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Criminal Appeal No. 10‑K of 1985, decided on 13th January, 1986.

(On appeal from the judgment and order, dated 24‑11‑1983 of the High Court. of Sind in Criminal Appeal No. 37 of 1983).

‑‑‑Art. 185(3)‑‑Penal Code (XLV of 1860), S.302/34‑‑Leave to appeal granted to re‑examine evidence in order to determine whether convictions of accused was sustainable, consistent with principles governing safe dispensation of justice, in view of certain features of prosecution case, appearing in evidence, namely, that injuries on deceased were showing from their location that two parietal injuries could have been caused by one person and so also two incised injuries on left leg by any one of three persons who were armed with hatchets as it was highly improbable that after causing one blow with weapon each one of assailants would have stopped and allowed others to cause blow at about same place‑ Earlier version in First Information Report suggested more injuries to have been caused than were found on deceased‑‑Conflict between version in First Information Report with medical evidence, inasmuch as it was stated there that an incised injury was caused on right thigh of deceased which was not, found to exist on medical examination also existing‑ Circumstances showing that even two persons could have caused these injuries being armed with two different types of weapons, or indeed, only one person could have caused them armed with hatchet.

‑‑‑S. 302/34‑‑Accused four in number, one armed with Lathi while remaining with hatchets‑‑Accused allegedly caused Lathi and hatchet blows to deceased‑‑Description of manner in which deceased was inflicted injuries by assailants in evidence of alleged eye‑witnesses appearing vague although version given in First Information Report was more detailed‑‑Eye‑witnesses nowhere stating that any of culprits inflicted blows with back side of hatchet‑‑Except one accused who was armed with Lathi other three accused allegedly inflicted hatchet blows but no seat of injuries described‑‑Version in First Information Report suggesting that number of injuries inflicted on deceased were more than four and more importantly deceased was also inflicted an injury with hatchet on his right thigh which was in total contradiction to medical evidence which certified only four injuries and no injury having been received on right leg by deceased‑‑Eye‑witnesses hostile to accused and not independent‑‑No evidence of circumstances available to corroborate their testimony‑‑Contradiction existing in their versions of occurrence as compared to medical evidence‑‑According to medical evidence deceased received two contused wounds on parietal region of head and two incised wounds of different severity on his left leg‑‑Total number of incised wounds only two but according to evidence of alleged eye‑witnesses one injury was inflicted by accused having Lathi and rest of injuries, without specification of their number, were inflicted by hatchet by other accused who were armed with hatchets‑‑Evidence did not describe manner in which another blunt weapon injury was inflicted on head of deceased‑‑Version given in First Information Report, if it were to be preferred, also coming into conflict with medical evidence on material aspects‑‑Contradiction between two versions, namely oral testimony and version of first information report qua medical evidence, irreconcilable‑ Although prosecution urging that accused launched a determined and sustained attack on deceased in view of strong animosity motivating actions of assailants, yet only injury on vital part of body of deceased was with a Lathi and not with hatchet when majority of assailants were armed with hatchets and they could have caused much greater number of injuries to deceased especially when no resistance was offered by companions of deceased nor was there any apprehension of intervention from any other quarter‑‑It was highly improbable that four accused who had equal grievance with deceased would only inflict one injury each, one by one and not resort, to successive blows with their weapons in course of occurrence‑‑Result of violence perpetrated on deceased, as found in medical evidence, appearing to be work of two or even one assailant armed with hatchet using both sharp and blunt side of weapon‑‑Such factors appearing in evidence greatly devaluing intrinsic soundness of eye‑witnesses‑‑Fact that complainant and a prosecution witness were named as accused persons in a case under S.307, Penal Code, registered a day earlier to occurrence and were absconding, tending to point to their not being seen in public place like place of occurrence in case in hand‑‑No particular reason disclosed in evidence for their being in company of deceased at psychological moment‑‑Such an inherent infirmity in testimony of said two eye‑witnesses making it extremely unsafe to base a conviction in a capital offence without independent corroboration‑‑Weapons allegedly secured from accused having no evidentiary value and could not serve purpose of corroboration‑‑Evidence of motive which consisted of enmity between parties neutralizing motive to be sufficient for purpose of corroboration‑‑Eye‑witnesses appearing to have not seen occurrence and their evidence not true Conviction and sentence set aside in circumstances.

‑‑‑S. 302/34‑‑Appreciation of evidence‑‑Enmity cuts both ways.

‑‑‑S. 302/34‑‑Criminal Procedure Code (V of 1898), S. 154 First information report, held, not a substantive piece of evidence.

