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Criminal Appeal No. 43 of 1986 (Hyderabad) and Criminal Appeal No. 146 of 1986 (Karachi), decided on 10th January, 1987.
‑‑S. 302‑‑Case against accused rested on ocular testimony of witnesses coupled with recovery of blood‑stained weapon of offence and motive‑ Trial Court, for sound reasons, disbelieving recovery and motive but convicting accused on accepting statements of eye‑witnesses against him‑‑ Contradictions existing in statements of eye‑witnesses‑‑ Witnesses in their statements, under S.161, Cr.P.C. had not stated that they were near place of occurrence at the relevant time which created doubt whether the' had really witnessed incident‑‑According to Mashirnama of arrest of accused Investigating Officer had found injury on head of accused but he was not referred to doctor for examination and report‑‑Trial Court acquitting co‑accused after giving benefit of doubt but distinguishing case of accused on same evidence‑‑Such infirmities making case against accused doubtful‑‑Accused was also given benefit of doubt and acquitted.
Muhammad Ashraf v. Faiz Ali and 11 others P L D 1975 S C 556 ref.
‑‑‑Ss. 302 & 149‑‑Benefit of doubt‑‑Grant of, in case of some and refusal of in case of others‑‑Distinguishing features in case of others required‑Where Court comes to a conclusion that one of accused was entitled to benefit of doubt then case of other accused, held, could only be distinguished if there was some corroborative piece off' evidence against them.
‑‑‑Ss. 11 & 114-‑Alibi, plea of‑‑Each case to be decided on its own facts‑ ‑ Plea of alibi, held, should be raised at the earliest and must be supported by strong evidence.‑‑[Alibi].
Aminullah v. The State P L D 1982 SC 429 ref.
‑‑‑S. 302‑‑Appreciation of evidence‑‑When a witness was found to have falsely implicated one accused person, he, held, would not be relied upon with regard to other accused unless corroborated by very strong and independent circumstances.
Ghulam Sikandar and another v. Mamaraz Khan and others P L D 1985 SC 11 rel.
‑‑‑S. 302‑‑Ocular testimony‑‑Conviction based on ocular testimony rejected qua acquitted accused on ground of exaggeration, partisanship and false implication‑‑Same evidence, held, could not be relied upon in case of accused on premise of corroboration by medical evidence alone.
Mooso v. The State 1975 P Cr. L J 206 rel.
‑‑‑S. 302‑‑Witness‑‑Witness telling a lie on an important point which had a material bearing on culpability of an accused‑‑Evidence of such witness, held, would not deserve credence.‑‑[Witness].
The State v. Khalil‑ur‑Rehman P L D 1960 (W.P.) Pesh. 50 rel.
Muhammad Hayat Junejo for Appellant.
M. Rashid Tariq for the State.
Date of hearing: 9th December, 1986.
The appellant was convicted by the Additional Sessions Judge, Hyderabad under section 302 and sentenced to life imprisonment and fine of Rs.10,000 and in default of payment of fine to suffer R.I. for two years. The appellant was tried alongwith Moula Bux and acquitted accused Muhammad Ali under section 302/307/34, P.P.C. for causing the death of deceased Bachayo son of Abdullah and causing injury to P.W. Haji.
2. According to the prosecution case the complainant Abdullah and deceased Bachayo used to reside with his maternal uncle Bachayo and Haji in one and same house. Accused Muhammad Ali alias Khando and accused Moula Bux alias Nathi also used to reside in the same Mohallah. Accused Nawaz who is in police service and a man of bad character used to visit the house of Muhammad Ali. About 5 days prior to the incident P.W. Haji had strictly prevented accused Nawaz not to visit their Mohallah in future. On coming to know this fact acquitted accused Muhammad Ali went to deceased Bachayo and complained against P.W. Haji. He also threatened that he would not spare Haji and in case Bachayo intervened he would also meet the same result. On the day of occurrence i.e. 22‑7‑1982 which was day of Eidul Fitr the complainant, his uncle Haji and Bachayo at about 7‑ 45 p.m. were going to the hotel of Salamoo for taking tea. Near the hotel of Salamoo they found acquitted accused Muhammad Ali, his son Moula Bux and appellant Nawaz standing and when the complainant reached near them, accused Muhammad Ali instigated the co‑accused that the enemies had arrived and should not be spared and must be killed. On the instigation of Muhammad Ali accused Muhammad Nawaz took out the knife. Accused Moula Bux caused knife injuries on the abdomen of Bachayo. Co‑accused Moula Bux caused knife injuries to P.W. Haji and the appellant caused knife injuries on the abdomen of Bachayo. The complainant raised cries which attracted P.Ws. Bago and Mitho and they came to the place of Wardat. The accused made good their escape alongwith their respective weapons. The injured were removed to the Liaquat Medical Hospital in the rickshaw. Bachayo was found dead. The complainant then went to the police station and lodged the report which was recorded by S.I.P. Bashir Ahmad. After usual investigation the accused was challaned in the Court.
