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Criminal Acquittal Appeal No. 284 of 1973, decided on 28th January 1975.
‑‑ Ss. 302 & 3'4 read with Ss. 147, 148 & 149‑Murder‑Time at which incident occurred doubtful‑Delay in lodging F. I. R. not satisfactorily explained‑No evidence to support recovery of incrim inating articles‑‑Ocular evidence unreliable and unworthy of credit-Motive not acceptable‑Prosecution, held, failed to establish its case against accused-‑ Appeal against acquittal dismissed. [First Information Report‑Recovery‑Evidence‑Appeal against acquittal].
Usman Ghani, Asstt. A. G. for the State.
Muhammad Hayat Junejo for Respondents.
Date of hearing t 28th January 1975.
Respondents Muhammad, Waris, Muhammad Ali, Abdul Ghafoor, Ahmad Ali, Ghulam Haider, Ali Dost and Sher Muhammad and three others, namely Ghous Bux, Ali Hasan and Haji Abdullah were tried for the murders of Yar Muhammad, Yousuf and Ahmad and for causing simple‑ injuries to Muhammad Khan on charges under sections 147, 148, 302 and 324 read with section 149, P. P. C. but were acquitted by the learned Sessions Judge. Sanghar, vide judgment dated 31st March 1973. The State has filed this appeal to assail the acquittal of the seven respondents only.
2. According to the prosecution case, the incident occurred at 7 a.m. on 29th April 1970, on the land of Rasool Bux Mangsi in deh Mano Jamali, District Sanghar. It is the stand of the prosecution that Rasool Bux, uncle of Yar Muhammad, owned 16 acres of land which, upon his death, con tinued to remain in possession of Yar Muhammad as he had given shelter to his widow, Mst. Hurmat, and his two daughters. Waris, however, demanded a share in the land but Yar Muhammad did not accede‑to that demand, which dispute was also referred to Amir Ali Mangsi, a Nekmard, to whom the deceased had also complained his apprehension of danger to his life at his hands. On the night following the incident, respondents Sher Muhammad and Ali Dost had visited Yar Muhammad to persuade him to give to Waris his share of the land as he was his elder brother, but the deceased again refused on the ground that the land belonged to the daughters of Rasool Bux Mangsi and on hearing so they went away. However, in the morning Muhammad Khan went out to attend the call of nature and on his return, he told the three deceased that a 'chhappar' had been built on the disputed land, whereupon the three deceased and Muhammad Khan went towards the 'chhappar' while Shahnawaz and his aunt, Mst. Makhan, followed them. They also saw a recently built chhappar in the middle of the land and as the deceased and Muhammad Khan (came near it, each of the seven respondents came out of the chhappar, of whom Ali Dost, Sher Muhammad and Muhammad Ali had guns while the others had hatchets. At that moment, they also saw Ali Hasan, Ghous Bux and Master Abdullah and sitting on horses' back at a distance of 3 to 4 acres and instigating Waris and others. Those armed with guns fired at the three deceased while the others having hatchets caused hatchet injuries, as a result of which the three died on the spot while Muhammad Khan sustained hatchet injuries who was later taken to Amir Ali Mangsi, to whom the incident was reported. Muhammad Khan also became unconscious in the meantime. At the instance of Amir Ali Mangsi, Shabnawaz proceeded to Out‑Post Sarhari, where he lodged a report at 8 a.m. the same day, which was recorded in the station diary by Ghulam Muhammad A. S. I. and later transcribed in the 154 book maintained at Police Station Shahpur Chakar. After noting the injuries he sent injured Muhammad Khan to the Medical Officer, Sarhari, for examination and treatment. He then went to the wardat, where he saw the three deceased lying dead with hatchet and gunshot injuries. He secured blood‑stained earth from there and five empty cartridges. He also noticed a newly‑constructed chhappar at the wardat. He did not, however, find any hoof‑marks at that place, as, according to him, the land was hard. The articles were seized vide mashirnama, Exh. 45, in the presence of mashirs. He then sent the dead bodies for post‑mortem, examination to the Medical Officer. Shahpur Chakar and thereafter examined Mst. Makhan. He arrested respondent Muhammad Ali the same day at 4 p.m. vide mashirnama, Exh. 49, and noticed an injury on his right arm. Muhammad Ali produced a gun which was lying concealed in a bedding which, on examination, was found to contain an empty cartridge in one of the