1975 P Cr (PLP)

3. After the formal registration of the case Ch. Khurshid Ahmad, Sub‑Inspector (P. W. 12) came to the spot and despatched the dead body to the mortuary after preparing the necessary injury statement Exh. P. J. and inquest report Exh. P. K. under the escort of Foot Constable Muhammad Ramzan (P. W. 2), where Dr. M. S. Faridi (P. W. 1) held autopsy on the dead body of Fazal Din and found the following injuries vide Exh. P. M:‑- (1) An incised wound 5' x 1' brain deep on the head vertax left side. The bone underneath was completely cut. (2) An incised wound 4" x ' brain deep on the left temporal region. Bone underneath was completely cut. (3) An incised wound 3 ' x 1 bone deep on the left side of the neck upper part. In his opinion these injuries were sufficient to cause death individually and collectively in the ordinary course of nature due to haemorrhage and injury to the brain. The Sub‑Inspector then inspected the spot and securing blood‑stained earth from there sealed it into a parcel vide Exh. P. B. He also took into his possession blood‑stained hatchet (P. 1) which was sealed into a parcel vide Exh. P. C. He also took into possession the blood‑stained cot (P. 3) with the articles of bedding etc. (P. 4 to P. 9) vide Exh. P. E. Lamp (P. 10) which was lying lit in the room was also taken into possession vide Exh. P. F. He got prepared site plan Exh. P. A. with its duplicates Exhs. P. A./1 and P. A./2 and putting his notes in red ink signed it in token of its correctness. He deposited all the sealed parcels with Muhammad Sharif, Moharrir A. S. I. (P. W. 3) for safe custody in the malkhana, who in his turn sent two sealed parcels of earth and hatchet to the Chemical Examiner for analysis which were found stained with human blood vide report Exh. P. N. of the Chemical Examiner and that of the serologist Exh. P. O.

4. The Sub‑Inspector could not trace the appellant in his village or in the surrounding villages in spite of his best efforts and obtaining his address of posting he went to Karachi for his arrest under a warrant issued by the Ilaqa Magistrate. He had also taken along with him a later written by the Superintendent of Police, Multan, in the name of the Commanding Officer of the Unit of the appellant, a copy of which is Exh. P. W. 12/A, but he was informed that the appellant had not reported in the Unit after the expiry of his leave and had been declared a deserter since 28th October 1968. Exh. P. W. 12/13 is the report of the Commanding Officer in this respect. The appellant had, however, arrived in his Unit on 18th November 1968, at 9 p.m., so his Commanding Officer informed the Superintendent of Police, Multan, about it vide his letter Exh. P. W. 12/C, a copy of which was endorsed by the Superintendent of Police, Multan to the Sub‑Inspector, who deputed Sharaf Din, A. S. I. (P. W. 5) for his arrest. He was accordingly brought back to the Police Station Jahanian in custody, and on the com pletion of the investigation he was put on trial resulting in his conviction as above which has been assailed in this appeal on the ground of insufficient evidence to connect him with this offence and that this evidence was incon sistent with the medical evidence and had remained uncorroborated from any independent source.

5. A perusal of the record revealed that the three eye‑witnesses, namely Mst. Azra (P. W. 9), Mst. Rabia (P. W. 10) and Qurban Ali (P. W. 11) the only inmates of the house had supported the above narration of the occurrence during the enquiry but had resiled from their earlier statements ail the trial which were duly transferred to this file under the provisions oil section 288 of the Criminal Procedure Code. There was no other evidence to corroborate their testimony. Even Sher Afzal Chowkidar, who ha rushed to the spot in response to the alarm raised from the house of the deceased and had actually seen Farman Ali appellant running out from there immediately after this occurrence had not entered the witness‑box.

6. The detection of human blood on hatchet (P. 1) could also be of nab avail to the prosecution as it was recovered from the spot just after the arrival of the Sub‑Inspector there and not from the possession actual orgy constructive of the appellant. Moreover the prosecution had even failed to bring on record any evidence about the alleged motive or about the preceding incident of exchange of hot words between the appellant and they deceased on account of his alleged proposal about his own marriage ink exchange for the hands of his own sister.

7. According to the evidence of Dr. M. S. Faridi (P. W. 1), who had held autopsy on the dead body of Fazal Din (deceased) the larynx, carotical arteries, Juggler veins, muscles and nerves were cut including the 4th cervical vertebra as also the membrane and left side temporal lobe up to the base oaf the skull in middle fossa under the above injuries. He had also conceded that injuries Nos. 1 and 2 could cause immediate shock and unconsciousness and even immediate death could have resulted in this case without permitting the victim to utter any word or sound which would belie the claim of the three eye‑witnesses that they woke up on hearing the outcries of Fazal Dir (deceased). It would not be out of place to mention here that none of the, three eye‑witnesses in their statements before the Enquiry Magistrate had made any mention of lamp lying lit in that room which would show that, there was no arrangement of light in that room at the time of this occurrence and further negate the above assertion of the witnesses as they could not have identified the assailant of the deceased in the darkness prevailing ink that room. Anyhow they stood self‑condemned as liar so their former' statements transferred under section 288 of the Cr. P. C. could not be unreservedly accepted with implicit faith without corroboration from an independent source as was observed in Muhammad Ahmad v. The State (P L D 1970 S C 72).

8. The learned trial Judge had, however, relied on the alleged abscondence of the appellant from the village just after the occurrence for the corro boration of their statements which unfortunately were never put to the appellant in his examination under section 342 of the Criminal Procedure Code. The only question put to him was in respect of his leave from 22‑8‑1968 to 28‑10‑1969 and his failure to report back for duty after the expiry of his leave till 18th November 1968, which he had no doubt admitted to be correct adding that on the evening of 4th November 1968, he reached the house of his maternal uncle in District Dadu and fell ill there. He had, however, been declared a deserter by the Army Officials since 28th October 1968, the last date of the expiry of his leave which fell seven days earlier than the present occurrence. Even the factum of his desertion from Army service was not put to him at all during his statement at the close of the prosecution case. He might, however, have disappeared from his village on that account as the Military Police might be searching for him for his arrest as a deserter from Army service which could also be a satisfactory explanation of his absence from the village and from his unit. As a result his abscondence even if true could not be relied upon as a piece of corrobo rative evidence in this case. I have already taken a similar view in Miana v. The State (P L D 1972 Lah. 129).

9. With the elimination of this factor from consideration the transfer red statements of the hostile witnesses could not sustain the conviction of the appellant in this case as held in the above authority of the Supreme Court. I, therefore, accept this appeal and setting aside the conviction of the appellant direct that he shall be set at liberty forthwith if not required to any other case. Appeal allowed.