Find a Lawyer

Criminal Appeal No. 155 of 1985, decided on 20th January, 1987.

‑‑‑S.302/34‑‑Prosecution case resting on ocular and circumstantial evidence‑‑Presence of eye‑witnesses near Wardat at time of occurrence not appearing natural‑‑Number of injuries found on deceased, as disclosed by medical evidence, although giving impression that deceased was done to death by more than one persons yet version about their presence at spot and their testimony not corroborated by independent evidence‑‑Alleged motive also too remote to constitute corroborative evidence‑‑Hatchets recovered found stained with human blood but Mashir of recovery interested person and not inspiring confidence to believe that crime weapon was recovered from accused‑‑Hatchet secured from one of accused who was arrested later on not found stained with human blood and having no corroborative value‑‑Involvement of accused in murder of deceased not proved beyond reasonable doubt‑‑Conviction set aside in circumstances.

Roshan v. The State 1985 P Cr. L J 2312‑ 2317; 1972 S C M R 74‑76, 144‑149, 574‑575; P L D 1964 Kar. 356‑360 and 361; 1986 P.Cr.LJ 583; P L D 1985 S C 17; 1985 S C M R 453; 1979 S C M R 557 and 1986 PCr.LJ 586

‑‑‑S. 302/34‑‑Appreciation of evidence‑‑Evidence of witnesses to be examined in context of facts and circumstances of each case and its peculiar features.

‑‑‑S. 154‑‑Penal Code (XLV of 1860), S. 302/34‑‑First Information Report‑‑Corroborative value‑‑First Information Report constitutes corroborative evidence to the extent of evidence of its own maker and its corroborative value attached with the probative value of his evidence.

‑‑‑S. 302/34‑‑Recoveries‑‑Recovery of hatchet without blood stains, held, would not constitute corroborative evidence.‑‑[Recovery].

Muhammad Hayat Junejo for Appellant.

Imam Bux Sheikh for the State.

Azizullah A. Sheikh for the Complainant.

Date of hearing: 4th November, 1986.

‑‑Criminal Appeal No. 155 of 1985 is directed against judgment, dated 13th November, 1985 pronounced by learned 1st Additional Sessions Judge, Larkana. whereby he convicted the appellants Gul Hassan son of Moula Bux, Abdul Latif son of Ghulam Mustafa, Ahmad Ali son of Muhammad Chuttal and Muhammad Moosa son of Bakhshal of an offence punishable under section 302 read with section 34, P.P. Code and sentenced each of them to life imprisonment and fine of Rs.10,000 or rigorous imprisonment for six months more in default in S.C. No. 244/82. The Criminal Revision Application No. 33/86 also is directed against the same judgment and has been filed by the complainant Ghazi for seeking enhancement of sentence from life imprisonment to death.

The appellants are alleged to have murdered one Laiq son of Saindad Mashori by giving him hatchet's blows m jungle near village Haji Mashorl in Taluka Dokri, District Larkana on 22nd of June, 1982 at about 7‑00 a.m, Prosecution story briefly stated, is that the deceased Laiq and his brother Ghazi were easing themselves apart from each other, in jungle near their village mentioned above on the eventful day, in the morning hours. All of sudden, there were cries by the deceased. His brother Ghazi rushed to the spot. He saw that all the four appellants were belabouring the deceased with hatchet blows. Two other persons by names Sikandar and Ahmed, Mashoris by caste, and residing in the same village, who too were in the same jungle for easing themselves, also were attracted by cries raised by the deceased and they rushed to that place and witnessed the actual incident of assault on the deceased by the appellants. The appellants left the Wardat without let or hindrance declaring that they had done the deceased to death as he had married a daughter of one Khamiso, whose hand they were interested to have. Ghazi lodged report at Dokri Police Station at the distance of six Kilometres at 7‑45 a.m. Ghulam Rasul S.H.O. despatched the corpse of the deceased Muhammad Laiq to Medical Officer, Dokri for its post‑mortem examination. He arrested appellants Gul Hassan. Abdul Latif, and Ahmed Ali on the same day viz. 22‑6‑1982 and recovered from each of them a blood‑stained hatchet. He arrested appellant Moosa on 24‑6‑1982 and recovered from his house a hatchet. He referred blood‑stained articles to Chemical Examiner After completion of investigation, the appellants were challaned.

The appellants were put on trial on the charge of offence punishable under section 302 read with section 34, P.P. Code.

