P L D 1961 (W (PLP)

FARUQUI, J.‑The appellants Sardar bux and Haqdad have been convicted under sections 302/34, P. P. C., for the murder of Phatan by the Additional Sessions Judge, Larkana and both have been sentenced to transportation for life.

2. The prosecution case briefly stated is this. The appellants Sardarbux and Haqdad are brothers. The deceased Phatan was related to them inasmuch as, the former's mother Mst. Chutti was the sister of Bako, the father of Sardarbux and Haqdad. The third accused named Attoo, .who died during the committal pro ceedings, was related to the appellants as his sister Mst. Begum was married to Haqdad. The deceased Phatan was married to Mst. Sabhai and was living with his wife and his mother Chhutti in village Thalho Ganghro within the police station Ratodero, District Larkana. The appellants , also lived nearby in the same village. The deceased was suspected by the accused of an illicit liaison with Mst. Begum, the wife of Haqdad. On 27‑12‑59 at about midnight Mst. Sabhai who was sleeping near her husband Phatan, though‑on a different cot, woke up on hearing a gun report. She saw the two appellants and Attoo inside her house. Attoo had a gun while the two appellants carried hatchets. She fell on her husband but the accused asked her not to raise cries other wise she would also be murdered. She was further told that they would involve the Lasharis with the murder of Phatan and they would send Sardarbux to make a report on those lines. Mst. Chhutti, the mother of the deceased, was not at home as she had gone to meet her sister who resided in another village, and on being informed she reached her home at about day break and Mst. Sabhai who was wailing over the death of her husband who had been shot dead, narrated the entire incident to her mother‑in- law. The appellant Sardarbux went and made a report at .the Ratodero police station at 4, in the morning, in which he accused the Lasharis, namely Rahzan, Dengo, Umar, Rahman, Sardar and Farid of the offence of the murder of Phatan: This, according to the prosecution, was a false report deliberately made to evade the consequences of the crime which had been committed by the three accused persons in this case. Muhammad Pinyal. S. H. O. Ratodero who recorded the first information report lodged by Sardarbux, proceeded to the scene of offence and reached there in the morning at about 5‑30 a. m. and found the deceased Phatan lying dead on a cot and blood lying on the bed and on the ground. He sent the dead body to the hospital and examined Mst. Sabhai and Chhutti, and it was soon after these two womeh had made their statements that Sardarbux, who had accompanied the Sub Inspector back to the village, disappeared and when he visited the house of the accused he found that they had all left and had even taken away their cattle. The first to be arrested was Attoo and this was on 11‑1‑1960. Haqdad was arrested on 29‑1‑60 and Sardarbux on 12‑4‑60 after the filing of the interim challan. Dr. Abdul Kadir, the Medical Officer at Ratodero, received the dead body of Phatan on 28‑12‑59 at 4‑10 p. m. and he immediately carried out the post‑mortem. He found a circular wound 2" x 1 " on the left side of the body 5" above the left anterior superior iliac Vine. The injury, according to the doctor, was ante‑mortem and appeared to have been caused by a gun fired from a very close range, that is, about one foot.

3. The accused Attoo, who was alleged to have fired the gun‑shot which killed Rhaman, died when the case was before the committal Court and so it were only the present two appellants who were sent up for trial in the Court of the Sessions.

4. The evidence against the accused person mainly consisted of the testimony of Mst. Sabhai, the wife of the deceased, who was supported by her mother‑in‑law Mst. Chhutti, who stated that when she arrived from Fazlani village Mst. Sabhai told her that Attoo, Haqdad and Sardarbux had killed her (Mst. Chhutti's) son and that Haqdad and Sardarbux had hatchets while Attoo had a gun. What Sabhai stated at the trial my be reproduced in her own words :‑ "Deceased Phatan was my husband. Chhutti is his mother. We all three resided together in the same house. I know both the accused. I knew deceased Attoo. Accused are both brothers. Attoo's sister Begum is married to accused Haqdad. Accused are the sons of the maternal uncle of the deceased. My husband Phatan was also my cousin. Accused suspected my husband to be in toe with Begum, wife of Haqdad accused. About seven months back my mother‑in‑law had gone to meet her sister at Fazlani village. That night I and my deceased husband had slept in the house. We were on different cots. A lamp was burning in the house. We had slept away after having taken our food. At past somahni time, I woke up on hearing gun report. I saw the present two accused and deceased accused Attoo inside our house. Attoo had a gun while the accused carried hatchets. I went and fell on my husband. Accused asked me not to raise cries as I as well would be murdered. They said they had dispute with Lasharis and they would involve them in the murder of my husband. My husband was still alive. Accused told me that they were sending Sardaro for reporting the matter. They then went away. I kept on wailing. My mother‑in‑law arrived at Asur time. I narrated the entire incident to her. Police came in the morning. Sub‑Inspector recorded my statement. My statement was recorded by Magistrate. I produce it as Exh.