‑‑‑S. 302/34‑‑Appreciation of evidence‑‑Interested witnesses‑‑Intrinsic value, determination of‑‑Principle to determine intrinsic worth of testimony of interested witnesses is whether number of persons named by such witnesses to have participated in occurrence seems consistent with independent evidence like medical evidence‑‑In case of any exaggeration pointed out by other circumstances of case, corroboration of testimony of interested witnesses, held, was indispensable.‑ [Witness‑‑Evidence].

Muhammad Hayat Junejo, Senior Advocate Supreme Court, and Faizanul Haq, Advocate‑on‑Record for the Appellants.

Sattar Shaikh, Assistant Advocate‑General (Sind) with S.M. Abbas, Advocate‑on‑Record for Respondent.

Date of hearing: 13th January, 1986.

‑‑The four appellants before us are brothers and were found guilty for the murder of Majan alias Abdul Majid by the learned 1st Additional Sessions Judge, Sukkur. They were sentenced to imprisonment for life and fine of Rs.2,000 or in default R.I. for two years each. The appeal filed by the convicts was dismissed and their convictions as well as sentences awarded to them were upheld, by a learned Judge of the Sind High Court, vide judgment, dated 24th November, 1983.

Leave was granted in this case to re‑examine the evidence in order to determine whether the convictions of the appellants are sustainable consistent with principles governing the safe dispensation of justice, in view of certain features of the prosecution case appearing in the evidence. These features are that the injuries on the deceased show from their location that the two parietal injuries could have been caused by one person and so also the two incised injuries on the left leg by any one of the three persons who were armed with hatchets as it. was highly improbable that after causing one blow with the weapon each one of the assailants would have stopped and allowed the others to cause the blow at about the same place. Additionally the earlier version in the F.I.R. suggested more injuries to have been caused than were found on the deceased. There was also conflict between the version in the F.I.R. with the medical evidence, inasmuch as, it was stated there that an incised injury was caused on the right thigh of the deceased which was not found to exist on medical examination. Lastly the circumstances showed that even two persons could have caused these injuries being armed with two different types of weapon, or indeed, only one person could have caused them armed with hatchet.

3. The occurrence in this case is said to have taken place on 12th January, 1978, at 12.00 noon4 in the land of one Allah Bux Malano, in Deh Kot Sadiq Shah adjacent to village Nawan Bhutta, Tajuka Pano Aqil, District Sukkur. It is the case of the prosecution that the deceased alongwith his brother Ghulam Hussain (complainant) and Sain Dino (P.W.) were returning from village Arzi when at village Nawan Bhutta the party were overtaken by the four appellants, namely, Ali Gohar, Muhammad Hussain and Muhammad Alam all sons of Raju. Out of them the first three were armed with hatchets while the last mentioned was carrying a Lathi. The culprits accosted complainant party and demanded the complainant and Sain Dino to keep away declaring that they would kill Majan deceased. Appellant Muhammad Alam is then said to have inflicted the first blow with his Lathi which fell on the head of the deceased as a result of which he fell to the ground. Other three culprits are then said to have given hatchet blows, appellant Muhammad Hassan with the back side of the hatchet. Thinking that the deceased had died, the accused decamped from the scene. Majan deceased was then carried in injured condition to the police station by complainant and Sain Dino and lodged in the Pano Aqil Police Station and the F . I . R . was registered at, 12 .45 p.m.

4. The motive for the crime is said to be a dispute between the deceased and appellant Ali Gohar over a woman named Mst. Mukhtiar. According to the prosecution she was married with the deceased about 9/10 months before the occurrence but she soon developed illicit relations with appellant Ali Gohar who is admittedly the nephew of the deceased. This dispute resulted in litigation between the parties in the course of which the party of appellant Ali Gohar obtained search‑warrants from the Court of Mukhtarkar, Shikarpur, in pursuance of which she was produced in Court and she gave a statement in. favour of the accused, whereupon she was allowed to accompany appellant Ali Gohar. As a result of this dispute proceedings under section 107/151, Cr.P.C. were also taken against both parties which were still pending. Also on an application by the mother of Mst. Mukhtiar she was once again produced by the police before the S.D.M., Rohri, but she adhered to her previous statement in favour of appellant Ali Gohar. A more recent cause which further inflamed the antagonism between the parties was an incident one day prior to the occurrence, when the complainant and deceased were going to Pano Aqil and came across Raju father of appellant alongwith his two sons other than the present appellants. There was hot exchange between the parties, as a result of which a fight had ensued in which the complainant and the deceased gave blows to the father of the appellants, in respect. of which a case was registered at the police station. It is this background of bad blood between the parties which according to the prosecution was the motive for the assault by the appellants on the deceased.

5. The plea of the appellants in their statements under section 342, Cr.P. C. was of total denial of the prosecution case and of false involvement due to enmity.

