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Criminal Appeal No.181 of 1986, decided on 28th December, 1986

--S.302--Evidence, appreciation of--Nature of injuries on person of deceased indicating that only one assailant caused hatchet blows to deceased, nevertheless, prosecution involving four persons of same family--Ocular testimony that after- receiving hatchet blows deceased gave a Lathi blow to a prosecution witness also contradicted by medical evidence--Enmity alleged on both sides--Which of alleged assailants was real culprit, held, was difficult to pick out in circumstances- Conviction and sentence of all the accused set aside, in circumstances.

Muhammad Hayat Junejo for Appellant.

M.Zaheer Ahmed Qureshi for the State.

Date of hearing: 11th December, 1986.

The appellants have been convicted by the learned Sessions Judge, Nawabshah under section 302/34 PPC and sentenced to imprisonment for life and to pay fine of Rs.5,000 each to, the heirs of deceased as compensation or in default to suffer R.I. for six.

2. The facts of the case are that P.W. Muhammad Mureed lodged the complaint at the police station alleging therein that Mohib Ali was his younger brother. Bux Ali their close relative resides at another village. About three months back Bux Ali and Baddu Khaskheli, the maternal-uncle of the complainant got suspicious that his brother Mohib Ali had illicit intimacy with Mst.Yasmeen wife of Bux Ali. Therefore Baddu and Bux Ali prevented Mohib Ali from coming to their village but his brother used to visit their village and they were displeased with Mohib Ali : On the day of incident he alongwith his brother came out from his house for some urgent assignment. When they reached at the land of Shafi Muhammad Khaskheli near the houses of Mahwal Khaskheli at about 6.00 a.m. the present appellants armed with hatchets emerged from jawar cultivation and warned his brother Mohib Ali to stop and said that they had to take revenge from him as he was Karo and they would kill him. Appellant Kado gave hakal and asked them not to spare him. On his instigation each of the accused gave one hatchet blow each to the deceased Mohib Ali. He raised cries and on his cries Punhal, Ghulam Hussain, Mahiwal and Peeral came there. They also saw accused persons giving blows. They shouted at them not to kill the man whereupon the accused persons ran away alongwith the hatchets. Mahiwal and Peeral captured accused Ghulam Muhammad alongwith the hatchet. It is further stated in the first information report that his brother Mohib Ali had a lathi in his hand with which he gave blow to Ghulam Muhammad in order to save himself on the spot, which hit on his hand. P.W. Muhammad Yousuf ASI recorded the first information report. He made necessary investigations and put up the charge-sheet against the appellants. The accused did not plead guilty to the charge. They denied the allegations in their statements. Accused Ghulam Muhammad stated that on hearing the news of murder of Mohib Ali he went to the village of the deceased in early morning. As soon as he reached the village of the deceased Punhobn caused his lathi injury and apprehended him and produced before the police. It is also the case of the accused that one Bachu maternal-uncle of deceased Mohib Ali was also murdered about 5 years prior to the present incident and in that case accused Kado was involved and he was acquitted and because of this reason the complainant party became enemy of Kado and the remaining accused persons.

3. The death of the deceased has not been disputed. It has been established through the evidence of Dr. Shafi Muhammad who found the following injuries on the person of the deceased.

(1) An incised wound 10 cm x 2 cm x cutting the bone on occipital region side. The mastoid bone was also cut.

(2) An incised wound 10 cm x 2 cm x cutting the bone on the right shoulder region.

(3) An incised wound 18 cm x 2 cm cutting the scapular bone on the left scapular region.

From the external as well as internal examination of the dead body of the deceased the doctor was of the opinion that the death was due to shock and haemorrhage as a result of the injuries. The injuries have been caused by some sharp cutting weapon such as hatchet. All the injuries were anti-mortem in nature. Injury No.1 individually and all the injuries collectively were sufficient in ordinary course of nature to cause death of the deceased.

4. In order to bring home the charge against the appellants the prosecution examined four eye-witnesses namely P.W.1 Mureed who is brother of the deceased, P. W.2 Piral, brother-in-law of the complainant, P.W.3 Ghulam Hussain maternal-uncle of the deceased and P.W.4 Moulidina Mazat of the deceased. The confirmation was sought from the recoveries of hatchets and the motive. The trial court discarded the recoveries of the blood-stained hatchets on the ground that the mashirs have not supported the case and Investigating Officer has not appeared in this case because he had absconded in connection with some criminal case. The report of the Chemical Examiner was also not accepted by the trial Court as it has been observed that accused Ghulam Muhammad had also sustained injury at the hands of the deceased and it is therefore possible that the blood had come out of this injury. The motive has been accepted by the trial Court. It has been observed that the accused persons have committed the murder as Mst. Yasmeen, wife of Bux Ali had illicit connections with Mohib Ali. The accused have stated that they have been implicated as Bachu, maternal-uncle of the complainant Mureed Ali was murdered about 2-3 years prior to the incident and the accused Kado was arrested in that case and he was acquitted in that case. P. W.8 Mahiwal has admitted this fact and that their relations were not well from the time of murder of Bachu. The motive is a double-edged weapon. Enmity is alleged against the P.Ws over the murder of uncle of complainant. So there are two versions. One alleged by the complainant and the other by the accused. If the accused have a motive against the deceased, equally the complainant had a motive to implicate the accused persons on account of the murder of his uncle. Therefore motive cannot be considered as a positive piece of evidence against the accused persons.

