1976 P Cr (PLP)

I. MAHMUD, J.--‑The six appellants before us (1) Soof son of Rasoolo, Kolachi (2) Bachoo son of Jaffar Kolachi, (3) Allahwarrayo son of Jan Kolachi (4) Karam Ali son of Hussain Bux Kolachi, (5) Siddique son of Qasim, Mirbahar, (6) Piroo son of Manoo Mirbahar, were tried by the Additional Sessions .fudge, Hyderabad who by the judgment dated 9th April 1971 convicted each of them under sections 302 and 323, P. P. C. read with sections 147, 148 and 149, P. P. C. and sentenced each of them to transportation for life and R. I. for six months respectively, both sentences to run concurrently. Soof and Bachoo have jointly filed Criminal Appeal No. 167/71. Karam Ali and Allahwarayo have jointly filed Criminal Appeal 191/71, while Siddique and Piroo have filed separate Criminal Jail Appeals Nos. 294/71 and 295/71 respectively. These connected appeals were heard together and will be disposed of by this common judgment.

2. The prosecution case as stated in the F. I. R. is that at about 1‑00 p.m. on 13th April 1965, which was the day of Eid‑ul‑Azha, the complainant Qutubuddin Awan, with his maternal uncle Bhooro son of Allah Dino, Awan aged 60 years and Ali Bux Awan, nephew of Bhooro had gone to village Muhabat Khan Bhurguri (Taluka Matli) to receive their shares of `Qurbani'. While they were sitting there at about 2‑00 p.m. the six appellants carne towards them from north side. Soof. Bachoo and Siddique were armed with hatchets while the rest of the appellants were carrying lathis. On arrival they abused the complainant and party and Soof gave a hatchet blow from sharp side to Bnooro which struck him over his head. Bachoo also gave a hatchet blow to Bhooro from blunt side, which struck him over his right leg. The rest of the appellants gave lathi blows to Bhooro. Due to fear, complainant Qutubuddin and Ali Bux ran away but Umer Khaskheli who was present there, intervened to avert the quarrel when he also received injuries over his arm. Bhooro fell down senseless on account of injuries and then the appellants went away. After the appellants had gone, complainant Qutubuddin and Ali Bux returned to Bhooro where they found Umer also sitting at the scene of the offence. While they sat there, Muhammad Siddique S. H. O. Math Police Station, arrived soon thereafter. The complainant Qutubuddin then lodged his F. I. R. Exh. 12 with the said Police Officer who recorded it at the scene of offence on a blank sheet of paper and later on sent it to Math Police Station for incorporating it in under section 154, Cr. P. C. Book. The complainant Qutubuddm gave as motive for the attack by the appellant against them that one Mst. Rani and Mohani girl who was related to appellant Siddique Mirbahar was kidnapped by Nim son of his maternal uncle, Bhooro and that due to that grudge, the appellants Kolachis in support of the Mirbahars who were their haris came and attacked the complainant and party.

3. The Investigating Officer S. H. O. Muhammad Siddique P. W. 9 examined Bhooro who was lying at the wardat. He prepared mashirnama of the injuries on his person in the presence of the mashirs and sent him to Tando Muhammad Khan Dispensary for examination, treatment and certificate. He also examined Umer Khaskheli P. W. 2 and prepared a mashirnama of injuries on his person and sent to Math Dispensary for examination, treatment and certificate. He then examined Ali Bux P. W. 4 and arrested all the appellants from the village Bhurgari in the presence of mashirs, Siddique Muhajir P. W. 5 and Mubarak. He noticed injuries on the persons of the appellants, Karam Ali, Siddique and Piroo and prepared mashirnama of injuries in the presence of the said mashirs. He then searched the house of Soof and Bachoo and from their respective houses he secured hatchets which were not blood stained. From the house of Piroo he secured a lathi which was also not blood stained. He recorded under section 164, Cr. P. C. statements of Umer and also examined Mst. Rani and other witnesses and challaned the appellants in the Court of the learned Civil Judge and F. C. M., Matli, who committed them to the Sessions Court for trial.

