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(From the judgment dated 28th March, 1982 of the High Court of Sind passed in Criminal Appeal No. 108 of 1981).

(a) Constitution of Pakistan (1973)‑

---Art. 185(3)‑ Penal Code (XLV of 1860), S. 302/34‑Murder Accused acquitted by High Court‑Leave to appeal against order of acquittal Granted to examine correctness of High Court's view that (i) reliance could not be placed on evidence of interested ocular witnesses without independent corroboration; (ii) prosecution failed to examine independent eye‑witnesses; (iii) evidence of recovery of blood stained knife remained uncorroborated; (iv) absence of blood at place of occurrence showed that incident did not take place, and (v) application of S. 34, Penal Code was not available.

(b) Penal Code (XLV of 1860)‑

‑‑ S. 302/34‑Murder‑Evidence‑Ocular witnesses, although natural leaving gaps in prosecution's case casting doubt whether they had actually seen occurrence‑.‑4o explanation for presence of two abra sions on person of deceased‑No blood found at alleged place of occurrence‑Large number of injuries on persons of accused indicating that both sides had fought and inflicted injuries on each other‑Court, however, unable to resolve gap in prosecution case ‑ Reason present to doubt occurrence having taken place at spot and in manner described by prosecution witnesses benefit of which must go to accused‑Held, acquittal of accused was not liable to be set aside in circumstances of case‑Criminal Procedure Code (V of 1848), S. 417.

Bhalu v. Crown P L D 1955 F C 432 ref.

Usman Ghani Rashid, Advocate Supreme Court, instructed by Rashid Akhtar Qureshi, Advocate‑on‑Record for Appellant.

M. Hayat Junejo Advocate Supreme Court for Respondents Nos. 1 to 4.

A. Sattar Shaikh, Additional Advocate‑General for the State.

Date of hearing : 15th April, 1984.

M. S. H. QURAISHI, J.‑

Appellant Khawas Khan, father of the murdered deceased, has preferred this appeal, by leave of the Court, from the judgment of a learned Single Judge of the High Court dated 28‑3‑1982, whereby the conviction and sentence recorded against the respondents in the case was set aside and they were acquitted.

2. The murder took place on 28‑8‑1978 at 6.45 p.m. in front of the appellant's quarter inside the compound of the ice‑factory on Dr. Ziauddin Ahmad Road, Karachi. Allauddin, the deceased, was at that time sitting along with a boy Gulshad outside his quarter and in front of that of Gul Muhammad respondent, to which Asifzada respondent, who is paternal cousin of Gul Muhammad, objected. He was joined by the other three respondents, namely, Khan Muhammad, Imamzada and Gul Muhammad, As the deceased insisted on remaining sitting there, a quarrel took place, The appellant and Salahuddin who were present in the quarter also came out and implored the respondents not to quarrel as it was iftar time in the month of Ramazan but they seemed determined to fight. The respondents then went to their houses from where they came back armed, Khan Muhammad with a danda, Imamzada with an iron‑bar and Gul Muhammad and Asifzada with a knife each. At the instigation of Khan Muhammad, he and Imamzada started the attack in the course of which Gul Muhammad gave a knife blow on the abdomen of the deceased. Salabuddin also sustained injuries. The deceased was taken to the Civil Hospital but be died in the way. On receipt of information from the hospital, Mahbub Khan S.‑I., in charge of Police Station Civil Lines, went to the hospital from where be brought Salahuddin P. W. to the police station where he recorded his first report at 8.15 p.m. Khan Muhammad respondent, who was also present in the hospital, was taken into custody the same day. Gul Muhammad respondent, who was arrested on 29‑8‑1878, led to the recovery of a blood‑stained knife from the servant quarter of Khan Muhammad. His shirt which had a cut was also recovered. The prosecution case was supported by the ocular testimony of Salahuddin P. W. 1, the complainant and a cousin of the deceased, Khawas Khan P. W. 2 father and Mst. Dil Jan P. W. 3, mother of the deceased, Gul Sharif P. W: 4 and Haqqani P. W. 6 (the latter cited in the F. I. R.) also examined as eye witnesses, denied having seen the occurrence and were declared hostile. The recovery witnesses, too, failed to support the prosecution case.

3. The post‑mortem examination disclosed the presence of the following injuries on the person of the deceased :‑

"(1) Incised wound ' x ' x epigastrium, 4" above the umbilicus with suspected cavity deep.

(2) Abrasion x tip of left shoulder.

(3) Abrasion " X " X left thigh.

(4) Incised wound 1" X X muscle deep left thigh."

Injury No. 1 was individually sufficient to cause death. Salahuddin P. W. had suffered (1) contused abrasion on nose with suspected fracture of noser bone and (2) haematoma on head 1" x 1 . These injuries which had been caused by some hard and blunt object, were simple in nature.

4. The respondents denied the allegations and asserted that they had been falsely involved due to enmity. According to them, the deceased had been given injuries by Salahuddin P. W. Khan Muhammad respondent bad at the time of the arrest the following injuries on his person :‑

"(1) Lacerated wound on left side of head 1" x x muscle deep with suspected fracture underlying bone.

(2) Lacerated wound left side eyelid x 1/8^th" x muscle deep.

(3) Contused abrasion on left side nose with suspected fracture of nosal bone.

