1976 P Cr (PLP)

4. P. W. Leemo was left with the dead body and Mst. Janoon proceeded to the police station which is at a distance of about two furlongs from the scene of occurrence, where she lodged the report at 5‑15 p .m. which is Exh.

15. A. S. I. Abdul Rasool took the investigation in his hands. He repaired to the scene of occurrence after recording the F. I. R., prepared mashirnama of the wardat and inquest report of the dead body. He sent it for post‑mortem to Medical Officer, Tando Allah Yar, through F. C. Gul Zaman. He also took into custody the blood‑stained earth from the scene of occurrence and sealed it which was later sent to the medical examiner. He examined P. Ws. Leemo, Mohammad Hassan, Haji and Abbas.

5. Post‑mortem examination of Mst. Zeenat disclosed the following injuries on her person:‑ (1) An incised wound 6' x 3' x bone and spinal cord deep at mid neck posteriorly. (2) An incised wound 6" x neck wide x neck deep on mid neck. Neck is cut as result of both injuries but connected with piece of 1' skin strip at left lateral side. (3) An incised would 6' x 3' x wall deep on right side of chest 2 below right nipple, (4) Incised wound 3` x ' x ' on right shoulder posteriorly. (5) Incised wound 1' x ' x muscle deep on right mid thoracic region posteriorly." On internal examination the medical officer found the following injuries:‑‑ (1) 4th cervical vertebrae was cut and separated. (2) Spinal cord was cut at 4th vertebrae level. (3) 5th and 9th ribs are fractured and separated. (4) Larynx was cut, traces was cut. Pleurae was cut and blood was present in thoracic cavity, right ping was cut. (5) Both ventricles of heart were cut. (6) Diaphragm was cut. (7) Liver was cut." The doctor found semi‑digested food in the stomach. In his opinion the death was caused due to shock, haemorrhage, respiratory and cardiac failure. In his opinion injuries 1, 2 and 3 were individually sufficient to cause death. He was of the opinion that ;aeath had occurred instantaneously.

6. Accused Mangio had disappeared and he was arrested on 7th January, 1973 from Kubbu Bus Stand, about 3 miles away from Tando Allah Yar, in presence of Mashir P. W. Imam Ali. The accused person volunteered to produce the hatchet which he did from sar bushes close to Kubbu Bus Stand. It was taken into custody vide Mashirnama Exh.

23. The hatchet was stained with blood. It was sealed and sent for chemical analysis.

7. The chemical examiner found the blood‑stained earth as well as the hatchet stained with human blood vide Exh. 27.

8. At the trial the prosecution examined Mst. Janoon, Leemo. F. C. Gul Zaman, Tapedar Inayat Ali, P. W. Dil Murad mashir of the wardat. P. W. Imam Ali mashdr of arrest and recovery of hatchet, the investigating officer. and Dr. Ghulam Qadir.

9. Accused Mangio denied that he had killed Mst. Zeenat. He claimed that his daughters were still with the complainant party. He had demanded after separation of spouses that they be handed over to him. This had annoyed the complainant party and; therefore, he was implicated falsely in this case. He examined one Mohammad Mitban who had deposed that one Ali Nawaz did not own any land in Deh Dalki. Learned IInd Additional Sessions Judge, Hyderabad, found the accused guilty of charge under section 302, P. P. C. but awarded lesser penalty of life imprisonment nothing that life of the accused had been ruined by Mst. Zeenat and as such he was emotionally upset.

10. Mr. Azizullah Shaikh, learned counsel for the appellant, has contended that the alleged presence of eye‑witnesses namely Mst. Janoon and P. W. Leemo on the scene of occurrence is extremely doubtful in view of the facts brought on record. The reason why it was found necessary for these two witnesses to escort Mst. Zeenar is that they suspected danger at the hands of accused Manglo. But when in the morning Mst. Zeenat came to her parents' house, she came ail alone. In the F. I. R. Mst. Janoon states today at about 12 o'clock my daughter came at my house and declared that her husband Abbas had gone to the village of Shah Beg Lund with work'. This clearly indicates that Mst. Zeenat had come from her house, situated among the quarters of Cotton Ginning Factory, to the house of her patents all by herself. It the clanger was apprehended sit the hands of Mangio she would not have been travelling alone even at that time. This lacuna in the prosecution story was realised at a fairly early stage and therefore Mst. Janoon was obliged to make improvements upon the initial story when she appeared before the trial Court. There she says that it was Abbas who brought Mst. Zeenat to her house and then he went away to the village of Shah Beg Lund. Now she has changed the time of arrival to 11‑00 to 11‑30 a, m. This improvement has been made for the sole purpose of lending credence to the story of apprehended danger, This throws doubt upon this story of apprehended danger and thus the very reason for the parents to accompany Mst. Zeenat becomes baseless.

