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Criminal Appeal No. 325 of 1978, heard on. 18th March 1980.

(a) Criminal Procedure Code (V of 1898)‑---

----S. 162‑Witness‑Evidence‑F. I. R., evidentiary value of‑‑Counter F. I. R. lodged by accused not inculpatory in nature and accused trying to give a version not holding him liable for intentionally killing deceased‑Such statement of accused in counter F. I. R., held, could be used against him.‑[Witness‑Evidence].

Pakala Narayana Swami v. Emperor A I R 1939 P C 47 ref.

(b) Evidence Act (I of 1872)‑---

----S. 137‑Witness‑Evidence, admissibility of‑Complainant proceeding from place of incident to his Nekmard and informing him about details of incident within 1/2 hour of occurrence‑Such statement, held, made "at or about time of incident", within meaning of expression appearing in S. 137, Evidence Act and hence statement of such corroborating witness could not be excluded on mere ground of delay of 1/2 hour in communicating him facts of incident.‑[Witness Delay].

Habibullah v. State P L D 1969 S C 127 eel.

(c) Evidence Act (I of 1872)---‑

----S. 137‑Witness‑Evidence, corroboratory‑Admissibility‑Conten tion that complainant not having given details of what he had told to his Nekmard immediately after incident, therefore, such Nekmard could not corroborate details of incident‑Contention, held, highly technical and not substantial‑Such witness himself having visited spot and his statement giving details of incident, held further, could be used to substantiate story given by complainant.‑[Witness].

(d) Penal Code (XLV of 1860)‑---

----S. 304‑‑Murder‑Evidence, indivisibility of‑Only part assigned to acquitted co‑accused by prosecution witness being that of mere grappling with deceased and not of causing any injury upon deceased -Acquittal of co‑accused in such circumstance, held, does not really affect veracity of such prosecution witnesses.‑[Witness].

Jalal v. State P L D 1973 Kar. 643; Rashid Ahmad v. State P L D 1976

Kar. 438 and Twalb Khan v. State P L D 1970 S C 13 ref.

(e) Criminal Procedure Code (V of 1898)‑---

--‑‑ S. 382‑B‑Sentence‑Mitigation‑Accused remaining in confine ment for more than 2 years before conviction‑Period of 2 years, held, to be treated as period of sentence having been undergone and deductible from accused's period of sentence.‑[Sentence].

Muhammad Hayat Junejo for Appellant.

R. A. Qureshi for the State.

Dates of hearing : 17th and 18th March 1980.

JUDGMENT

This is an appeal from the judgment of Sessions Judge, Badin dated 9‑12‑1978 by which the appellant Ahmed was convicted under section 304, Part 11, and sentenced to 10 years' R.1. plus a compensation of Rs. 5,000 to be paid to the father of the deceased Muhammad. The appellant and the co‑accused Walidino had been tried under section 302, P. P. C. but Wall dino was completely acquitted and appellant Ahmad was convicted only under section 304, Part II. There is no appeal against the acquittal of the two accused under section 302/34, P. P. C.

The relevant facts are mentioned in F. I. R. Exh. 6 which was filed on 22.4‑1976 at 6 p.m. by Maji Bachayyo P. W. 1 at Police Post, Khorwah, Taluka Golarchi, District Badin and was recorded by P. W. 7 H. C. lumms Khan. The same reads to the following effect :‑‑

