1977 PLP 20 (SCMR)

SALAHUDDIN AHMED, J ‑‑This appeal by special leave of this Court is from an order of a Division Bench of the High Court of Sind & Baluchistan at Karachi, dated the 28th of February, 1973, maintaining the conviction and sentence of transportation for life passed upon the appellant under section 302/34 of the Pakistan Penal Code. Of the four accused persons originally put on trial one, namely, Achhar had been acquitted by the learned Sessions Judge, Khairpur. while the other two co‑accused, namely, Kauro and Mir, though convicted and sentenced by the trial Court, were acquitted by the High Court. According to the prosecution case on the 26th of June, 1969, at about sun‑set appellant Nazo along with his co‑accused Kauro and Mir had come to the house of Photo deceased in Jareh Koh village, and had taken him away in their company for the purpose of attending Ghiarwin Sharif Mela at Gambat, which is situated at about 6 miles from the house of the deceased. Photo, however, did not return to his house on the following day and his father, Sanwal, having learnt that the deceased had gone in the company of the aforesaid three persons and that he had been seen in their company at Khamtia culvert on Hamirji Minor, went to them in the village and inquired from them about the whereabout of his son but they denied all knowledge about him. Sanwal, thereupon, lodged the first information report on the 28th of June, 1969, at 1 p. m. with S. H. O. Abdul Hafiz Beg (P. W. 10) encamped at Kamal Dero situated at a distance of two miles from the village of the deceased. The first information report was written on a plain paper and it was sent to Police Station, Gambat for record. The S. H. O. accompanied by complainant Sanwal (P. W. 1) went to Jarah Koh village where appellant Nazo and his co‑accused were also residing and arrested them. The appellant is said to have led the police party to a spot near Hamirji Minor wherefrom blood‑stained earth was secured. The appellant then pointed out a spot in the Minor which had water about 3 feet deep and one Kadir Mashar went inside the water and brought out a broken lathi, one shoe and a mud‑stained hatchet and they were duly seized. The appellant then led to a spot 48 paces away from the spot wherefrom the blood‑stained earth had been seized and the body of the deceased was found buried there with two arms protruding out from the ground. The hands had been eaten away by wild animals. The body was secured and sent to post‑mortem examination which disclosed 12 incised injuries including injury No. 5‑an incised wound 6" X 2" X 2 on the left side neck below the ear starting from just below the angle of the left mandible going back to neck and cutting all big vessels, No. 6‑an incised wound 13" X 2 "X cutting the third in front and on the right side starting from the left side front neck going to lie right and back neck upto the middle and cutting all the big blood vessels. The left arm was found absent just above the elbow joint and it was found cut and right hard third and fourth fingers were absent, etc. It may be noticed here that the injuries were all incised and not a single injury was found to have been caused caused with a blunt weapon. The chemical examiner s report showed that the blood on the earth and hatchet was of human origin. It was an un-witnessed crime and the prosecution relied entirely upon circumstantial evidence and the confession made by the accused to prove their guilt. The circumstances are that the deceased had been called away from his house by the appellant and his companions to attend the Ghiarwin Sharif Mela and that they were seen together while passing over a culvert over Hamirji Minor. For the latter reliance was put on the evidence of P. W. Achhar only. The evidence as to these circumstances were furnished by P. Ws. Hadi Bakhsh, Balal and Achhar. P. Ws. Hadi Bakhsh and Balal are brothers of the deceased and they were not relied upon by the High Court. P. W. Achhar was relied on and the High Court observed that he was a disinterested and independent witness having no relationship whatsoever with the complainant party. In his cross‑examination, however, P. W. Achhar said he had connections with deceased Photo and his brothers. Although the exact connections have not been brought out the witness does not appear to be absolutely unconnected, and it was, therefore, necessary to find some corroboration before his evidence could be accepted. Besides his evidence was not relied on as regards the two co‑accused who were acquitted. Furthermore the aforesaid two circumstances were common to all the three accused including the two who had been acquitted by the High Court, and they were not relied upon so far as the other two accused were concerned because of lack of corroboration concerning them. P. Ws. Hadi Bakhsh and Badal, who spoke about the deceased having been taken away from his house by the three accused, having been disbelieved, there is left only the solitary evidence of P. W. Achhar that he had seen the deceased in the company of the three accused on the culvert over Hamirji Minor. The High Court found