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Criminal Revision No. 25 of 1983 (Hyderabad) and Criminal Revision No. 39 of 1986 (Karachi), decided on 23rd June, 1987.

‑‑‑S. 439‑‑Penal Code (XLV of 1860), S. 302‑‑Acquittal‑‑Ocular testimony coming from persons related to deceased who were wrongly disbelieved by Trial Court‑ ‑Requisite corroboration afforded by recovery of blood‑stained hatchet from accused which inspired confidence and gave a ring of truth to prosecution case‑‑Judicial confession of accused recorded by Magistrate immediately after arrest‑‑Motive convincing and admitted by accused himself‑ ‑Considerations which had induced Trial Court to acquit accused not founded upon evidence and no valid reason or logic appearing for acquittal of accused which resulted in serious and grave miscarriage of justice‑‑Order of acquittal set aside and retrial ordered in circumstances.

Janab Gul v. Aslam Khan P L D 1965 (W.P.) Peshawar 193; Anwar and another v. The Crown P L D 1955 (FC) 185 and Abdur Rashid and others v. The State and others P L D 1962 SC 249 rel.

‑‑‑S. 302‑‑Appreciation of evidence‑‑Mere fact that complainant was related to deceased or other eye‑witnesses were his relatives or his caste fellows, held, would not be sufficient to discard their evidence‑‑It was matter of common knowledge that impartial and independent persons would not come forward now‑a‑days to give evidence against criminals, particularly in murder cases for fear of inviting enmity with them It would, therefore, be not unreasonable to expect only relatives or caste fellows of deceased to come forward to give evidence‑‑In such cases their evidence if otherwise true and convincing should not be rejected on mere ground that they were related to deceased or complainant‑‑It should be accepted if it was corroborated in material particular by some independent direct or circumstantial evidence and not otherwise unbelievable.

State v. Nuran Shah P L D 1967 Pesh. 274; Mohammad Ali v. The State 1985 S C M R 203 and Naseer Mohammad v. The State 1985 S C M R 60 rel.

‑‑S. 439‑‑Discretion‑‑Provision of S. 439, Cr.P.C., held, gave wide discretion to High Court to reverse finding of acquittal and order retrial when it considered that conclusions arrived at by Trial Court on evidence on record were not justifiable and in coming to that conclusion there had been an ostensible miscarriage of justice.

Janab Gul v. Aslam Khan P L D 1965 (W.P.) Peshawar 193; Anwar and another v. The Crown P L D 1955 (FC) 185 and Abdur Rashid and others v. The State and others P L D 1962 SC 249 rel.

I.I. Suleman for Petitioner.

Imam Bux for Respondent No. 1.

A.Q. Channa for Respondent No. 2.

Date of hearing: 7th June, 1987.

This is a Revision against the judgment of acquittal recorded in favour of respondent Dosoo alias Dost Mohammad, dated 18‑1‑1983 by the then Sessions Judge, Thatta.

2. The prosecution story is that complainant Bachal was a blacksmith. Deceased Yousuf was his nephew and used to reside with him. Respondent Dosoo had been demanding the hand of Mst. Bibi who was daughter of Panah cousin of the complainant for marriage with his son Ilyas. Panah refused the request as Ilyas was a minor. Pariah thereafter promised the hand of Mst. Bibi to deceased Yousuf. Dosoo was annoyed over this and expressed that he would kill Yousuf. On 19‑1‑1982 Yousuf left his village and was going towards Lait Village. The complainant and P.Ws. Mitho and Sillo also followed Yousuf When they reached neat‑ Sim Nalli they saw respondent Dosoo who gave hatchet blow with sharp side to deceased Yousuf on his neck. Yousuf fell down. Thev went near Yousuf and saw that Yousuf had expired. Leaving P.Ws. Mitho and Sillo near the dead body complainant went to Haji Ali Mohammad at Village Liat and informed him about the incident. On his advise the complainant went to P.S. Mirpur Sakro and lodged the F.I.R. The F.I.R. was taken down by A.S.I. Imam Bux. He immediately went to the scene of offence and inspected the same and held inquest on the dead body. He then sent the dead body for post mortem examination. He made enquiries from P.Ws. Mitho and Suleman. He then went towards Mirpur Sakro and apprehended the respondent near Engineering Bungalows. The respondent was carrying a blood‑stained hatchet in his hand. He secured the same. The respondent voluntarily confessed his guilt which was immediately got recorded by the Investigation Officer from Mukhtiarkar and F.C.M. Mirpur Sakro. The blood‑stained hatchet was sent to Chemical Analyser whose report is in the affirmative. The case was then sent up to the Court.

3. A charge was framed against the respondent under section 302, P.P.C., to which he pleaded not guilty and claimed to be tried. The prosecution has examined the complainant Bachal as Ex. 7. P.W. Mitho Ex. 8, P.W. Suleman Ex. 9, P.W. Dr. Versimal Ex.10, P.W. Dil Sher Ex.11, P.W. Ali Mohammad Ex. 12, P.W. Gul Hassan Shah as Ex. 14, P.W. Imam Bux as Ex. 15 and P.W. Lakram Ex. 17.

