. The distance between the scene of offence and the said police post is 8 miles.
7. Upon the receipt of this report the contents whereof have been reproduced verbatim hereinabove, Niaz Ali Station House Officer of Police Station Gaheja proceeded to the scene of offence, which was inspected in presence of mashirs Muhammad Murad and Allahad. 1t was pointed out by the informant Kouro. There was blood at the scene. The blood-stained earth was removed by the police. Two empty shells which were lying there were secured. The dead body of deceased Arbab son of Karim Dino was also lying at the scene. All the articles secured from the scene were sealed.
8. The police held an inquest over the dead body of the deceased in the presence of the same mashirs and sent it for post-mortem examination.
9. Dr. Abdul Qadir Mangi who performed the autopsy found the following external injuries on the person of the deceased.
10. "(1) Fire-arm wound l --in diameter with margins inverted on the right chest wall about 3" lateral and below right nipple as wound of entry. Charring present.
(2) Fire-arm wound 5" x 3" with margins inverted on the left side neck causing chopping off the left mandible along with left upper and lower jaw teeth as wound of entry. Charring present.
(3) Two firm-arm track like wounds each 2" X 1-- superficially about --x 1 --below the right mid clavicle as wounds of exit to Injury No. 2.
(4) Three fire-arm wounds each 3/4',-- and-- respectively track like superficially on the left shoulder joint as wounds of exit to Injury No. 1.
(5) Fire-arm wound 2' with margins inverted on anterior neck as exit to Injury No. 2."
11. On internal examination he found the seventh and eight ribs of the right side fractured, treachea was ruptured, right pulmonary vessels and left jugular vessels ruptured. The mouth of deceased was severely damaged. In the opinion of the doctor the deceased died as a result of shock and haemorrhage consequent upon the injuries mentioned above which were caused by discharge from a fire-arm. Each of the injuries (of entry wound) was individually sufficient to cause the death in the ordinary course of nature.
12. The appellants were arrested on 13-11-1974 from their own houses in presence of mashirs. The appellant Bagh led the police and the mashirs to Madeji Forest and pointed a place therein near the bunch of lai trees wherefrom he produced a single barrel gun after removing the earth under which it was buried. The appellants Bangui and Rasool Bux also voluntarily led the police and the mashirs to their respective houses separately and produced a hatchet each. None of these hatchets is blood-stained.
13. On 28th November, 1974 the appellants were sent up under section 302 read with sections 34, P. P.
14. C. And 13-D, Arms Ordinance in the Court of Civil Judge and F. C. M. Garhi Yaseen, wherefrom, on 30th August, 1975 they were committed to stand trial in the Court of Additional Sessions Judge Sukkur at Shikarpur under section 302, read with section 34, P. P. C. And section 13-D, Arms Ordinance.
15. In their statements recorded under section 342 of the Code of Criminal Procedure the appellants denied the allegations made against them. In both the Courts their plea was one of total denial.
16. They pleaded enmity with the prosecution witnesses. They stated that they had been falsely implicated in this case on account of previous enmity with the complainant party.
17. The evidence against the appellants consists of (i) motive, (ii) the occular testimony of prosecution witnesses Kouro, Roshan Ali and Ghulam Muhammad, (iii) the recovery of gun at the instance of Bagh and (M recovery of a hatchet each at the instance of Bangui and Rasool Bux.
18. All the three eye-witnesses namely Kouro, Roshan Ali and Ghulam Muhammad implicated the appellants. They deposed that on the day of the incident, they were grazing cattle in Madeji forest, where the deceased Arbab, who brought lunch for his brother P. W. Kouro was assaulted by the appellants. Bagh fired with a gun at the deceased who fell down. Then Peroz fired another shot with a gun on his face. They stated that Bangui and Rasool Bux who were armed with hatchets, were also present on the scene of offence. They further stated that Mst. Jhuli wife of the deceased was declared as a `Karl' (a term used in the Province of Sind to denote illicit intimacy of a female with a male) with Abdullah the cousin of the appellants. According to a local settlement, Abdullah was to compensate the deceased by giving hand of his daughter Mst. Nasiban to him. With a view to save the hand of Mst. Nasiban all the appellants killed the deceased.