In fact the conviction is mainly based on the ocular testimony of four witnesses. It has been stated by P.W. Mahiwal that P.W. Moulidino is their Nekmard and complainant Mureed had first gone to inform Moulidino about this incident. He thereafter went to lodge the report.

Moulidino has been examined as P.W.4 and he has deposed that none of the accused had either produced blood-stained clothes or blood-stained hatchets in his presence. Complainant Mureed had come to him at Fajr prayers time on the day of incident and he had told him that some unknown persons had killed Mohib Ali. He then accompanied Mureed to the place of incident. On his advise Mureed had gone to the Police Station to lodge First Information Report. This witness has also sworn an affidavit. The witness was declared hostile but his name has been specifically mentioned by P.W.8. As regards ocular testimony it is stated by the P.Ws that all the four appellants were armed with hatchets but accused Kado had instigated other accused. In the circumstances of the case it cannot be accepted that a person who was armed with hatchet and had a grievance against the deceased would not inflict hatchet injury to the deceased but would only instigate the co-accused to inflict hatchet blows on the person of the deceased. It appears that Kado has not been given specific part in order to corroborate the medical evidence with ocular testimony. According to Dr.Shafi Muhammad all the three injuries are of same dismension and size. In case of these three injuries same force has been used by the assailants. It is just possible that the injuries might be result of one weapon. In case the blade of the hatchets were of different size, the dimension would be of different sizes on the deceased. He also stated that it may be that all the three injuries have been caused by one and by same weapon. All the injuries are given on the backside of deceased and in case assailants came from the backside it could not be possible to give lathi blow by the person receiving injuries. From the nature of the injuries it is clear that only one person had caused hatchet injuries to the deceased. If the three persons had attacked the deceased with hatchets then they would have given more blows that one in view of the fact that they had common grievance against the deceased as they suspected that the deceased had illicit relations with wife of one of the appellants. It cannot be accepted that each of the accused would give one hatchet blow each one after the other. All the injuries were on the backside of the deceased. It is therefore possible that the attack had been made from the backside. If this was the position then the contention of the complainant that deceased had caused lathi blow to the accused could not be accepted. According to the complainant in the first information report accused Ghulam Muhammad had received injury on his hand but according to the Mashirnama of injuries the accused had one injury on back of the head. Then there are contradictions between the Mashirnama and the statement of the complainant given in the first information report. In his deposition the witness has stated that the accused had received the blow on his neck. In his deposition the complainant has stated that after receiving the hatchet blows the deceased has given lathi blow to Ghulam Muhammad but nature of injuries would show that it was not possible for the deceased to cause lathi blow on the neck of Ghulam Muhammad because he fell down after receiving the injuries. The doctor has also contradicted the ocular testimony on this account.

As regards the apprehension' of the accused Ghulam Muhammad at the wardat, it is alleged that he was armed with hatchet and the P.Ws. were empty handed. At least he could cause some hatchet blows to the two witnesses who allegedly apprehended the appellant'.

From the facts of the case I am of the opinion that the nature of the injuries on the person of the deceased would show that there was only one assailant who had caused three hatchet blows to the deceased. As the prosecution has made exaggeration and involved four persons of the same family, it is difficult to pick out the real culprit. It is generally the practice in this area to involve more persons of the family alongwith the real accused. In these circumstances it is difficult to even convict appellant Ghulam Muhammad who allegedly was apprehended by the witnesses. According to the prosecution the accused persons had emerged from the Jawar cultivation. According to the complainant he was going alongwith the deceased. The three appellants on the instigation of Kado caused hatchet blows to the deceased one after the other and he fell down. He raised cries and on the cries P. Ws. were attracted to the scene. Now if the witnesses had come on the commotion of the complainant it could not be possible that all the witnesses had seen all the accused causing hatchet blows one after the other to the deceased. Even if they had reached the wardat without any waste of time each of the witnesses could not see the incident as narrated by the complainant. It is possible that the assailant or the assailants were present at the wardat when the witnesses had come to the wardat but it cannot be positively said that the accused persons had given blow in the presence of the witnesses who were related to the deceased and the complainant. It may also be mentioned that one of the P. Ws Punhal who according to the complainant was attracted to the wardat was given up by the prosecution as he was not going to support the prosecution.

5. As the witnesses have not given the true facts and the investigation is also tainted it is not safe to convict the appellants on such evidence. The appeal is therefore accepted and the conviction and sentence recorded against the appellants are set aside. They be released forthwith if not required in any other case. The appeal was disposed of by a short order dated 11-12-1986 and the above are the reasons for the same.

S. G. D./G-22/K Appeal allowed.

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