11. The learned counsel for the appellant has then invited our attention to the statement of P. W. Leemo who has stated that so many persons came on cries. On the strength of this statement the learned counsel wants to assert that there were other eye‑witnesses to the incident. The fact also is that P. W. Leemo had stated specifically before the committing Magistrate that two persons had reached the scene of occurrence on their cries and had even pursued the escaping assailant. He was confronted with this statement at the trial and it has been duly brought on record through cross‑examination. In this context the learned counsel has also pressed into service the statement of Inayat Ali, the Tapedar. The state ment of Tapedar creates lot of confusions and doubts. In his statement initially he stated that the site of the wardat was shown to him by P. Ws. Mohammad Hasan, Noor Mohammad, and Kirer among others. He seems to have prepared the sketch accordingly. But during the course of his examination he changed the sketch by erasing the names of Kirer from the map and adding those of Mst. Janoon and Leemo. This is a significant circumstance which, apart from casting doubts about the presence of P. Ws. Leemo and Mst, Janoon at the time of occurrence, also indicates that Mohammad Hasan, Noor Mohammad and Kirer were the persons who had seen the occurrence. These persons, who are admittedly of non partisan character, and were the natural witnesses of scene, have been purposely not examined by the prosecution. An adverse inference against the prosecution is the only result of such a conduct on their part.

12. Admittedly, the scene of occurrence is situated among the quarters of Cotton Ginning Factory. Although, it was a Friday, when the factory is closed, ginning season was on and therefore, the quarters must have been inhabited It is not possible to presume that nobody from the quarters came out to witness the incident specially when it took quite some time for the assailant to finish his job as would be seen presently. The grudge of the prosecution witnesses against Mangio is evident. It is the prosecution story that the daughters of Mst. Zeenat from Mangio were with P. Ws. Limoo and Mst. Janoon. Accused Mangio has also stated in statement under section 342, Cr. P. C. that he had demanded the return of his daughters. Under these circumstances, testimony of P. W. Leemo and Mst. Janoon can not be explicitly relied upon with independent corroboration. In Najibullah v. State (1973 P Cr. L J 737) it was held that the rela tionship of the eye‑witnesses to the deceased by itself is no ground to disbelieve or doubt their evidence but in the event of lack of corroborative material their evidence has to be examined with caution. In the case cited material discrepancies had emerged during cross‑examination and therefore, it was considered unsafe to rely on such evidence. In 1972 P Cr. L J 1108, a case, where the prosecution witnesses were related inter se and there was enmity with the accused appellant, it was held that it would be dangerous to place reliance upon evidence of such witnesses. In the present .use the sole reliance of the prosecution is on the statements of Mst. Janoon and P. W. Lecmo so far as the details of tie actual occurrence is concerned. They are not only interested witnesses being so closely related to the deceased, but also want to see that Mangio is removed from the sc‑ne so that he cannot demand the return of his own daughters. Even if they were believed to be eye‑witnesses to the occurrence, which is not the case here as discussed earlier, their testimony required independent corroboration. Not only that the required type of corroboration is lacking in this case, the story given by these witnesses is belied by the medical evidence.

13. These two witnesses allege that there were only two strokes inflicted by the accused. Both the eye‑witnesses are emphatic and specific about the number of strokes and the manner in which they were inflicted. They claimed that the first hatchet blow was struck on the chest of Mst. Zeenat there by she fell down on the ground and the second single blow practically severed her neck. But the doctor found 5 injuries on her person; out of these two were on the neck, one on the chest, one on thorax and the last one on the right shoulder. This conflict between medical evidence and the ocular testimony, being irreconcilable, throws grave doubts about the veracity of the ocular testimony. In Abdul Aziz v. State (1973 P Cr. L J 990) it was held that in view of the conflict between the ocular testimony and the medical evidence the State bad failed to prove its case beyond all reasonable doubts. A similar view has been taken by the Supreme Court in Redy Gul v. Mian Gul (1972 S C M R 572). In that case the eye‑witness's account was that the deceased had walked for about 42 feet after receiving the fatal injury whereas the medical evidence showed that death should have been instantaneous owing to the heart having been completely destroyed alongwith its blood vessels. Ors this account, Supreme Court upheld the acquittal of the accused. In the present case, the medical evidence has completely belied the story of the ocular witnesses both as to the manner and the number of injuries inflicted to the deceased. It would, therefore, be highly dangerous to sustain the conviction on the basis of such evidence.