4. The appellants in their respective statements before the Trial Court denied the charges levelled against them and proclaimed their innocence. The appellants, Soof, Bachoo, Allahwarrayo and Karam Ali, each stated that they had nothing to do with appellants Piroo and Siddique who are Mohanas but at about 9‑00 a.m. on the morning of the same day of the Eid, they were attracted by cries and saw appellants Piroo and Siddique being attacked by the Awans (complainant party) at Bhurgari village. They intervened and rescued Piroo and Srddique. That Arab Mohano, a relative of Piroo and Srddique lodged a report of that case with the police against the complainant and party and they, the appellants, were mentioned there as witnesses for the prosecution. They said that the complainant party bad filed this case as a counter case to save their own skin from the former case filed against them so as to prevent them from coming forward as prosecution witnesses in the former case. That the prosecution witnesses are related inner se and are hostile to them. Further, that they Kolachis had taken lease of lands near the houses of Awans and Khaskhelis, the complainant party, who resented it and because of that grudge, they had been falsely implicated in this case. The appellant Piroo in his statement said that he is related to Siddique, appellant and that after saying his Eid prayers they both were going to the shop at Bhurguri village when they were attacked by the Awans and received injuries at their hands and that Arab Mohano their relative, filed a criminal case against the Awans with regard to that fight in the morning in which they have been shown as witnesses. Therefore, the complainant and party, the Awans, filed this case as a counterblast and have implicated them falsely to save their own skin and that witnesses are related inter se and are hostile to them. Appellant Siddique also made an identical statement.

5. Bhooro who received injuries died 5 days later. The medical evidence regarding the nature of the injuries and the probable cause of his death is furnished by Dr. Umaid Ali Medical Officer Tando Muhammad Khan and Dr. Rasool Bux Baloch respectively. The former found the ,following injuries on the person of Bhooro : ‑ (1) Lacerated; wound 2 x x right fronto parietal region of head three inches above the right ear. (2) Echymosis of right lower eye lid. (3) Abrasion " x " in outer side of right thigh, eight inches below iliac crest. (4) Contusion 3" x 1" on right side of thigh, 51" below iliac crest. (5) Contusion 5" x 1" on outerside of right thigh two inches below injury No. 4, with fracture of right thigh bone. He stated that all the injuries appeared to have been caused by some blunt weapon such as lathis and were about six hours old; that the injury No. 5 was grievous while the rest of the injuries were simple. Dr. Rasool Bux Baloch conducted the autopsy on the dead body of Bhooro and gave his opinion that the death was due to failure of the respiratory system consequent upon the intracravel haemorrhage presenting on the brain due to injury on the skull, caused by injury No. 1.

6. Appellants Siddique, Karam Ali and Piroo who had injuries on their persons, were also sent up by the police for medical examination. The evidence of the injuries on the person of these three appellants was furnished by Dr. Muhammad Azim Exh. 31, Medical Officer, Matli. He found that injuries on each of them were simple in nature and appeared to have been caused by some blunt weapon such as lathi and were about 12 hours old.