4. The respondent has in his statement under section 342, Cr.P.C. denied all the prosecution allegations. He has alleged that the P.Ws. were closely related to the complainant and deceased and were on inimical terms with him as he had refused to take the hand of Mst. Bibi for his son Ilyas. Hence they have falsely involved him in this case. He has also retracted the judicial confession and has alleged that the same has been extracted from him by threat and coercion.

5. The learned trial Court embarked upon the determination of the points relating to the factum of death of deceased Yousuf, its being homicidal and the complicity of respondent Dosoo in the said homicide. He answered former point in the affirmative and the latter point in the negative and acquitted the respondent of the charge.

6. There can be no cavel with the finding of the learned trial Court on point No. 1. We have got in this regard the most material evidence of Dr. Versimal, who stated that on 19‑1‑1982 he was Medical Officer, Health Centre Shaikh Zaid Mirpur Sakro. On that date dead body of Yousuf son of Din Mohammad Lohar was brought by PC Dilsher of P.S. Mirpur Sakro alongwith letter for post‑mortem and report. He received the dead body at 4‑30 p.m. He conducted the post‑mortem at 5‑00 p.m. and completed at 6‑00 p.m. The dead body was identified by Din Mohammad son of Abdullah Lohar cousin of deceased and Ali son of Muhammad Pariah Lohar cousin of the deceased. The body was of a male, Muslim, aged about 18 years, of average built. Rigor Mortis were present all over the body. Deceased was wearing shirt and Shalwar and a sweeter. The shirt was blood‑stained. On external examination he found as follows:‑

(1) Oblique incised wound 14 c.m. x 1‑1/2 c.m. x 6 c.m. deep over left side neck. Upper part extending from the pinah of left ear backwards and downwards beyond the mid point back of neck. It has cut all the soft structures on left side neck upper part alongwith inter vertebral disc between 3rd and 4th cervical vertebiae and spinal cord cut through and through.

On internal examination he found as follows:‑

All other organs were normal.

(1) Pericardium and heart.‑‑

Healthy. Left chamber empty. Right chamber contains little quantity of blood.

(2) Scalp, Skull, Verteberea:‑‑

Healthy except Verteberae.

(2) Membrance, Brain, Spinal Cord:‑

Healthy. Spinal cord cut through and through.

(4) Stomach:‑

Healthy, contains little quantity of brownish fluid.

(5) Small Intestines:‑

Healthy containing digested food material.

(6) Large Intestines:‑

Healthy and contained faecal matter.

(7) Bladder:‑

Healthy. Contained little quantity of urine.

From the external and internal examination of the deceased he was of the opinion that the deceased died due to shock as a result of cutting of the spinal cord by external injury No. I caused by hatchet. The injury was ante‑mortem and was sufficient to cause death in ordinary course of nature. The time between injury and death was within few minutes and time between death and post‑mortem was within 10 hours. He issued such certificate.

7. On the complicity of the respondent in this crime the prosecution led before the learned trial Court ocular evidence of complainant Bachal and P.Ws. Mitho and Suleman. These three witnesses when examined on oath in the Court fully supported the prosecution case and stated that on the day of the incident while all the three of them were going behind deceased Yousuf on way to Lait village in the morning the , saw on reaching near Sim Nalli that respondent Dosoo was giving hatchet blow with sharp side to the deceased at his neck as a result of which the deceased fell down while the respondent made good his escape alongwith the hatchet. When they reached near Yousaf they found that he had expired. The learned trial Court has disbelieved the evidence of these three eye witnesses on the ground that complainant Bachal was uncle of the deceased, while P.Ws. Mitho and Suleman were also related to him. The learned trial Court was also of the view that their evidence was wrought with material contradictions. These are to the effect that whereas the complainant had stated in the F.I.R. that when they reached near the deceased they found him still struggling for his life while in this Court the complainant as well as the eye‑witnesses have stated that when they reached near Yousaf they found him dead. It may be mentioned that this is not a material contradiction that would go to the root of the case. Next inconsistency is that the complainant has stated in Court during cross -examination that he left his house at 7‑00 a.m., while Yousaf has started at 5‑00 a.m. and travelled in a bus from Gharo reaching Lait village at 9‑00 a.m., whereas, P.W. Mitho has stated that they had left the village at 9‑00 a.m. and reached Lait Village by means of a bus. This minor inconsistency which is on the point of time cannot be treated as material for the simple reason that the people of the village have got little idea about the time and are likely to give such inconsistent statements on the point of time. The learned trial Court has also dubbed these three witnesses as chance witnesses and has disbelieved their evidence on that account as well. Finally it has stated that no independent, impartial and natural witness has been examined by the prosecution although it appeared that many people from the neighbouring villages had collected there on cries and had witnessed the incident.