3. At the trial the prosecution examined nine witnesses. P.W.1 Abdullah is the complainant. P.W.2 Haji and P.W. 3 Bago are the eye‑witnesses. P.W. 4 Piaro and P.W. 5 Khahar are the Mashirs. P.W. 6 is Dr. Abdul Sami, Medical Officer, P.W. 9 is Dr. Muhammad Siddique Mughal. P.W. 7 Rashid Ahmed is Investigating Officer and PM. 8 Ahmad Khan is Tapedar.
4. As regards the death of deceased it has been established through the evidence of Dr. Muhammad Siddique who performed the autopsy on the dead body of the deceased and found the following injuries on his person:‑
(1) An oblique incised wound 2‑1/2 c.m. x 1/4 c.m. x muscle deep on the front of lateral aspect on the right side of the chest on lower most part.
(2) An oblique incised wound 3 c.m. x 1/2 c.m. x skin deep on the right hypochendric region, below the costal margin.
(3) An oblique incised wound 2‑1/2 c.m. x 1‑1/2 c.m. x cavity deep on the left umbilical region the intestinal leeps were coming out about 10 c.m. below the downward to the umbilicus.
According to the doctor the cause of death of the deceased appeared to be shock and intra abdominal haemorrhage due to cutting of the peritoneum small intestine mesentric blood vessels as a result of external injury No. 3 and this injury was sufficient to cause death.
The injuries received by Haji have also been proved through ocular testimony as well as statement of Dr. Abdul Sami who examined the injured.
5. The case against the accused rests on the ocular testimony of three witnesses coupled with the recovery of blood‑stained weapon of offence and the motive. The trial Court disbelieved the recoveries and motive but accepted the ocular testimony against the accused. It was observed that the recovery of hatchet and blood‑stained clothes from accused Ali Nawaz took place after 7‑8 days of his arrest and secondly the place of recovery was accessable to public. He also disbelieved the presence of blood stains on the shirt of accused Muhammad Ali on the third day of the incident. Admittedly Muhammad Ali had not caused any injury to the injured or deceased and, therefore, presence of blood stains on his shirt cannot be accepted particularly in view of the fact that such recovery had been effected after three days of the incident. The trial Court has also disbelieved the motive for sound reasons. It has been observed by the trial Court that he did not find the motive so strong particularly in view of the fact that accused Ali Nawaz did not cause knife injuries to P.W. Haji who is said to have restrained him from visiting the house of accused Muhammad Ali. After discussing the two pieces of evidence the trial Court considered the ocular testimony of the three witnesses. He accepted the statements of these witnesses against the appellant and the co‑accused who has been convicted under section 307, P.P.C. but acquitted Muhammad Ali on the ground that he was not armed with any weapon. He was empty‑handed and only instigation is attributed to him. He had not caused any injury to any body. No specific role in the crime has been attributed to him. In acquitting the accused Muhammad Ali the trial Court placed reliance on the case of Muhammad Ashraf v. Faiz Ali and 11 others P L D 1975 SC 556. The following observation at page 562 is relevant:‑
"Haji Faiz Ali is an old man of 60 years of age. He was not armed, and only the proverbial Lalkara has been attributed to him. He was neither injured himself nor caused injury to anybody. No specific role has been attributed to him. Manzoor Ali, Ishtiaq Ahmad, Mahboob Hussain and Rashid Ali each had a Lathi, and Muhammad Afzal alias Afsar had a hockey‑stick. None of these convicts is alleged to have caused any injury and no specific role has been assigned to any one of them. The learned Judges of the High Court were of the view that the prosecution had exaggerated the number of the accused persons, and they accordingly kept in mind the tendency on the part of the people in our country to rope in more persons than were actually involved in any incident, and gave the benefit of doubt to all these six accused persons. In these circumstances we are unable to say that this is a perverse view or based on no reasonable ground:"
The above observation would show that many persons were involved and it was observed by the High Court that some innocent persons have also been implicated in the case. The case on which the trial Court has placed reliance is, therefore, distinguishable. In the instant case specific role has been attributed to Muhammad Ali. In fact he had the grievance against the opposite party. He had gone to the house of the deceased and complained against P.W. Haji. It cannot, therefore, be said that no specific role had been attributed to the acquitted accused. It was not a mere proverbial Lalkara but if the trial Court has given the benefit of doubt to Muhammad Ali on the same evidence then why case of the present appellant has been distinguished.
