P L D 1984 Lahore 522 (PLP)

8. Dr. Muhammad Ajmal Mian (P. W. 6) conducted post‑mortem examination on the dead body of Muhammad Iqbal deceased at 8 a.m. on 24‑8‑1978 and found on his person the following injuries: ‑ (1) A stab wound 4 cm x 1 c.m. chest deep, 7c.m. above and inner to left nipple passing through left third and 4th ribs inter‑space, cutting pleura left lung, pericardium and heart from left to right through and through. (2) A stab wound 3 c.m. x 1 c.m. muscle deep obliquely over the left side of epigastrium. (3) A contusion mark 1 c.m. x c.m. over left mastoid region. (4) A coptusion mark 2 c.m. X 1 c.m. over left inner pinna upper part. (5) A contusion mark 16 c.m. x 10 c.m. over outer back of left shoulder and left upper arm. (6) An incised wound 1 c.m. x c.m. muscle deep 5 cm below left nipple. (7) Two contusion marks 15 c.m. x 2 c.m. each on the back of left scapular region and left chest. (8) A contusion mark 16 c.m. x 2J c.m. obliquely over middle back outer part of left chest. (9) A linear cut 3 c.m. long, skin deep, on the outer side of left wrist. (10) A cut wound 2 c.m. x J c.m. skin deep, on the middle outer part of left forearm. (11) A contusion mark 1 c.m. x I c.m. on front of left palm. (12) An abrasion 6 c.m. long over middle back of right forearm. Death in his opinion was due to shock and haemorrhage resulting from injury No.

1. This injury was sufficient to cause death in the' ordinary course of nature. Injuries Nos. 1, 2, 6, 9 and 10 were caused with a sharp edged weapon arid the rest with blunt weapon. Probable‑duration between the injuries and death was immediate. He stated in the cross‑examination that injuries Nos. 1 and 2 could be caused by the same weapon. Injuries Nos. 6, 9 and 10 did not seem to have been caused by stabbing force. These injuries could be caused with corner of sharp‑edged axe. Injury No. 9 could be caused by hard and sharp‑edged leaf of sugarcane. The possibility of injury No. 3. having been caused by falling on a bard substance cannot be ruled out. Similar is the position of injury No.

4. Injuries Nos. 5, 7, 8 and I 1 could be caused during the scuffle. After receiving injury No. 1 the deceased must have fallen down. The deceased had no injury on his legs. Dr. Imtiaz Ahmad Gil (P. W. 1) medically examined Mst. Zohra Bibi P. W. at 7‑55 p.m, on 23‑8‑1978 and found on her person an incised wound skin deep on the right wrist. The injury was simple and caused by a sharp edged weapon. The duration of the injury was about 12 hours. He stated in the cross‑examination that it could be possibly self‑suffered and caused by a friendly hand. This injury could be caused by any sharp‑edged weapon.

