1976 P Cr (PLP)

TUFAIL ALI REHMAN C. J‑The two appellants, the deceased Tagial and all the principal prosecution witnesses, with the possible exception of one of the eye‑witnesses namely Ali Madad, lived at the relevant time in the village of Gahejo, Taluka Garri Yawn to the District of Sukkur. On the 27th July 1970, it is the case of the prosecution that Tagial had gone to visit his relations and was returning to his village at about Katchi Manjhand time which would mean roughly between 11 a.m. and 12 noon) when at about 1 miles from his own village, he was attacked by the two appellants Roshan Ali and Muhammad Khan, who are brothers‑in‑law inter se and received four hatchet injuries at their hands on account of which he died. The incident is said to have been witnessed by two persons namely Rasool Bux and Ali Muhammad. The first of these was grazing his cattle between the Rice Canal and Warah Canal and was attracted by cries coming from the direction of Warah Canal on account of which he went there anti saw that the two appellants were inflicting injuries upon the deceased. At about that time Ali Madad who, according to himself was then residing in Madhaji was coming upon a bicycle from a place called Allahdadani and passed by the path and therefore he too witnessed the crime. The two witnesses say that the appellants told them not to come near as they were taking revenge and thereafter the appellants threw the dead body in the canal and ran away. Rasool Bux then went to his village that is to say Gahejo where he informed Shah Muhammad, who is a cousin of the deceased of the incident and both Shah Muhammad and Rasool Bus then went to the witness Allah Bux, also a resident of Gahejo and a brother of Rasool Bux and all three then came to the scene and were again given the story by Ali Imdad They then took out the dead body from the canal and thereafter Ali Madad went away to his own village and Shah Muhammad, leaving Allah Bux and Rasool Bux to watch over the dead body, went to inform one Sajan Khan, apparently their Naikmard, but unfortunately Sajan Khan was not available in his house. Nevertheless Shah Muhammad waited there till the evening but, when Sajan Khan still did not return he went to the Gahejo Police Station and lodged his first information report which was recorded at 7 p .m. by a police Constable who was then incharge of the police station namely prosecution witness Ghulam Haider.

2. Ghulam Haider came to the scene immediately with the first informant but merely kept watch over the body during the night and on the next morning prepared a mashirnama of the scene of offence and also recorded the statements of the witnesses, including Ali Madad. On the same day he handed over papers of the investigation to his S. H. O. witness Muhammad Yousuf who then continued the investigation. In fact however nothing further happened either on the 28th or 29th, it being stated that the appellants although residents of Gahejo were not in their houses and upon the 30th the two appellants were arrested and each of them led the police to different places among the sat bushes from which each produced a hatchet. In the case of Roshan Ali the hatchet was evidently blood-stained but the hatchet said to be produced by Muhammad Khan was not visibly blood‑stained but was nevertheless secured in due course both the appellants were sent up for trial upon charges under sections 302 and 201 of the Pakistan Penal Code. The learned trial Judge convicted them under section 302 and sentenced each of them to rigorous imprisonment, for life while he acquitted them of the offence sander section 201, Pakistan Penal Code.

