1987 PLP 333 (SCMR)

The learned counsel for the convicts, Mr. Muhammad Hayat Junejo has stated that Iboo alias Ibrahim (P.W.7) could not, on any principle, be taken to be a disinterested witness. Besides, his testimony does not at all inspire confidence because he did not know accused persons, was not made to identify them and had given a version of his injuries which was palpably untenable and inconsistent with the medical evidence. His testimony suffers from the same taint, if not more, as of the other witnesses. The learned counsel for the complainant Mr. Aftab Akhund, Advocate, on the other hand, contended that the prosecution evidence believed against the three convicts was sufficient in all respects to establish the guilt of the two acquitted convicts also and further the opinion of the doctor with regard to the bullet injuries having been caused to the deceased was sufficient to implicate Ali Khan, the‑ acquitted accused. The trial Court held Hasan (P.W.8), Suleman (P.W.4) and Ibrahim (P.W.7) to be interested witnesses because they were Haris of the deceased and belonged to his camp in the dispute with the Jats to which tribe the most of the accused belonged. The learned Judge in the High Court considered the mere fact that Ibrahim was a Hari not sufficient to make him an interested witness. From the statement of Hasan (P.W.8) and Ibrahim (P.W.7), it is established that even previous to the occurrence, they were the Haris of the deceased in respect of other land. The disputed land had been obtained by them jointly for cultivation in that season, about two months or so before the occurrence. It appears from the documents placed on record by the accused concerning criminal proceedings between deceased (Memons) and Sarang (Jats) not accused that with regard to the cultivation of this land there was an antecedent dispute with those who had houses in the proximity and at one stage the deceased had undertaken not to cultivate this disputed land at all and to leave it fallow. In this background of enmity and dispute, the Haris, particularly those who had been cultivating lands of the deceased since long before the occurrence, would certainly be interested witnesses and the trial Court justifiably treated, among others, Ibrahim to be an interested witness. There was, therefore, no occasion for the High Court to have treated him as a disinterested or independent witness and to have considered sufficient his statement, even for corroboration of the interested testimony. The statement made by Ibrahim (P.W.7) is in serious conflict with the medical evidence. The Investigating Officer was the first who took note of the injuries received by Ibrahim and these are recorded in the Injury Sheet prepared by him (Exh.P.25) as follows:‑ "(1) An injury like a cut, on the right wrist, which has bled. (2) An injury on the right side of the head. (3) An injury on the left side of the head, like a cut, which has bled. (4) One pellet injury on the sides of these injuries, which has bled. (5) An injury like a contusion on the chest, which has swollen, which has bled. (6) An injury on the left arm near the wrist, having swelling mark. (7) An injury near right shoulder like swelling mark. (8) An injury near right side's ribs, like swelling mark. (9) An injury on right thigh and buttock, like swelling. (10) An injury on the left thigh, like swelling. (11) Two injuries like contusions on the back on left shoulder blade. (12) An injury near left shoulder on the shoulder blade which has swollen. (13) An injury on the male organ, which has swollen." Dr. Moinuddin (P.W.9) who appeared to be a mature doctor of 57 years of age had, on examining Ibrahim, noticed the following injuries:‑ (1) Incised wound 2" x 3/4" x skin deep on the back of right forearm, lower part. (2) Incised wound 2 " x " x scalp deep on right parieto‑temporal region. (3) Three contusions, parallel to one another, 2 " x " each, on right arm, front side, with lacerated wound " x skin deep, below the contusion. (4) Contusion " x " on left parietal region. (5) Contusion 10" x 2" on their right chest back, with diffused swelling, (6) Swelling 2" x 2" with abrasion 1" x 1/10", on upper part of sternum. (7) Swelling 2 x 2" with abrasion I" x 1/10", on lower part of left forearm. (8) Lacerated wound 11" x 4" and bifurcation of pinna of left ear." He gave the opinion that his injuries Nos.1 and 2 appeared to have been caused by means of a sharp and cutting weapon such as a hatchet and the rest of the injuries by means of a blunt weapon such as a Lathi. The injury No.7 was X‑rayed and fracture of ulna bone at its lower one‑third was detected. He found injuries Nos.7 and 8 on the person of Ibrahim to be grievous and all the others to be simple. At the trial, Ibrahim claimed to have received as many as 17/18 pellet injuries. This discrepancy in the injury statement prepared by the Investigating Officer, the opinion given by the doctor and the statement made by Ibrahim was at no stage sought to be explained and properly verified either by the Investigating Officer or by the prosecutor. The discrepancies and the variance being so conspicuous on the record, it is difficult to extend the benefit of it to the prosecution. On the other hand, the interested nature of the witness Ibrahim added to this discrepancy would made him testimony of little use to the prosecution. The recovery of the incriminating articles has been supported by Adam (P.W.6). In one breath he said "I had not acted as a witness in any other case against the accused party". In another breath, he admitted that he was a witness in a case of assault against accused Haroon Holani and it was filed by Ramzan Memon who was related to the deceased. This made him a partisan witness like others. Considering all aspects of the prosecution case, we find that in view of the interested and discrepant nature of the testimony on record, the independent corroboration is not forth coming so as to sustain the conviction and sentence of the convicts consistent with the principles of safe administration of criminal justice. Hence giving the benefit of doubt, the appeal of convicts, namely, Criminal Appeal No.55‑K of 1983 is allowed. Their conviction and sentence is set aside and if they are in detention, they shall be released forthwith unless they are required in some other case. Fine, if any, paid shall be refunded to them. The result is that Criminal Appeal No.54‑K of 1983 against the acquittal of the two convicts fails and is dismissed. M. I. Order accordingly.