9. I have heard learned counsel for the parties and carefully perused the record. Learned counsel firstly argued that there is long‑standing enmity between the parties and the background of that enmity is clearly evident from the record. There had existed a blood‑feud between the parties in which the P. Ws. had also been implicated as accused persons. The reason ing of learned counsel is that when there had been a long‑standing enmity between the parties, the ocular testimony, in the instant case, comes forth from the witnesses who are highly interested, hostile and inimical as well as partisan. The case of the defence is that it was an unwitnessed occurrence which might have taken place early in the morning and that none of the eye-witnesses was present on the spot. He is supporting his argument on the basis of the medical evidence also because according to the doctor who con ducted the post‑mortem examination, the stomach of the deceased was found empty and the bladder contained 2 ounces of urine. Learned counsel submitted that it was 18th of Ramazan on the day of the occurrence and according to the testimony of Mst. Zohra Bibi P. W. he was keeping fast on that day. Therefore, learned counsel is of the view that his stomach should have not been empty unless he had gone out to ease himself before the sehri time when the occurrence took place. He also states that‑ the‑ occurrence had taken place about 32 feet inside the sugarcane field. Learned counsel also submits that since there was long‑standing enmity and there existed the same motive as against the P. Ws., then had the P. Ws. been present on the spot, they would have also met the same fate as the deceased at the hands of the accused persons who according to the prosecution were armed with deadly weapons were seven in number as opposed to four members of the complainant side. Learned counsel states that even in the impugned judg ment the trial Court has observed that there was exaggeration of the account given by the eye‑witnesses of the occurrence and that in some cases of injuries there was conflict with the medical evidence. Learned counsel is of the opinion that this kind of conflict coupled with the other circumstantial factors which he has brought to my notice, the eye‑witnesses were not present on the spot and it was an unwitnessed occurrence. Finally his argument about the recoveries is that so far as the recoveries made from the appellants and the acquitted co‑accused are concerned, these are of no consequence and of no corroborative value. The human blood‑stained spears were only recovered at the instance of Muhammad Khan and Muhammad Hussain appellants. According to learned counsel, both the aforesaid appellants were arrested on 31‑8‑1978, i.e. eight days after the occurrence when they allegedly presented themselves before the police. The recoveries are alleged to have been produced by them on the same day i.e. eight days after the occurrence. Learned counsel is of the view that the recoveries made after eight days of the occurrence could not have been still stained with human blood. According to him, these recoveries are of doubtful nature and in this connection he is placing reliance on Nazir and another v: The State (1982 P Cr. L J 318) as well as Abdullah and others v. The State (1983 P Cr. L J 2582). Thereafter he argues that even other wise these recoveries could not be considered as reliable, for, scrappings from the spears recovered at the instance of the aforesaid two appellants were sent to the Chemical Examiner on 23‑9‑1978 i.e. nearly one month after the recoveries. If the scrappings had been sent after that delay for chemical examination, the blood would have certainly distintegrated and its origin could not have been determined. In this connection reliance was placed on Waryam and another v. The State (P L J 1975 Cr. C (B J) 41). Learned counsel for the complainant opened his arguments in respect of Ahmad co‑accused. He took me through the judgment of the trial Court, particularly paragraph 22 in which the trial Judge specifically named Noor, Zahoor, Zulfikar and Shaman alias Shahmand acquitted co‑accused, that he had acquitted them of all the charges framed against them by giving them the benefit of doubt but he did not mention the name of Ahmad co‑accused as to whether he had acquitted him or convicted and sentenced him. In other words, the judgment is silent about the fate of Ahmad co‑accused. According to learned counsel, this was a clear violation of the provisions of section 265‑H, Cr. P. C. which lays down that if in any case in which a charge had been framed, the Court finds the accused not guilty, it shall record an order of acquittal. According to learned counsel, it was obligatory on the trial Judge under the circumstances to record an order of acquittal to respect of Ahmad co‑accused. But he had not done 'so and this omission on his part is not curable under section 537, Cr. P. C. According to learned counsel, section 537, Cr. P. C. cannot be read independently but it must be read in conjunction with section 265‑H and section 367(4), Cr. P. C. In support of his reasoning learned counsel placed reliance on Ghousbux and others v. Emperor (A I R 1937 