6. In support of their case the prosecution relied on ocular testimony of Ghulam Hussain (complainant), Sain Dino, and Mst. Waziran wife of the deceased. Additionally reliance was also made on the evidence of motive and recoveries. So far as the last mentioned piece of evidence is concerned, the prosecution case was that blood‑stained hatchets were secured at the instance of appellants Ali Gohar and Ali Murad, hatchet. was also produced by appellant Muhammad Hassan but were not blood stained. The two hatchets said to be blood‑stained were later sent to the Chemical Analyser who found the blood on the same to have disintegrated. In these circumstances, the evidence of recoveries is of no value and was discarded by the High Court. The learned Judge in the High Court, on examining the testimony of Mst. Waziran found that she had come to the place of occurrence after the injuries were inflicted and did not rely upon it, so far as the main occurrence is concerned. Her name was also not mentioned in the F.I.R., which was considered to be another strong ground to hold that, she was not present at the time of occurrence. He, however, accepted the testimony of Ghulam Hussain complainant, and Sain Dino (P.W), who are both brothers of the deceased, to be worthy of credence and reliable and sufficiently corroborated by the motive. The learned Judge held that the murder of the deceased was committed in broad daylight which excluded any question of mistaken identity and as the F.I.R was promptly lodged substitution was also excluded. False involvement of the appellants according to the learned Judge, was not, possible in view of close relationship between the complainant and the accused who are his nephews

7. Mr. Muhammad Hayat Junejo, learned counsel appearing for the appellant urged that the testimony of the two eye‑witnesses on which the convictions of the appellants are founded cannot be safely relied upon as intrinsically it is unworthy of credence, particularly in the context of enmity between the appellants and the complainant party. In this behalf the features noticed in the leave granting order were emphasised by the learned counsel and it was further submitted that these reflect seriously on the assertion of the eye‑witnesses that they had witnessed the occurrence.

8. According to the post‑mortem report by Dr. Abdul Karim, the deceased had the following injuries on his person:

"(i) Contusion 2 " x 1" on the first temporoparietal region.

(2) Incised wound 3 " x 1 " muscle and bone cut on the middle of left lower leg.

(3) Incised wound 1 " x " x muscle deep on the outer side upper third of left thigh.

(4) Contused wound 1 " x " muscle deep on the parietal region."

The doctor certified that the above injuries were ante‑mortem. In his opinion the injuries Nos.l and 4 were caused by hard blunt substance whereas other two injuries were the result of blows by sharp cutting weapon. It, was further opined by the doctor that injury No. 1 individually and all the injuries collectively were sufficient in ordinary course of nature to cause death. According to the version of complainant Ghulam Hussain in the F.I.R. the first blow was given by appellant Muhammad Alam with Lathi on the head of the deceased, whereas Ali Gohar gave a hatchet blow on his left leg. Appellant Ali Murad according to this version also gave a hatchet blow on the right thigh of the 'deceased. As regards Muhammad Hassan appellant it was only stated that he gave blows to the deceased with the blunt side of the hatchet but the location of the injuries was not described. In his evidence in Court, he stated as follows:

"Muhammad Alim accused gave Lathi blow to my brother Majan on his head who fell down on the ground. Then thereafter all the accused gave blows with hatchets to my brother Majan."

In the cross‑examination, he expressed his inability to give the number of injuries and stated that all the accused gave injuries to the deceased. Similarly Sain Dino (P.W.) in his evidence described the injuries in the following manner:

"Accused Muhammad Alim gave Lathi blows while the remaining three accused gave hatchet blows to our brother Majan."

From the above, it will be seen that the description of the manner in which the deceased was inflicted injuries by the assailants in the evidence of these alleged eye‑witnesses is vague, although the version in the F.I.R. is more detailed. In their evidence these witnesses have not stated that any of the culprits inflicted blows with the back side of the hatchet. On the contrary except for appellant Muhammad Alim the rest of the appellants were stated to have inflicted hatchet blows without describing the seat of the injuries. The version in the F.I.R. as noted in the leave granting order suggests that the number of injuries inflicted on the deceased were more than four and more importantly, that the deceased was also inflicted an injury with the hatchet on his right thigh. This is totally contradictory to the medical evidence, which certifies only four injuries and no injury having been received on the right leg by the deceased.