(4) Lacerated wound left forearm 1 x X muscle deep with suspected fracture of underlying bone.

(5) Haematoma left side of head 2" x 2."

Injuries 2 and 5 were simple but as supplementary report in regard to the other injuries was not produced the medical officer was unable to indicate their nature. The injuries, according to Khan Muhammad, had been the result of beating given to hire by the police. Gul Muhammad respondent, too, had the following injuries on his person :‑

"(1) Incised wound 1 x " x muscle deep left upper arm.

(2). Abrasion 1" x 1" x right cheek."

His explanation was that these injuries which were simple in nature were "due to fall of tin chaddar which 1 was placing while constructing my house". They examined Gulshad Khan D. W. 1, who had been cited as an eye‑witness in the F. I. R., and Phordil Khan D. W. 2, who both supported their version that the deceased had received the injuries at the hands of Salahuddin P. W. Moor Muhammad, who appeared as D. W. 3, supported the explanation given by Gul Muhammad in respect of his injuries.

5. The trial Court rejected the evidence of the recovery of the knife, the same having not been supported by the concerned witnesses, but relied on the ocular testimony of Salahuddin, Khawas Khan and Mst. Dil Jan as being natural witnesses and while rejecting the explanations furnished by Khan Muhammad and Gul Muhammad respondents in respect of the injuries on their person, it relied on those injuries as furnishing corroboration to the ocular testimony. It, accordingly, held all the four respondents guilty under section 302/34, P. P. C. and sentenced them each to imprisonment for life and fine. It convicted the respondents also under section 323/34, P. P. C. and sentenced them each to undergo R. 1 for one month plus fine.

6. The respondents' appeal before the High Court, however, succeeded upon the view that (1) the ocular witnesses being closely related to the deceased were interested witnesses and as such no reliance could be placed on their evidence without independent corroboration, (2) the prosecution had failed to examine independent eye witnesses though such witnesses had been present at the time of the incident and some of them when examined had not at all supported the prosecution case, (3) the evidence of recovery of the blood‑stained knife having been rightly disbelieved there was no corroboration available and (4) the absence of blood at the alleged place of occurrence showed that the incident had not taken place as given in the F. I. R. In. regard to the injuries found on the person of Khan Muhammad and Gul Muhammad respondents, it was held that the prosecution could not take advantage of the same as the injuries had not been mentioned in the F. I. R. and as the explanations furnished by the respondents were "plausible". The High Court further held that section 34, P. P. C. was not available, first, because the prosecution had led no evidence in that regard, and, secondly, because the quarrel being of sudden nature, there could be no question of all the respondents having the common intention to cause the death.

7. Leave was granted to consider the correctness of the view taken by the High Court.

8. Learned counsel for the appellant assailed the reasoning adopted by the High Court and argued that the ocular testimony coming from natural witnesses was of unshakeable credibility and ought to have been believed. The appeal was, however, opposed not only by Mr. M. Hayat Junejo, appearing for the respondents, but also by Mr. A. Sattar Shaikh, Additional Advocate‑General, who supported the judgment of the High Court.

9. No doubt the three ocluar witnesses are natural ones, one of them, f, e. Salahuddin having received injuries during the occurrence, and as such their testimony is entitled to the highest consideration. However, we find that they have left gaps which cast doubt whether they had actually seen the occurrence. In the first place, only the abdomen injury on the deceased finds mention in the F. I. R. as also in the evidence of the said ocular witnesses, although two incised injuries were found on his person. Then there is no explanation for the presence of the two abrasions on his person which according to the medical officer had been caused by "hard and blunt weapon". Nor is there any explanation for the presence of the injuries on the person of Khan Muhammad and Gul Muhammad respondents. The injuries of Khan Muhammad had been, according to the medical opinion, caused by "hard and blunt object such as danda‑lathi". It is to be noted that one of the injuries suffered by Gul Muhammad had been an incised wound, muscle deep, on the left upper arm. Another significant fact is the absence of blood at the place of the occurrence. Blood‑stained earth had been collected from the road in front of the gate of the ice‑factory and not from the scene of the attack. The investigating officer stated: "I did not notice mark of blood at the place where deceased is alleged to have sustained injury voluntarily states that blood was lying where deceased bad fallen down on road at some distance from vardat which is outside main gate of compound. I did not notice trail of blood". On the other hand, the presence of abrasions on the person of the deceased and of Gul Muhammad, as also the presence on the latter's shirt of a semi‑circular cut mark "not with clear margin" and not corresponding to the weapon of assault, could lead to an inference that grappling between the two had preceded the occurrence. The large number of injuries on the person of Khan Muhammad and the incised injury on the person of Gul Muhammad are also capable of giving rise to a belief that both sides had fought and inflicted injuries on each other. Since this was the prosecution case, and as the Court is not expected to examine the case upon a new theory of its own unsupported by evidence (see Bhalu v. Crown (P L D 1955 F C 432 ), we are unable to resolve the gap in the prosecution case. At least there is reason to doubt that the occurrence had taken place at the spot and in the manner described by the prosecution witnesses, the benefit of which doubt must go to the respondents. We are, therefore, not inclined to agree that their acquittal is liable to be set aside.

10. In the result the appeal is dismissed. The bail bonds furnished by the respondents are discharged.

S. Q. Appeal dismissed.

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