7. In support of its case, the prosecution relied on the ocular evidence of three witnesses, the complainant Qutubuddin P. W. 3, Umer Khaskheli P. W. 2 and Ali Bux P. W. 4 Qutubuddin denied that any of them had caused injuries to any of the appellants as they were empty handed. He stated that due to fear he had run away and taken shelter in the nearby house of Siddique Mohajir P. W. 5 and narrated the entire story of the incident to him and had also disclosed the names of the assailants of Bhooro. However, no question was put to Siddique Mohajir P. W. 5 as to the names of the assailants which this witness had disclosed to him. He also stated that nobody had gone to lodge a report with the Police but the police officer had arrived at the scene at 2‑30 p.m. He also admitted that Arab Mohano had lodged a report against him and his party with the Police but could not say when, in which he was accused and that all the appellants were witnesses against the complainant party in that case. He however, denied that the two incidents had taken place on the same day at different places and at different times. He denied that they had filed this case as a counter blast, against the former case filed by the appellants and party against them. He further stated that Soof has given a hatchet blow from the sharp side, Bachoo also bad given hatchet blow to Bhooro from the sharp side. He further stated that Mst. Rani was kidnapped by Khan Muhammad Awan brother of the deceased Bhooro (in the F. I. R. he stated that it was Nim) and that she was with him for nearly 5 to 8 months but during which period none of the relatives of Mst. Rani has quarrelled with them or abused them. He admitted that lands near their houses were allotted to the Kolachis although Khan Muhammad brother of deceased had also given an offer for them which was rejected. Umer Khaskheli P. W. 2 while supporting the prosecution case stated that he knew Siddique Muhajir P. W. 5 who resided 1 miles away from Bhurgari village and that he was told by him that prior to this incident, a quarrel bad taken place between the Awans and the Mohanas and that appellant Siddiclue had taken shelter in the house of Siddique Mohajir (P. W. 5). He admitted that Fateh Khan Kolachi, uncle of appellants Soof and Bachoo was allotted lease of lands situate near his village about an acre from his house against offers made for these lands by Bhooro"s brother and that he also had made an offer. He said that they did not, like that this land which was near to their houses should be allotted to Fateh Khan Kolachi.

9. The third eye‑witness Ali Bux P. W. 4 gave a brief account supporting the prosecution case. He admitted knowledge of the former case filed by the appellant party against P. W. Qutubuddin and the complainant party.

10. The prosecution examined Siddique Muhajir P. W.5 who was mashie of the arrest of the appellants as well as mashie of the injuries on the person of the three appellants. It is significant that this witness was not asked the names of the assailants of Bhooro which Qutubuddin said he had disclosed to the witness when he sought refuge immediately after the occurrence. He stated that at about 11‑12 noon on the day of the incident, appellant Siddique had come running to his house and told him that Awans were after him and were chasing him and that Awans had caused him injuries; that he was a B. D. Member at the time of the incident and had sent a chit to Pir Saeed Jan, Chairman of Union Council Tando Saindad that appellant Siddique was beaten by the Awans.

11. The prosecution has relied upon three pieces of evidence against: the appellants to connect them with the crime, namely (1) the occular evidence of the above‑mentioned three witnesses (2) the alleged admission of the appellants as to their presence including the fact of the injuries on the persons of three appellants Karam Ali, Piroo and Siddique and (3) the fact that their names were mentioned as witnesses in the F. I. R. of the case lodged by Arab Mohano. The latter two pieces of evidence were relied upon by the prosecution as corroboration of the ocular testimony. We will now examine the probative value of each of these pieces of evidence.

12. The ocular evidence is clearly that of interested persons and is of a partisan nature. The hostility which the Awans complainant party, and Umer Khaskheli harboured against the Kolachis appellants owing to, the allotment lands to the latter despite their objections, had been admitted. It is also admitted that there was a quarrel between the Awa and the Mohanas which was reported to the Police by Arab Mohana in which the complainant Qutubuddin and the deceased Bhooro were shown accused persons while the appellants were shown as witnesses against them. Two of the ocular witnesses Qutubuddin and Ali Bux are also related to the deceased. The evidence of such interested persons claiming to be eye‑witnesses of the occurrence charging parsons against whom they have some motive for false implication with the commission of the offence cannot be readily accepted to in the absence of additional circumstances which corroborate their testimony, which in this case, is singularly lacking. No independent witness has been examined although a number of witnesses were mentioned by the Investigating Police Officer in his statement. The incident having allegedly occurred on Eid day, at the time of distribution of "Qurbani", the non‑availability of witnesses is also surprising. It is also significant that the prosecution failed to elicit from Siddique Mohajir (P. W. 5) the names of the assailants of Bhooro which Qutubuddin is alleged to have disclosed to him when he ran for shelter to his house immediately after the occurrence.