Sind 26), Abdul Karim v: Emperor (A I R 1940 Sind 113) and Jalil alias Jalil-ud‑Din (P L D 1966 S C 971.). The crux of the argument of learned counsel is that there should be strict compliance of section 265‑H and section 367(4), Cr. P. C. and that the trial Court while not complying with these provisions has committed a serious error which had vitiated the trial so far as Ahmad co‑accused is concerned. It was then submitted by learned counsel that the case of Ahmad co‑accused should be remanded to the trial Judge for retrial and that since he had been an accused person along with others, then all those who have been acquitted alongwith him, their case should be remanded for retrial due to the serious omission in the case of Ahmad co‑accused. In support of his argument learned counsel placed reliance on Moonda v. The State (P L D 1958 S C 275) in which it was laid down in respect of retrial that if it was a single case against several accused and that ground for retrial appeared only in respect of some, then the case should be retried in respect of all of them. In respect of recoveries made, in the instant case, learned counsel argues that the case was registered against the appellants and the acquitted co‑accused on 23‑8‑1978 but all of them were arrested on 31‑8‑1978. They had remained in hiding for eight days and this would indicate their guilty conscience, They also voluntarily appeared before the police after eight days and surrendered the weapons of offence. In that view of the matter, their conduct should not be considered as unnatural and the recoveries in all the cases should be considered as valid and reliable irrespective of the fact as to whether such weapons of offence were stained with blood or not or irrespective of the matter that the two blood‑stained spears recovered from the two appellants, in the instant case, were belatedly sent for chemical examination. Learned counsel in support of his proposition relies on Nawab and others v. The State (P L D 1965 S C 522). It was next argued by learned counsel that the argument raised by learned defence counsel to the effect that the recoveries effected from the two appellants, in the instant case, were belatedly sent for chemical examination, is of no worth because when they had produced those weapons of offence voluntarily and their conduct should not be considered as unnatural, then if the human blood‑stained weapons of offence were belatedly sent for chemical examination the delay by itself should not make the recoveries unreliable. Reliance in this connection was placed on Noor Alam v. The State (P L D 1978 S C 137). In that case there was a delay of one month and six days. He also relied upon Allah Bakhsh and Muhammad Nawaz v. The State (P L D 1978 S C 171). In respect of the ocular testimony learned counsel states that it should be con4dered as reliable. His reasoning is that Bashir Ahmad P. W. was maternal‑uncle of the deceased and Mustafa P. W. was cousin of the deceased and that, therefore, alongwith them as well as Mst. Zohra Bibi P. W. who was sister of the deceased, his going for cutting chart was not unnatural and that, therefore, there was no substance in the argument of the defence that the eye‑witnesses were not present on the spot. According to learned counsel, these eye‑witnesses were all present on the spot and their presence is further established by the injury sustained by Mst. Zohra Bibi P. W. in the instant case. Learned counsel submitted that the nature of the injury sustained by Mst. Zohra Bibi P. W. indicates that it could not be self‑suffered as opined by the Medical Officer. He gave a favourable statement for the defence and that this Court must not consider it as relevant. Thus, according to learned counsel the presence of Mst. Zohra Bibi P. W. is established on the scene of crime. In *the same way learned counsel argued that the trial Court was not justified in discarding the testimony of Mst. Zohra Bibi P. W.' According to learned counsel, all the eye‑witnesses were present at the scene of crime and they witnessed the same. It was next argued that the accused party, in the instant case, had a strong motive to commit the murder of (he deceased due to the background of previous enmity and that in such circumstances if the ocular account was in conformity with the medical evidence, then there was no need of any further corroboration. It was further submitted that in respect of the appellants at least the ocular account was not only corroborated by the medical evidence but it was further corroborared also by the recoveries made from them. On the basis of these arguments it was submitted by learned counsel that in the circumstances of the case the penalty of death should have been awarded to the two appellants or at least to Muhammad Khan appellant and that the case of the others who have been acquitted should be remanded for retrial because of the flaw in respect of Ahmad co‑accused. Learned counsel for the defence in reply to the arguments raised by learned counsel for the complainant submitted that so far as the technical argument raised by learned counsel from the other side was concerned, in paragraph 16 of the judgment the finding of the trial