9. After the incident the accused left their houses and went away. Attoo died after he was arrested by the police. Except the accused we had no other relative in the village. I had sent somebody to fetch my mother‑in‑law. I do. not now recall whom I had sent. Haji Chakar and Haji Allah gakhio are related to accused. Police arrived at sunrise. We had no body whom we could send to police. Now we reside at Allahabad village." Besides this evidence there was the circumstance of the absconding of the accused from their village soon after the incident, a fact which has been established by the evidence of Sub‑Inspector Pinial, P. W'. 8, A. S.

1. P. Inayatullah P. W. 9, who arrested accused Haqdad at Larkana on 29‑1‑60 and the Head constable Karimdad P. W. 10, who arrested the appellant Sardarbux on 12‑4‑60 from Ghangro village. P. W. 7 Dad Muhammad, who resides at Hafizabad in District Garhi Yasin, stated that the accused were like brothers to him and their father Bako had left his cattle with him which was seized by the police after about a month thereafter and that at that time a child of the accused party was also living with him.

5. The other circumstance relied upon by the prosecution is the report which Sardarbux admittedly made at the Ratodero police station which reads as follows :‑ "Complaint is as under: Phalan deceased is .my father's sister's son and we live in the same villa;e Talho Ghanghro. In this village other people called Lasharis also live. About four years ago a quarrel broke between Lasharis and as the Jalbanis wherein Gulzar Lashari was killed. Lasharis had filed the complaint of Gulzar's murder against me, Hazarbux, deceased Phatan and others, but we were acquitted in the Court of Sessions. Lasharis harboured grudge for the murder of Gulzar. The `thatched but of Allah Tagyo adjoins the house of deceased Phatan having only a small parti tion but same compound. My house is about SOJ60 paces north east of the house of deceased Phatan. Last night i.e., on 27‑12‑60 at somahni time I was sitting in my house when I heard a sudden sound. Therefore I went running there and heard gun reports, hakals (shouts) and cries of `Murder Murder' in the house of deceased. Haji Allah Rakhio Jalbani also came running behind me., We both rushed into the house of Phatan and saw a lantern burning in the houseofPhatan in light of which Ramzan, Dingo and Umar Lasharis armed with guns, which they were firing in air and Rahmoon alias Abdur Rahman, Sardarbux and Farid Lasharis armed with hatchets were all giving us `hakals' not to approach them as they were taking revenge of the murder of Gulzar. Allah Tagyo and Mst. Sabhai wife of deceased were present there before we came.there. The accused went to their house firing guns. Then Chakar and Muhammad bux Jal6anis arrived along with whom we saw that he had received a gun fire injury in his left side of abdomen and he was lying dead on his cot, and great quantity of blood was lying on his bed. There Mst. Sabhai said "Deceased Phatan slept on his cot after taking meals and I slept on my cot. While I was awake and lantern was burning, I saw that 6 men came in and stood at the cot of Phatan. I identified them to be Rahzan, Dengo and Umar Lasharis armed with guns and Rahmoon alias Abdur Rahman, Sardar Bux and Farid Lasharis armed' with hatchets. From among them Rahzan fired his gun on Phatan who had died. Accused persons were firing guns in the air and I was raising cries of `murder' `murder' when you arrived. Allah Tagyo also related the incident to the same extent as that of Mst. Sabhai and said `I have also identified the above‑mentioned accused persons and have seen accused Rahzan firing at Phatan'. Among the accused persons Umar Lashari holds gun licence. Rahzan and Dengo Lasharis had unlicensed guns. The accused persons have murdered my father's sister's son Phatan son of Qadirbux, Jalbani, with a view to avenge the murder of Gulzar, their relative. I complain, which may be looked into." It is the case of the prosecution that this was a false report and the accusation against the Lasharis contained in the report was unfounded. It may be noted that at the trial there was no evidence whatever about any complicity of the Lasharis in the murder of Phatan. Even the appellants did not say, so in their Statements nor was there any evidence led on the point. When Sardarbux was questioned whether he had made this report and which was false, all that he stated was that it was not so, which would mean that the report was not false though he admitted that he had made that report.