barrels and had smelt of gun powder. The gun and the cartridge were sealed in separate parcels in the mashir vide mashirnama, Exh. 50. He next arrested Muhammad Waris and secured from his person a blood stained shalwar and shirt vide mashirnama Exh. 51. Waris produced one blood‑stained hatchet from his house which into taken into possession vide mashirnama, Exh 52. He arrested Abdul Ghafoor on 30th April 1930, and from and from his person secured a blood‑stained shalwar vide mashirnama, Exh. 53. Abdul Ghafoor produced a blood‑stained hatchet from his house, which was seized vide mashirnama, Exh. 54. On 3rd May 1970, Ahmad Ali was arrested and from his person blood‑stained shirt and shalwar were secured vide mashirnama, Exh. 55. He also produced a blood‑stained hatchet, which he took out from the chhappar of his house and was seized vide mashirnama, Exh. 56. Ghaus Bux, Ali Hassan and Abdullah, against whom no appeal is preferred, were arrested on 20th May 1970. Mohammad Sharif, another A. S. I. of Police Station Shahpur Chakar, also carried out a part of the investigation. He sent Muhammad Ali for examination and treatment to the Medical Officer, Sarhars and later examined injured Muhammad Khan. He arrested Sher Muhammad vide mashirnama, Exh. 38, and also Ghulam Ryder and Ali Dost. Prom the person of Ghulam Haider he secured blood stained shirt and shalwar vide mashirnama, Exh. 39. Ali Dost produced his licensed gun, which was seized vice rnashirnama, Exh. 40, which smelled of gun powder. Ghulam Haider also produced a blood‑stained hatchet from his house which was secured vide mashirnama, Exh. 41. The hatchets, clothes and the earth were sent for chemical analysis, which were all reported to be stained with human blood. The crime empty secured from the wardat and the nuns were sent for matching to the forensic laboratory, but the report was riot fled by the District Public Prosecutor as he stated that it was in the negative.
3. Dr. Vijay Singh performed autopsy on the dead bodies of Ahmad Khan, Yar Muhammad and Yousuf. On Ahmad Khan he noticed the following injuries:‑
"(1) Gunshot wound ' in diameter in left iliac fossa pellet could be found.
(2) Gunshot wounds five in number in right axilla and six exit wounds on right scapular region.
(3) Gunshot wound on right side of chest about 4" below right axilla pellets recovered 2' away from right side of entry of the same wound.
(4) Incised wound 6' x 1' x bone deep on back of neck vertebrae fracture."
In his opinion, injuries 1, 2 and 3 were caused by the discharge of a firearm, like a gun from a range of about 12 feet while injury No. 4 was caused by a sharp‑cutting weapon, such as a hatchet. He also noticed semi‑digested food in the stomach. Injuries 1 and 4 were said to be individually and collectively sufficient to cause death in the ordinary course of nature. On Yar Muhammad he found the following injuries:‑‑
"(1) Incised wound 8" x 1' x bone deep on left parietal region half of left ear cut parietal, bone was fractured
(2) Incised wound 8' x 1' x bone deep on top of left shoulder.
(3) Incised wound 6' x t" x bone deep on left scapular region.
(4) Incised wound 3' x 1" x bone deep on back of neck.
(5) Incised wound on frontal side of forehead 2' x 3' x bone deep.
(6) Gunshot wound ' in diameter on back on right side. Pellet recovered 4' away from site of injury under skin.
(7) Gunshot wound ' in diameter in right inguinal region pellet recovered from right buttock under skin."
In his opinion, injuries 1 to 5 were caused by a sharp‑cutting weapon such as a hatchet, while injuries 6 and 7 were caused by the discharge of a fire-arm, like gun from a range of 12 feet. Injuries to were individually and collectively sufficient to cause death in the ordinary course of nature. He noticed semi‑digested food in his stomach. On Yousaf he noticed the following injuries:‑
"(1) Right arm cut at wrist joint. Both bones cut.
(2) Incised wound 4' x 1' x bone deep on left elbow joint. Radius bone cut.
(3) Incised wound 10' x 2' x bone deep on back of neck vertebrae fractured."
which, in his opinion, were caused by a sharp‑cutting weapon, such as hatchet, and were individually and collectively sufficient to cause death in the ordinary course of nature. He also noticed semi‑digested food in his stomach. He further examined injured Muhammad Khan, on whom he found the following injuries:‑‑‑
"(1) Incised wound 6' x muscle deep x 1" below left scapula on neck.
(2) Laceration on left scapula region 1' x 2'."
