1984 P Cr (PLP)

2. The prosecution version is that P. Ws. Khuda Bux and Muhammad Ali residents Bhan Town carry on business of Chaff and on 30th May, 1980, they had gone to A-bad in connection with their business and on return at about 12 noon when they reached near Ghousoo Laghari's Dera, outside Kand forest they heard cries from the forest. They rushed towards the spot which was in Chowdri No: 9, They saw Gulzar Memon and Kirir Pechuho there. Accused Kaloo Leghari armed with hatchet, Mohammed Brohi and another unknown person who had no weapons were also there. In their sight Mohammed Brohi and the unknown person caught hold of Kirir Pechuho by his arms while Kaloo Leghari inflicted a sharp side hatchet blow on the nape of his neck. Kirir raised a cry and fell down. Gulzar Memon tried to run away but was caught hold of by Mohammed Brohi and the unknwon person and then Kaloo Leghari gave him a sharp sided hatchet below on his neck and he too raised a cry .and fell down. Khuda Bux and Mohammed Ali advanced towards the assailants raising `Hakals' and they ran away towards to north into the jungle. Khuda Bux and Muhammad Ali found Gulzar dead and Kirir was alive but died after a short time. They found a cycle lying there. Khuda Bux left Muhammad Ali by the body and himself went and informed Ghulam Sarwar who is a Tailor Master at his shop at 1.30 p. m. about the incident. Khuda Bux told Ghulam Sarwar that although he did not know the third assailant he would identify him if he saw him again. Complainant Ghulam Sarwar went to Bhan Police Station and S. H. O. Allah Dino recorded and registered F. I. R. at 1.45 p. m. Complainant Ghulam Sarwar had further stated in the F. I. R. that Gulzar Memon was brother-in-law of his brother Madni and Kirir Pechuho was a friend of Gulzar. He had further stated that the previous evening Gulzar had told him that while playing Hoondari game Kaloo Leghari and Muhammad Brohi and Momin Rahupoto had exchanged hot words with him and Kirir had threatened them. S. H. O. Allah Dino Malak took up the investigation. He inspected the place of occurrence and prepared separate inquest reports of the dead bodies and sent the same to Medical Officer, Dadu for post-mortem examination. He secured blood-stained earth from both the places where bodies had been lying. He also secured a Bicycle and two pairs of a nap, pals and prepared mashirnama of the place of occurrence in presence of mashirs Abdul Rahman and Kazi Ahmed. Next he recorded the state ment of P. W. Muhammad Ali who was sitting there. On the same day he recorded statements of P. Ws. Khuda Bux, Ghulam Hussain. Haji Muhammad Ismail, Haji Muhammad Bux Leghari, Ghulam Ali Pechuho and Manjhi Khan. He arrested accused Kaloo from his house at Bhan. On 24th June, 1980 on the pointation of accused Kaloo. be secured blood-stained hatchet, shalwar and shrit. On 25th June, 1980 he arrested Muhammad and got recorded statement of P. Ws. Khuda Bux and Muhammad Ali by Mukhtiarkar and F. C. M., Sehwan under section 164, Cr. P.C. The blood stained articles were sent to Chemical Analyser and the accused were sent up for trial. .

3. Mr. Azizullah K. Shaikh, the learned counsel for the appellants has raised the following contentions: - (1) That motive had not been proved. (2) That only two eye-witnesses namely Khuda Bux and Muhammad Ali are chance witnesses and the ocular evidence is contradictory to the evidence of the Medical Officer with regard to number and nature of injuries inflicted on the two deceased. (3) That the aforesaid two chance witnesses are also interested wit nesses. Muhammad Ali being related to deceased Gulzar and Khuda Bux is the partner of Muhammad Ali. (4) That there was independent evidence available in that it is admitted by the two eye-witnesses that Ghousoo was present in his Dera, which was a place near the scene of offence but Ghousoo was never cited or examined as a witness.

5. That the evidence of the eye-witnesses is supported by the oral corroborative evidence of Ghulam Hussain alias Madni who is a person of doubtful character and in respect of whom the accused had raised the plea of enmity.