6. Mr. Tufail ali, the learned Advocate for the appellants, in the first place contended that there was no corroboration of the evidence of Mst. Sabhai and considering that she was an interested witness her testimony should not be made the basis of conviction. As to the circumstance of the first information report lodged by Sardarbux he argued that the falsity of this report depended upon the truthfulness of Mst. Sabhai's evidence which itself required corroboration and for that reason no inference against the appel lants could be drawn from that report. As to the circumstance regarding the absconding of the appellants he submitted that this was capable of explanation on the hypothesis that when they found that they had been named by Mst. Sabhai as the assailant of her husband they made 'themselves scarce out of fear of harassment and persecution. He relied for this purpose upon that part of the statement of the investigating officer Muhammad Pinial; P. W. 8, where he had said that Sardarbux had slipped off and disappeared after Sabhai and Chhutti had been examined by him. The learned counsel in the alternative argued that Mst. Sabhai's evidence may have been true to the extent of the part played by the deceased accused Attoo but in so far as she is an interested witness her uncorroborated testimony should not be accepted for basing the conviction of the two appellants, because it is likely that she may have exaggerated the case and added the names of these two appellants to a story which was otherwise true. He relied upon a recent judgment of the Supreme Court in Niaz and Muhammad Husain v. The State (P L D 1960 S C (Pak.) 387). To the observations of their Lordships in this case we shall revert presently.