Which, in his opinion, were caused by a sharp‑cutting weapon, such as a hatchet injury No. 2 was opined to have been caused either by a blunt weapon or by a fall. Lastly, on 30th April 1970, he examined respondent Muhammad Ali, on whom he noticed an incised wound which, in his opinion, was simple in nature and caused about 20 hours before by a sharp‑cutting weapon, such as "razor blade"
4. The respondents denied the prosecution case and proclaimed their innocence. Waris stated that deceased Yar Muhammad was of bad character and was wanted in many cases and hauled up in proceedings under section 110, Cr. P. C. He had attacked a nekmard, Baboo Jamah, and was implicated in a triple murder case. He was a nuisance in the locality and had many enemies. As for his own implication in the crime, he imputed enmity as a reason for it. Muhammad Ali adopted the same defence and so did Abdul Ghafoor. Ahmad Ali denied his abscondence and alleged enmity with Amir Ali Mangsi. He also adopted the defence of Waris. Ghulam Haider ascribed his implication due to his relationship with Ali Dost and Sher Muhammad, who had enmity with Amir Ali Mangsi. Ali Dost pleaded enmity with Waris who, according to him, had refused to give his daughter to his son in exchange for his own sister, who was married to him but had died some 9 years back. He also gave another reason for his implication and that is that Ghaus Bux, who is his mother's father, had enmity with Amir Ali who was instrumental in roping him in the crime, Lastly Sher Muhammad denied his concern with Waris and adopted the defence of Ghulam Haider.
5. The trial Court, upon an appraisal of the evidence of Tapedar Kamaldin that the ground was impressionable and not hard, held that the absence of hoof‑marks at the place, where Ghous Bux Abdullah and Ali Hasan were said to be sitting on horses' back, shows that the prosecution witnesses had falsely implicated these three persons in the crime. It also took into consideration other circumstances such as that none of them were assigned any active part in the crime, that further Shahnawaz and Mst. Makhan had admitted that they had no grievance against the deceased, but Shahnawaz had gone to Amir Ali before lodging the report who had sent his cousin, Yar Muhammad, to accompany him to the police station, and being influential must have influenced Shahnawaz to implicate them on account of his enmity with them. The trial Court, therefore, did not rule out the possibility of their false implication. The District Public Prosecutor also conceded that the prosecution had failed to prove the charge against them and that therefore they we're entitled to acquittal, with which the trial Court agreed.
6. The trial Court was also doubtful as to the time at which the offence was committed. In this respect, it took into consideration the evidence of the doctor that all the three deceased had semi‑digested food in their stomachs, which could not have been present if the incident had taken place in the morning as the evidence showed that they had taken only night meals but no breakfast and, therefore, the incident must have happened after they had taken their last meals. Thus, it must be midnight or a little later when the incident must have occurred, in which case it must be dark and the indentification of the culprits could not be beyond doubt. This being the main consideration the trial Court regarded the ocular testimony as "unreliable and untrustworthy" in the context of their relationship to each other. As for the recoveries, the trial Court did not accept that evidence since the mashies, namely Muhammad and Abdul Karim, had not supported the prosecution case and as for the Investigating Officer it held that his evidence stood in conflict with that of the mashirs and, therefore, it was not possible to place implicit reliance on it. It also held that the guns were not proved to be crime weapons as the District Public Prosecutor conceded that the report was in the negative. In the result, it held that the case against the respondents was doubtful and acquitted them also.
7. We have examined the evidence of the trial Court, and have found nothing to take a different view. According to Muhammad Khan, all the deceased including himself had taken their night meals before going to bed and none of them had taken any breakfast in the morning before the incident. The presence, therefore, of the semi‑digested food in the stomachs of the deceased was unexplainable, having regard to the opinion of the doctor that the three deceased must have died "within three or four hours from the time of taking their meals" if it were to be accepted that the incident occurred at 7 a.m. It is true that this is not the only criterion for judging the time of occurrence but at the same time we do not see any reason why the food would be in that state in the stomachs of the deceased and in this view of the matter, this circumstance cannot lightly be brushed aside in weighing the truthfulness of the ocular testimony. Again, though the prosecution case is that the incident occurred at 7 a.m., yet Amir Ali was not able to deny positively when it was suggested to him in the committal Court that Muhammad Khan and Shahnawaz had come to him hour before sunrise and with which statement he was confronted at the trial. All that he stated was that he did not remember it. Why he had given an evasive reply, is not understandable when Shahnawaz and Muhammad Khan according to the prosecution case had gone to him after the incident in the morning. Be that as it may, there is room for doubt as to the time, at which the incident had occurred. If, therefore, it was at night, then the identifica tion of the assailants could not be with any certainty. This is all the more clear from the reply of Amir Ali that in the Lower Court he had not stated that Muhammad Khan and Shahnawaz had given to him the names of the assailants though he qualifies it by saving that he had not made any inquiries from them, which is absurd, for there is unequivocal evidence that Shahnawaz and Muhammad Khan had both gone to him immediately after the incident and had disclosed to him the names of the assailants. In the circumstances, the non‑disclosure of the names of the assailants lends assurance to the fact that the incident must have occurred at night without the assailants having been identified. There was thus considerable delay in lodging the F. I. R. which cannot be explained otherwise than on the hypothesis that it was lodged after due deliberation. Even the District Public Prosecutor conceded that no case was made out against three of the assailants, namely Ali Hasan, Ghous Bux and Master Abdullah. Indeed, their implication cannot be but false. In this background, there is no assurance that others could have also been falsely implicated. The injuries sustained by the three deceased could have even been caused by one or two persons firing their guns at them and so also the hatchet injuries on them and the others by lesser number of persons. Therefore, in spite of the fact that Muhammad Khan had received hatchet injuries and his presence could not be denied yet his version becomes unreliable and loses its weight. As for the presence of Shahnawaz and Mst. Makhan it becomes doubtful as to whether they had at all witnessed the occurrence when the very foundation of the pro secution case is not acceptable that the incident occurred in the morning after Muhammad Khan had informed them that a chhappar had been built on the disputed land.
