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Criminal Appeal No. 111 of 1982, decided on 11th December, 1983.

_ S. 302/307/148/149-Murder-Eye-witnesses closely related to deceased and their evidence inspiring no confidence-Enmity existing between parties on account of previous murders-Statements of eye-witnesses requiring independent corroboration-Mashir of recovery inimical to accused and his statement unreliable--Independent mashir available but not chosen by investigating officer-No cogent explanation given for delay of six months in sending hatchet to Chemical Examiner whose report consequently becoming unreliable-Prosecution witness claiming to be injured by gunshot reported by doctor to have inflicted injury himself by a blunt weapon and as such reliance could not be placed on his statement at all Trial Court relying on absconsion of accused but his absconsion after incident explained by him in his statement under section 342, Cr. P. C. which stood corroborated and such fact of absconsion could not be used as a corroborative piece of evidence against accused-Discrepancy existing between medical evidence and ocular evidence-Prosecution, held, failed to establish case against accused beyond reasonable doubt and as such it would be unsafe to convict them on uncorroborated statements of eye-witnesses-Conviction and sentence set aside in circumstances.

---S. 302/307/148;149-Criminal Procedure Code (V of 1898), S. 342-Murder-Absconsion of accused-Explanation for abscon sion given by accused in his statement under S. 342, Cr. P. C. but trial Court rejecting same on ground that accused did not pro duce any medical evidence in support of his alleged illness-- Held, it was not necessary for accused persons to produce positive evidence in support of their explanation if such explanation prima facie could be supported from evidence on record.

Azizullah K. Shaikh for Appellant.

Makhdoom Abdul Wali for Respondent

Date of hearing : 4th December, 1983.

Appellants abovenamed, being aggrieved by judgment dated 24^th May, 1982 of the learned Additional Sessions Judge, Sanghar, in Sessions Case No. 350/76, by which appellants have been convicted: -

Under section 3021149, P. P. C. sentenced to imprisonment for life and fine of Rs. 1,000 in default 3 months' R. I. and

Under section 544-A, Cr. P. C. to pay compensation of Rs. 3,000 each to the heirs of deceased in default 3 months' R. I. and

Under section 307/149 sentenced to 4 years' R. I. and fine of Rs. 500 and

Under section 544-A, Cr. P. C. to pay compensation of Rs. 500 each to P. W. Mehar in default 2 months' R. I. and

Under section 148, P. P. C. sentenced to 2-years' R. I. have preferred the above appeal, on the following facts and grounds: -

Briefly stated the facts of the prosecution case are as under: -

Complainant Khan Muhammad and P. Ws. Mehar, Badal, Hashim and three deceased persons Abdul Rehman, Qaim and Kehar all lived in village Miran Bux Bhangwer taluka Shahdadpur. On 25th June, 1976 at 5-45 a.m., the complainant and all the above persons left their village for going to Shahdadpur, in connection with section 107, Cr. P. C. proceed ings pending between them and the appellant. When they reached near the vardat, the three deceased persons Abdul Rehman, Qaim and Kehar were at that time about 1i acres' distance ahead of the complainant and other P. Ws. When the three deceased reached the bank of abandoned way, all of a sudden, the firing started. There were in all six persons namely Naseer, Ismail, Chhutto, Ali Muhammad, Gut Hassan and Misri. Out of them absconding accused Naseer, Chhutto, and Ismail were armed with guns, while the present two appellants and absconding accused Ali Muhammad were armed with hatchets. Co-accused Naseer opened fire at deceased Abdul Rehman, Ismail fired at Kehar while Chhutto fired at Qaim. The remaining three co-accused Ali Muhammad, Gal Hassan and Misri armed with hatchets caused hatchet blows to the three deceased. The complainant and P. Ws. challenged the appellants, whereupon absconding appellant Naseer fired at the complainant and P. Ws. as a result of which P. W. Mehar received pellet injuries on his right hand. The appellants armed with hatchets also damaged the licensed gun of deceased Abdul Rehman and broke it into pieces. The appellants then went towards their village after raising slogans and firing in the air. The complainant and P. Ws. then came near and saw that Abdul Rehman, Kehar and Qaim had succumbed to the gunshot and hatchet injuries received by them and were bleeding from their injuries. The complainant then having left P. Ws. Badal, Mehar and Hashim on the vardat; himself went to P. P. Sarhari and lodged the report.

About 1 years before this incident, Hadi Bux and Shall Muhammad belonging to the side of the appellants were murdered near Sarhari town in which case, complainant's father Miran Bux, his brothers Gul Baid, Umer, his nephew Nizam and cousins Lai Muhammad and Kirir were challaned. That case was still pending the Court of Sessions, Sanghar. All the above-said persons were in custody in the said murder case, except complainant's father Miran Bux, who had been released on bail. The Police subsequently, sent up both the sides under section 107, Cr. P. C., and those cases were pending in the Court of Additional City Magistrate, Shahdadpur. Both the parties were on bail in section 107, Cr. P. C., proceedings and they used to attend the Court. The appellants party suspected, that the complainant party had murdered Hadi Bux and Shafi Muhammad in revenge of previous murders of Achar and Amir Bux both belonging to the complainant's side. The appellants therefore, used to issue threats to the complainant party, that they would wreak their vengeance.