4. In support of his contentions Nos. 1 and 4, the learned counsel for the appellants has relied on the decision of the Supreme Court in Criminal Appeals Nos. 43 and 70 of 1962 (reported in P L D 1963 S C 17): It was inter alia observed in the aforesaid decision that where natural witnesses are not produced and there is a background of enmity the evidence of chance witnesses is not to be relied upon, however, the facts of the cases in which the aforesaid observation was made are diff erent. In the instant case there is nothing on record to show that Ghousoo had witnessed the incident. The Dera of Ghousoo Leghari is shown in the sketch of the scene of offence to be about 330 feet away from the place where the dead bodies were lying and it was not even stated by the pro secution witnesses Khuda Bux and Muhammad Ali that Ghousoo had seen the incident. His name was not mentioned in the F. I. R., which was fled shortly after the incident by Ghulam Sarwar who had received the information about the incident from P. W. Khuda Bux. Again it may hereby observed that in the instant case there is no background of enmity of the two alleged eye-witnesses with the accused. No defence was examined on behalf of two accused and the plea raised by accused Kaloo in his statement was that he was implicated at the instance of P. W. Ghulam Hussain alias Madni, the brother-in-law of P. W. Muhammad Ali. The nature of the enmity of Ghulam Hussain alias Madni had not been stated. Similarly accused Muhammad made the statement that he was hari of Nanagar Khan Brohi with whom Ghulam Hussain alias Madni had enmity but the alleged enmity had not been disclosed. There is nothing in the cross-examination of the alleged eye-witnesses namely Khuda Bux and Muhammad Ali, which could indicate that there was any sort of enmity of these two witnesses with the accused.

5. With regard to contention No. 2 it is admitted position that P. Ws. Khuda Bux and Muhammad Ali were not local residents and were passing by the scene of offence as they are traders of chaff who visit the fields, village etc. in connection with their trade. However; as already stated there is nothing on record even to suggest as to why these two witnesses would falsely implicate the two accused who are youngsters. Even Khuda Bux is a distant relation of deceased Gulzar. The rule about consideration of evidence of chance witnesses could be stated to be that such evidence is to be considered with care and caution. It is apparent from a perusal of the judgment of the learned Second Additional Sessions Judge; Dadu that the argument with regard to the aforesaid two only eye witnesses being chance witnesses was considered by him at length and after discussing the evidence on record he was of the opinion that the evidence of Khuda Bux and Muhammad Ali was credible and had not been shaken in the cross-examination or otherwise. Being presiding officer of the trial Court the learned Second Additional Sessions Judge had the opportunity also to note the demeanour of the witnesses who were examined in his pre sence and there is no reason at all to differ from his assessment of the value of evidence given by them. It may here be observed that the learned trial Court as is clear from perusal of the judgment devoted lot of care and attention for appreciation of different pieces of evidence appearing against the accused and gave them the benefit of doubt in respect of any such evidence, which according to the Court was not reliable. For instance while discussing the evidence with regard to recoveries of blood-stained clothes and -hatchet at the pointation of appellant Kaloo, the learned Second Additional Sessions Judge observed that the recovery which was made on 25th day of the incident did not make much sense as there was no reason why the accused should not have washed the hatchet and washed or destroyed the clothes.

6. The contention of Mr. Azizullah K. Shaikh, the learned counsel for the appellants about the ocular evidence being contradictory to the evidence of Dr. Chandar Lai, the Medical Officer who performed post- mortem examination of the dead bodies of deceased Kirir and Gulzar had been based on the post-mortem notes of the two dead bodies. Dr. Chandar Lai found three injuries on the body of Kirir deceased which he noted as under: - (1) Incised wound 12 cm. x 9 cm x bone cutting deep at the back of the neck. (2) Abrasion 5 cm. x 5 cm. at front of left knee. (3) Abrasion 2.4 cm. X 2.4 cm. at medial mellulous of right leg. The doctor also noted the following two injuries on the body of Gulzar deceased, namely; (1) Incised wound 6 cm. x 3 cm. x bone deep at left side of neck. (2) Abrasion 61 cm x 9 cm. back of right elbow joint. It is contended by the learned counsel for the appellants that the evidence of the two eye-witnesses namely Khuda Bux and Muhammad Ali is that while Muhammad accused and another unknown person held Kirir Kaloo, accused/appellant gave hatchet blow to him on the back of the neck and similarly it was the evidence of the aforesaid witnesses that Gulzar deceased who tried to run away caught bold of by appellant Muhammad and unknown person while Kaloo gave him sharp-sided hatchet blow on the neck. It is therefore, argued that whereas incised injuries which were also fatal were found in accordance with the evidence given by the eye witnesses, there was absolutely no evidence of the causing of two abrasions on the body of Kirir and one abrasion on the body of Gulzar. 'The learned Second Additional Sessions Judge, Dadu has explained the reasons why he considered the discrepancy with regard to the abrasions appearing on the dead bodies as immaterial and unimportant. He was the presiding officer of the trial Court in which Dr. Chandar Lal had given evidence and he had put the question about these abrasions on the bodies of the two deceased. Although the Medical Officer had stated that the abrasions were caused by hard and blunt substance the learned Second Additional Sessions Judge, looking to the parts of the body where the aforesaid abra sions appeared concluded that the same could have occurred due to fall of the deceased after receiving the blow on the head. In Yasin alias Cheema and another v. The State (1980 S C M R 575), a decision of the Supreme Court, it was inter alia observed as under: - " There is no inflexible rule that evidence 'of witnesses whose presence at the time of the incident is accepted by the court as natural, must be rejected simply on account of a possible conflict with medical evidence or opinion. Any such conflict is obviously a relevant factor, but it cannot be conclusive irrespective of the other circum stances of the case." Since the evidence of prosecution witnesses Khuda Bux and Muhammad Ali had been accepted by the trial Court and the same adequately and correctly described the causing of fatal injuries on both the deceased, looking to the dimensions and the simple nature of the abrasions found omission to mention and to explain the causing of the same is not such material fact which could detract from the trustworthiness of the evidence of the eye-witnesses specially as observed by the learned Second Additional Sessions Judge; the commission can easily be explained to be natural and of no consequence.