8. According to the medical evidence, the gunshots were fired from a distance of 12 feet and not from a close range. Such estimation is approximate and could be even more. In that event, it could not have been possible to identify the assailants at all at night who had fired the gunshots. As for those who had caused the hatchet injuries, at least those suffered by Muhammad Khan are on the back which were likely to have been caused while he was escaping and in that view of the matter it may not have been possible for him to identify the culprits with any clarity, for his anxiety would have been to save his own life.
9. The earlier version disclosed in the F. I. R. not being sustainable, principally on the ground that the incident had not taken place at the time stated but much earlier and also for the reason that the part of instigation not having been established, the trial Court rightly held' that the evidence was "unreliable and untrustworthy".
10. As for the injury on Muhammad Ali, it cannot be regarded as incriminating for it was not put to him when examined. Even otherwise, he was sent for examination on 30th April 1970, one day after the incident and the medical evidence in that it was not only caused by a sharp‑cutting instrument, such as razor blade, which could either be self‑suffered or self -inflicted but was also 20 hours old, which time does not tally with the time of the incident. Therefore, it could not have been caused in the incident at all, for it is no body's case that anyone had a razor blade, which is the likely weapon with which it was inflicted.
11. The learned counsel for the State, while conceding that it would not be safe to rely on the ocular testimony alone, urged that it is supported by the recovery of blood‑stained clothes and hatchets. At least against three of the respondents. Ali Dost, Sher Muhammad and Muhammad Ali, there was no such evidence for they were armed with guns and the crime empties were not proved to have matched with their guns. As for others, the recoveries were not supported by the mashirs, namely Muhammad and Abdul Karim. In the case of Ghulam Haider, it was Muhammad Sharif A. S. I. who had seized the articles in the presence of mashir, Muhammad, but there is conflict in the evidence of these two witnesses and the trial Court did not place reliance on the evidence of Muhammad Sharif. We: do not also see any good reason why we should rely on the evidence of Muhammad Sharif alone when the mashir was not declared hostile and room for doubt is left. The seizure of other incriminating articles was made, by Ghulam Muhammad A. S. I. in the presence of Abdul Karim, but this A. S. I. was not examined at the trial and his committal Court deposition was transferred to the Sessions file under section 33, Cr. P. C. on the application of the District Public Prosecutor stating that he had expired. The learned Sessions Judge granted this application without notice to the other side and ought it be said that the requirement of section 33, Cr. P. C. was not strictly complied with, for no evidence was led to establish the death of Ghulam Muhammad A. S. I. which could have been contested by the other side. Presumably, the learned District Public Prosecutor relied on what Muhammad Sharif A. S. I. stated, but that, in out view, cannot be a sub stitute of the mandatory requirement of section 33, Cr. P. C. when the Court even did not give an opportunity to the defence to rebut it but simply granted the application. In this view of the matter, this evidence has to be excluded from consideration and the learned counsel for the State also half‑heartedly conceded to it. There is, therefore, no evidence to support the recoveries of incriminating articles against the remaining respondents. The ocular evidence thus leas no support which on the face of it, is unre liable and unworthy of credit. Moreover, three of the respondents, namely Ali Dost, Ghulam Haider and Slier Muhammad, had no concern with the disputed land and that further they had strained relations with Waris, for he was implicated in the murder case of one Abdul Karim, uncle of Ali Dost. There could, therefore, be no reason for them to join with Waris This is again a likely feature which goes to show their false implication.
12. As for the motive, that was not accepted by the trial Court, with which we agree. The trial Court has given cogent reasons for not accepting the prosecution case and we see no reason to differ from it.
13. In the result, the prosecution has failed to establish its case against the respondents. We would, therefore, dismiss the appeal. The respondents are on bail. Their bail bonds stand discharged.
Appeal dismissed.
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