A. S. I. Mushtaque Ahmed of P. P. Sarhari recorded the report of complainant Khan Muhammad in the station diary on 25th June, 1976 at 7-30 a. m., arid launched the investigation. He proceeded to the vardat in the company of the complainant and sent the copy of the station diary to his main Police Station Shahpurchakar, through a Police constable, The dead bodies of three deceased Abdul Rehman, Kehar and Qaim were lying at the vardat in the pools of blood. He secured a cap, two turbans of Boski-cloth, a gun in broken condition belonging to deceased Abdul Rehman, a plastic bag containing licence of deceased Abdul Rehman, two blood-stained hatchets and as many as eight empties from there. He also secured the blood-stained earth from three places and sealed all the blood-stained articles separately and prepared such mashirnama in presence of mashir Jumo and Hazar Khan. He also prepared the Inquest report of the deceased persons and sent the three dead bodies to M. O. Shahpurchakar for post-mortem examination and report through P. C. Mir Muhammad. The A. S. I. also recorded the statements of P. Ws. Badal and Hashim who were present there and thereafter handed over further investigation to the S. H. O. who in the meantime arrived on the vardat. The S. H. O. recorded the statement of P. W. Mehar at the vardat and then started looking for the appellants. On the same day at 4-00 p. m., the S. H. O. arrested appellant Gut Hassan near inspection Bungalow Sarhari and during interrogation, he recovered a blood-stained hatchet from his house. S. H. O. Ali Nawaz then made hectic search for the remaining appellant, but could not arrest them till 11th July, 1976, when he submitted the interim challan in the Court. He also forwarded the blood-stained articles to the Chemical Examiner, Karachi through S. P., Sanghar for examination and report. Appellant Misri was subsequently arrested about nine months after the incident and a hatchet was also secured from his possession and thus after completing the usual investiga tion, the S. H. O. sent up appellants Gut Hasan and Misri to the Court of Sessions to stand their trial. Co-accused Naseer, Chhutto, Ismail and Ali Muhammad were, however, shown as absconders, who are till today at large.

Appellants Gut Hassan and Misri in their statements under section 342, Cr. P. C. vide Exhs. 42 and 47 have denied all the allegations levelled against them and have added that they have been involved in this case due to long-standing enmity with the complainant party. According to them the complainant and P. Ws. are closely related inter se and to the three deceased persons and all of them were hostile and inimical to them. Appellant Gut Hassan has further added, that Haji Bux was his brother, while Shafi Muhammad was his son. The complainant party had falsely implicated them in this case, in order to pressurise them not to give evidence in the murder case of Hadi Bux and Shafi Muhammad. According to the appellants absconding co-accused Chhutto and Ismail are his sons, Naseer is his nephew and son of Hadi Bux, while Ali Muhammad is his uncle. He further added that he was the complainant in the murder case of Hadi Bux and Shafi Muhammad and hence they have been involved in this false case. The appellants also added, that deceased Abdul Rehman. Qaim and Kehar had been run over by the train near the vardat and they have been merely implicated out of enmity. Co-accused Misri however, added that he remains mostly ill and even at the time of alleged incident, he was ailing. Bath the appellants have however, led no evidence in their defence.

Learned trial Court taking into consideration the evidence adduced before it, convicted and sentenced the appellants abovenamed as herein before mentioned and consequently appellants have filed the above appeal, on the grounds mentioned in memo. of above appeal.

The learned Advocate for appellants in support of the above appeal submitted as under: -

(a) That on account of admitted enmity between the parties due to previous murders, statements of P. Ws. 4, 5 and 6, who are closely related to deceased required independent corroboration, which is not available in present case and as such he relied upon the cases reported in P L D .1981 Kar. 1 and P L D 1973 S C 321, and 1982 S C M R 49.

(b) That P. W. 8 Jumman alleged mashir of recovery of hatchet at the pointation of appellant Gul Hassan is related to deceased and as such this recovery cannot be used as corroborative piece of evidence against the appellant Gul Hassan, in view of admitted enmity. In support of this learned Advocate relied upon cases reported in 1976 P. Cr. L J 52, 1977 P. Cr. L J 662 and 1980 S C M R 225/229, as P. W. 8 Jumman related to deceased.

(c) That hatchet in question was sent to Chemical Examiner on 28th December, 1978 after six months and report is dated 26th March, 1978 and as such no reliance can be placed on chemical examiner's report to connect the hatchet in question with the crime. In support of this learned Advocate for appellants relied upon case reported in PLD 1982 S C 49.