19. We have heard Mr. M. H. Shah the learned counsel for the appellants and Mr. Manzoor Hussain for A.-G. For the State.
20. The learned counsel for the appellants contended that the testimony of the eye-witnesses was highly interested and that it required independent corroboration before conviction could be based upon such a testimony. He contended that such a corroboration was lacking in this case.
21. We have given our anxious consideration to this aspect of the case and we find that the complainant/informant Kouro is the brother of the deceased, P. W. Roshan Ali is the nephew of the deceased and P. W. Ghulam Muhammad is the son of the maternal uncle of the deceased.
22. Although relationship per se is not sufficient to discard the testimony of witnesses but this is a case where the relations between the prosecution witnesses and the appellants are strained on account of murder of Gulsher a nephew of the deceased and proceedings under section 110 of the Code of Criminal Procedure wherein the deceased and his two brothers were sent up. The appellant Bagh and his father Mitho were sent up for trial for the murder of Gulsher whereas Abdullah a cousin of Bagh was a witness in the said 110 proceedings wherein the deceased and his brothers Kouro the informant in the present case and Naboo were ordered to execute a bond for maintaining good behaviour for a period of 12 months under section 118 of the Code of Criminal Procedure. This being the position the eye-witnesses are no doubt interested witnesses. It is by now well settled that an interested witness is one who has motive to falsely implicate an accuse person. The rule of prudence requires that the evidence of interest witnesses should be corroborated before conviction could be based upon their testimony. Therefore for the safe dispensation of justice we shall have t look for corroboration in this case. As against appellants Peroz, Bangu and Rasool Bux, apart from the interested occular testimony of the witnesses named hereinabove, there is no other independent occular or circumstantial evidence connecting them with the commission of this crime. Nothing incriminating was found from the possession of Peroz. The hatchets allegedly produced by Bangui and Rasool Bux are not blood-stained obviously because there is no allegation that any of these two appellants did any overt act and/or caused any hatchet blows to the deceased. The learned trial Judge was of the view that "this circumstance, therefore by itself may not be enough corroboration of the prosecution version but to some extent it connects these two accused with the commission of the crime". We are unable to accept this view. We therefore hold that recovery of hatchets is of no consequence in this case. As regards appellant Bagh it is found that the empty shells of .12 bore secured from the scene of offence were fired from the gun allegedly produced by him. The report of the Ballistic Expert is that these two empties were fired from the said gun. The learned trial Judge has relied upon among other, on this piece of evidence against the appellant Bagh. We are afraid we cannot look into this report which has not been duly proved through the Ballistic Expert who was not at all examined by the trial Court. It seems that the learned trial Judge laboured under an impression that the evidence of the Ballistic Expert was not necessary to be recorded in this case. Under section 510 of the Code of Criminal Procedure as it stood before the Law Reforms Ordinance, only a document supporting to be a report under the hand of any Chemical Examiner or Assistant Chemical Examiner to the Government upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceedings under this Code, could be used as evidence in any enquiry, trial or other proceeding under this Code. The learned counsel for the State pointed out to us that since the trial against the appellants was conducted under the old procedure which was in vogue before the Law Reforms Ordinance came into force, the report of the Ballistic Expert could not be brought on record without examining him. We find that there is force in this submission. The learned trial Judge was not competent in law to bring on record the report of the Ballistic Expert without in the first instance examining him. The learned counsel for the appellants then submitted that the gun and empties were sent to the Ballistic Expert after the delay of ten months. He therefore contended that no reliance could be placed upon the report of the Expert in this case.
