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Criminal Appeal No. 156 of 1986, decided on 14th December, 1986.

‑‑‑Ss. 302, 323 & 324/34‑‑Ocular testimony, corroboration of‑‑Witnesses related inter se‑‑Complainant on inimical terms with accused‑‑Motive not established‑‑Witnesses contradicting each other on material facts‑ Quarrel admittedly taking place before occurrence‑‑Other persons reaching spot just after occurrence‑‑Names of accused not disclosed to them by witnesses‑‑Witnesses having seen incident, found doubtful‑ Ocular testimony found shaky and unnatural, not worthy of reliance and not inspiring confidence‑‑Motive and medical evidence, held, could not be relied upon as corroborative piece of evidence‑‑Conviction and sentence set aside in circumstances.

Muhammad Hayat Junejo for Appellants.

M. Muzaffar Hussain for the State.

Date of hearing: 17th November, 1986.

The appellants have been convicted by the learned Sessions Judge, Larkana under section 302/34, P.P.C. and sentenced each of them to life imprisonment and fine of Rs.10,000 each or in default of payment of fine to suffer R.I. two years more. The appellants have also been convicted under sections 323 and 324, P.P.C. and sentenced for the period already undergone. The appellants were arrested on 9‑9‑1984 and remained in jail upto the pronouncement of the judgment, dated 11‑8‑1986.

The report of the incident was lodged by complainant Dost Muhammad on 28‑8‑1984 at about 7‑20 p.m. at Taluka P.S. Larkana stating therein that at about 6‑30 p.m. on the same day he, P.W. Abdul Ghani and deceased Ali Sher were standing near Shrine of Hyder Shah Bukhari on road leading from Larkana to Kambar where the present appellants armed with hatchets came. They challenged Ali Sher that they would take revenge from him of murder of their relative Khair Muhammad and on saying so, all of them started causing sharp side hatchet injuries to him on his head, neck and other parts of his body. The deceased on receiving injuries fell down. The complainant and the witnesses tried to intervene and rescue him but the accused Attur gave also hatchet blow to the complainant. They raised cries and on their cries P.W. Gul Muhammad came there and witnessed the incident. After committing the offence, the accused went away towards east alongwith their hatchets. Ali Sher was removed to the hospital where he succumbed to his injuries. The motive described in the F.I.R. for the commission of the offence is that about 4 years ago Khair Muhammad was murdered and in that murder case Ali Sher was challaned. The accused in order to take revenge of the murder of Khair Muhammad have committed murder of Ali Sher. After recording the F.I.R., A.S.I. Qasim Ali Shah conducted the investigation and sent up the case to the trial Court for trial of the accused.

The accused did not plead guilty to the charge. At the trial the prosecution examined Dost Muhammad complainant, P.Ws. Abdul Ghani, .Gul Muhammad, Ghulam Rasool, Dost Muhammad, Dr. Abu Baker, P.C. Ghulam Rasool, P.C. Abdul Rasool and W.H.C. Ghulam Mustafa. P.Ws Badruddin, Ghulam Rasool and Fida Hussain were given up by the prosecution. The accused were examined under section 342, Cr.P.C. but they denied all the allegations.

The murder of the deceased has not been disputed. It is established through direct evidence as well as medical evidence. The post‑mortem was conducted by Dr. Abu Baker and he found the following injuries:‑‑---

External examination:

(1) One incised wound 8 c.m. x 3 c.m. x cheek cut bone deep running from the right side of the angle of the mouth to the angle of the jaw.

(2) One incised wound 11 c.m. x 1 c.m. x bone cut cranial cavity deep in front of the forehead running from the inner angle of the right eye to the left side of the forehead.

(3) One incised wound 7 c.m. x 2 c.m. x cranial cavity deep x bone cut on the left front to parietal region.

(4) One incised wound 3 c. m. x 1 c.m. x bone cut on the right cheek below the right eye.

(5) One incised wound 5 c. m. x 2 c.m. x bone cut on the right side of forehead.

(6) One incised wound 12 c. m. x 3 c.m. x bone muscle cut running from the right side of neck to the left side of neck.

(7) One incised wound 3 c.m. x 1 c.m. x muscle cut over the central upper part of back.

(8) One abrasion 4 c.m. x c. m. at the lateral lower part of the back.

(9) One abrasion 2 c.m. x c.m. at the lateral side of left buttock.

Internal examination:

Fracture of both frontal bones behind injury No. 2. Fracture of left parietal bone and frontal bone behind injury No. 3. Fracture of right frontal bone behind the injury No. 5. Fracture of right occipital bone and first cervical vertebrae behind injury No. 6. Fracture of right mandible behind injury No. 1. Fracture of right maxillary bone behind the injury No. 4. All other organs were normal and healthy. The stomach contained little amount of fluid."

