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Criminal Revision No. 125 of 1974, decided on 10th January 1975.

‑‑‑ Ss. 302 & 382----Murder‑Benefit of doubt‑‑parties having pre existing enmity‑Complainant exaggerating and improving upon his F.I.R statement‑Prosecution witnesses attempting to make their statements consistent with medical evidence Deceased receiving fatal blow in sudden light and nothing to ascertain as to who caused him fatal injury‑Accused given benefit of doubt and acquitted, in circumstances.‑[Benefit of doubt].

Muhammad Hayat Junejo for Appellants.

Usman Ghani Asstt. Advocate‑General for the State.

Dates of hearing : 9th and 10th January 1975.

Appellants Ali Gohar Abbas, Qurban and Hayat were tried for the murder of Sikandar, for causing grievous injury to Yousuf sand simple injuries to Muhammad Murad and Jan Muhammad and for committing robbery of buffaloes belonging to the deceased and. convicted and sentenced as under:‑ Ali Gohar‑‑under sections 302 and 382, P. P. C. and sentenced on the first count to imprisonment for life and on the second to two year's rigorous imprisonment and a fine of' Rs. 500 or is default to suffer rigorous imprisonment for six months. Abbas‑under sections 3 s2 and 326, P. P. C. and sentenced on the first count to two years rigorous imprisonment and a fine of Rs. 500, or in default to suffer rigorous imprison ment for six months and on the second to rigorous imprisonment for four years and a fine of Rs. 500 or is default to suffer rigorous imprisonment for six months. Qurban‑‑under sections 382 and 323, P. P. C. and sentenced on the first count to two years rigorous imprisonment and a fine of Rs. 500 or in default to suffer rigorous imprisonment for six months. The appellants were tried and convicted as afore‑stated by the learned Sessions Judge, Dadu, vide judgment dated 2nd April 1974. They have appealed to impugn their convictions and sentences.

2. According to the prosecution case, tile incident occurred on the land of Khair Muhammad near a small canal called Depar Wah in taduka Mehar. District Dadu at noon on 29th July 1972. At the above‑stated time, the deceased, who was a nephew of Khair Muhammad, was grazing his two buffaloes and a young she‑buffalo by the side of hip; land. Hs raised cries, which attracted Khair Muhammad and the others namely Muhammad Murad, Yowsuf, Barkat and Jan Muhammad, who being on their lands and close to the wardat saw the appellant amongst whom Ali Collar, Abbas and Hayat were armed with hatchet. while Qurban bad a lathi, driving away the buffaloes. They gave hakals' to desist the appellants from doing so and in the meantime the deceased informed them that while he was grazing the buffaloes the appellants came all of a sudden and robbed him of the buffaloes and were driving them away. Being unarmed Khair Muhammad did not go near them but ultimately he and others tried together to get back the buffaloes from the appellants, upon which Hayat instigated the other appellants not to spare them. Ali Gohar thereupon gave sharp‑sided blows on the bead of the deceased while Abbas struck a hatchet blow on the head of Yousuf and both of them fell down. Qurban gave lathi blows to Muhammad Murad and Jan Muhammad. Seeing other persons from villages the appellants left the buffaloes and escaped. The incident was also witnessed by Barkat, who had come on cries. Khair Muhammad got a bullock‑cart, in which he carried the injured to the hospital alongwith Barkat and others but on the way near village Qazi Arif the deceased expired; nonetheless, they proceeded towards Police Station, Mehar, where Khair Muhammad lodged the F. I. R. the same day at 19 hours. The report was recorded by Muhammad Bashir A. S. I. H ho examined Muhammad Yousuf and Murad and noted their injuries in the mashirnama in the presence of mashirs and sent them for treatment to the dispensary. The dead body was sent to the Medical Officer Mehar, for post‑mortem examination. He next examined Barkat and thereafter went to the wardat, but since it had become dark he inspected the wardat in the morning in the presence of mashirs. He found blood stains and a bunch of hair lying on the bank of Depart Wah and noticed 8 or 9 sets of indistinct foot prints. Re secured the hair and the blood‑stained earth vide mashirnama, Exh. 12. He then returned to the village, where he examined Jan Muhammad who was also injured. He sent him for examination and treatment to the Medical Officer, Mehar. Khair Muhammad produced before him the buffaloes and the young one which were said to have been robbed. They were secured vile mashirnama, Exh. 14, but later returned to the father of the deceased. He arrested all the appellants at 2 p.m. the same day vide mashirnama, Exh. 15, and secured three hatchets one each from Ali Gohar, Hayat and Abbas. While the hatchet of Rayat was not blood‑stained. the other two had blood on them. Qurban produced a lathi which was also not bloodstained, "According to the A. S. I. the two blood‑stained hatchets were alongwith the earth for chemical analysis but the report discloses only one hatchet having been sent, on which human blood was found.

3. Dr. Shamsul Haq performed autopsy on the dead body of the deceased and noticed the following injuries:‑

(1) Incised wound on the top of the head extending from above and behind the left ear to above and behind the right ear measuring 8 x ' x 1'.