9. These circumstances appearing in the evidence have assumed importance in view of the admitted position that there was strong enmity existing between the complainant side and the accused. The dispute over Mst. Mukhtiar has already been mentioned as well as the fact that a case of section 307, P.P.C. was‑filed by the accused party against the complainant and his party men one day prior to the occurrence in respect of injuries received by the father of the accused. The Investigating Officer has stated that the complainant had admitted before him that they had absconded in that case and that he had arrested the complainant and Sain Dino as well as injured Mujan (subsequently deceased) at the time the report in this case was lodged. It is, therefore, clear to us that the two eye‑witnesses were not independent witnesses as they were hostile to the accused. What is more is that there is no evidence of circumstances to corroborate the testimony of these two witnesses. The contradictions in their versions of the occurrence with the medical evidence and the plausibility of their statements in this regard assumed importance in the context of this situation, namely that they are interested witnesses and there is no evidence of ' corroboration. As pointed out by the learned Judge in the High Court, in such circumstances, the primary question to be examined by the Court is the intrinsic soundness of their testimony, for it is only when having regard to all the surrounding circumstances their testimony is found to be intrinsically credit worthy that it would be possible to dispense with the corroboration as the general rule of prudence demand's in .the case of interested witnesses. One of the principles laid down to determine the intrinsic worth of the testimony of such witness is to determine whether the number of persons named by him to have participated in the occurrence seems consistent with the independent evidence such as medical evidence. In case of any exaggeration pointed out by other circumstances of the case, corroboration of the testimony of interested witnesses is indispensable.

10. We have examined the case in the light of these principles laid down by this Court to determine whether the testimony of the two alleged eye‑witnesses in this case satisfies the test laid down therein, It appears to us that the deceased received two contused wounds. according to the medical evidence on the parietal region of the heat and two incised wounds of different severity on his left leg. The total number of incised wounds is two, whereas according to the evidence of alleged eye‑witnesses as reproduced above, one injury was inflicted by appellant Muhammad Alim with the Lathi and the rest of the injuries without specification of their number, were inflicted by the other accused with the hatchets. Thus, the evidence does not describe the manner in which the other blunt weapon injury was inflicted on the head of the deceased. According to the F.I.R. as observed earlier one of the appellants inflicted an injury with the back side of the hatchet. This may well be a good explanation of the difference in the nature of injuries described by the witnesses in their testimony and the medical evidence. But F.I.R. is not a substantive piece of evidence and we are considering the veracity of the testimony of the witnesses in Court. Even otherwise the version in the F.I.R., if that is to be preferred also comes into conflict with the medical evidence on material aspects, inasmuch as, whereas in the F.I.R. an injury is said to have been inflicted by one of the appellants on the right thigh of the deceased. This is not verified by the medical evidence. The contradiction between the two versions, namely, the oral testimony and the version in the F.I.R., qua the medical evidence, is, therefore, irreconcilable. The other important feature appearing in the circumstances is that the prosecution would like us to believe that the accused launched a determined and sustained attack on the deceased in view of the strong animosity motivating the actions of the assailants yet the only injuries on the vital part of the body of the deceased is with a Lathi and not a hatchet, when majority of the assailants were armed with hatchet. In ordinary course of human conduct, in such circumstances, the four assailants would have caused much greater number of injuries to the deceased especially when no resistance was offered by the companions of the deceased nor was there any apprehension of intervention from any other quarter. It is highly improbable that the four appellants who had equal grievance with the deceased, would only inflict one injury each, one by one and not resort to successive blows with their weapons in the course of the occurrence. The result of the violence perpetrated on the deceased as found in the medical evidence appears to be the work of two or even one assailant armed with the hatchet, using both the sharp and blunt side of the weapon. These factors appearing in the evidence greatly devalue the intrinsic soundness of the two witnesses. Besides the circumstances indicate that the complainant and Sain Dino P.W. were not natural witnesses. The occurrence has not taken place in the house of the deceased or in a place where these witnesses would ordinarily be expected to be present. On the contrary the fact that they were named as accused persons in a case under section 307, P.P.C. registered a day earlier to the occurrence and were absconding, tends to point to their not being seen in public place like the place of occurrence in this case. We find no particular reason disclosed in the evidence for their being in the company of the deceased at the psychological moment. The inherent infirmity in the testimony of the two eye‑witnesses therefore, makes in extremely unsafe to base a conviction in a capital offence, without independent corroboration. As already observed the weapons allegedly secured from the appellants have no evidentiary value and cannot serve the purpose of corroboration. The evidence of motive which consists of enmity between the parties also neutralizes the motive to be sufficient for purpose of corroboration, for enmity cuts both ways. In the view that we have taken of the evidence of the two witnesses, we cannot rely on the testimony of Abdul Hameed (P.W.), that Raju, the father of the appellants instigated) them in his presence to take his revenge from the deceased. At any rate if his evidence was true then complainant Ghulam Hussain, who was admittedly one of the accused in the injuries case of Raju, would have been the target of the assault launched by the appellants. Since we have held that the circumstances of the case indicate that the two eye‑witnesses had not seen the occurrence, no question of corroboration of their testimony would arise.

10. In the result this appeal is allowed. The appellants are acquitted.

They shall be set at liberty forthwith if not required in any other case.

M . Y . H . Appeal allowed.

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