23. The other important consideration that weighed with us for rejecting the evidence of recovery of gun at the instance of the appellant Bagh is the failure on the part of the prosecution to examine either of the two mashirs namely Hazoor Bux and Nazir Ahmed in whose presence he produced the said gun. No reason whatsoever was assigned by the learned Assistant police Prosecutor for giving up these important witnesses. We find from a statement Exhibit No. 34 of the record of the trial Court that he gave up all the remaining witnesses including these two important recovery witnesses without any reason. We find that even the learned trial Judge did not state any reasons for non-examination of either of these two witnesses. He however relied upon the testimony of Head Constable Nabi Bux and Investigating Officer Niaz Ali in this regard and held that it was enough to warrant finding that the gun was recovered at the instance of Bagh. It is prima facie duty of the prosecution to call all the witnesses who might be able to give important information. If such witnesses are not called without sufficient reason being shown the Court may properly draw an inference adverse to the prosecution. The appellant Bagh was arrested on 13th November, 1974.
24. The gun was recovered at his instance on the same day but it was sent to the Ballistic Expert after ten months. It is not known why the Superintendent of Police took such a long time to forward the gun and empties for the requisite report. Under the circumstances, we are unable to put implicit reliance on the testimony of these two Police Officers. The evidence relating to the recovery of gun appears to us to be doubtful.
25. So far as evidence of motive is concerned, we would like to quote herein a short passage from the judgment written on behalf of Division Bench, by Mr. Justice Tufail Ali A. Rahman the late Chief Justice of this Court, which is reported in PLD 1974 Kar. 393 ". ....So far as evidence of motive is concerned, it is to be remembered of course that it is not evident against the appellant in the sense that its existence, in the absence of reliable evidence of the commission of the crime by the appellant, would not suffice to convict him nor would the absence of a discoverable motive suffice to exonerate him if the other evidence was both sufficient and acceptable. Nevertheless, with the exception of murders committed by lunatics or wanton murders due to some aberration of the mind, one does not normally expect that a murder would be committed without any motive, though of course it may frequently happen that the motive is not discoverable .........
26. In this case, the motive disclosed in the first information report, is different from the one, disclosed by the witnesses in their evidence in the trial Court. Informant Kouro, in his first information report, and prosecution witnesses Roshan Ali and Ghulam Muhammad in their Statements recorded under section 161 of the Code of Criminal Procedure, did not state that Me. Jhuli wife of deceased was declared to be `Kari' with Abdullah, who agreed to give hand of his daughter to the deceased and that the appellants killed him in order to save the hand of Mst. Nasiban. The motive set up in the first information report, which is earliest in the point of time, was that the deceased wanted to take vengeance on the appellants on account of the murder of his nephew Gulsher and that he was killed by the appellants before he could kill them. In view of this, the motive set up subsequently appears to be afterthought. In any case, Abdullah who wanted to get rid of the deceased, and thereby, save his daughter from being given to him (deceased) is not one of the accused in this case. It was held in 1971 SCMR 432 by their Lordships of the Supreme Court, that "it is not necessary for the prosecution to set up a motive in every case but where the prosecution has set up a motive and failed to establish it then it is the pro--secution which must necessarily suffer on that account and not the defence".
27. Lastly we find that there has been a substantial non-compliance with the provisions of section 342, Cr. P. C. In this case. It appears that all the four statements were first typed with one stroke and later on some blanks left therein were filled, at the time of the examination of appellants under sec--tion 342, Cr. P. C. This stereotype method of recording statements, resulted in some grave omissions.
28. The allegation against Bagh and Peroz is that they fired one shot each at the deceased from the guns which they carried at the time of incident. This important circumstance, was not at all put to either of them. The only circumstance put to them was that they were armed with guns, at the time of above murder and that they, along with other co-accused in furtherance of common intention of them all committed the murder of the deceased by intentionally causing his death with gunshot injuries. For the purpose of enabling the accused to explain any circumstances appearing in the evidence against them, the Court concerned, must, for the purpose aforesaid put all important circumstances to them, which was not done in this case. Circumstances from which inferences adverse to the accused are sought to be drawn must be put to the accused when they are questioned under section 342, Cr. P. C.