14. Another circumstance mentioned by the learned counsel for the appellant is that the autopsy found semi‑digested food in the stomach. According to Modi (Medical Jurisprudence and Toxicology), mixed diet containing animal food ordinarily takes 4 to 5 hours for complete digestion and vegetable diet containing mostly farinaceous food is digested completely within 6 to 7 hours. But the difficulty for the learned counsel in this regard is that no question has been asked from P. Ws. Leemo and Mst. Janoon about the timing of the last meal taken by the deceased; nor do we have any evidence as to the type of food taken by her. This circumstance therefore is not of much help to the appellant.

15. Learned Assistant Advocate‑General has placed great reliance on the corroborative evidence of recovery of bloodstained hatchet. He contends that this recovery is sufficient corroboration of ocular testimony. Apart from the fact that the ocular testimony is not reliable even the recovery does not inspire confidence. The recovery of the blood‑stained hatchet was made from the sae bushes at the pointation of the accused near Kubbu Bus Stand where the arrest of the accused was also affected. It may be mentioned that arrest had taken place after about 9 days of the occurrence. Kubbu Bus Stand is, according P. W. Imam Ali the Mashir, about 4 miles from Tando Allah Yar. Accused Mangio is evidently not a resident of Kubbu. It is not a natural conduct for a person who may have committed a murder to carry the weapon oh offence to a place so distant both from the scene of occurrence and from his own residence. No criminal can be expected to be indiscreet enough to carry the proof of his crime for so long and for such distances, unless he wanted to make public demonstration of the crime committed by him. Secondly, Kubbu, admit tedly has about 20/25 shops at the bus stand. It is surprising that the investigating officer could not find a single respectable witness from that area to witness the recovery. Statutory requirements of section 103, Cr. P. C. that two or more respectable inhabitants of the locality should attend the search has not been complied with. In Mumtaz Ahmed v. State (1974 P Cr. L J 137) it was held that if a person has been caught from a place other than his locality it may not make the search invalid but if it is a populated locality, grave doubts would be caste on the whole prosecution story because in such a case the inference would be that the police officer making the search was prompted lay a, desire to have such witnesses as would be easily persuaded to support any story which he might put forward. Learned Assistant Advocate‑General, however contends that the recovery of hatchet at the pointation of accused falls under section 27 of Evidence Act, and, therefore, did not require compliance of section 103, Cr. P. C. This is a strange argument because section 27 relates to the relevancy of certain facts of discovery. This section is an exception to the exclusionary rule enacted in sections 24, 25 and 26 of the Evidence Act, which relate to inadmissibility of certain confessions. Section 27 lays down that only that much of information, disclosed to a police officer may be admitted which relates distinctly to the fact discovered thereof. Here we are not dealing with the relevancy of any statement made by Mangio in consequence whereof the hatchet was recovered. Here the factum of recovery of the hatchet itself is involved and if such recovery was made in accordance with section 103, Cr. P. C. or not. In actual fact, the mashirnama of discovery would fall under section 35 of the Evidence Act and the search itself was made in pursuance of provision of section 165, Cr. P. C. This section empowers a police officer to cause search to be made in the course of investigation where a thing to be discovered cannot otherwise be obtained P without undue delay. Subsection (4) of section

165. Cr. P. C. clearly lays down that the provisions of sections 102 and 103 shall apply to the searches made under this section. it was, therefore, imperative for the investigating officer to strictly follow the provisions of section 103, Cr. P. C. Not having done so the recovery made thus shall have to be excluded from consideration.

16. It is not always for the prosecution to set up a motive for the crime. But once it bas set up a motive and if it fails to establish it is the prosecution that suffers. This is the law laid down by the Supreme Court in Hatim Ali's case (1971 S C M R 432). Here the motive was the divorce sought by Mst. Zeenat and her subsequent marriage. Accused Mangio has in the first place stated that it was he who divorced Mst. Zeenat. And secondly having divorced the woman he had no connection left with her and therefore any further conduct on her part was no concern of Mangio. This could hardly be the motive for such a crime.

17. The fact of absconsion of accused Mangio is not a piece of evidence against the accused. Such a conduct can be equally consistent with his guilt or innocence. A person whose name is mentioned in the F. I. R. may abscond if he is innocent to avoid unnecessary arrest and harassment and in case he is guilty to escape from the clutches of law. No inference one way or the other can be drawn from the fact of absconsion, and the learned Assistant Advocate‑General rightly conceded this point.

18. In view of the fact that the ocular testimony while being interested is wholly belied by the medical and other evidence, and in view of the fact that the recovery of hatchet is not beyond all reasonable doubts, we had accepted the appeal and directed his acquittal. These are the reasons for such order of acquittal passed by us. Appeal accepted. KHUDA BAKHSH MARRI, J.‑--I agree.