In his opinion, it was caused by some sharp‑cutting weapon, such as hatchet and that it was sufficient to cause death in the ordinary course of nature. He also examined the injured, namely Muhammad Murad, Yousuf and Jan Muhammad. On Muhammad Murad, be noticed the following injuries:‑

"(1) Lacerated wound on the left side of the head behind the left ear measuring x 1/3.

(2) Lacerated wound or the right side of the head above the right ear measuring ' x 1/8' x 1/8 .

(3) Swelling between the right shoulder and the right side of the neck.

(4) Contusion on the back of the right side of the chest."

In his opinion, all be injuries were simple in nature and were caused by some blunt weapon, like lathi or the backside of a hatchet. On Muhammad Yousuf he noticed the following injuries:--

"(1) Incised wound on the top of the centre of the head anterior posterio, measuring 3 ' x x '.

(2) Contusion behind the left ear on the scalp measuring 2' x 1'.

(3) Contusion on the anterior surface of the right shoulder measuring 3 .

In his opinion, injury No. 1 was caused by a sharp‑cutting weapon, like hatchet and was grievous in nature while injuries 2 and 3 were caused by some blunt weapon, like lathi or the back side of a hatchet. On Jan Muhammad he noticed the following injuries:‑

"(1) Healed scar of abrasion on the right side of the back of the neck measuring 1' x '.

In his opinion, it was simple in nature and caused by some blunt weapon, like the backside of a hatchet.

4. The appellant, when examined, denied the prosecution case and pleaded that Inc prosecution witnesses were interested and hostile. Ali Gohar further alleged that there was enmity between them an account of excavation of a watercourse by his cousin Muhammad Saleh, father of appellant Abbas, as a result of which there was a fight between them about a year before. He also pleaded enmity against Qasim who had involved him in a fake theft case, but he was let off. Abbas also pleaded the same reason for iris false implication. Qurban also alleged enmity and his relationship with Ali Gohar as the reason for his implication in the case. Hayat adopted the same defence as that of Ali Gohar. All the appellants are related inter se and so are the prosecution witnesses.

5. The appellants' plea of enmity finds support from the evidence of not only Barkat Ali, who is a 'masat' of the deceased, but also from the testimony of mashir Ghulam Rasool, who is also related to the complaisant party. The trial Court accepted the evidence as regards enmity and held that the deceased was killed "not necessarily in consequence" of robbery but due to the grudge between the parties, which was a dispute over the breach of water which led to strained relations between them. It also held that it was (wt a case of robbery but merely the commission of an offence under section 382, P. P. C. Another curious finding is in regard to the doubt expressed qua the instigation attributed to Hayat. According to the trial Court the part of instigation was not free from doubt and, therefore, it convicted him only under section 382, P. P. C. With this background in view, we have scrutinised the evidence. Admittedly there was enmity between tile parties. The hatchet, which was found to be stained with human blood, could not be fastened to either Ali Gohar or Abbas, as it was not found to be an identifiable weapon. On this aspect of the case, trial Court fell into error when it held that there was corroboration to the prosecution case inasmuch as one of the hatchets secured from cane of the appellants did bear human blood in the context of the fact that two blood‑stained hatchets were produced. All that can be said is that this hatchet was used in the crime, but who used it, is not evident and nothing can turn on it when the case has to be adjudged on the footing of individual liability and not with reference to common intention. There is, therefore, tainted ocular testimony in regard to the parts ascribed to the individual appellants and the factum of theft as concluded by the trial Court. Whether there was in fact theft of the buffaloes which led to the incident, is the moot question for determination. While examining the evidence of the mashir and the A. S. I., one thing, which stands out, is that only the place, where the deceased was killed, was shown and not the place from where the buffaloes were said to have been driven away by the appellants. At that place, according to the mashir, there was blood on the ground and a bunch of cut hair, and so also the footprints of 8 or 9 persons. He does not say anything about the animal dung or the hoof marks up to any distance at all from the place where the blood was found. The A. S. I. also corroborates the mashir. But Jan Muhammad and Barkat Ali have nonetheless spoken about the animal dung and book marks from the places where the buffaloes were grazing up to a distance of about 25 to 50 paces. If at all there was animal dung or the hoof marks, why were they not noticed by the mashir or the A. S. I. in the manner suggested by the witnesses and why no attempt was made to point out that place. There is, of course, in the mashirnama mention of hoof marks leading from north to south but no attempt was made by the prosecution to bring out this fact through the mashir or the A. S. I. If we were to take into consideration the mashirnama, all that it suggests is the marks left by the grazing buffaloes in a particular direction which, by itself, is not sufficient to hold that they were the marks left by the buffaloes driven by the appellants. Again, if it was a case of theft, then it is unbelievable that the unarmed prosecution witnesses could have attempted to rescue the cattle in the face of imminent danger to their own lives. Khair Muhammad, in the F. I. R. has even admitted that he did not go near them out of fear as he was unarmed, but then later on not only he but the others who had come, mustered the courage to face the appellants. which feature appears to us to be highly doubtful. In the context this doubt and the fact that in the evidence there is nothing to sustained that the buffaloes were driven to any distance, the story of theft appears to us to be a concoction. The trial Court impliedly acquitted the appellants of the charge of robbery and inaptly drew a distinction on the footing of what Khair Muhammad stated in the F.I.R. that is, that the deceased had told that the appellants had come there and were driving away his buffaloes, but he did not go near them as they were armed with hatchets which, in the mind of the trial Court, satisfied the ingredients of section 382, P. P. C, Even on this footing the fear of instant death or hurt could not have been ignored, for the cattle were driven away in the presence of the deceased, who would have otherwise resisted if the appellants were not armed. Besides, the ocular testimony of Muhammad Murad and Barkat Ali points to the deceased having stated to them that the appellants had taken away his buffaloes by force which impliedly suggests the fear of instant death or hurt. It is also reasonable to assume that this must have been so, for it was not possible for the appellants if we were to accept the prosecution case, that they could have taken away the buffaloes without the show of force to give an impression of instant death or hurt, which would squarely bring the case within the ambit of section 392, P. P. C. The conclusion, therefore, of the trial Court that the facts pointed to a case of theft is erroneous. Be that as it may, we are not satisfied about the driving away of the buffaloes by the appellants and even to this extent, the prosecution has failed to establish the case against the appellants under section 382, P. P. C.