3. The case of the prosecution against the appellants obviously rests therefore upon the testimony of the eye‑witnesses Rasool Bux rend Ali Madad with such corroboration as may be afforded by the oral testimony of Shah Muhammad and Allah Bux and the recovery from each of them of a hatchet which hats been found by the Chemical Examiner to be stained with human blood. The learned Judge has believed the evidence of the eye‑witnesses mainly upon the ground that they were not inimical and had no reason falsely to implicate the appellants, and that their evidence was corroborated by the circumstance of the recovery of the blood‑stained weapon. Now while I entirely agree that witnesses who are not enemies would prima facie appear to be worthy of credit, I do not think it can be laid down as a technical formula that merely because they had no reason to falsely implicate an accused person their evidence must be automatically accepted, even if it otherwise is not reliable. In the present case there are features in the evidence of each of these two witnesses which make as doubt ful of their presence at the scene altogether and in any case it does not appear to me that their evidence is of that unimpeachable character that would suffice to sustain a conviction without convincing corroboration. There is in the first place an extraordinary amount of delay in the lodging of the first information report in this case which is sought to be explained by the fact that the first informant wanted to inform Sajan Khan first and because he was not available he waited right up to the evening. Now, although it is of course not at all an unusual feature of such cases in the Moffussil that witnesses go to inform their Naikmard before lodging an information with the police. I find it a little difficult to credit the story that the witness would wait as long as seven hours and even then without meeting Sajan Khan would come and lodge a first information report. It does not seem to me that this delay is sufficiently explained and I regret I cannot approve of the reasoning, which the learned Judge has adopted in accepting the delay. He observes: ‑ "The learned defence Advocate has urged before me that the com plainant had no need for going to Sajan in order to inform him about the incident and he had no occasion to wait there till his return. All these reasons have been shown in order to, cover up the delay in lodging the F. I. R. No doubt the arguments of the learned Advocate will have some weight provided the working of police is honest but in the Moffussil the police people have over‑awed the public at large and these uneducated persons go to the police station with such reluctance. Even if any body goes there no heed is paid to these uneducated persons unless they take some Wadera at the police station Or‑ get a word from Wadera to the S. H. O. concerned. Under such circumstances the complainant might had thought of taking the Wadera to the police station or getting a chit from him so that he may not feel it difficult for getting the F. I. R. recorded. Under such circumstances his waiting at the otak of Wadera up to evening time is reasonable and I don't agree with the learned defence counsel that there was no reason for him to wait at the otak of Wadera till evening though when she Waders did not turn up he all alone came at the police station and lodged F. I. R. which eras recorded". This I think is somewhat overstating the case; it is of course common experience to find these witnesses, going to their zamindar before going to the Police but I have yet to come across a case in which the witnesses waited for such a long time and even then went to the police station without being able to meet the zamindar. On the other hand the manner in which the learned Judge has discussed this matter gives one the impression that the police station was at some entirely different place to which the first information eventually went after waiting for the zamindar in vain. In point of fact the police station is in Gahejo itself that is to say, the village of the first informant. It is to be remembered that eye‑witness first went to this very village, that is to say, the village in which the police station is itself situate. It seems hardly likely that if this was so then the fact of the murder could have remained a secret until 7 p.m. when the first informant formally went to the police station. What is still more surprising thereafter is that the police constable alleges that he came to the scene on that very evening and yet took no step whatever towards investigation. It might of course have been dark to make a mashirnama but merely the statements of the witnesses need not have been postponed till the next day. If the explanation of the Police Constable had been that he did not feel competent to record the statements of the witnesses and was waiting for the S. H. O. I could have understood it but the fact remains that he claims that he did examine the witnesses the next day that is to say, upon the 28th.

4. Now in regard to the witness Ali Madad it is admitted that the route from Allahdadani to Madheji where he. claims he was then living, does not pass by the scene of offence. No reason has been shown therefore for him to be present at the scene of offence. The learned Judge explains this by saying that there might have been some reasons for his deviating from the ordinary route and this might of course to me. But where the prosecution is alleging the presence of a witness at a particular place and giving as a reason the fact that he was travelling from one place to another then it should have been for the prosecution to show why he had to pass by that particular place. No question whatever was put by the prosecutor nor even by the learned trial Judge. I cannot therefore but feel doubtful about the presence of the witness at the scene at that time.

5. During his examination in Court Ali Madad describes his residence at Gahejo that is to say, the village of the other witnesses and the deceased, as also of course of the appellant, and it is not very clear upon the record whether on the 28th he was examined at Gahejo or at Madheji and whether he was called from Madheji for that purpose. According to the police officer it would seem to be at Gahejo for although he does not expressly mention the place he talks about recording of the statement of the witness in the same sequence as other witnesses and that is at Gahejo. Moreover the police constable does not say that he went to Madheji. The witness himself does not even remember whether it was on the next day or some days after that the police examined him at all. In express terms be denies that at the relevant time he used to reside in the village Gahejo but does not say nor was asked whether he came from Madheji to Gahejo on the next day or whatever date he was examined. Obviously if he was examined on the 2tsth it must have been at Gahejo for the police constable appears to have carried out his investigation at Gahejo alone and upon the same day he has handed over the papers of the investigation to the S. H. O. who admittedly has not recorded the statements of the witnesses.