Court was as follows: ‑ "In this view of the matter, the assertions of the P. Ws. regarding infliction of the injuries by Zulfikar and Ahmad accused are also belied by the medical evidence." Learned counsel then submitted that in paragraph 21(ii) the trial Court gave the following finding:- "Muhammad Khan and Muhammad Husain accused are only accused persons proved to have caused the murder of the deceased on the fateful day by causing him spear blows with their respective weapons." It was then submitted that the next finding of the trial Judge is in paragraph 21(iii) which is to the following effect: ‑ "The prosecution could not succeed to prove the participation of the remaining accused in the commission of crime charged beyond all reasonable doubt." It was submitted that in paragraph 22 of the judgment the two appellants who had been specifically convicted and sentenced had been clearly described and thereafter it is stated by the trial Judge that the other accused namely, Noor, Zahoor, Zulfikar and Shaman alias Shahmand were acquitted of all the charges framed against them by giving them the benefit of doubt. They were all on bail at that stage and they had been discharged from that liability. So, learned counsel argues that reading the judgment as a whole, and the findings which the trial Judge has recorded, it is evident that there was merely inadvertent typographical omission of the name of Ahmad co‑accused which can be corrected by this Court under section 537, Cr. P. C. and that otherwise the judgment of the trial Court is entirely in accordance with the provisions laid down in section 265‑H, Cr. P. C. and section 367(4), Cr. P. C. Learned counsel submitted that if an error or omission was so serious as to prejudice the case of any of the co‑accused, even then it could be cured under section 537, Cr. P. C. But in the present case, it was merely an inadvertent typographical omission and this omission could ‑ not be considered as inconsistent with the other findings in the judgment. In connection with the arguments raised by learned counsel for the complainant about the recoveries it was submitted by learned counsel that first of all the attesting witnesses of these recoveries were closely related to the deceased and were equally inimical and hostile. Secondly there was contradiction as to where the recoveries were effected i.e. were they voluntarily produced on the spot or the accused party led to their deras for the recoveries? Thirdly the recoveries made from the acquitted co‑accused were not found to be stained with blood and, therefore, they were given the benefit of doubt as the recoveries had no corroborative value. So far as the recoveries from the appellants were concerned, they were arrested after eight days when the recoveries were effected from them and these recoveries were despatched for chemical examination further after 23 days. Learned counsel submitted that in circumstances it would be unbelievable that they preserved these incriminating articles as souvenirs for such a long time before these recoveries were made, particularly when they were denying their participation in the commission of crime. In this connection learned counsel placed reliance on Arif Husain v. The State (1983 S C M R 428). Learned counsel further argued that so far as the ocular testimony, in the instant case is concerned, his sole argument was not this that the eye‑witnesses were not present on the spot. His argument was that firstly their presence on the spot was doubtful and if they were present on the spot, then because of the, long‑standing enmity between the parties, strong corroboration was necessary qua each accused as well as of their version. I have carefully considered the arguments of learned counsel from both the sides. First I will deal with the technical point raised by learned counsel for the complainant. In my view the judgment of the trial Court when read as a whole, does not indicate that there has been violation in any sense of the provisions of sections 265‑H and 367(4), Cr. P. C. The name of Ahmad co‑accused was merely inadvertently omitted and it was a typographical error which can certainly be cured by this Court under' section 537, Cr. P. C. as the finding of the trial Court in respect of him was the same as in respect of the other acquitted co‑accused. Consequently I do not find any substance in the argument of learned counsel for the complainant on that point and that the authorities cited by him were not applicable to the facts of the present case where the judgment, when read as a whole, did not show that there had been a substantial or material violation of the aforesaid sections. In respect of the arguments raised about the recoveries, in the instant case, I am inclined to agree with learned counsel for the defence. There is indeed a controversy as to whether the recoveries were made on the spot or the members of the accused party led to them. The recoveries made from the acquitted co‑accused had no s corroborative value. However, it is evident from the record that the recoveries made from the two appellants were not free from doubt. First of all the appellants were arrested eight days after the occurrence. There is