Find a Lawyer

Criminal Appeal No. 181 of 1961, decided on 16th April 1963.

No evidence that crime weapon was stained with human blood‑Mere securing of weapon at instance of accused not a circumstance against him‑Evidence Act (1 of 1872), S. 27.

Evidence in Sessions Court found to be false‑Basing conviction on statement made before Committing Magistrate brought on record under S. 288‑Corroboration necessary before such statement is relied upon.

Aziz Ullah Shaikh for Appellant.

Qureshi A. Hayee for Respondent.

Date of hearing: 16th April 1963.

The appellant has been convicted under section 326, P. P. C. and sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs. 1,000 or in default to suffer rigorous imprisonment for six months more. He has also been convicted under section 323, P. P. C. and sentenced to suffer rigorous imprison ment for 12 months. The sentences have been ordered to run concurrently. The appellant has filed this appeal.

2. The facts of the prosecution case briefly are that the cattle of the appellant trespassed into the cultivation of Abdul Karim on 16th March 1960 on account of which Abdul Karim reprimanded him. On 17th March 1960, at about sunrise, while Abdul Karim was taking milk for sale from his village to Garhi Yasin he saw the appellant emerge out of the bushes armed with a hatchet. The appellant gave him injuries on arms and legs. He raised cries on which Bhai Khan and Abdullah cams. They are said to have seen the appellant giving injuries to Abdul Karim. Ayub Khan also arrived at the wardat. He got infor mation from injured Abdul Karim that injuries were caused to him by the appellant. Ayub thereafter went to the police station at Garhi Yasin which was at a distance of about three miles from the scene of offence and lodged his first information report, Exh. 10, at 10‑20 a.m. on the same day.

3. The police during the course of investigation prepared the mashirnama of wardat, recorded the statements of the witnesses and arrested the appellant. The police also secured a hatchet produced by the appellant. It was shown to have been stained with blood but it appears it was not sent to the Chemical Analyser for examination. There is thus no evidence that the hatchet was stained with human blood. The securing of the hatchet, therefore, at the instance of the appellant will not be a circumstance against him. On the investigation being completed, the appellant was challaned.

4. The appellant, when questioned, denied the allegations made against him. He has not examined any witness in defence.

5. The question whether Abdul Karim received injuries and that some of them were grievous is not disputed. The evidence of Dr. Muhammad Anwarul Haq, Exh. 17, and Dr. Ali Hyder, Exh. 19, supported by the evidence of the witnesses establishes this beyond doubt. The evidence of the a doctor shows that Abdul Karim had as many as 14 injuries out of which three were incised and one of them had resulted in the fracture of his leg.

6. The only question that needs to be decided in this appeal is whether the appellant caused those injuries to Abdul Karim. The entire prosecution case rests upon the evidence of Abdul Karim, P. W. 1, Bhai Khan, P. W. 2 and Ayub Khan, P. W. 3. It is admitted that all these three witnesses are close relations. The evidence of Abdul Karim in the committal Court was that the appellant emerged out of the bushes and gave him injuries with a hatchet on account of an altercation that he had with him on the previous day. The evidence of Bhai Khan, P. W. 2, again in the committal Court was that he heard cries and went there running along with Abdullah and saw that the appellant was giving injuries with a hatchet to Abdul Karim. The evidence of Ayub Khan in the committal Court was that he went on cries and saw Abdul Karim lying injured on the ground. His evidence also was that Abdul Karim informed him that the appellant had caused injuries to him. The evidence of all these three witnesses, however, in the Sessions Court is quite different. The evidence of Abdul Karim is that he did not identify the culprit but suspected him to be the appellant. The evidence of Bhai Khan is that he did not see the appellant. He saw him running and therefore suspected that it was the appellant. Both Bhai Khan and Ayub Khan stated in the Sessions Court that Abdul Karim told them that he had suspected the person who gave him injuries to be the appellant. From the trend in which these persons gave evidence it is obvious that they have beer". tampered with because of their relationship with the appellant. It is also obvious that they are giving evidence which is not true and they are doing so with a view to protect the appellant. But if one were to discard their entire evidence recorded in the Sessions Court and base the conviction totally upon the statements recorded in the committal Court it will be setting out a bad precedent. In such cases some sort of corroboration would, in my opinion, be necessary for the purpose of deciding as to whether the statements the witnesses made in the committal Court were true or whether the statements they were making in the Sessions Court were false. In the event of there being admittedly no evidence in corroboration it will be unsafe to base the conviction solely on the statements brought on record under section 288, Cr. P. C. The circumstances of this case do warrant that a conviction purely on the statements under section 288, Cr. P. C. should not be founded although there may be cases in which the evidence brought under section 288, Cr. P. C. may be accepted, and conviction based upon it. The evidence in this particular case, in my opinion, appears to be doubtful and therefore giving the benefit of the doubt to the appellant, I accept his appeal and acquit him. He is on bail, his bail bonds stand cancelled and the surety discharged. Fine, if paid by him, shall be refunded to him.

K. B. A.

Find a Lawyer Near You

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