"Complaint of the complainant is that I have got my survey land, on which, I am residing after building a thatched house. At a distance of about 1/2 furlong to the South of my land, are houses of accused Ahmad and Walidino and others. They are our caste‑fellows. About 10 months back, I have taken out a watercourse from my land. Upon this accused Ahmad and Walidino had become displeased and due to grudge, they had built their houses there and had closed my watercourse. Thereafter enmity took place among us. Accused Ahmed and Walidino used to quarrel with us on small matters. Today at about 3‑00 p.m. I was standing at the well, and was serving water to the cattle. Meanwhile my son deceased Muhammad was being abused loudly by Ahmed and Walidino, and they were asking him to keep his bulocks tied as they were eating their branches of babul trees and grass. Walidino was cutting branches of babul trees and falling the same down and Ahmad was collecting 'Palras' on the ground. My son deceased Muhammad was cutting grass and 'Palras' from babul trees in our land. lani son of Mureed and Achar son of Jani were collecting 'Palras' and grass on the ground. My son deceased Muhammad got down from the baba tree and replied to the abuses of Walidino. Upon this Walidino also got down from the babul tree and rushed towards deceased Muhammad. I also witnessed these facts from a distance. I also went running there. Meanwhile, accused Walidino grappled deceased Muhammad, Jani and Achar also came running. They tried to separate them, meanwhile accused Ahmed, who was armed with a hatchet, gave a sharp‑sided hatchet blow to deceased Muhammad on his head above the right ear within our sight. As a result of which he fell down. The head was fractured and started bleeding. We raised cries. On cries accused Ahmed and Walidino took the hatchet and ran away directly to their houses. Then after a short while, we found that Muhammad died. Thereafter, I went direct to Rasees Jumma Khan Chandio Zamindar and narrated the above facts to him. He accompanied by me, came and saw the dead body. He advised me to lodge report with the police. I after leaving witnesses Jani and Achar at the dead body of deceased Muhammad, have come here to lodge report. I lodge report that accused Ahmed and Walidino have murdered my son deceased Muhammad by sharp‑sided hatchet blows, over the enmity of my watercourse. Justice be done to me."

Prosecution had examined 3 eye‑witnesses, namely Bachayyo P. W. 1 who is the complainant and is the father of Muhammad. He had reiterated the contents of the F.1. R. in his deposition before Court. The prosecu tion case was also supported by another eye‑witness P. W. 2 Achar who is the son of P. W. 3 Jani and is nephew of the complainant. He had supported the deposition of complainant Bachayyo fully. P. W. 2 Jani who is the brother of the complainant had also fully supported the story of P. W. 1 Bachayyo and he had given the eye‑witness account of the incident.

The case of the prosecution was sought to be strengthened by the corroborating witness Jumo Khan P. W. 1 who is apparently an independent witness and who had been informed of the details of the incident by the complainant after 1/2 an hour of the incident. This witness had denied being a history sheeter, but the same has been tried to be proved by the defence through a. Police constable who produced the history‑sheet but the residence of the history‑sheeter is not the same as of P. W. Jumo Khan. Therefore it is doubtful whether f'. W. Jumo Khan was the history sheeter.

Another circumstance relied upon by the prosecution was the motive enmity over water course which had been mentioned in F. I. R. but the learned trial Judge has not relied upon the said motive for the purpose of this case as he was of the view that the crime, in this case was a sudden one and was not connected with the motive‑as given in the F. I., R. The two accused in the case were arrested on 23‑4‑197,6 at 7 a.m. vide memo. Exh. 13 which was witnessed by mashir P. W. 5 Arab who is the son- in‑law of the complainant. A. S.‑I. Elahi Bux P. W. 9 who had investigated the case had effected the said arrest.

Injuries upon the parson of accused Ahmad who had scratch on left scapular region by hard blunt substance and upon accused Walidino who had a contusion over his back caused by soft blunt substance had been proved by the Medical Officer Dr. Jamilur Rehman who had examined the accused after their arrest and these injuries were relied upon by the prosecution in support of its case.

Another circumstance .relied upon by the prosecution was the production of blood‑stained hatchet, shirt and loin‑cloth produced by appellant claimed from his house after his arrest ort 23‑4‑1976 which was witnessed vide memo Exh. 14 and recovered by the same I. O. P. W. 9 Elahi Bux. All these articles have been stained with human blood. But the trial Judge has not relied upon these recoveries on the ground that both the mashirs of the memo of recovery were related to the deceased.

