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Present: Muhammad Haleem, C.d., Abdul Qadir Shaikh, S. A. Nusrat and Zaffar Hussain Mirza, JJ

Criminal Appeal No.23‑K of 1984, decided on 27th January, 1986.

(On appeal from the judgment of the High Court of Sind, dated 30‑9‑1984 in Cr. A. 20 of 1984).

‑‑‑Art. 185(3)‑‑Penal Code (XLV of 1860), S.302/34‑‑Re‑examination of evidence‑‑Leave to appeal granted to re‑examine evidence in order to see whether conviction of appellants was sustainable in accordance with principles for safe administration of justice in criminal cases as laid down by Supreme Court. ‑‑[Evidence].

(b) Penal Code (XLV of 1860)‑‑

‑‑‑S. 302/34‑‑Day light occurrence‑‑Conviction based on ocular testimony corroborated by medical evidence, recoveries and evidence of motive‑ Statements of eye‑witnesses being consistent found reliable‑‑Conviction upheld by High Court but challenged on ground of enmity between parties and testimony of interested witnesses lacking independent corroboration‑‑Supreme Court, after examination of evidence on record agreed with evaluation and assessment made by Courts below that guilt of accused was proved on ocular testimony corroborated by substantial evidence revealed by medical examination and incriminating circumstance of recoveries of crime weapons‑‑Existence of enmity with accused by itself, held, was not sufficient to reject , outright testimony of eye witnesses, because prosecution was relying upon such strong animus existing between parties as a motive for the crime‑‑ ‑Appeal being devoid of force dismissed, but benefit of S.382‑B, Cr.P.C. extended to appellants.

P L D 1970 S C 491; 1971 S C M R 326; P L D 1965 S C 363 and P L D 1985 S C 361 ref.

Muhammad Hayat Junejo, Senior Advocate Supreme Court with Muzaffar Hassan, Advocate‑on‑Record for Appellants.

A. Sattar Shaikh, A.A.‑G. with S.M. Abbas, Advocate‑on‑Record fur the State.

Date of hearing: 27th January, 1986.

‑‑Muhammad Ayub, Abdul Ghani and Abdul Karim, the appellants herein, were tried and convicted by the learned Sessions Judge, Larkana, under section 302/34, P.P.C., for the murder of Ali Akbar. They were awarded the sentence of life imprisonment and a fine of Rs.500 each or in default of the payment of fine to suffer further R.I. for six months. Additionally the trial Court also directed each of the appellants to pay Rs .1, 000 as compensation to the heirs of the deceased and in default thereof to suffer further R.I. for a period of six months.

2. The appeal filed by the appellants to challenge their convictions and sentences also failed as a learned Judge of the Sind High Court dismissed the same vide his judgment dated 13th September, 1984. Hence this appeal by leave of this Court.

3. It may be stated that alongwith the appellants, one Lal Bux was also sent up for trial, but as he was murdered when the final arguments in the case had yet to be heard by the trial Court, the proceedings against him abated.

4. The occurrence in this case is said to have taken place on 10th April, 1980, at about 5‑30 p.m. in the common street, near the house of Abdul Ghani appellant situated in village Banguldero, Taluka Ratouero, District Larkana. The case of the prosecution as disclosed in the F.I.R. is that at the aforesaid time complainant Amir Bux, who is a cousin of the deceased, was going to the house of his uncle Pir Muhammad, when he was called from behind by Haji Darya Khan. He went back to him and the two were talking in the street in front of the house of Master Munammad Khan. At this time deceased Ali Akbar was seen coming from the southern side of the street to his house with a bundle of grass on his head. As soon as he reached the door of his house, the appellants alongwith accused Lal Bux (since deceased) all by caste Bhuttas came out from the house of Master Muhammad Khan. They were all armed with hatchets. Appellant Abdul Ghani then challenged Ali Akbar to stop as he had caused injuries to his brother Muhammad Uris. Saying so, Abdul Ghani and his other companions caught hold of Ali Akbar, with the result that the bundle of grass fell down from his head. They then dragged Ali Akbar from the street towards the east of the house of appellant Aboul Ghani. Ali Akbar raiseu cries, on which the complainant and Haji Darya Khan ran towards him for his rescue but were threatened by the culprits not to go near them as they were taking revenge. Then appellant Abdul Ghani gave sharp side hatchet blow to Ali Akbar which fell on the left side of his neck as a result of which Ali Akbar fell down. The witnesses raised cries and pleaded with the assailants not to commit murder. In the meantime Mst. Wallan, the mother of Ali Akbar and one Haji Sarfraz, came there. In front of the witnesses, appellant Abdul Karim gave sharp side hatchet blow to Ali Akbar on the left side of his neck, then Ayub caused sharp side injuries to Ali Akbar on his neck. Lal Bux also gave a blow to Ali Akbar with the sharp side of his hatchet which hit him on the right arm. Finally Abdul Karim again gave another sharp side hatchet blow to Ali Akbar on his left shoulder. According to the version in the F .I .R . all the culprits also belaboured Ali Akbar with the back side and handle of their hatchets while he was lying on the ground. After giving injuries to the deceased the culprits decamped from the scene raising slogans. The witnesses then approached the deceased and found that he had already succumbed to his injuries.