(d) That according to P. W. 7 Dr. Alam Kumar injuries on person of P. W. Mehar, are self-suffered and as such no reliance can be placed on his statement at all.

The learned Advocate appearing for State on the other hand submitted, that P. Ws. are natural witnesses and since last murder was committed of appellants' relative, appellants had motive to commit present murders, P. W. 8 Jumman is related to both the parties. He is brother-in-law of appellant Gul Hassan As far as appellant Misri is concerned, he had absconded after incident and as such his involvement gets corroboration from this fact.

I have carefully considered the above submissions made by the learned Advocates before me and have gone through the R & P of the learned trial Court as well as the impugned judgment and the cases cited by the learned Advocate for the appellants.

It is an admitted position that alleged eye-witnesses of the incident in question are closely related to the deceased and there is admitted enmity between the parties, on account of previous murders and consequently the statements of these eye-witnesses required independent corroboration as A laid down by this Court as well as Honourable Supreme Court in cases reported in P L D 1981 Kar. 1 and P L D 1973 S C 231 and 1982 S C M R 49. In the present case as far as the appellants are concerned, prosecution has relied on recovery of blood-stained hatchet from appellant Gul Hassan for purposes of corroboration and in case of appellant Misri, the prosecu tion has relied upon his alleged absconsion, after the incident in question. As far as recovery from Gul Hassan is concerned, the mashir of the alleged recovery P. W. 8 Jumman, who do doubt is closely related to both the parties, but on his own admission and according to statement of appellant Gul Hassan, he is inimical to the appellant It view of this it would be unsafe to rely on his statement for purposes of alleged recovery, as there is nothing on record to show why the investigating officer did nets care to choose an independent mashir for alleged recovery, in accordance with the provisions of section 103, Cr. P. C., when such mashirs could have been easily available. In this connection the cases reported in 1976 Pak. Cr. L J 52, 1977 Pak. Cr. L J 662 and 1980 S C M R 225, relied upon by the learned Advocate for the appellant are fully applicable to the facts of this case. In addition to this the hatchet allegedly recovered from the appellant Gul Hassan was sent to Chemical Examiner after 6 months of its seizure and the report is also a delayed report, The I. O. was put a question about this delay, but he replied that be forwarded the same to the S. P. and as such there is no cogent explanation for this delay in sending of the hatchet to the Chemical Examiner and consequently no reliance can be placed on such Chemical Examiner's Report, as laid down by Honourable Supreme Court in cases reported in P L D 1981 S C 477 and P L D 1982 S C 92. It may further be noted that P. W. Mehar, the. alleged injured P. W., who claimed to be an eye-witness of the incident, according to P. W. 7 Dr. Alamkumar had self-inflicted injuries by blunt weapon and not by gunshot as alleged by him and as such no reliance can be placed on the statement of this P. W. at all. The learned trial Court no doubt has given reasons for relying on the statements of eye witnesses as well as on the statement of P. W. 8 Jumman as far as appel lant Gul Hassan is concerned, but I see no reason to agree with the said reasonings, in view of the law laid down by Division Bench of this Court as well as by Honourable Supreme Court in various cases. As far as appellant Misri is concerned the only corroborative piece of evidence on which the learned trial Court has relied upon is the alleged absconsion of the appellant, after the incident in question, for which appellant has given his explanation in his statement under section 342, Cr. P. C., while denying the said fact. The learned trial Court has rejected the explana tion merely on the ground, that the appellant did not produce any medical evidence in support of his alleged illness. It may be noted, that it is not necessary for the accused persons to produce positive evidence in support of their explanation, if such explanation prima facie could be supported from the evidence on record. In the present case co-appellant Gul Hassan has supported this explanation of appellant Misri and as such in my opinion this alleged fact of absconsion cannot be used as a corroborative piece of evidence against appellant Misri in my opinion, in view of the facts and circumstances of the present case and admitted long enmity between the parties to respect of previous murders as well as pending cases under section 107, Cr. P. C. between the parties. I have also gone through the statements of P. Ws. 4, 5 and 6 the alleged eye-witnesses, their statements do not inspire confidence, on account of discrepancy between the medical and ocular evidence in respect of time, when the last meal was taken by the three deceased persons and on account of the fact, that there is also discrepancy regarding distance from which the shots were fired between ocular and medical evidence and as such the presence 6. of the eyewitnesses is not free from doubt. Keeping in view these observations made by me, in my opinion prosecution has failed to establish its case h-yond reasonable doubt against both the appellants, as it would be unsafe: to convict the appellants on the uncorroborated state ments of the eye-witnesses, who are admittedly enemical to the present appellants. In view of this, I see no reason to agree with the conclusions and. findings of the learned trial Court regarding availability of corroborative and circumstantial evidence against the present appellants.

Therefore I allow the above appeal and set aside convictions of the appellants and sentences awarded to them by the impugned judgment and acquit them by giving them benefit of doubt and direct that they be released forthwith, if not required in any other case.

M. Y. H. Appeal accepted.

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