that there was corroboration of the evidence of P. W. Achhar, and we shall revert to this presently. Another piece of evidence that had been relied upon by the prosecution was the judicial confession made by appellant Nazo in presence of a Magis trate on the 30th of June, 1969. This confession had been retracted by the appellant, and the High Court was unable to rely upon it in view of its inconsistency with the medical evidence. In this confession the appellant bad said that he had a lathi and that he had given a lathi blow on the legs of Photo deceased. As may have been noticed already, this is inconsistent with the medical evidence which disclosed no blunt weapon injury. All the injuries were found to be incised including the one on the upper part of left leg. This was an incised wound 5 " X 1 " x left tibula bone cut. Further in his confession the appellant said that the hatchet belonged to Photo deceased and that he bad exchanged it with the larhi of co‑accused Mir, and Mir had inflicted hatchet injuries on the neck and head of Photo. The High Court, has, therefore, rightly refused to rely upon the judicial confession of appellant Nazo. Reverting to the recoveries relied on as corroboration of the solitary evidence of P. W. Acbhar, there are two outstanding features about them. It appears from the evidence of P. W. Rahim Dad before the lower Court that he had himself first seen the dead body being eaten by dogs and that he was going to inform the police about it. P. W. Achhar deposed as follows :‑ "On the following day Sanwal along with police passed by our dera in our jeep and they went down of this Hamirjee. After some time they returned and they went to village Jara Khoh. Then I saw that the police came at the same jeep and accused Nazo was with them. When the police went to village Jara Khoh before going there the S. H. O. told me that they had seen the dead body of Photo." This casts a doubt upon the prosecution case that it was on the pointing out of the appellant that for the first time the body was discovered and seized. Besides, it appears fro the evidence of the investigating officer, P. W. Abdul Hafiz Beg that tile two arms of the dead body had been pro truding out from the ground and were visible. If that be so the Investigating Officer who had passed by the place a little earlier was likely to have seen this, but curiously the dead bone was not recovered then. Upon the evi dence there is a reasonable doubt that the body was first seen at the instance of the appellant only. As regards the recovery of the lathi, a shoe and a hatchet from Hamirji Minor on the showing of the appellant, none of the witnesses of seizure nor even the Investigating Officer said that the hatchet recovered from inside the three feet deep water of the Minor had any blood on it. Kadir Bakhsh who went into the water and brought out the hatchet was not examined and no explanation for his non‑examination was given. Even the mashir nama Exh. 15 whereby the hatchet was seized mentions only a hatchet "besmeared with mud". Only the Chemical Examiner's report Exh. 26 disclosed that human blood was detected on the hatchet with black handle, but this hatchet, in the absence of the evidence of the persons present at the recovery of the hatchet from the Minor that it was blood‑stained, could not be connected with the crime. The result is there is no evidence that a blood‑stained hatchet was recovered at the instance of the appellant. Besides, it is highly improbable that in spite of the fact that the hatchet had remained in water for several days it would still contain sufficient blood on it to enable the Serologist to find the origin of blood. This aspect of the seizure of the hatchet, undoubtedly a very material aspect, was never con sidered either by the trial Court or the High Court. In these circumstances we find there is hardly any reliable evidence to corroborate the evidence of the solitary witness, P. W. Achhar, when he said that he and his brother had seen the deceased in the company of the appellant and his companions when the party passed over the bridge over Hamirji Minor. P. W. Achhar is not absolutely an unconnected witness as we have noticed already. Both the witness and his brother had been pro secuted for dacoity but acquitted. In these circumstances it was not safe to rely upon his evidence without corroboration and as has been seen there is no corroboration available. Furthermore the evidence regarding the recovery of the dead body and the hatchet at the instance of the appellant having been found to be unreliable, the mere circumstance that the deceased and the appellant and his companions were seen together is not incompatible with the innocence of the appellant, and is therefore not sufficient to base his conviction on. In the facts and, circumstances mentioned above, the appellant is entitled to the benefit of doubt and we, accordingly, give him this benefit. The appeal is accordingly allowed and the conviction and sentence of the appellant are set aside and he is directed to be released forthwith if not required in connection with any other matter. Appeal allowed.