7. With regard to the first contention of the learned counsel it is true that the evidence against the appellants is mainly that of Mst. Sabhai and if there is any reason to doubt her veracity the prosecution case must fail. But let ` us see if there is any good reason for not accepting the testimony of this witness. It must be remembered that the appellants are the sons of Mst. Chhutti's real brother and were thus intimately related ‑to her. It is in the evi dence of Sabhai that they had no other relatives in this village. It is also in evidence that after this incident when the relations of Mst. Chhutti with her nephews had become strained to be left that village with her daughter‑in‑law and went to live in village Allahabad. It is reasonable therefore to infer that Mst. Chhutti while living in this village would rely upon her brother Bako and his sons, namely the appellants. It is also in evidence that Mst. Sabhai gave her statement to the Sub‑Inspector (which evi dently implicated the present appellants) after Mst. Chhutti had returned to this village from her sister's place and Mst. Chhutti has stated that when she reached home Mst. Sabhai told her that the two appellants and Attoo had killed her husband. If the assailants of Phatan had been the Lasharis which was alleged in the report lodged by Sardarbux we do not find it possible to accept that Mst. Chhutti would have allowed Mst. Sabhai to falsely implicate her own nephews in the case. In the report lodged by Sardarbux it is stated that the Lasharis named therein were on inimical terms with the appellants and also Phatan, whom they had falsely implicated in a case. If that was so there was no reason for Mst. Sabhai to substitute the present appellants and Attoo in pace of the said Lasharis. We repeat that Mst. Chhatti would not have permitted this nor would have been a party to it. We will now examine whether Chhutti or Sabhai had any motive for falsely implicating the appellants, a suggestion which was vaguely made in the cross‑examination of these two witnesses in the Court of Sessions. Mst. Chhutti in cross‑examination stated that her husband, who was the father of the deceased, was murdered by Masti, Ghausbux and Dauro, cousins of the accused. She was not asked as to when this murder had taken place. There is however an indication in the statement made by Sabhai in her cross examination to a similar question. She stated that she was too young to know if any person was arrested in connection with the murder of the father of the deceased. She was of 25 years of age at the time when she gave evidence and it would be reasonable to infer in the absence of any other evidence that the murder of Chhutti's husband took place several years before this incident. The suggestion made by the defence was that because Chhutti's husband had been murdered by the cousins of the appellants she and Sabhai had a motive for falsely implicating them. We consider this suggestion to be without any substance. In the first place, as we have‑observed, this murder took place a long time back and there is no evidence whatever that Mst. Chhutti bore the slightest grudge against her brother Bako and his sons, the present appellants, on account of that incident. No question was asked of Chhutti on this point and there is no basis for the assumption that the appellants or their father Bako had sided the alleged murderers of Chhutti's husband or that they were on good terms with them. For all we know Bako, the father of the appellants, would have as much grievance against the alleged murderers of her sister's husband. But if the murderers of Chhutti's husband were the nephews of Bako then Chhutti and her daughter‑in‑law Sabhai if they were out to falsely implicate anyone for the , murder of Phatan, would have named the nephews of Bako and not the present appellants and Attoo. In any case, they would have also been implicated. There is no evidence on record to show that they were not living in that village or that there was some other reason why they could not have been involved. The appellants in their statement before the committal Court did not say anything about this possible motive on the part of their aunt Mst. Chhutti and Mst. Sabhai. 1t was only in the Court of Sessions that when. they were asked as to why the witnesses were deposing against them, they said that they had dispute with them over kadam's (Chhutti's husband) murder. For all these reasons we are clearly of the opinion that neither Chhutti nor Sabhai had any motive for falsely implicating the appellants and Attoo; the brother of Haqdad's wife against whom the alleged motive, in any case, would not exist. To Attoo was assigned the main part of the crime and Attoo.'s part in the assault on Phatan is reasonably explained because he was Begum's brother with whom the deceased was suspected to have an illicit liaison. We are of the, opinion that the motive of the crime has been sufficiently established against the appellants and the deceased‑accused Attoo. We are further of the opinion that Mst. Sabhai's evidence which has not been shaken in any manner in cross‑examination is worthy of credit and it also finds support from the evidence of Mst. Chhutti and the circum stance of the absconding of the appellants and the fact that Sardarbux made. a false report for the purpose of evading the consequences of his crime. Both these circumstances can be taken into consideration as evidence of conduct of the accused persons which go against them. Section 8 of the Evidence Act permits it and illustration (E) to that section is apt in the present case..

8. There is one circumstance which, though not pressed by the learned counselfor the appellants, may yet be briefly examined Mst. Sabhai admitted in her evidence that Haji Chakar and Haji Allahrakhio had come to the scene on her cries. Both these witnesses were examined is the committal Court by the prosecution and had not adhered to the statement made by them under section 164, Cr. P. C. Msr. Sabhai stated in her evidence that they are related to the appellants. In the Sessions Court the Public Prosecutor on 27‑7‑60 made a statement that these two witnesses had resiled from the statements made by them under, section 164, Cr. P. C. They were related to the accused and have been tampered with and 'further that they were being prosecuted for ‑a murder and were at that time in Jacobabad Jail and the Jail authorities hid not produced them. He further stated that he had given up these witnesses and that the defence if they liked might examine then. The defence counsel stated that he did not wish to do so. In these circumstances we find that no adverse inference can be drawn against the appellants for not examining these two persons as prosecution witnesses in the case Mst. Sabhai has stated that except the accused they had no other relatives in the village a statement which was not challenged in cross‑examination. Mst. Chhutti also stated that they had no other relatives in the village and all men there belonged to accused party. In these circumstances it is not difficult to see why no other witnesses were available to be examined by the prosecution apart from those who have been examined. It is true that the defence is not bound to lead evidence but it may be pointed oat that in the F. I. R. lodged by Sardarbux one Allah Tagyo, a neighbour of the deceased, was assigned the role of an eye witness of the alleged assault on the deceased by the 6 Lasharis and the fact that, Allah Tagyo was not examined by the defence may by a circumstance to be taken along with other factors for discrediting the story of Sardarbux which he had put forward in the F. h R. In fact no effort was seriously made at the trial one behalf of the defence to press that version.