The last circumstances relied upon was counter F. I. R. lodged by appellant Ahmed on 23‑4‑1976 after his arrest by the Police at the Police Post, Khorwah at 9.30 a.m. The appellant Ahmed in his statement under section 342, Cr. P. C. had denied the allegation of prosecution and had stated that he had been falsely involved on account of the matrimonial dispute of Mst. Bhagi. Appellant Ahmed had denied the filing of the F. I. R. by him. He had stated that P. Ws. were interested and related inter se and that the appellant had matrimonial dispute with them and he had produced affidavit of one Mst. Baghi, who was alleged daughter of Bachayyo and who had left her husband and had married Allah Dino, who was cousin of appellant Ahmed. He had, further, stated that he had been tortured by Police for giving confession and Police had caused injury to him and obtained his signature on some papers. He ‑had further alleged that P. W. Junnmo was a history‑sheeter. The appellant did not examine Mst. Baghi, the alleged daughter of Bachayyo. The appellant examined only Police Constable Ahmed Khan of Tondo Muhammad Khan, Police Station, who produced history‑sheet record of Jummon son of Ramzan Chandio. But, the residence of the history‑sheeter was shown as village Chandio, while the village of P. W. Jummo Khan is Sobo Khan Chandio, therefore, it is difficult to state that P. W. Jummo Khan is the same person, who was the history‑sheeter. The defence witness, Ahmed Khan had clearly stated that history‑sheeter Jummo Khan was not known to him.

Mr. Muhammad Hayat Junejo, learned counsel for the appellant, has made several contentions.

He submitted that since, the motive has been disbelieved by the learned Sessions Judge, therefore, he should have scrutinised evidence of the interested witnesses‑with more care.

I find that the Sessions Judge carefully scrutinised the evidence. He hoc termed the P. Ws. as interested, but he was of the view that they were natural witnesses, and particularly and P. W. Achar had been mentioned by the appellant Ahmed himself in his own F. I. .R. The Sessions Judge has also considered that the complainant Bachayyo himself witnessed the actual causing of the hurt upon his son deceased Muhammad. We were favourably impressed with the deposition of Achar and Jani and he has heavily relied upon the same.

I also find that the depositions of Achar and Jani are quite straight forward and they have fixed the responsibility for the fatal blow upon the appellant Ahmed only. The same was the deposition of complainant, Bachayyo and the same version had been promptly reported on the date of incident viz. 22‑4‑1976 at 6‑00 p.m. by complainant, Bachayyo at P. P. Khorwah vide an F. I. R. Exh. 6, which has also been proved by Head Constable, Jummo Khan, who was the Head Constable Incharge on that day. This Head Constable Jummo Khan had then proceeded to the vardat and had prepared the memo of vardat Exh. 11 on the same day at 9‑00 p.m. and since, no enmity had been alleged against this Head Constable, Jummo Khan, it is, therefore, proved that the F. I. R. had been promptly lodged by no less a person than the father of the deceased himself and the Police had started investigation at once.

Mr. Muhammad Hayat Junejo had challenged that the F. I. R. had not been transcribed in the F. I. R. register of the relevant Police Station, Golarchi, but the submission is not correct as the A. S. I. Illahi Bukhsh Incharge of Golarchi, Police Station has been examined, who stated that he had registered the copy of the daily diary report from P. O. P., Khorwah in the 154, Cr. P. C. book. However, the copy of that Cr. P. C. book has not been produced, but the same is not of much significance as the appellant himself substantially admitted the incident in his own F. I. R. which he had filed with Police Station, Golarchi on 23‑4‑1976 at 9‑30 a.m. Exh. 23, proved by I. O. Illahi Bukhsh, where the appellant had stated as under :‑