13. We also find that the medical evidence falsifies the ocular testimony. The assertion that appellants Soof and Bachoo gave hatchet blows to Bhooro deceased from the sharp side of their hatchets is belied by the medical evidence which is to the effect that all the five injuries on the person of the deceased consisted of a lacerated wound, an eehymosis, one abrasion and two contusion marks and were all caused by blunt weapon such as lathi, and that these injuries except one was simple in nature. The two injuries on the person of P. W. Umer were also simple. The ocular witnesses appear to have clearly exaggerated the number of injuries given to the deceased and it is hard to believe that as many as six persons were involved in the alleged pre‑concerted attack. These witnesses have also expressed the part played by them, namely causing injuries to three of the appellants.

14. The defence version is that an incident did take place earlier in the morning. This is also supported by Siddique Muhajir P. W. 5, in his cross examination as stated earlier. It is probable that the Police Officer Muhammad Siddique P. W. 9, who arrived at the scene of offence in the absence of a report of the offence by the complainant party, may have conic to investigate the other incident about which Arab Mohana had lodged a report with him. It seems reasonable to infer that the complainant party did not go to lodge a Police report despite the serious injuries to Bhooro, because they knew that the Police Officer was coming and that is why trey sat waiting for his arrival. We roust therefore, accept the defence version as to the other incidents as throwing doubt on the prosecution story. We think that the learned Additional Sessions Judge erred in lightly brushing aside the occurrence of the other incident alleged to have taken place on the same day earlier in the morning.

15. The motive for the crime put forward has also changed in the course of the trial from the alleged kidnapping by a Zamindar of a Mohana girl of the haris, which is hard to believe, to a case of enmity between the Awans and the Kolachis over the allotment of land to the latter. In our opinion, the ocular evidence is not of the quality which inspires confidence and, in the absence of independent corroboration, which is lacking in this case, we must reject it. Not only are the recoveries of the hatchets and lathis effected from the houses of three of the appellants entirely valueless, but in our opinion, the other pieces of evidence relied upon by the prosecution are also of no corroborative value as will presently be discussed.

16. We think that the trial Court erred in accepting the fact of injuries on the persons of appellants Karam Ali, Siddique and Piroo, as corroborating the ocular testimony as to their presence at the scene of the offence and participation in the incident. In Kassim Haji Khan and another v. Crown (I L R 1943 Kar. 294), it was held that it is not proper to convict accused persons merely because they have injuries on their persons caused to them in a fight, because this will practically be to cast upon them the burden of proving how these injuries were caused and thus proving their innocence. To the same effect is the opinion of the Supreme Court in Sadiq v. State (P L D 1967 S C 356) that it is not for the accused person to establish the truth of his account of the occurrence and that falsifies appearing in the statements of accused persons cannot be relied upon, as furnishing proof in support of the prosecution case whose acceptance must rest on a proper appreciation of the facts and circumstances proved. There was no such corroboration with regard to the other three appellants, Soof, Bachoo, and Allahwarrayo who received the injuries. With regard to these appellants, we think that the learned trial Judge erred in using their admissions as to their presence as corroboration of the ocular testimony. It is probable that the admission which took place earlier in the morning at a different scene of offence. On the other hand, if a tally of the injuries is taken into consideration, it is not possible to say1 how the trouble arose. After all three of the appellants have injuries on their person. On this aspect of the case we do not find reliable evidence to convict the appellants, who must in the circumstances, be entitled to the benefit of doubt.

17. We think that the trial Judge had also erred in accepting the third piece of evidence produced by the prosecution, namely the fact that the names of the appellants had been mentioned as witnesses in the F. I. R. lodged by Arab Mohana as proving their presence at the scene of offence or as a cogent piece of evidence. According to him there was no reason why their own party men should falsely disclose their names when they were not present there. Besides the fact that this F. I. R. was not exhibited at the trial, admissions under section 2l of the Evidence Act, are relevant and may be proved against the maker but not against third parties. We think that the trial Court clearly erred in law in accepting the same.

18. For these reasons, we are of opinion that the guilt of the appellants has not been proved beyond reasonable doubt and we must therefore, give them the benefit of doubt. Accordingly, we allow these appeals and set aside their convictions and sentence. The appellants shall be set at liberty forthwith if not required in any other case. Appeal accepted.