1980 P Cr (PLP)

On 6th May, 1979, after hearing the learned Advocates for each side, we had allowed the appeal for reasons to be recorded later, which follow now. Brief prosecution story is that complainant Fakir Mohammad owned cattle viz. one buffalo and four goats, which he tethered in the courtyard of his house in village Fakir Mohammad Khokhar, Deh Phekrano, Taluka Khairpur Nathan Shah. On the night of incident, that is 13th May, 1975, complainant and other inmates of his house were sleeping in the court yard of his house when at about 1 a. m., complainant woke up on the barking of dogs and saw three persons driving away bi‑, buffalo. He raised cries of `thief! thief!' which attracted to the spot Ali Sher, Nabu, Ghulam Hussain and others. Ali Sher grappled with one accused and in the meantime complainant flashed his torch, in the light of which he and other witnesses identified the thieves as Bahadur and Kauro, both sons of Karim Bux and Didar, present appellants, who were all armed with hatchets. Bahadur gave sharp‑sided hatchet blow to Ali Sher on his head, who fell down injured. The appellants thereafter abandoned the buffalo and ran away.. Due to dark night and fear the witnesses did not pursue the appellants. After the departure of the appellants the witnesses went near and saw Ali Sher having sustained injury on the head which was bleeding. After a short time other villagers namely Khuda Bux and Buxial also came to the vardat and they were apprised of the facts of the incident. The complainant then got injured Ali Sher carried to Police Station, Khairpur Nathan Shah at a distance of three miles and lodged F. I. R. which was registered at 2.30 a. m. Ghulam Mohammad, A‑ S. 1. after recording F. I. R. prepared mashirnama of injuries of Ali Sher arid referred him to the hospital. Then he came to the place of occurrence which was pointed out by the complainant Noor Mohammad. .He recovered blood‑stained earth from the courtyard of the house of complainant which was put into sealed parcel. Complainant Noor Mohammad produced his torch which was taken into possession vide a separate mashir nama. The Investigating Officer then recorded statements of P. Ws, Naban, Ghulam Hussain, Khuda Bux and Buxial. On the same day by arrested appellants Kauro and Didar from village Dubi. Appellant Yauro while in custody, produced a hatchet from his house which had no blood stains. On 14th May, 1975 the Investigating Officer raided the house of appellant Bahadur in his absence and secured a blood‑stained hatchet lying on thatched roof. On 22nd May, 1975 he recorded statement of injured All Sher in the hospital. On 28th May, 1975 injured Ali Sher died in the hospital. On 6th May, 1975 he arrested appellant Bahadur, who voluntarily appeared at the police station, After completion of investiga tion challan was presented in the Court. Prosecution has examined 8 witnesses but it appears from the record of the Sessions Court that a mistake has been made in giving the serial number to prosecution witnesses and there is no P. W.

4. Otherwise as is apparent from the record of the Sessions Court only 8 witnesses have been examined. From them P. W. 1 Noor Mohammad complainant, P. W. 2 Naban and Y. W. 3 Ghulam Hussain have been examined as eye witnesses of the incident. P. W. 5 Ladho has attested and produced various mashirnamas. P. W. 7 Mohammad Ramzan A. S. I. prepared mashirnama of dead body on 29th May, 1975 at Civil Hospital, Dadu and also prepared inquest report: P. W. 8 tapedar Mohammad Idris has prepared sketch of vardat. P. W. 9 Ghulam Mohammad A. S. 1. has investigated the case. He examined the report of the Chemical Examiner Exh. 33 on the record which is to the effect that earth and hatchet were found to be stained with human blood. On the application of A. P. P. doctor Abdul Khalique was summon ed and examined. . He examined injured Ali Sher at hospital Khairpur Nathan Shah on 13th May, 1975 and found one incised wound 3 ' x 1 cutting the underneath bone on right parietal region with paralysis of left side of body. He declared the injury to be grievous in nature caused by sharp cutting weapon such as hatchet. He admitted him as indoor patient. According to this doctor injured Ali Sher was unconscious but regained his senses after 3‑4 days and on 22nd May, 1975 A. S. I. Ghulam Mohammad recorded his dying declaration in presence of this doctor. On 26th May, 1975 injured was transferred to Civil Hospital Dadu. P. W. 6 Doctor Vishindas has testified that injured Ali Sher was admitted in Civil Hospital but expired on 27th May. 1975 at 2 a. m. He performed post‑mortem examination on the dead body and found the following injuries on external examination. Linear scar on the right parietal region measuring 6" x 1/6" with sinus measuring 1/4" x 1/4" x brain deep discharging pus in the middle of the scar. The doctor also performed internal examination and came to the con clusion that the death was due to brain damage and the external injury was sufficient to cause death in the ordinary course of nature. The defence of the appellants before the trial Court was total denial of prosecution allegations and false implication due to enmity. In their 342, Cr. P. C. statements appellants Kauro and Bahadur, who are brothers inter se, have stated that their father had enticed away and married mother of P. W. Naban about 15 years before the incident for that reason they have been falsely involved in this case. Likewise appellant Didar has stated that his brother Ghulam Abbas enticed away daughter of P.W. Naban and married her 3‑4 years before the incident. Prosecution has produced different pieces of evidence. We shall first of all take up ocular evidence. Eye account is furnished by three eye. witnesses and they are related inter se and related to the deceased. Com plainant Noor Mohammad is father‑in‑law of deceased Ali Sher, P. W. 2 Naban is son of sister of father of complainant and he is also brother‑in-law of deceased. P.W. 3 Ghulam Hussain is father‑in‑law of deceased Sher Ali. P. W. Naban has admitted before the trial Court that his mother was enticed away by Karim Bux father of appellants Kauro and Bahadur and uncle of appellant Didar and further that his father had filed a case of abduction against Karim Bux, Kauro and Bahadur but they were acquit ted by the Court of Sessions. P. W: Nabaa has further admitted that his daughter Zubeda was enticed away by Abbas brother of appellant Didar. In such background the evidence of the eye‑witnesses, who are interested, is to be analysed with care and