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Criminal Petition No.5‑K of 1984, decided on 24th January, 1985.

(On appeal from the judgment and order dated 21‑12‑1983 passed in Criminal Appeal No.44 of 1983 and Confirmation Case No.5 of 1983 of the High Court of Sind, Karachi).

‑‑‑Art. 185(3)‑‑Penal Code (XLV of 1860), 5.302‑‑Ocular evidence furnished by only two witnesses out of three not only interested but was also adversely affected by medical evidence‑‑Circumstantial evidence of recoveries of crime weapons and blood‑stained clothes was impeach able‑‑Motive attributed to accused not proved‑‑Petition for leave to appeal dismissed.

Abdul Hafeez Memon, Advocate Supreme Court instructed by Rashid Akhtar Qureshi for Petitioner.

M. Hayat Junejo, Senior Advocate Supreme Court, Muzaffar Hassan, Advocate‑on‑Record for Respondents Nos. 1 to 4. Abdul Sattar Shaikh for Respondent No.5.

Date of hearing 24th January, 1985.

.‑‑The petitioner herein seeks leave to appeal against the acquittal of Ali Hassan, Zahoor Hussain, Shabbir Hussain and Lal Din, who were tried for the murder of Nazir Ahmad on 21st of September, 1981 at 7.30 a.m. near a Primary School situate in Deh 23‑Jamrao, Taluka Sinjhoro, District Sanghar.

The deceased suffered as many as 13 incised and 2Ik fire‑arm injuries. The former were allegedly caused by respondents Zahoor Hussain, Shabbir Hussain and Lal Din, who were armed with hatchets, while the latter by Ali Hassan by his licensed gun which was found to contain a crime empty in its chamber on being secured on 22nd of September, 1981. Respondents Zahoor Hussain and Shabbir Hussain each produced blood‑stained hatchets and clothes. The cause imputed for the murder was litigation between the parties over a piece of agricultural land since about a year prior to the event.

The trial Court while convicting the respondents accepted the ocular testimony and the recovery of the incriminating articles at the behest of Zahoor Hussain and Shabbir Hussain. In giving out its assessment as to the credibility of the witnesses, the trial Court held that they were "natural, truthful and trustworthy witnesses" and as a matter of law it was not necessary that there should be an independent corroboration before giving weight to their evidence. However, if any support was needed it was provided by the incriminating articles recovered at their behest. This conclusion was reached in the context of the submission that Abdur Rehman was an interested witness as he was the father‑in‑law of the deceased while Muhammad Ramzan who though not related was yet inimical as respondent Ali Hassan had instituted a criminal case against him and his brother for causing injuries in the Court of F.C.M., Sanghar, and could not, therefore, be regarded as a disinterested witness, but this argument was held to be devoid of force.

Before the High Court, it was urged that the eye‑witnesses were not only unnatural witnesses, but also inimical towards the respondents and that their testimony stood in conflict with the medical evidence as to the time of the occurrence. Emphasis was laid on the fact that it was a sheer coincidence for these witnesses to have seen the occurrence when nothing substantial has come on record to disclose as to why they would follow the deceased who was on his way to Sanghar and that another witness Shabbir Hussain was not examined on the ground that he had been won over. The High Court while accepting this submission held that the time of occurrence was also doubtful and did not fit in with the time stated for the occurrence as the deceased had semi‑digested food in his stomach which could not have been the case if he had left a few minutes after breakfast at 7.30 a.m. As for the recoveries of hatchets and clothes, the High Court held that it was impossible to believe that the respondents Zahoor Hussain and Shabbir Hussain would preserve and voluntarily produce them. The further fact which weighed with the High Court was that the blood‑stained articles recovered at the behest of the appellants were sent, five months after their recovery, to the Chemical Analyser and that during this interval it was difficult to believe that the blood would not have decayed and deteriorated. As for the crime‑empty, found in the chamber of the licensed gun of Ali Hassan, the High Court held that it could not be pivotal in holding that the crime weapon was used as it was not found on the spot. Lastly, the motive was also disbelieved, as it was vague. Concluding, the High Court observed in para. 12 of the judgment as under:‑

"The appraisal of the prosecution evidence thus portrays that ocular evidence furnished by only two witnesses out of three is not only interested but is also adversely affected by medical evidence; the circumstantial evidence of recoveries of crime weapons and blood‑stained clothes is impeachable, and motive attributed to the appellants has not been proved."

Having examined the evidence and the judgment of the High Court, we see no reason to form a different opinion. All that Muhammad Ramzan has said was that while going to Sanghar he heard the gun‑report, which attracted him to the spot, but gave no reason as to why he had undertaken that journey. Equally, the evidence of Abdur Rahman is also vague, as he gave no reason as to why he followed the deceased although before leaving the deceased had told him that he was going to Sanghar but without disclosing the purpose. If at all he had to go to Sanghar then we find no justification as to why he did not accompany him, but rather followed him later. The High Court, accordingly, was justified to hold as it did that their presence was doubtful in the context of the fact that the deceased himself could not have left at 7.15 a.m. but later on at about 10 or 10.30 a.m. as was clear from the state of digestion of the food in his stomach. As to the recoveries, we find no error in the reasons given by the High Court for discarding them.

Accordingly, we see no substance in this petition, which is dismissed.

M . Z . M . Petition dismissed.

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