1968 P Cr (PLP)

N. K. Jatoi for the State. Date of hearing: 19th April 1963. The appellant Allahdad has been convicted under sections 304(2) and 323, P. P. C. and section 24 of the Cattle Trespass Act and sentenced to suffer rigorous imprisonment for seven years, six months, and three months respectively. The sentences have been directed to run concur rently. The appellant has filed this appeal. Mir Muhammad, another accused, who had been tried along with him, has been acquitted,

2. The facts of the prosecution case briefly are that the goats of Haji Ghulam Hussain are alleged to have trespassed into the cultivation of deceased Muhammad Bux on 12th April 1962. Muhammad Bux is alleged to have taken out the goats from the cultivation and is said to have been taking them to the cattle pound when Allahdad, the grazier, came up there to prevent him from doing so. Mir Muhammad, the acquitted accused, who was cutting grass at a distance of one acre from the scene of offence saw this and from there started instigating Allahdad not to spare Muhammad Bux. Mir Muhammad is also alleged to have left the cultivation and come to the scene. He is also alleged to have caught hold of Muhammad Bux to facilitate Allahdad to cause injuries. Fazal Muhammad, brother of Muhammad Bux, seeing Allahdad giving injuries to his brother, came on the scene and caught hold of Allahdad's hatchet. Allahdad was deprived of the hatchet after which Allahdad and Mir Muhammad are said to have run. away. Fazal Muhammad thereafter went to the police station at Sinjhore which-was at a distance of about five miles and lodged his first information report, Exh. 7, at 4 h. m. on the same day the incident having occurred at noon time.

3. The police came to the scene of offence and prepared its mashirnama. Witnesses were examined. The appellant and the acquitted accused were arrested. A shirt from each of the accused was secured as a stain of blood was noticed on each of them. These shirts were sent to the Chemical Analyser whose report, Exh. 27, shows that the blood on them had disintegrated. Injured Muhammad Bux and Fazal Muhammad were sent to the doctor far medical examination and treatment. Muhammad Bux succumbed to the injuries. After the usual investigation was completed, the appellant was challaned.

4. The appellant, when questioned, denied the allegations made against him and attributed the filing of this case to enmity with the witnesses. He has examined Shahdad, D. W. 1, Haji Ghulam Hussain, U. W. 2, and Dr. Aftab Ahmed, D. W. 3, as witnesses in defence.

5. The question whether Muhammad Bux and Fazal Muhammad received injuries and Muhammad Bux succumbed to them is not disputed. The evidence of Dr. Anwarul Haq supported by the evidence of the witnesses proves this issue beyond reasonable doubt, The learned counsel for the appellant also concedes that this question is not disputed.

6. The only point that requires to be resolved in this appeal is whether the appellant caused those injuries to Muhammad Bux end Fazal Muhammad. The prosecution for the purpose of proving their' case have relied upon the evidence of Fazal Muhammad, P. W. 2, Mir Muhammad, F. W. 3, Amir Ali Shah, P. W. 4 and Mahmood, P. W.

5. All these four witnesses are unanimous in their evidence and they all state that Muhammad Bux was taking the goats belonging to Haji Ghulam Hussain to cattle-pound when the appellant Allahdad caused injuries to him after Mir Muhammad, the acquitted accused, had caught hold of him. The evidence of these very witnesses has been disbelieved by the learned Additional Sessions Judge in so far as related to the case of Mir Muhammad the acquitted accused. The learned Judge was quite justified in disbelieving their evidence against Mir Muhammad. Their evidence to Court about Mir Muhammad was that he was cutting grass at a distance of one acre from the scene of offence when he saw Allahdad, the present appellant, remonstrating with Muhammad Bux on his taking the goats to the cattle-pound Their evidence also is that Mir Muhammad without any rhyme or reason started calling out at Allahdad from that distance and telling him not to leave Muhammad Bux. Their evidence further is that Mir Muhammad being not satisfied with his act of instigation, came to the scene with a scythe in his ban and grappled with Muhammad Bux with a view to facilitate the task of Allahdad in giving injuries to him. This incident is alleged to have occurred at about 12 noon on 12th April 1962 when the prosecution alleges not less than 20 people had gathered together in the house of Fazal Muhammad which was at a distance of a few acres from the scene of offence. They had all collected there to attend the ceremony relating to the hair-cutting of Wali Muhammad's son. What is difficult to believe is that when the incident occurred, out of the 20 parsons who were present, it was only Fazal Muhammad who came up to the scene with a view to rescue his brother, On occasion like this all the 20 persons were expected to rush up to the scene and either rescue the person who was being injured or at any rate pursue the culprits and catch him. Fazal Muhammad, when he came to the scene was alleged to be without any weapon but he despite that deprived Allahdad of his hatchet. It is not understood why Mir Muhammad who was on the scene and who had come expressly to assist Allahdad did not do anything to prevent Fazal Muhammad from depriving Allahdad of his hatchet. The part assigned to Mir Muhammad, it appears, was concerned only with the assistance he rendered to Allahdad in respect of the injuries caused by him to Muhammad Buy. Both Mir Muhammad and Allahdad who were obviously unarmed after Allahdad was deprived of his hatchet made good their escape and not a soul out of those 20 persons who were present, in the house- of the deceased made any attempt to pursue the culprits and catch them. Apart from the story being improbable the admitted position on the record is that the, evidence of the witnesses has been disbelieved in respect of Mir Muhammad, the acquitted accused. In the event of the evidence of the witnesses being partially disbelieved is not safe to accept the remaining part of their evidence and hold the appellant liable on it. Normal rule of prudence has always insisted upon corroboratory evidence in such cases to lend assurance to that part of the evidence of the witnesses which is being accepted. Admittedly there is no evidence in corro boration of the evidence of these witnesses and as such it will be very unsafe to accept their evidence and convict the appellant thereupon.

7. The evidence of defence witnesses, however, appears to be totally false. Haji Ghulam Hussain Sinjrani has deliberately given false evidence to support probably his cultivator or a servant. The roan of his position who pays Rs, 14,000, as land revenue assessment has given evidence which on the face of it appears to be false. It is inconceivable in the extreme to believe that the brother of the deceased would go to him and tell him that the appellant or his companion had not committed the murder and yet go to the police station and file first information report. It is also most inconceivable to believe that the brother of the deceased would go to Ghulam Hussain Sinjrani and tell him that Muhammad Bux had been killed, in a fight between brothers. The evidence of Dr. Aftab Ahmed, D. W. 3, also appears to me to be false. Dr. Aftab Ahmad, although he was not called upon to examine the deceased, states that he has casually seen him in the hospital. He was however able to form his opinion upon that casual examination and contradict the doctor who had held post-mortem examination. What is fantastic about this doctor's evidence is that he agrees with the evidence of Dr. Anwarul Haq who held the post-mortem examination in every word of his evidence but disagrees with hint only on the issue of injuries being sufficient in the ordinary course of nature to cause death. It is very regrettable that people holding. responsible position come forward to give evidence of this type. But the falsity of the evidence of the defence witnesses will not in any measure tilt the decision in this case. The case against the appellant has to sink or sail on the evidence led by the prosecution. The prosecution evidence, as I have already stated in the circumstances of this case, will not be sufficient for holding that the appellant was responsible for the offences for which he has been convicted. Holding the evidence of the witnesses to be doubtful I accept the appeal filed by the appellant and acquit him. He is in jail and shall he released forthwith if not required in any other case. Appeal accepted.