5. The first information report was to0ged by complainant Amir Bux on the same day at about 6.00 p.m. at Ratodero Police Station, which was recorded by Muhammad Aslam, S.H.O. who also could not be examined as a witness at the trial as he was subsequently murdered in an encounter. The S.H.O. arrested all the four culprits on 21st April, 1980, at about 11‑30 a.m. The S.H.O. recovered blood‑stained hatchets from each of the accused on the same day. In order to prove their case the prosecution examined complainant Amir Bux, Haji Sarfraz (P.W), Haji Darya Khan (P.W) and Mst. Wallan (P.W.) as eye‑witnesses of the incident. Doctor Ubedullah conducted the post‑mortem examination of the body of the deceased and found the following injuries on it;

(1) Terminal parts of right thumb, middle finger and index finger were completely cut off.

(2) Incised wound 15 c.m.x 8 c.m.x bone deep on the left side of neck, second cervical vertebrae was fractured, the spinal cord was also cut off. All muscles and vessels were also cut off on the left side of the neck.

(3) Incised wound 6 c.m.x 3 c.m.x muscle deep on the top of left shoulder.

(4) Incised wound b c. m. x 3 m. m. x skin deep on the back. of left shoulder.

The doctor further found that on internal examination of the dead body, he found the following damages:‑

(1) Second cervical vertebrae was fractured. Spinal cord was completely cut off. Stomach was empty. All other internal organs were found healthy."

6. The appellants in their 342, Cr.P.C. statements at the trial denied that they had committed the murder of Ali Akbar by causing hatchet injuries. They also denied that. the incident was witnessed by the four eye‑witnesses, as well as that blood‑stained hatchets were recovered at their instance. They alleged that the witnesses were hostile and interested. They further denied the motive. In their defence they examined a clerk from the office of District Registrar, Larkana.

7 . The motive for the crime disclosed in the F.I.R. was 'that about a year prior to the occurrence, deceased Ali Akbar and others had fought with Muhammad Ursi Bhutto, brother of appellants Abdul Ghani and Abdul Karim, as a result of which deceaseu Ali Akbar and others were challaned under section 307, P.P.C., which case was pending in the Court of Sessions, Larkana. According to the prosecution in order to avenge the injuries caused to Muhammad Uris, the accused committed the murder of Ali Akbar.

8. The accused in this case were all related. Accused Abdul Ghani and Abdul Karim are real brothers, while deceased accused Lal Bux was their maternal cousin. Muhammad Ayub is the son of accused Abdul Ghani's cousin. Similarly the complainant and eye‑witnesses were also related inter se and with the deceased. Complainant Amir Bux was the real cousin of the deceased. Haji Sarfraz (P.W.) and Haji Darya Khan (P . W.) are cousins and also related to the deceased. Mst Wallan (P .W) is the mother of deceased.

9. The trial Court believed the ocular testimony and held that guilt of the accused was fully established on the said ocular testimony corroborated by medical evidence, recoveries and evidence of notice. The assessment of the ocular testimony produced by the prosecution was summarized in the following portions of the judgment of the trial Court:‑

"I have reproduced in detail the evidence of the above four eye‑witnesses whose evidence is consistent and they have fully supported the prosecution case. It would be seen that the incident in the present case took place at about 5‑30 p.m, and, therefore, there could be no question of mistaken identity of the culprits. The report of the incident, was lodged promptly at Ratrdero.) Police Station after about half an