It is also to be noted and as observed by the trial Court itself the appellant had grievance, if any, against P.W. Haji who had prevented him from visiting their house but admittedly the appellant had not caused any injury to P.W. Haji. If all the accused were vicariously liable then each one of them should have been punished but if the Court has come to the conclusion that one of them is entitled to the benefit of doubt then the case of the other accused could only be distinguished if there is some corroborative piece of evidence against them. In the present case two pieces of corroboration produced by the prosecution have been disbelieved by the trial Court for sound reasons, therefore, there was no supporting evidence against the appellant.
6. As stated above the case against the appellant entirely rests on the ocular testimony of the three witnesses. They are closely related inter se and the learned counsel appearing on behalf of the State has submitted that they are interested witnesses. The complainant and two witnesses in their depositions have stated that the appellant had caused knife blows to the deceased and the witnesses are consistent on this point. It is, therefore, to be examined whether in the circumstances of the case implicit reliance can be placed on the testimony of these witnesses. The complainant is the deceased's sister's son. P.W. Haji is brother of the deceased and maternal uncle and father‑in‑law of the complainant. P.W. Bago is cousin of deceased and Masat of complainant. P.W. 1 complainant in his First Information Report has stated that the witnesses Mitho, Kadir Bux and Bago came on commotion and then accused ran away but in his deposition has stated that the witnesses were sitting in the hotel of Salamoo. He has not mentioned the name of Kadir Bux in his First Information Report but he has given his name in his deposition. Though Kadir Bux has not been examined by the prosecution P.W. I in his F.I.R. has stated that he took up a Danda and gave Danda blow to appellant Nawaz but in his deposition he has stated that he had saved himself by going back so that he may not b e attacked. Thus, there is contradiction between the two versions. According to the Mashirnama of arrest of accused Ali Nawaz the Investigating Officer found the injury on his head but it is strange that Ali Nawaz was, not referred to doctor for examination and report.
P.W.2 Haji another eye‑witness has deposed at the trial that he had seen the appellant causing injuries to the deceased but in his 161 statement he has stated that he was attacked and he went unconscious. In his 164 statement also this witness has stated that after receiving injuries he became unconscious. If his earlier two statements be accepted then it means that he could not see the injuries being caused to the deceased as according to his own version after receiving the injuries he became unconscious.
P.W. Bago in his 161 statement has stated that he was coming to the hotel for a cup of tea when he saw crowd of people in front of hotel. He has not stated in his police statement that accused Ali Nawaz gave three injuries to Bachayo on the stomach. Such fact has also not been given by him in his 164 statement. This witness has admitted that about 15‑20 persons were sitting in the hotel and the place of incident was outside the hotel. He has stated that these persons had not seen the incident. If this witness was present in the hotel alongwith 15‑20 persons and according to the statement of this witness these persons had not seen the incident then how it is to be believed that this witness had seen the incident
The I.O. has referred to the statements of P.Ws. Mitho and Bago recorded under section 161 and in their 161 statements they have not stated that they were sitting in the hotel at the time of incident. It is, therefore, doubtful whether these persons have really witnessed the incident.
In the case of Ghulam Sikandar and another v. Mamaraz Khan and others P L D 1985 SC 11 it has been observed that when it was found that a witness has falsely implicated one accused person, ordinarily he would not be relied upon with regard to other accused unless corroborated by very strong and independent circumstances.
In the case of Mooso v. The State 1975 P Cr. L J 206 it has been observed conviction based on ocular testimony rejected qua acquitted accused on ground of exaggeration, partisanship and false implication butt relied upon in case of accused on premise of corroboration by medical evidence alone it was held that it does not afford corroboration of such an ocular testimony.
In the case of The State v. Khalil‑ ur‑Rehman P L D 1960 (W.P.) Pesh. 50 it has been observed that when a witness tells a lie on an important point which has a material bearing on the culpability of an accused, his evidence does not deserve credence.
7. Learned counsel for the appellant has stated that plea of alibi was taken by the appellant and it was not considered by the trial Court. The accused has also produced a defence witness in support of such plea. During the investigation D.W. who was himself a policeman had appeared to show that the appellant was present in the mess on the day of incident. Learned counsel has referred to the case of Aminullah v. The State P L D 1982 SC 429 and submitted that burden of proof lies on the prosecution and plea of alibi does not lie on the accused and accused in order to succeed need only to produce evidence sufficient to raise in Court's mind a reasonable possibility of likelihood of his being at place where he asserts to have been rather than at place of crime at time of occurrence. Each case is to be decided on its own facts. The plea of alibi if any should have been raised at the earliest. The author of the register has not been produced. Plea of alibi must be supported by strong evidence. In the, circumstances of the case this plea was rightly rejected by the trial Court.
8. However, in view of the infirmities pointed out earlier the case of the appellant is also not free from doubt. Giving the benefit of doubt to the appellant, the appeal is accepted and conviction and sentence recorded against him are set aside. He be released forthwith if not required in any other case. The appeal was disposed of by the short order and the aforesaid are the reasons for the same.
M.Y.H. /A‑ 22/K Appeal allowed.
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