6. White the presence of the injured witnesses and so also the other two cannot be denied, yet in the absence of corroboration it is difficult to place reliance on what they stated about the individual participation of the appellants. The trial Court did not accept the part of instigation attributed to Hayat and, therefore, while repelling the applicability of section 34, P. P. C. convicted the appellants on the evidence in regard to their individual participation. we have ,also not found any circumstantial evidence of the buffaloes having been driven away to bring the case within the concept of section 382, P. P. C. and, therefore, no case is established against Hayat. In the context of the enmity, therefore, their evidence requires substantial assurance at regard to the individual participation of the remaining appellants. What we have observed from the account The evidence is not up to the level which can lend assurance for resting con viction. In the F. I. R. Khair Muhammad stated that Ali Gohar gave sharp‑sided hatchet blows on the head of the deceased, whereas only one incised injury was noted by the doctor. However, in the evidence, he merely referred to only one blow. There is, therefore, an element of exaggeration. Yousuf, Muhammad Murad, Jan Muhammad and Barkat Ali have in their testimony also attributed a blow on head of the deceased, but this can only be construed as to make it consistent with the medical evidence. Again in the F. I. R. Abbas is said to have caused a blow on Yousuf with the sharp side of the hatchet, but there is no mention as to who caused the other injuries on him. The medical evidence points to two other injuries on him which are in the nature of contusion which are opined to have been caused by a lathe or the backside of a hatchet. However, in his testimony, Khair Muhammad attributed these injuries to Abbas with the blunt side of the hatchet. Yousuf and Jan Muhammad have also said so, but Muhammad Murad and Barkat Ali have not spoken about Abbas having caused these two injuries. We fail to see why there was an omission in the F. I. R. if Abbas in fact had caused these injuries. About turban, it is stated in the F. I. R. that he gave lathi blows to Muhammad Murad and Jan Muhammad, but what is surprising is that on Muhammad Murad there are two lacerated wounds, which can only be caused either by the backside of a hatchet or an iron‑plated lathe or some heavy weapon. Even on Jan Muhammad, the medical evidence suggests that the injury was caused by some blunt weapon, such as the backside of a hatchet. It is, therefore, not certain that Qurban could have caused the injuries with a lathe, for both contusions and the lacerated wounds can also be caused by the backside of a hatchet. In the face of the confused evidence and the fact that only two incised injuries were caused in all, the possibility of one of the appellants having caused them cannot also be altogether excluded when the evidence is itself stained. Again, the use of laths is highly doubtful when the injuries could equally have been caused by the backside of a hatchet and, therefore, the participation of Qurban in the fight is also unlikely. If this is the standard of evidence then it is not to place reliance on the ipse dixit of these witnesses to support the individual participation of either Ali Gohar or Abbas, which requires unimpeachable evidence to sustain conviction either on the charge of murder or one under section 326, P. P. C. The learned Assistant Advocate‑General himself conceded that it is doubtful as to who caused the injuries to Yousaf. Murad or Jan Muhammad, but pressed his case on the consistent statement of the witnesses about Ali Gohar that it was he, who had caused the incised injuries to the deceased. It is not possible to accept the consistent version in the light of the defects pointed out above, and more so when the impression one has from the evidence is that it was a sudden fight and blows were given without the witnesses having correctly noticed as to who bit whom. The feature that the weighed with us in forming this impression is that all the prosecution witnesses were unarmed and if it had been a case of theft or robbery then, they would have managed acme weapons to see back the buffaloes from the appellants.

7. In the result the prosecution has failed to establish its case against the appellants beyond reasonable doubt. We would, while giving to theme the benefit of doubt, accept the appeal and acquit them. They should be set at liberty forthwith unless required in some other, case.

Appeal allowed.

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