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Criminal Appeal No. 196 of 1981, decided on 28th October, 1986.

‑‑‑S. 323‑‑Motive‑‑Evidence, appreciation of‑‑Benefit of doubt Enmity existing between parties and prosecution witnesses interested‑‑Medical evidence found in conflict with ocular testimony‑‑Recovery of alleged crime hatchets not established beyond reasonable doubt‑‑Injuries suffered by four accused during incident greater in number and more serious in nature than those found on the persons of three complainants indicating that complainant‑party came fully armed and had an upper hand‑‑Motive alone, held, was not sufficient corroboration of interested testimony‑Accused given benefit of doubt and acquitted, in circumstances.

Muhammad Rafiq Khanzada for Appellants.

Muhammad Hayat Qureshi for the State.

Dates of hearing: 21st and. 28th October, 1986.

This appeal had been filed by the four appellants, namely Banhoon, Noor Muhammad, Rasool Bux and Ghulam Abbas, against their conviction and sentence by judgment, dated 30‑9‑1981 of the learned 1st Additional Sessions Judge, Dadu. All the four were convicted under section 323/34, P.P.C. and each was sentenced to suffer R.I. for six months and to pay a fine of Rs.200 or in default of payment of fine to suffer R.I. for two months more. The four accused were charged under sections 307 and 323 read with section 34, P.P.C. The F.I.R. was lodged on 22‑5‑1980 by complainant Ibrahim and it reads as follows: ---

"That I am inhabitant of village Goze. We are five brothers namely Qasim, Umar, Ghulam Hyder, Nizamuddin and I myself, and are residing together in a joint house. We all the brothers possess a joint inherited land about 50/60 Jorebs in Deh Goze. In that land Survey No. 63 belongs to us, which is being cultivated by us, since long. Today, dated 22‑5‑1980 at breakfast time Nizamuddin, Allah Dino son of Bachal, Abdul Majeed son of Mohabat and I myself all by caste Gachal, together were transplanting the paddy seedlings when all of a sudden namely Banhoon son of Sher Muhammad, who was armed with his licensed gun, Noor Muhammad, Rasool Bux and Ghulam Abbas, all three sons of Banhoon armed with hatchets started abusing after their arrival and said 'why you are transplanting the seedling the land belongs to us'. Upon this we all asked them not to abuse and be gentle. Upon our so saying accused Rasool Bux gave a sharp‑sided hatchet blow to Allah Dino on his head and Noor Muhammad gave a blunt‑sided hatchet blow to Allah Dino, on his arm. Ghulam Abbas also gave blows with the handle of the hatchet to Majeed and Allah Dino on their back and other parts of the body. I and Nizamuddin grappled with accused Banhoon, the butt of the gun was broken while struggling and the gun fell down there. In the meantime I raised cries, upon cries Ali Nawaz son of not known Langhah (2) Janan son of Rakhio caste Gachal and other villagers were attracted by commotion who also saw the accused giving blows. They intervened in the name of Holy Qur'an and rescued us from the accused persons. Thereafter the accused persons threatened us to murder and went away to their houses. During fight accused persons have also sustained injuries. On enquiry I narrated the facts to the witnesses. They after hearing the facts advised me to lodge complaint with the police. Now I have brought injured Allah Dino and Majeed and have come to lodge complaint. I lodge complaint that the accused in collusion with each other with intention to occupy my ancestral land, have caused injuries to Allah Dino and Majeed by giving sharp‑sided hatchet blows. I lodge complaint investigation be made. The accused persons armed with deadly weapons have given blows to Allah Dino and Majeed with intention to commit murder."

2. According to the prosecution case, there were six eye‑witnesses including three injured from the complainant party namely, Allah Dino, Majeed and Ibrahim. Apart from them, the other eye‑witnesses were Nizamuddin, All Nawaz and Jan Muhammad. According to the prosecution version, Ibrahim and Nizamuddin had grappled with accused Banhoon, who had a gun icy his hand, and witnesses All Nawaz and Jan Muhammad had come on the scene on the cries of the complainant party and they had also seen the incident. Ali Nawaz did not support the prosecution case about the accused being the aggressor. His version in the trial Court was that on cries he reached the scene of the incident and saw both the parties fighting with each other. He was declared hostile and was not examined by the prosecution. According to the prosecution case, Banhoon was armed with a gun, which was not used and the other three accused namely Noor Muhammad, Rasool Bux and Chulam Abbas were armed with hatchets and these three hatchets were recovered later on from their houses on 23‑5‑1980 I.e. on the next day of the incident. It may be observed here that the accused party also suffered injuries in the fight and the accused were examined by the same Medical Officer, who had examined the injuries on the persons of three members of the complainant party. As observed earlier, by judgment, dated 30‑9‑1981, the learned trial Court convicted the accused under section 323/34, P.P.C. I have heard Mr. Muhammad Rafiq Khanzada, learned counsel for the appellants and Mr Muhammad Hayat Qureshi, learned counsel for the State in this appeal. It may be observed that convict Banhoon died during the pendency of this appeal as is evident from the order, dated 3‑6‑1986 of this Court and as such his appeal abated.