"Complaint of the complainant Ahmed is that Walidino son of Soomar, caste Mallah resident of Deh Kharion, Taluka Golarchi do hereby state that on‑23‑4‑1976 at 3‑00 a.m., my 'Hari' Walidino was scattering the birds on Babul tree and was cutting the grass, when bullocks of Muhammad and others trespassed into the grass. Walidino called Muhammad and others and told them to control their bullocks. Muhammad was cutting the grass. We came down, diverted the bullocks. While, diverting the bullocks, he abused me and Walidino. Walidino also got down from the berry‑tree and they grappled with each other. In the meanwhile Achar, the father Jani came running. They were armed with hatchets and 'Dandas'. They gave me and my 'Hari Danda blows, on our backs. I was armed with hatchets. I raised the hatchet and the hatchet blow hit Muhammad, Muhammad fell down as a result of receiving blow. Achar, Jani and others fell down on Muhammad. I and Walidino finding Muhammad bleeding profusely came to our house. Achar, Jani and Muhammad have given me and Walidino dandas with handles of the hatchets. I lodge complaint. I have pain in my back. I may be sent to the Hospital for the treatment."

The F. I. R. of appellant was filed a good deal after the incident and appears to have been the result of same deliberations and it is exculpatory in nature but it also provides a good deal of corroboration in respect of the, manner in which the incident started and admits the presence of Achar and Jani at the spot. The appellant has also stated that he raised the hatchet, which was in his hand and the hatchet hit Muhammad anti Muhammad fell down. Apart from this the prosecution case is also corroborated from the circumstance that the complainant had gone to Jummo Khan P. W. 4 and had narrated the incident to him within 1/ 3 hours of the incident. This Jummo Khan is an independent person and his evidence provides a strong corroboration to the statement of complainant and others. This Jummo Khan had himself proceeded to the vardat with the complainant and he bad seen Muhammad lying dead and Jani and Achar P. Ws. present there. There is nothing in cross‑examination of this witness which could condemn him.

Mr. Muhammad Hayat Junejo has laid great emphasis on the fact that the F. I. R. filed by appellant Ahmed could not be used against him as he had been arrested at 7‑00 a.m. on 22‑4‑1976, and therefore, the contents of the F. I. R. filed by him Exh. 23 amounts to confession made to a Police Officer by an accused under custody, and therefore, the same is hit by section 162, Cr. P. C. He has relied upon P L D 1965 S C 66( ) and A I R 1939 P C 47 where it had been held that where the accused reports his own crime to the Police the said statement is not admissible on account of its inculpatory nature.

But, I find that the F. I. R. lodged by the appellant Ahmed is not inculpatory in nature but on the other hand it is exculpatory in nature as Ahmed has stated that Achar and his father Jani had given him and hi Hari Walidino danda blows' on their backs and he had raised hi hatchet and the hatchet blow hit Muhammad, therefore, it is clear that 4 appellant Muhammad has tried in his F. 1. R. to give such a version that he could not be accused of having intentionally killed Muhammad deceased. Therefore, this statement by Ahmed in his F. I. R. can be used against him as it is not inculpatory.

Another point strongly urged by Mr. Muhammad Hayat Junejo is that P. W. 4 Jummo Khan could not be treated as corroborating the testimony of the complainant Bachayyo as it was 1/2 hour after the incident that the complainant had gone to him and, therefore, this statement by complainant had not been made at or about the time of incident as stipulated under section 137 of the Evidence Act. He has relied upon P L D 1960 S C 127 where Mr. Justice Sajjad Ahmad Jan observed that the former statement of witness to furnish corroboration under section 157 of Evidence Act can be proved only if it was at or about the time" when the fact took place: The Honourable Mr. Justice Sajjad Ahmed Jan in that case of the Supreme Court had excluded a statement made by the complainant to a corroborating witness after 1/2 hour of the incident.