hour of the incident, In this report the names of all the accused, and the details of the incident, have been given by complains Amir Bux. The above witnesses have implicated all the accused in their evidence recorded before this Court and I have been impressed by their evidence, which inspires confidence. It is true that the witnesses are related to the deceased, but in the circumstances of the present case, they are the most natural witnesses. The incident had taken place in front of the house of the deceased and it has come in evidence that the above prosecution witnesses were residing near the place of incident. In that event the presence of the above witnesses at the Vardat is fully justified. Mst. Wallan, who is mother of the deceased. was in fact following the deceased when they were returning to their home after cutting grass. The evidence of these have been subjected to cross‑examination but nothing has been brought in their evidence to suggest that they were giving false evidence. There is no doubt that there is previous enmity between the parties but enmity cuts both ways and it is the case of the prosecution that on account of the injuries caused to one Uris, brother of accused Abdul Ghani and Abdul Karim, the present accused and had committed the murder of Ali Akbar. The decisions relied upon by the learned counsel for the accused are distinguishable. The names of all the accused transpire in the F.I.R. which was lodged without any loss of time so that it cannot be said that the complainant party had lodged the F.I.R. after consultation. The presence of the witnesses at the Vardat has been fully justified and all of them have given a consistent account of the entire incident, and, therefore, I have come to the conclusion that their evidence can be safely relied upon."

10. The appeal filed by the convicts was dismissed by the High Court vide judgment, dated 31st September, 1984, by a learned Single Judge of the Sind High Court. The learned Judge in the High Court agreed with the findings of the trial Court. The learned Judge held teat the conviction of the appellants it; well‑founded upon ocular testimony corroborated by the evidence of motive and recoveries.

11. Being dissatisfied by the judgment of the High Court the appellants came up before this Court and leave was granted to re‑examine the evidence in order to see whether the conviction of the appellants is sustainable in accordance with the principles for safe administration of justice in criminal cases as laid down by this Court. In this behalf reference was made to the contention that in view of the admitted existence of blood fued between the parties. whether it is unsafe to base the conviction on the oral testimony of interested witnesses without independent corroborative. Ms regards the corroborative evidence the submission was that four blood‑stained hatchets were secured at the instance of the accused but only three hatchets were found by the chemical analyzer to he stained with human blood. It was argued that as the number of accused said to have participated in giving the injuries to the deceased was four, it is not possible to correlate the three hatchets stained with human blood necessarily to the present appellants. Another feature of the case on which reliance was placed was that there was conflict between the ocular testimony and medical evidence, in so far as there were found no blunt weapon injuries on the body of the deceased, although according to the ocular version, the culprits had inflicted such injuries to the deceased. Finally it was also pointed out that according to the eye‑witnesses the deceased before being inflicted injuries was dragged over a distance, yet there were no dragging marks at the scene of occurrence and that the evidence of abscondance relied upon by the Courts below was not put to the accused in their examination under section 342. Cr. P . C .

12. Mr. Muhammad Hayat Junejo learned counsel appearing on behalf of the appellant has repeated the aforesaid contention noted in the leave granting order. He has argued that the circumstances of the case as revealed by the prosecution evidence indicate that there was only one assailant who has inflicted injuries to the deceased and the number was exaggerated so that the appellants who had blood feud with the complainant side may be roped in for the murder of the deceased. He submitted that the medical evidence appears incompatible with the oral version of the occurrence furnished by the eye‑witnesses. Ii, the opinion of the learned counsel at the most the injuries on the body of the deceased would be the work of two assailants, and, therefore, the appellants are entitled to the benefit of doubt.