6. So far as Rasool Bux is concerned he could indeed have been at or near the scene grazing his cattle but then according to himself several other persons also used to graze the cattle at the same place. The learned Judge in this case actually visited the vardat and came to the conclusion that the only place in the vicinity where cattle could have been grazed was at the bank of the canal or in the jungle near the vardat. He records the fact that there was cultivation all around and yet gives no weight to the evident probability that in that event there would be other persons equally near either cultivating or grazing cattle who would also be attracted.

7. These matters in the evidence of each of these witnesses coupled with the unexplained delay make me very doubtful indeed of the veracity of these witnesses. In these circumstances to say merely that they have no reason falsely to implicate the appellants does not appear to me good enough reason to accept their evidence for that I think amounts to a mechanical acceptance without any attempt at an appraisal of Choir intrinsic value.

8. On this view of the matter the evidence of recoveries, even if believed, would hardly carry the case against the appellants much further but even as to the recoveries the evidence leaves much to be desired. In the first place the report of the Chemical Examiner shows that the weapons were received with a letter dated the 18th August 1970, but were actually received in his office on the 17th of February 1972, that is to say, 18 months after the incident. How this came to be is not explained at all. There are many reported cases upon the effect of dewy in sending crime weapons to the Chemical Examiner but 1 think that this is a question which can never be reduced to one of law. In each the question must arise whether it is satisfactorily established that the weapon was recovered from the appellant and is the same weapon which was examined by the Chemical Examiner without any danger of tampering in between and if the Court is so satisfied then I think the evidence can properly be taken into considera tion. In this case however, the S. H. O. who recovered these weapons not only gives an explanation of the delay but states in so many words that he did not send the hatchets to the Chemical Examiner. So far as he is con cerned therefore there is no. even technically, evidence that the weapons which were examined by the Chemical Examiner were the same as those which were in' Court nor those that were actually recovered from the appellants. The S. H. O. does not even say that the weapons in Court are the same that he recovered. All that the police officer says is that he sealed them and banded them over to the Head Moharrir of the police station. The Head Moharrir has not been examined.

9. Learned counsel for the appellant went on to argue that the time of the death is probably not the same as is shown by the witnesses inasmuch as the body having been immersed in water the process which takes place after death, according to him, Is accelerated and that this fact has not been taken into account by the doctor and that therefore his estimation of the period between death and post‑mortem is incorrect. For this purpose he relied upon a passage in the textbook by Modi on Medical Jurisprudence and Texicology, Twelfth Edition at page 137 which reads as follows :‑ "The rate of putrefaction of a body in water is more reliable than that of a body exposed to the air or interred, as the temperature of the water is more uniform, and the body is protected from the air; as long as it remains submerged in water. Ordinarily, a body takes twice as much time in water as in air to undergo the same degree of putrefaction. Putrefaction is retarded. When a body is lying in deep water and is well protected by clothing, while it is hastened in a body lying in water contaminated with sewage. Putrefaction is accelerated, when once a body has been removed from water, as the tissues have imbibed much fluid. In such a body decomposition is more rapid, that the changes occurring in twenty‑four hours' exposure to the air will be more marked than those ordinarily resulting from a fortnight's further submersion." It is difficult to assess the effect of this opinion upon facts of a given case because there are many factors which must be taken into account in judging the time that elapsed between the death and post‑mortem and it is therefore almost, always unsafe to rely upon such passages without a proper question ing of the doctor. In this case the doctor was not asked whether he formed his opinion after taking into consideration the fact that the body bad been immersed in water and I should hesitate as a layman, to decide merely upon the basis of this passage that the doctor's opinion was therefore necessarily wrong. On the contrary however the doctor said that the body bore no indication whatever of having immersed in water and, to that extent, it would seem to be inconsistent with the story given by the prosecution witnesses. While I am unable therefore to accept learned counsel' argument as he puts it, I still feel that the medical evidence to an extent reduces the value, such as it is, of the evidence of the eye‑witnesses.

10. All in all therefore I find it difficult to say that the case of the' prosecution against the accused has been proved beyond a reasonable doubt and I would therefore allow this appeal, set aside the conviction an sentences passed upon the appellants and direct their release. FAKHRUDDIN G. EBRAHIM, J.

‑I agree.