But, I find that the exclusion of that statement in the Supreme Court case was based on the particular circumstances of that case and it was not rule of law laid down by the Supreme Court that in every case a statement after 1/2 hour to a corroborating witness should be excluded. In that ca before the Supreme Court the P. W. who had related the incident to the corroborating witness had first gone to the village and informed two persons who were not examined in the case, and thereafter, he had recur to the vardat where corroborating witness had come and the incident was related to him at that time. It was in those particular circumstances that the former statement of the said P. W. was excluded. However, in the case before me I find that the complainant Bachayyo bad proceeded from the place of incident to his Nekmard P. W. 4 Jummo Khan and had no met anyone else, and therefore, in these circumstances, the statement made by Bachayyo to Jummo Khan could be said to have been made at or about the time of incident.

Mr. Muhammad Hayat Junejo has also stated that Wali Bachayyo complainant had not stated in his examination in detail as to what he had told P. W. Jummo Khan therefore P. W. Jummo Khan could not corroborate the details of the incident.

I do find that Wali Bachayo had merely stated that he related the incident to Jummo Khan Zamindar who had come with him to the vardat However there is no reason to disbelieve P. W. Jummo Khan who is a Nekmard and is disinterested. There is no enmity alleged against him b appellant in the cross‑examination, and therefore, his statement giving deta' of incident can be used to substantiate the story given by the complainant particularly when he had himself visited the spot and had found the decease Muhammad lying dead and P. Ws. Jani and Achar present on the spot. I these circumstances it was but natural that the complainant must have narrated full details of the incident to Jumo Khan. The criticism in this respect is highly technical and not substantial.

Lastly, Mr. Muhammad Hayat Junejo argued that the credibility of the witnesses was indivisible and since they had been disbelieved in respect of the acquitted accused Walidino, therefore, they cannot be relied upon ‑even in respect of the appellant Ahmed. Reliance has been placed upon P L D 1973 Kar. 643 and P L D 1976 Kar. 438. The learned counsel for the appellant was, however fair enough, on my querry, to point out that in P L D 1970 S C 13 it had been held that the credibility of the witnesses is divisible. I find in this case before me that the only pact assigned to Walidino was that he had grappled with deceased Muhammad and no that he had caused any injury upon the deceased. The learned Judge cam to the conclusion that since there was no blood on the clothes of Walidino therefore, it was not proved that at the time when the fatal blow was eau to Muhammad the accused Walidino grappled him. Moreover, the incident being sudden one and Walidino accused not having called appellant Ahmed and the appellant Ahmed having on his own caused the fatal blow upto Muhammad the learned Sessions Judge was of the view that Walidino ha no common intention with appellant Ahmed of causing death of decease Muhammad. The learned Sessions Judge had acquitted Walidino in the circumstances and the same does not really affect the veracity of the P. Ws I have already held that the P. Ws. were natural witnesses and their presence at the spot was undoubted and all of them have involved only appellant Ahmad with the causing of fatal blow, and therefore, the appellant had bee rightly convicted under section 304, P. P. C.

Mr. Muhammad Hayat Junejo then contended that the sentence of 19 years was the maximum sentence allowed under section 304(2), P. P. C. which is not generally awarded in a case under section 304(11), P. P. C.

The same is a correct submission and I find that in Criminal Appeal 304/77, a Division Bench of this High Court which had converted the conviction of an appellant from section 302, P. P. C. to section 304(2), P. P. C. had merely awarded a sentence of 7 years' R. I. There have been other cases also where 7 years' R. I, is awarded under section 304, P. P. C.

I would, therefore, reduce the sentence of the appellant from 10 years to 7 years' R.1. but the compensation of Rs. 5,000 is maintained. F also find that the appellant was arrested on 23‑4‑1976 and he remained confined W1 his conviction on 9‑12‑1978 and sometime thereafter, when he was released, on bail by the High Court. He was, therefore, in confinement for more than 2 years and in view of the provision in section 382‑B of Cr. P. C. I would order that 2 years period of confinement before the conviction should be treated as the period of sentence having been undergone by the appellant and consequently 2 years shall be deducted by the Jail Authorities from the reduced sentence of imprisonment. With this modification in the sentence the appeal is dismissed.

Order accordingly.

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