Prosecution examined at the trial complainant Ghazi (P.W.1), Sikandar (P.W.2), Ahmed (P.W.3), Dr. Abdus Sattar (P.W.4), Muhammad Yaqoob Tapedar (P.W.5), Kouro Khan (P.W.6), Abdul Rehman Mashir (P.W.7) and Ghulam Rasul H.C. (P.W.8).

The appellants made denial of their involvement in murder of the deceased. They also denied that crime weapons were recovered from them. They alleged false implication. They did not produce any evidence in defence.

The learned trial Judge struck following three points for determination and recorded his findings in affirmative on points No. 1 and 2 and, in consequence thereof, held the appellants guilty of the offence punishable under section 302 read with section 34, P.P.C. and awarded to them the sentence appealed against:

(1) Whether deceased Muhammad Laiq died as a result of the hatchet injuries

(2) Whether the said injuries were caused by the accused individually or in furtherance of their common intention in the manner and circumstances alleged by the prosecution

(3) What offence or offences are committed by the accused

There is no dispute over homicidal death of the deceased Laiq. Main evidence on the cause of death is medical evidence of Medical Officer, Dr. Abdus Sattar (P.W.4). His evidence reveals that the deceased Laiq had sustained as many as thirteen ante‑mortem incised injuries which have been described in the impugned judgment. The Medical Officer has opined that the deceased had died due to the injuries caused to him and four of them were individually sufficient to have caused death in ordinary course of nature. Post‑mortem report issued by him has been put to evidence as Exh. 13. There is also evidence of complainant Ghazi (P.W.1). Sikandar (P.W.2) and Ahmed (P.W.3) that the deceased had died due to hatchet injuries inflicted on him. Abdur Rehman Mashir (P.W. 7) also has testified to the fact that the deceased Laiq was found lying murdered. Accordingly, there is ample evidence that the deceased Laiq met homicidal death.

Who caused death of the deceased is the crucial question. Prosecution case mainly rests on the ocular evidence given by complainant Ghazi (P.W.1), Sikandar (P.W. 2) and Ahmed (P.W. 3) and circumstantial evidence in the form of recoveries of crime weapons viz. hatchets. It is also alleged that matrimonial hostility was behind murderous attack on the deceased. Corroboration has been sought also from medical evidence. From the appellants' side, there is bare denial of the allegations against them.

Amongst the eye‑witnesses, complainant Ghazi (P.W.1) is a brother of the deceased Laiq. He has stated that he and the deceased were easing, apart from each other, in the jungle, in the morning, when he heard cries of the deceased and he rushed to that place and saw all the four appellants giving hatchets blows to the deceased, who was done to death there and then. According to him, the incident was also witnessed by P.Ws. Sikandar and Ahmed, who too were attracted by the cries of the deceased. Another eye‑witness Sikandar (P.W.2) is a son‑in‑law of complainant Ghazi and was living in the same village. He too has stated that he was easing in the jungle when he was attracted by cries of the deceased and he went in that direction and saw that the appellants were striking the deceased with hatchets, he has named complainant Ghazi and Ahmed to have witnessed the incident. Similar is the evidence of third eye‑witness Ahmed (P.W.3) who also was residing in the same village. His relationship with the complainant and the deceased was unsuccessfully denied by the complainant Ghazi but he was brought round to admit in cross- examination that there was distant relationship between them. The learned trial Judge relying on the case Roshan v. The State 1985 P Cr. L J 2312‑2317 as against the cases reported in 1972 SCMR 74‑76, 144‑149, 574‑575; P L D 1973 S C 437‑495 1974 P Cr. L J 389; and P L D 1964 Kar. 356‑360 and 361 cited by the learned counsel for the appellant/accused, accepted the ocular evidence adopting the view that mere relationship of the eye‑witnesses with the deceased and the complainant, in the absence of any ill‑will on their part against the appellants/accused did not make their evidence unreliable. He even adopted the view that the evidence of the eye witnesses in the circumstances was such that it did not need corroboration. The learned counsel for the appellant has urged that the eye‑witnesses are admittedly related to the deceased and the complainant, although attempt was made by him to deny relationship with P.W. Ahmed, and their presence as to have witnessed the offence was unusual and unbelievable and their evidence needed corroboration from independent evidence as to hold that as many as four persons had assaulted the deceased to death. He has placed reliance on the cases reported in 1986 P Cr. L J 583; PLD 1985 S C 17 and 1985 S C M R 453. He has also cited 1979 S C M R 557 and 1986 P Cr. L J 586. The learned counsel for the State has conceded that ocular evidence is not so convincing as to be relied upon without corroboration. It is a settled principle of law that evidence of the witnesses is to be examined in the context of the facts and the circumstances of each case has its peculiar features. In the instant case, the ocular evidence consists of three witnesses; Ghazi complainant Sikandar and Ahmad who are admittedly related to the deceased as indicated above. Their presence near the Wardat at eventful time for the purpose of easing themselves in the jungle does not seem to be a natural coincidence. They had been living in a big village and call of nature attending on only them and none else was like a dramatic event. Of course, they have not been attributed any malice for falsely implicating the appellants and the number of injuries found on the deceased, as disclosed in the medical evidence, gives impression that the deceased was done to death by more than one persons yet the version of their presence near the Wardat as to have been able to witness the incident is such that their evidence needs to be corroborated as to confirm its credibility.