caution. Complainant has stated before the trial Court that on the night of incident, he woke up on the barking of dogs and saw three persons removing his buffaloes, he raised cries which attracted to the spot Ali Sher and P. Ws. Naban and Ghulam Hussain. P. Ws. Naban and Ghulam Hussain contradicted complainant by stating that when they reached the spat, complainant and Ali Sher were present there. Subsequently complainant changed his version in the cross- examination before the trial Court and stated that Ali Sher was, sleeping at a distance of four paces from his cot on the spot. Complainant also deposed that after the arrival of Ali Sher and P. Ws. Naban and Ghulam Hussain, he flashed his torch and identified the appellants and the wit nesses also identified them in that light. This assertion is not consistent with natural conduct because if the 9qmplainant really had a torch thou he would wash it as soon as he became aware that there were some persons near his buffaloes. It is also highly unlikely that complainant would go on raising cries and would flash the torch only after the arrival of the eye. witnesses. P.Ws. Naban and Ghulam Hussain support the complainant on the point that Ali Sher grappled with Didar, who raised alarm on which Bahadur gave hatchet blow to Ali Sher on his head, who became injured and lost his grip ion Didar but they had not stated so in their police statements. P. W. Ghulam Hussain stated before the trial Court that his house was about 100 paces away from the house of complainant and in. between there were uncultivated lands. Complainant and both eye‑witnesses admitted that they did not pursue the appellants because it was dark night and they were frightened. Now the question arises whether the claim of the eye‑witnesses that they identified the appellants in the light of torch is correct and substantiated. 1f the complainant really had a torch with him, he would have continued using it to take the injured to the police station, where he reached at 2‑30 a. m. and should have produced it at the police station, but he did not do so. After filing F. I. R. he brought the Investigating Officer to the vardat and produced the torch in the morning at the spot at 8‑45 a. m. We therefore, view this fact with great doubt that identification was made in the light of torch as claimed by the prosecution. P. W. Ghulam Hussain has given another twist to this torch story. He deposed that he did not remember whether com plainant Noor Mohammad took his torch when he carried injured Ali Sher to police station after the incident same night. He further stated that his son Haji took the torch of Ali Sher from his cot and flashed the same when he went with complainant and injured Ali Sher to the police station. This assertion is also equally untenable. If Ali Sher had his torch with him on his cot, he would have brought it and used it when he woke up on the cries of `thief ! thief !' raised by his father‑in‑law. It is not natural that he would leave his torch behind and run. after thieves in the dark ness of night. Secondly, no such mention is made in F. I. R. that another torch had been brought but since it was not used by the complainant for identification of culprits, the same was not recovered. For these reasons we do not accept the claim of prosecution that identification was made in the light of torch. Appellant Kauro and Didar are stated to have been arrested on the same day i.e. 13th May, 1975 and appellant Kauro is alleged to have pro duced a hatchet from his house. This hatchet was not stained with blood. Appellant Bahadur's house was searched in his absence by the Investigat ing Officer and he recovered one blood‑stained hatchet with Kahoo handle and iron‑plate on the ring side. The Chemical Examiner has found the hatchet to be stained with human blood but description of hatchet in the report of Chemical Examiner is not same and it is only stated the hatchet with handle was found to be stained with human blood. Secondly prosecution has examined Ladho s/o Bilawal as mashir. He has attested all the mashirnumas including recovery of this hatchet. This mashir is related to the complainant and is his brother‑in‑law. In any case recovery was made in the absence of appellant Bahadur and at that time no other inmate of the house is stated to be present. This piece of evidence is also not free from doubt. Next comes dying declaration of Ali Sher deceased, which was recorded by the Investigating Officer on 22nd May, 1975 in the hospital in presence of Dr. Abdul Khalique. It is the case of prosecution that after receipt of hatchet injury on the head Ali Sher became unconscious. He was unconscious when complainant took him to the police station. Dr. Abdul Khalique examined Ali Sher on the same date of incident and found on his head injury 3 " x 1 " cutting underneath bone on right parietal region with paralysis of the left side of the body. This doctor found the injured to be unconscious but has further stated that the injured regained his senses after 3‑4 days and on 22nd May 1975 his con dition deteriorated and the Investigating Officer recorded dying declaration. On 25th May, 1975 injured was shifted to Civil Hospital Dadu, where he expired on 27th May, 1.975. This dying declaration is not made before any Judicial Officer. Secondly, it is first‑person narration of Ali Sher but is not signed or thumb marked by him. It is attested by Doctor Abdul Khalique but he has appended no certificate that injured was capable of making statement. This doctor has deposed that injured was admitted on 13th May, 1975 and regained his senses after 3‑4 days but dying declaration shows that Ali Sher regained his senses on 22nd May, 1975 when his dying declaration was recorded. Furthermore this dying declaration is such graphic account of the incident with all minute details that it cannot be believed that a man having received such a serious head injury and having remained in coma for such a long time could remember and narrate the incident with such precision. There is only one fatal mistake. Eye‑witnesses state that Ali Sher caught hold of Didar appellant but dying declaration says that he caught hold of appellant Kauro. For these reasons we do not rely upon this piece of evidence. Lastly enmity is admitted between both the parties and in that bas ground the evidence appraised above, shows that prosecution has failed to establish its case against the appellants. We, therefore, give benefit of doubt to the appellants, set acid: their convictions and sentences and allow their appeal. Appeal allowed