According to the doctor, the death of the deceased was caused due to shock and haemorrhage consequent upon the above mentioned injuries. All the injuries were ante‑mortem in nature and were caused by Nos. 1 to 7 with sharp cutting weapon such as hatchet and Nos. 8 & 9 with hard and blunt substance. Injuries Nos. 1, 3 and 5 individually and all the injuries collectively were sufficient to cause death in the ordinary course of nature.

The prosecution case consisted of following evidence (i) the ocular evidence of P.Ws. Dost Muhammad, Abdul Ghani and Gul Muhammad (ii) the motive (iii) recovery of hatchet from each accused and (iv) medical evidence.

The learned trial Judge discarded the recovery but relying ors the remaining evidence he convicted the appellants. The witnesses are related inter se. According to the F.I.R. lodged by complainant Dost Muhammad, deceased Ali Sher was his Phupat. P.W.2. Abdul Ghani has stated that Ali Sher was his nephew P.W.3 Gul Muhammad is maternal, uncle but Dost Muhammad is not related to him.

The motive for commission of offence is stated to be that Khair Muhammad relative of the accused, was murdered and in that case the deceased Ali Sher was challaned.

The complainant Dost Muhammad in his deposition has stated that they are on inimical terms with the accused since more than six years because of murder of Khair Muhammad. He further stated that about 2 years ago, they had compromised with each other. Although they had patched up with each other but still they were nursing grudge. Thus, two things are spelt out from the statement of this witness that Khair Muhammad had been murdered, they had compromised the matter and they were nursing grudge with each other. The complainant has further stated that he does not know what was the relationship of Khair Muhammad with the accused. P.W. 2 Abdul Ghani has also stated that he did not know in what connection the accused had quarrelled with deceased Khair Muhammad. P.W.3 Gut Muhammad has deposed that he does not know if after the murder of Khair Muhammad they had strained relations with the accused party or not and they had no apprehension that revenge of murder of Khair Muhammad would be taken from, Ali Sher, Thus, the motive as alleged by the prosecution has not been established. The alleged murder had taken place about 4 years prior to this incident. It is not mentioned in the F.I.R. that the parties had patched up the matter. The motive is not established. Even otherwise the motive is a double‑edged weapon. If it can be used against the accused it can be equally used against the prosecution. In view of the above facts the motive cannot be considered as a corroborative piece of evidence.

The trial Court also committed an error in considering, the medical evidence as supporting evidence against the accused. If the ocular testimony is not worthy of reliance, then this piece of evidence does not help the prosecution. The medical evidence only proves the nature of the injuries and causes for the death of the deceased but if the ocular testimony does not inspire confidence, then this piece of evidence cannot be relied upon as corroborative piece of evidence.

The case of prosecution entirely rests on ocular testimony of three witnesses namely, Dost Muhammad, Abdul Chani and Gul Muhammad. Dost Muhammad has stated that he and Ali Sher were standing when the accused persons armed with hatchets came there. P.W. Abdul Ghani, on the other hand, has stated that he, Ali Sher and Dost Muhammad were standing when the accused persons had come at the Wardat. According to Dost Muhammad, Abdul Ghani and Gul Muhammad had come running from the Railway Line of Biro Chandio on his cries. P.W. Gul Muhammad has deposed that he was about 60‑70 paces away from the Wardat when he heard cries. If we accept the statement of the complainant, then Abdul Ghani came alongwith Gul Muhammad from the distance of 60‑70 paces from the Wardat. The witnesses have deposed that on their cries certain persons had come there to the Wardat. The complainant Dost Muhammad has stated that he had informed the witnesses the names of these persons who have been involved in this case and he had also told them that Atta Muhammad had caused injuries to him. P.W. Abdul Ghani has deposed that some persons had come at the Wardat but they did not tell them the names of the culprits and told those persons only that the quarrel had taken place. They also admitted that there was quarrel. P,W. Gul Muhammad has also admitted that other persons from the hotels, shops, Mazars and factories also came running at the Wardat but they did not disclose the names of the accused to those persons, who had come at the Wardat. He has further' stated that neither they made enquiry from those persons nor they told them anything and the complainant did not tell as to whom he was involving in report to the police. It is pertinent to point out that complainant has stated that he had disclosed the name of the accused to the persons who collected at the Wardat but two witnesses have deposed that they had not given the names of the accused to the witnesses who collected there. P.W. Abdul Ghani has gone a step further and has stated that they had told those persons that only quarrel had taken place. If Abdul Ghani had come alongwith Gul Muhammad then it means they were not present alongwith the complainant and deceased at the time of incident and they came running to the Wardat after the complainant raised cries. The complainant has stated that all the accused started giving hatchet blows to the deceased. It is doubtful if these two witnesses had witnessed the incident. The conviction is based on the evidence which is shaky and unnatural. Therefore, the appeal is accepted. 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 the short order, dated 17‑11‑1986. The above are the reasons for the same.

S. A. Appeal accepted.

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