The corroborative evidence adduced by the prosecution is that of recoveries of crime weapons from the appellants and the motive attributed to them. The learned trial Judge has also derived corroboration from the First Information Report to the extent that it was lodged promptly and names of the appellants as assailants and those of the eye‑witnesses were disclosed in it. No doubt, the F.I.R. constitutes corroborative evidence but only to the extent of the evidence of its maker and its corroborative value stands attached with the probative value of his evidence. It has been discussed above that the evidence of the complainant Ghazi and that of other witnesses needs corroboration and, therefore, the First Information Report does not furnish that corroborative evidence which may be termed as independent corroborative evidence. The alleged motive is too remote to constitute corroborative evidence. It is only the complainant Ghazi who has alleged that the appellants were annoyed with them as the deceased had married a daughter of one Khameeso about 15 years before the incident and the appellants were not happy over that marriage. There is only the word of the complainant and no other evidence was produced by the prosecution in support of the allegations that the appellants were not happy over that marriage. Moreover, the appellants would not have waited for 15 years for satisfying their passion if they had any grievance against the deceased. Lastly, reliance has been placed on the recoveries of the crime weapons. It is alleged that the appellants Gul Hassan, Abdul Latif and Ahmed Ali were arrested on the day of incident and a blood‑stained hatchet was recovered from each of them. There is evidence to this aspect of the case of Mashir Abdur Rehman (P.W.7). He has, of course, implicated all the three appellants that they had produced a blood‑stained hatchet each. The recoveries are said to have been effected by Ghulam Rasul S.H.O. who died before his evidence could be recorded. Thus, there is evidence to the alleged recovery of crime weapons of only Abdur Rehman Mashir. Since the Investigating Officer had died, prosecution should have examined another Mashir also but that was not done. It has been brought on record that Abdur Rehman Mashir is closely related to the complainant party. It has also been brought on record that the appellants Gul Hassan. Abdul Latif and Ahmed Ali were arrested at the Otaq of the head man of the village, by name Haji Rasool Bux, in his presence and yet Haji Rasool Bux was not made as Mashir to the alleged recoveries. The hatchets were, of course, found stained with human blood as per report of the Chemical Examiner put in evidence as Exh. 28 but the incriminating value of that document depends upon the evidence to the recovery of the crime weapons. Mere evidence of one Mashir, who is and interested person, does not inspire confidence to believe that the crime weapons were recovered from the appellants. The fourth appellant namely, Moosa was arrested on 24‑6‑1982 and it is stated that a hatchet was secured from his house but it did not have blood stains. Mere recovery of a hatchet without blood stains does not constitute corroborative evidence.

It has been discussed above that the ocular evidence needs corroboration to be raised upon and the corroborative evidence furnished by the prosecution is not of that standard as to afford substantial corroboration to their evidence. Consequently, the involvement of the appellants in the murder of the deceased does not stand proved beyond reasonable doubt. Accordingly, the appeal is allowed, the judgment of the 1st Additional Sessions Judge, Larkana in S.C. No. 244/82 is set aside and the appellants are acquitted of the offence punishable under section 302 read with section 34, P.P. Code. They shall be released forthwith unless required to be detained in any other case.

Consequent to the decision of the appeal as above, the Criminal Revision Application No. 33/86 for enhancement of sentence has become infructuous and it stands dismissed as such.

M.Y.H./G‑8/K Appeal allowed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.