3. There are material contradictions in the evidence of the prosecution witnesses and from the evidence on record and the injuries received in the fight by the accused it follows that accused were not the aggressors. The consistent stand of the prosecution witnesses, as is also the case of the prosecution in the F.I.R.; was that the injuries had also been caused on the members of the complainant party by sharp‑side of hatchets. Medical evidence is to the contrary. According to the evidence of Dr. Allah Warayo (Exh.7), none of the injuries caused to the three members of the complainant party. namely Allah Dino, Majeed and Ibrahim, was caused by the sharp‑side of the hatchets. According to the doctor, all such injuries were simple and had been caused by blunt or hard substance. Then the F.I.R. and the evidence of the prosecution witnesses give the clear impression that the members of the complainant party were empty‑handed, but from the injuries found on the persons of the four accused this version is evidently false. Evidence of Dr. Allah Warayo, who had examined all the four accused, who had been referred to the doctor for examination by the police, shows 18 injuries on the person of deceased appellant Banhoon, 30 injuries on appellant Noor Muhammad, 8 injuries on appellant Ghulam Abbas and 5 injuries on appellant Rasool Bux. According to the doctor, some of the injuries found on the persons of the appellants had been caused by a sharp‑cutting weapon like hatchet and one injury on appellant Noor Muhammad and one injury on Ghulam Abbas were declared to be grievous. As compared to the injuries found on the persons of the three members of the complainant party, the injuries suffered by the four appellants in the incident were not only much in number but also serious. The nature and number of injuries caused to the appellants indicate that the complainant party was fully armed, they had the upper hand and that if at all there was any aggress, it was the complainant party rather than the accused/ appellants. It may also be observed that the appellants had also filed a report against the complainant party in respect of which a counter‑case had been registered against the complainant party.

The testimony of the three injured members of the complainant party and Nizamuddin is interested and requires corroboration. The recovery of the three hatchets, according to the prosecution version, had been made on the next day of the incident from the houses of the appellants. However, All Shair (Exh.25), the only Mashir, who was examined by the prosecution, has deposed that three hatchets were lying on the scene of the incident. According to All Shair, he had been made a Mashir by the police and he alongwith co‑Mashir had visited the 'Wardat' alongwith the police and from the 'Wardat' the gun (of Banhoon) and three hatchets lying on the "Wardat" were secured by the police. In his cross‑examination he stated that P.W. Nizamuddin was already standing at the 'Wardat' and the three hatchets, which were lying on the 'Wardat', were produced by P.W. Nizamuddin before the police. Ali Shair was not declared hostile by the prosecution and co‑Mashir Darya Khan was not examined. There is no doubt that the evidence of the Investigating Officer A.S.I. Ali Gohar is on record about the recoveries but in the facts of this case, where co‑Mashir has not been examined and the only Mashir examined (i.e. Ali Shair), who was not declared hostile, has given a version about the recoveries, which demolishes the prosecution version about recovery. As observed earlier, according to Mashir Ali Shair, the three hatchets had not been secured from the three appellants but they had been secured from the scene of the incident on 22‑5‑1980 and had been produced by P.W. Nizamuddin. It has not been established beyond reasonable doubt that recovery of the hatchets had been made as per the prosecution version. Reference has already been made to the medical evidence. It does not support the ocular testimony, as according to the ocular testimony, sharp sides of the hatchets were used but medical evidence denies this. The motive in this case will not be sufficient corroboration of interested testimony. The evidence of the only other eye‑witness, namely, Jan Muhammad cannot be relied upon. Firstly, he has also stated that Allah Dino had been caused sharp‑sided hatchet injuries by the accused, whereas no such injury was found according to the medical evidence. Then, according to this witness and Ali Nawaz, when the accused attacked the complainant party and caused injuries to them, the complainant party also took 'Page' from the bullock cart and gave blows to the accused in self‑defence. This part of the evidence is also unbelievable in view of the number and nature of injuries sustained by the four appellants in the fight. According to the medical evidence, sharp and cutting weapons had also been used in causing injuries to the appellants. Then, as observed earlier, the number and nature of injuries sustained by the appellants could not have been caused by four members of the complainant party in self‑defence and when they did not have any hatchets or other sharp‑cutting weapons. Then the testimony of Ali Nawaz is also interested, as in his cross‑examination he admitted that complainant Ibrahim is his brother‑in‑law and that he was also one of the accused in the counter‑case lodged by the appellants.

In view of the interested nature of ocular testimony, conflict, between ocular testimony and medical evidence and recovery of hatchets, having not been established and there being an admitted enmity between the parties, on the state of the evidence on record, the case against the appellants had not been made out beyond reasonable doubt and they were entitled to benefit of doubt.

As a result, Criminal Appeal No. 196 of 1981 is allowed, conviction and sentence of the appellants by judgment, dated 30‑9‑1981 is set aside.

S.G.D Appeal allowed.

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