13. After examining the evidence on record we are, however, not impressed with the contentions advanced on behalf of the appellants. There is no doubt that there existed strong enmity between the deceased and the accused and there was criminal litigation between the parties in regard to a murder case, and a case of section 307, P.P.C. was pending against the deceased and others in respect of alleged injuries caused to Muhammad Uris brother of appellants Abdul Ghani and Abdul Karim. It is in the evidence of complainant Amir Bux that the deceased and his brother were accused in the murder case of Abdul Rehman who was a relation of the appellants. But his enmity, by itself, is not 'sufficient to reject outright the testimony of the eye‑witnesses, because the prosecution is relying upon this strong animus existing between B the parties as a motive for the present crime. There is no doubt that the superior Courts have laid down as a rule of prudence that where there exists enmity between the witnesses and the accused, ordinarily the evidence of such interested witnesses should be supported by independent corroboration. The primary question always before the Court is to first determine the intrinsic value of the ocular testimony. This aspect of the case will be considered later in this judgment but to examine the question of corroboration we may for the time being assume that the evidence of the eye‑witnesses is otherwise reliable. The main argument in this case to assail the evidence of recoveries is that one of the four hatchets was not established on chemical analysis to have been stained with human blood. So far as the evidence supporting the recoveries is concerned we have no doubt about its veracity. The only argument in this behalf was that one of the Mashirs in whose presence the accused led to the recoveries to the crime hatchets, namely Muhammad Azam was inimical to the accused as he was complainant in the murder case against them. However, this Mashir was not produced at the trial, instead the other Mashir Sikandar was examined to prove the recoveries. '' Nothing was pointed out to challenge his evidence as an interested witness. In vi, w of this the recoveries have been fully established and there is no reason to doubt that the incriminating articles were secured as a result of information given by the accused to the investigating officer. The only question is whether the four hatchets secured from the accused, without linking each weapon separately to the specific accused person, will constitute corroborative evidence establishing the nexus between the appellants and the crime. It is said that since only three of the hatchets have been proved to have nexus with the crime, it cannot with certainty be said that the fourth hatchet on which no human blood was found, was the one secured from the deceased accused as it may have been secured from any one of the present appellants. I n this connection it may be mentioned that from the four hatchets received by the chemical examiner, it was found that one of the hatchets along with handle bore blood stained which were disintegrate, therefore, their origin could not be determined. The point to be noted is that this hatchet was not a wholly innocuous piece of evidence in so far as there were stains of disintegrated blood on this hatchet. According to the evidence of Sikandar Alam, the mashir of the recovery of hatchets, deceased accused Lal Bux had led the police to his land and took out the hatchet from the Dera of wheat. Similarly accused Muhammad Ayub produced a hatchet from another wheat Dera, while accused Abdul Ghani produced a hatchet from Palal in the adjoining land. Lastly accused Abdul Karim led the police to his house and from the wars of his house under the Palal, he produced hatchet. These hatchets were blood stained and were sealed and sent to the chemical analyser for examination with the result already stated. From this evidence we find that it ha." been established by the prosecution that these weapons which were blood stained were found concealed and the respective accused had the exclusive knowledge as to where these weapons were lying. Accordingly the probative value of this evidence is not lost merely because the blood stains on one of the weapons was found disintegrated. Such evidence does furnish corroboration to the ocular testimony that all the four accused had participated in the crime. In this connection reference may be made to The State v. Fateh Sher and others P L D 197u S C 491, Haji Ahmad v. The State 1971 S C M R 326, Ghulam Rasul v. Ali Akbar and others P L D 1965 S C 363 and Muhammad Iqbal v. Muhammad Tahir and others P L D 1985 S C 361. The submission of the learned counsel that there is no corroboratory evidence in support of the ocular testimony in this case is, therefore, without substance.

14. The next question for consideration is whether the intrinsic value of the ocular version deposed to by the eye‑witnesses is in any way damaged by conflict with the medical evidence. There is no doubt that according to the ocular versions of the eye‑witnesses the accused also inflicted injuries to the deceased with the backside the handles of the hatchets. The absence of any injuries with blunt weapons, on the body of the deceased, now ever, is not such a material contradiction to discredit the testimony of the witnesses regarding the participation of the appellants in the crime. In the welter and confusion of the dramatic way in which the occurrence took place and the witnesses were threatened to keep away, such a minor discrepancy is not fatal to the prosecution case. Otherwise the version of the eye‑witnesses is substantially consistent with the medical evidence. All eye‑witnesses attribute the injuries which cut the thumb and fingers of the deceased to accused Lal Muhammad (since deceased). Out of the rest of the injuries the first one which fell on the neck of the deceased fracturing the cervical vertebrae and cutting the vessels of the neck has been attributed to appellant Abdul Karim. Appellants Abdul Ghani and Ayub are said to have inflicted injuries also on the neck but these injuries were found on the left side of the shoulder. From the account of the occurrence it seems that the injury on the hand was received by the deceased while warding off the first blow aimed at him. He seems to have fallen down with the injuries received on the neck. Because of the close proximity of the neck and shoulder injuries, it cannot, be said that there is discrepancy between the ocular evidence and the medical evidence. Further a blow hitting the shoulder may appear to be a blow on the lower neck. There is, therefore, no material contradiction in the evidence of witnesses and that of the doctor. We also do not agree with the learned counsel that the number of injuries is incompatible with the number of the accused who were said to have participated in the occurrence. The strong circumstancial evidence which corroborates the version disclosed by the ocular testimony leave no scope for holding teat the prosecution has exaggerated the number of the assailants to implicate some of tote appellants falsely. The absence of dragging marks on the ground is also not a material circumstances to discredit tilt: testimony of the witnesses because the complainant has explained that the ground of the street where the deceased was dragged was hard.

15. For all the aforesaid reasons we agree with the evaluation and the assessment made by the Courts below, that the guilt of the accused has proved on the ocular testimony corroborated by the circumstantial evidence revealed by the medical examination and incriminating circumstance of recoveries of the crime weapon. There is, therefore, no force in this appeal which is accordingly dismissed. However, we order that the benefit of section 382‑B, Cr.P.C. shall be extended to the appellants while computing their sentence of imprisonment.

M. I. Appeal dismissed.

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