nothing on the record to‑indicate that they had absconded for a period of eight days as submitted by learned counsel for the complainant. They were never declared as proclaimed offenders and no proceedings were taken against them under section 87'/88, Cr. P. C. Anyway, on their arrest after eight days they are stated to have led to the recoveries of spears effected' from them and it is stated that these spears recovered from them were blood‑stained. It is also evident from the record that the attesting witnesses of these recoveries, besides the Police Officer, were closely related to the deceased and equally inimical towards the accused party. Thereafter, it is strange, that the Police Officer kept the recoveries for a period of at least 23 days when these were sent for chemical examination. In my view if they were stated to be stained with human blood after such a long time, this was improbable and unnatural in the light of the principle laid down in Arif Husain v. The State. Thus, the recoveries made from the appellants are not reliable because in my considered opinion, these are not! free from doubt. The argument of learned counsel for the complainant to the effect that they had voluntarily surrendered the incriminating articles to the police and that, therefore, their conduct was not to be considered as unnatural, is not an argument of convincing nature, for, there is uncer tainty as to whether they had voluntarily surrendered these spears before the police or they had led to these recoveries. In any case, if they were denying the participation in the commission of crime throughout, they could not be said to have surrendered the incriminating articles after eight days stained with human blood voluntarily to the police. Now I come to the worth of the ocular testimony in the instant case. Admittedly there is background of previous enmity and it is long‑standing enmity. The eye‑witnesses produced are admittedly hostile, inimical and, therefore, interested. Irrespective of the argument as to whether they were present on the spot or not, I am not going to accept their testimony without corroboration. Learned counsel for the defence has argued that since Bashir Ahmad P. W. as well as Mustafa P. W. were closely related to the deceased, had they been present there, they would have also been targets of the accused party like the deceased as there was long‑standing enmity between the parties. So, in the light of the findings of the Medical Officer to the effect that the stomach of the deceased was empty at the time of the post‑mortem examination, the possibility cannot be ruled out that the occurrence might have taken place in the early hours of the morning and it was an unwitnessed occurrence. The doctor has also stated that the injury sustained by Mst. Zohra Bibi P. W. could be self‑suffered. I am inclined to agree with the opinion of the doctor in respect of this injury and not with learned counsel for the complainant. Thus, the possibility could not be ruled out that none of the eye‑witnesses was present at the time of the commission of crime. But even if it is accepted that they were present, then their testimony cannot be accepted without corroboration. Corroboration is not forthcoming in respect of the five acquitted co- accused in the instant case as the ocular account is not only in conflict with the medical evidence on some points, but it is not even corroborated by the recovery evidence. So, in that view of the matter, the five acquitted co‑accused, in the instant case, were rightly given the benefit of doubt and c acquitted. The trial Court has proceeded to convict and sentence the two appellants, in the instant case, for the reason that in their case only the ocular testimony was corroborated by the recovery evidence and supported by the medical evidence. But the argument of learned counsel for the defence in their case is that recoveries of incriminating articles from them were made after eight days of the occurrence and these incriminating articles were sent for chemical examination 23 days thereafter by the police. Consequently, it could not be categorically stated that after such a long time these articles were found to be stained with human blood. In my view, as I have pointed out above, the recoveries of incriminating articles even from the appellants are not free from doubt and, therefore, they are of no corroborative value. In that view of the matter, in my considered opinion, the case of the appellants is also not free from doubt and the prosecution has not succeeded in establishing its case as against them 1 beyond any shadow of doubt. In the circumstances their conviction as well as sentence awarded to them were not proper and they should have been given the benefit of doubt which I hereby give to them and as a result set aside their conviction as well as the sentence awarded to them. Consequently they are acquitted and their appeal is accepted. They shall be released from jail forthwith if not wanted in any other case. In the light of what has been discussed above, I do not find any sub stance in Cr. R. No. 337 of 1981 as well as Cr. R. No. 546 of 1981 which are accordingly dismissed in limine. M. Z. M. Appeal accepted.