9. With regard to the alternative argument of the learned counsel which has been reproduced earlier and in support of which he relied on the judgment in the Supreme Court of Niaz v. State it would be best to reproduce the observations made by their Lordships. The relevant portion which was relied upon by the learned counsel is as follows :‑ "Whenever interested persons claiming to be eye‑witnesses of an occurrence charge persons against whom they have some motive for false implication, with the commission of the offence, the first position to be considered is whether in fact they saw the occurrence and were in a position to identify the culprits 1 If there be no reason to doubt that they in fact witnessed the occurrence and were in a position to identify the offenders, the further question arise., as to whether they can be relied upon for convicting the accused without corroboration. In cases where such interested witnesses charge one person only with the commission of the offence, or where the number of persons whom they name does not exceed that which appears from independent evidence or from circumstances not open to doubt to be the true number of culprits, their evidence may, in the absenc6 of anything making it unsafe to do so, be accepted without corroboration for, substitution is a thing of rare occurrence and cannot 'be assumed, and he who sets up the plea of substitution has to lay the foundation for it. But if the Court finds that the number mentioned by interested persons may have been exaggerated their word cannot be made the basis of conviction and the Court will have to look for some additional circumstances which corroborates their testimony. This circumstance need not be such that it can of its own probative force bring home the charge to the accused. It should, however, be a circumstance which points to the inference that the particular accused whose case is being considered did participate in the commission of the offence. The force that such circumstance should possess in order that it may be sufficient as corroboration must depend on the particular circumstance of each case. However the circumstance itself must be proved beyond all reasonable doubt." With this lucid exposition of the principle governing the value of the testimony of interested witnesses in a criminal trial and the need and extent of corroboration thereof we are, if we may say so, with profound respect in, full agreement. But let us see whether these observations advance the argument put forward by the learned counsel for the appellants. It must be noted that the opening part of the observation makes it clear that it is dealing with the evidence of interested persons, who have some motive against accused persons for falsely implicating them. In the present case it is true that Sabhai and Chhutti are interested persons but only in the sense that the deceased was the husband of one. and the son of the other, but that itself would not be a circumstance against them in assessing the value of their evidence. What has further to be seen is whether they had some motive for falsely implicating the accused persons. We have come to the conclusion which has been recorded earlier that they had no such motive. On the contrary we are of the opinion that both Sabhai and Chhutti, the latter particularly, must have given their statements incriminating the appellants with sadness if not reluctance. Mst. Chhutti had lost her son and it is preposterous to suggest that she would then go and be a party to the false implication of the two sons of her own brother against whom there is no evidence that she had any ill‑feeling. The question whether Mst. Sabhai saw the occurrence and was in a position to identify the accused persons was beyond challenge and in fact was not challenged before us. The presence of Sabhai who was sleeping near her husband and the presence of the lamp was even admitted in the report of Sardar bux made soon after the occurrence. There is no doubt therefore that Sabhai did witness the occurrence and was in a position to identify the offender or offenders. The next question is whether Mst. Sabhai having seen the occurrence has exaggerated the number of assailants. We see no cogent reason for holding that she has done so. If it was Attoo alone who came with a gun and shot the deceased there is no good reason why Mst. Sabhai would falsely involve the two appellants. If they were not there she would not have any good reason to suspect that they were behind this cruel act because Attoo was Begum's brother and he himself would have sufficient reason, if he so chose, to attack the deceased That three persons came to accomplish this task seems to be a reasonable story. There is an additional reason why the present appellants must have accompanied Attoo. In all probability they knew that Mst. Chhutti was away and they may have believed that after Phatan is finished they .would be able to prevail upon Mst. Sabhai to fall in line with them and accuse the Lasharis, against whom they, and may be also Phatan had a grudge. In fact it may well be that after Phatan was murdered and the widow was willing she was silenced by the appellants and Sardartiux unfolded the story which he was going to give to the police and may be that he went to the police station to make the proposed report hoping that Sabhai would not have the courage to go against them. This role could not have been placed by Attoo alone. For these and other reasons particularly the conduct of the accused in absconding promptly after they had been accused we have no hesitation in believing the evidence of Mst. Sabhai both with regard to the incident and with regard to the number and identity of persons who took part in it. We, therefore, uphold the conviction and sentence passed on the appellants and reject the it appeals. K.B.A. Appeal dismissed.