29. This is a case of interested occular testimony. There is no satisfactory corroborative evidence against any of the appellants. The prosecution ha 4D failed to establish its case beyond reasonable doubt against them. The appellants were therefore entitled to benefit of doubt.
30. For these reasons we thought that in any view of the matter the convic--tion of the appellants could not be sustained. This appeal was therefore allowed and the reference under section 374, Cr.
31. P. C. Was rejected.
32. Before we part with this judgment we would like to point out that the appellants Bagh and Peroz were sentenced to death and to pay a fine of Rs. 500 each and in default of payment thereof to suffer rigorous imprison--ment for six months more under section 302 read with section 34, P. P. C.
33. And one year's rigorous imprisonment under section 13-D of the Arms Ordinance. The appellants Bangul and Rasool Bux were sentenced to imprisonment for life and to pay a fine of Rs. 500 each under section 302 read with sec--tion 34, P.P.C. It may be noticed that the learned trial Judge did not state in the impugned judgment that in case the sentence of death awarded to the former two appellants was not confirmed and/or it was altered to one for imprisonment for life or even - to a shorter term of imprisonment by the superior Court, the imprisonment to be suffered under section 13-D of the Arms Ordinance was to run consecutively or concurrently with the sentence so altered.
34. Likewise, imprisonment for a term of six months in default of fine was to be suffered by these two appellants in addition to the other term of imprisonment awarded to them in case the sentence of death was altered to one for imprisonment.
35. When a person is convicted at one trial of two or more offences the Court may, subject to the provisions of section 71 of the Pakistan Penal Code sentence him, for such offences to the several punishments prescribed therefor which such Court is competent to inflict; such punishments, when consisting of imprisonment to commence the one after the expiration of the other in such order as the Court may direct, unless the Court directs that such punish--ments shall run concurrently.
36. As stated in the opening para. Of this judgment the learned trial Judge also did not fix the term of imprisonment to be suffered by Bangul and Rasooi Bux in case they did not pay the fine imposed upon them. In every case of an offence punishable with imprisonment as well as fine, in which an offender is sentenced to tine, whether with or without imprisonment it shall be compe--tent to the Court which sentences such offender to direct by the sentence that in default of the payment of fine the offender shall suffer imprisonment for a certain term, which imprisonment shall be in excess of any other imprison--ment to which he may have been sentenced or to which he maybe liable under a commutation of a sentence. The provisions of section 64 of the Pakistan Penal Code do not make it imperative on a Court to award imprisonment in default of payment of fine. But imprisonment in default of fine should as a rule be awarded in cases where the Court is competent to award it, in order to induce the accused to pay it up. This section therefore generally confers up on the Court the powers of imprisonment in default of payment of fin which often acts as a screw to make the offender choose the lesser of the two evils. In the absence of alternative sentence, the sentence of fine would in effect be incapable of execution and the only procedure left open for the --recovery of the fine would be that laid down in section 386, Cr. P. C.
37. We are however of the view that the trial Courts should exercise a careful discretion in the matter of superimposing fines upon long substantive terms of imprisonment. It would not be proper to add to a very long term of substantive imprisonment a fine which there is no reasonable prospect of the accused person being able to pay and for default in payment of which they will have to undergo a still further term of imprisonment. In exceptional cases it may however be suitable and appropriate to inflict a fine as well as a substantive term of imprisonment. In cases where the Court thinks that the justice of the case will be met by inflicting a substantial fine and short term of imprisonment in addition thereto or in cases where it is desired to compen--sate the complainant or the heirs of deceased or in cases where the accused had profited financially by his wrongful act, it may be appropriate to inflict fine in addition to a substantive term of imprisonment----(AIR 1957 All. 764).
38. In our opinion it is unnecessary to impose fines on persons who have been sentenced to death-(AIR 1968 Andh. Pra. 380).
39. Then it would not be possible for the Jail Authorities to fix the date of release of the convict prisoners in cases where the trial Court fails to specify in the conviction warrant and conviction slip forwarded to them, for keeping the prisoners in safe custody, whether such punishments shall run concurrently or consecutively.