8. The observations of the trial Court with regards to the evidence of these three eye‑witnesses does not appear to be well‑founded. The mere fact that complainant Bachal was the uncle of the deceased or other two eye‑witnesses namely, P.Ws. Mitho and Suleman were his relatives or to put it more correctly caste‑‑fellows of the deceased or complainant was not sufficient to discard their evidence. It is a matter of common knowledge that now‑a‑days impartial and independent persons do not come forward to give evidence against the criminals particularly, in murder cases for the fear of inviting enmity with them. It is, therefore, not unreasonable to expect only the relatives or the caste‑fellows of the deceased to come forward to give evidence. In such cases their evidence if otherwise true and convincing should not be rejected on the mere ground that they are related to the deceased or the complainant. It is for this reason that the evidence of related witnesses was not to be disbelieved outright but such evidence is to be accepted if it is corroborated in material particulars by some independent direct or circumstantial evidence and is not otherwise unbelievable. In the case of State v. Nuran Shah reported in P L D 1967 Pesh. 274, a D.B: of that Court held as follows:‑

"In a murder case where there is enmity between the parties and the eye‑witnesses are related to the deceased, the statements of such eye‑witnesses require corroboration. However, for corroboration, it is not necessary that there should be the word of an independent witness supporting the story put forward by an interested witness. Corroboration may be afforded by anything in the circumstances of a case which tends sufficiently to satisfy the mind of the Court that the witness has spoken the truth. Where the accused had absconded from the village for about 3 days after the murder was committed, it was held, that their absence from the village corroborated the statements of the eye‑witnesses regarding their guilt:"

9. Recently the Supreme Court had considered the question of appreciation of evidence of the interested witnesses in the case of Mohammad Ali v. The State reported in 1985 S C M R 203 and had held that the rule that statement of an interested witness could never be accepted unless corroborated was not inflexible. It was further held that corroboration in case of interested witness need not be of same probative force as in case of an accomplice. In another case reported in 1985 S C M R 60 Naseer Mohammad v. The State the Supreme Court was of the view that the prosecution witness though brother‑in‑law of deceased, in a forth right manner supporting case of prosecution and despite probing in cross -examination nothing was brought out from him as to render his evidence doubtful. No enmity with such witness could be established except for bare word of accused. It was held that Court could not have any option but to accept this evidence in such circumstances.

10. It would appear that the requisite corroboration in this case has been afforded by the recovery of blood‑stained hatchet from respondent Dosoo at the time of his arrest which took place immediately after the incident in such circumstances as would inspire confidence in the Court and gave a ring of the truth to the prosecution case. Both Investigating Officer A.S.I. Imam Bux and Mashir Ali Mohammad have supported the prosecution case on this point. It is stated that the respondent was arrested immediately after the murder while he was going near the Engineering Bungalow at Mirpur Sakro carrying the blood‑stained hatchet in his hand and on being so arrested stated that he was going to the Police Station. The respondent was immediately produced before the Magistrate who recorded his judicial confession.

11. The motive in this case also appears to be quite convincing. The same has been admitted by the respondent himself. Looking to the tradition of the people of Mufasil the allegation of the prosecution that respondent Dosoo was annoyed over the refusal by Pariah of the hand of his daughter Mst. Bibi to minor son of Dosoo who instead of gave her to Yousuf and therefore, Dosoo killed Yousuf appears most probable. Defence version that on account of refusal of Dosoo to take the daughter of Panah for his minor son. he falsely implicated Dosoo, does not appear to be believable or reasonable at all.

12. After having carefully considered the evidence as well as facts and circumstances of this case it is not possible for me to agree with the trial Court in so far as the inferences drawn from the evidence or the findings arrived at by it are concerned. The considerations which had induced by the learned trial Court to acquit the respondent are not founded upon the evidence and no valid reason or logic appears for the acquittal of the respondent. In my view it has resulted in serious and grave miscarriage of justice.

13. In the case of Janab Gul v. Adam Khan P L D 1965 (W.P.) Pesh. 193 it has been held that the provisions of section 439, Cr.P.C. had given a wide discretion to the High Court to reverse the findings of acquittal and order retrial when it considers that the conclusions arrived at by the trial Court on the evidence on record are not justifiable and in coming to that conclusion, there has been an ostensible miscarriage of justice. Reliance is also placed on the case of Anwar and another v. The Crown reported in PLD 1955 (FC) 185 and Abdur Rashid and others v. The State and others reported in P L D 1962 SC 249, in this behalf.

14. The revision petition is, therefore, accepted and the respondent is ordered to be retried. I, further order that this case shall be tried by Mr. Qazi Mohammad Hussain Saddiqui Session Judge, Dadu. He is, however, cautioned that he is not bound in any away to follow the conclusion at which I have arrived on the evidence already on record. He should consider as if no opinion is given by me in this judgment. He should proceed with the trial and with the appraisal of the evidence without being in any way influenced by what has been said in this judgment.

M.Y.H./B‑29/K Petition accepted.

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