7. With regard to contention No. 3, the relationship of prosecution witnesses with the deceased without it being proved that the witnesses were inimical to the accused is not to be considered as a ground for rejection of their testimony. In Muhammad Amin v. The State (1982 P Cr. L J 953) a decision of the Lahore High Court in it was so held.

8. With regard to contention No. 5, it was admitted fact that there had been proceedings under section 110, Cr. P. C. against P. W. Ghulam Hussain alias Madni and that he was history sheeter of Bhan Police Station. In Abdul Hakim and 2 others v. The State (P L D 1971 Kar. 239) a decision of this Court where there was criticism of evidence of a witness against whom proceeding under section 110, Cr. P. C. were pending and it was suggested that he was a man of bad character and, therefore, his evidence could not be relied, for that reason, it was observed as under: - "We are unable to give any credence to this contention, for a person of bad character can be a credible witness. It is the inherent worth of his statement that would matter and not the character.' The witness admitted that the deceased Gulzar was brother of his first wife and complainant Ghulam Sarwar is his brother. He supported the evidence of P. W. Khuda Bux stating that at about 2 or 2.30 p. m. Khuda Bux had met him and Haji Ismail at bus stop of Bhan Saeed Abad. He further stated that Khuda Bux had told him that he and Muhammad Ali had gone to purchase wheat chaff at village Abad and had returned from the village, when they came near Dero of Ghousoo Leghari they heard cries from inside the forest. The witness further corroborated all the version given by the two eye-witnesses by stating that Khuda Bux had given him the version.

9. In this case no evidence could be led about the motive. It is apparent from perusal of the F. I. R. that Ghulam Sarwar, the complain ant had something to say about the motive but the learned trial Court rightly considered that the F. I. R. could not be treated as substantive evidence and since the complainant had gone to Saudi Arabia and was not likely to return to Pakistan his evidence was not recorded. In Syed Mushtaq Ahmed v. Siddiqullah and others (P L D 1975 S C 160), a decision of the Supreme Court it was inter alia observed as under "It is well settled that the weakness of motive or even its complete absence would be wholly immaterial in a case where ocular testi mony of an unimpeachable character is available in support of the prosecution case." In Ghulam Nazir v. The State (1981 S C M R 805) a decision of the Supreme Court it was held that the absence of motive or the fact that the real motive of offence is shrouded in secrecy was considered sufficient for reducing the sentence of death to that of life imprisonment. In the instant case even the motive suggested by the first informant is not plausible. Even if there had been a quarrel the previous evening there is no explana tion why the victims and the accused met at a lonely spot in a forest miles away from their villages. Mystery surrounds the fixing of the rendezvous by the five young teenagers for two of whom it was rendezvous with death. The learned Second Additional Sessions Judge, therefore, rightly consi dered the circumstances sufficient for the lesser sentence of imprisonment for life. In the circumstances I do not find any weight in these appeals which are dismissed. M. Y. H. Appeal dismissed.