1986 P Cr (PLP)

(1) Incised wound 8" x 3" bone deep over left cheek, cutting all the structures. (2) An incised wound 8" x 2 " x bone deep over left side of neck. (3) An incised wound 6" x 2" x bone deep over left tempromandi bular region, cutting left ear also. (4) An incised wound 5" x 2" x bone deep over left scapular region. (5) An incised wound 6" x 2 " x bone deep over right scapula. (6) An incised wound 8" x 4" x bone deep over back of neck. (7) Lacerated fire-arm wounds five in number as entry wounds measuring about " x 8" in diameter over left hypogastries. The doctor opined that death of the deceased occurred due to shock and haemorrhage in consequence of external injuries. Injuries Nos.1 to 6 were caused with sharp cutting weapon such as hatchet whereas injury No.7 was caused by discharge from fire-arm. (1) An incised wound 6" x 2" x bone deep over right side of chest, upturing right lung. (2) An incised wound 7" x 2 " x bone deep over right shoulder. (3) An incised wound 8" x 3" x bone deep over right side of the neck. (4) An incised wound 10" x 3" x bone deep over right forearm cutting right wrist joint. (5) An incised wound 5" x 2 " x bone deep over left scapula. According to the doctor the death of the deceased was caused due to shock and haemorrhage on account of external injuries which were caused by sharp-cutting weapon such as hatchet.

5. The learned trial Judge after analysing the evidence acquitted accused Usman, Isso and Gul Hassan and convicted the present appellants as stated above. The conviction of the appellants rests on the ocular testimony of P.Ws. Ghulam Hussain injured and Ghulam Sarwar, coupled with the recoveries of incriminating articles from their possession. The trial Judge disbelieved the complainant and discarded his evidence. In this case two alleged eye-witnesses Hameer and Maroof have not been examined. Mst. Manzooran an inmate of the house was also not examined though she had received injuries but her name and the injuries received by her have not been mentioned in the first information report.

6. Before I refer to the salient parts of the judgment it .is necessary to refer to the statements of Ghulam Hussain and Ghulam Sarwar on whose testimony the learned trial Judge made much emphasis. The complainant in the first information report has not mentioned the name of Ghulam Hussain. He has also not mentioned the injuries received by this witness though in the deposition the complainant had stated that he had, seen the injuries on the person of Ghulam Hussain. Then the complainant has stated that the accused persons had raised slogans but Ghulam Hussain in. his deposition has not stated that he heard any slogans. Ghulam Hussain has stated in his evidence that he had told the complainant that he had identified the accused but in spite of such disclosure the complainant had not given the name of this important witness in the first information report who has received injuries. Ghulam Hussain has stated that his statement was recorded by the police. He is residing at a distance of about 16 feet from the Wardat and he had identified the accused on the light of the lantern and on their voice. So far as evidence of Ghulam Sarwar is concerned, according to him when he had come to the Wardat he had seen Ghulam Hussain having injuries on his person. He has admitted that he had not seen the accused persons causing injuries to the deceased but this witness in his 164 statement has not mentioned about the injuries received by P.W. Ghulam Hussain. Even he has not mentioned his name as the alleged witness of incident. This witness was attracted to the scene on commotion. According to him he was present in his sugarcane cultivation which was at s distance of about 2 jirebs from the Wardat. This witness has also stated that Gul Hassan gave 'hakals' saying that they were taking the revenge of the murder of their brother Ghulam Nabi but Gul Hassan had been acquitted by the trial Court and the statement of this witness so far as it connects Gul Hassan has been disbelieved. P.W. Ghulam Hussain in his deposition has stated that when he regained consciousness he went inside the house and saw his brothers lying dead. Complainant Mehboob was there and he had seen injuries on his person and he had also seen the girl Manzooran who had also sustained injuries. If the statement of Ghulam Hussain he accepted then there was no reason not to mention his name in the first information report. The learned trial Judge accepted the statements of Ghulam Hussain and Ghulam Sarwar and came to the conclusion that the statements of these witnesses are corroborated by the recoveries of crime weapons and the reports of the Ballistic Expert and the Chemical Examiner. I will, therefore, advert to the point of recovery.

7. Mir Muhammad acted as Mashir and according to him in his presence the police arrested accused Gul Hassan, Ghulam Nabi, Kauro, Abdul Karim and Ali Nawaz. It is in the evidence of this witness that at the time of arrest the police secured blood-stained shirt from the person of accused Abdul Karim and blood-stained potro of Godi and blood-stained shirt from the person of accused Ali Nawaz after they had been arrested. This witness has also deposed that accused Ali Nawaz led the police to his house and produced gun and bandolier containing four live cartridges from the hedge of his house. Accused Ghulam Nabi led the police to his house and produced gun and three live cartridges from the hadge of his house. Accused Kauro produced blood-stained hatchet from the Chapar of his house. Accused Abdul Karim produced blood-stained hatchet from the Chapar of his house. He had also identified accused Usman. This witness is related to the prosecution witnesses. In his presence identification of Usman was made by P.Ws. Hameer, Sarwar and Maroof. This witness was residing at a distance of 20 miles away from the village of the accused. According to this witness the complainant and P.Ws. told him that Mashirs are required, therefore, he should go to the Police Station for that purpose, and complainant had also gone with him to the Police Station. None from the village had come there at the time when they had gone to the village of the accused. Otaq of all the accused brothers is same. Accused had come out of the house one after other. First accused Gul Hassan had come and thereafter, the other accused had followed him. Each accused had produced articles separately. Besides him no other person was made to sign on the Mashirnamas. The date of incident is 14-8-1978 and the recoveries tad been made on 16-8-1978 that is two days after the occurrence. It is, therefore, unbelievable that the accused persons were wearing blood-stained clothes at the time of their arrest. The Mashir was residing at a distance of 20 miles away from the place of recoveries. The Investigating Officer has stated that Mashir Mir Muhammad was going on path and passing by the side of the house of accused when he was called to act as Mashir. This statement of the Investigating Officer contradicts the Mashir who had stated that he had' been sent by' the complainant to the police station to act as Mashir. Apart from, the fact that the recoveries of hatchets have been made from the hedge, it has not been mentioned that the said hedge was in the exclusive possession of the accused persons and no other person had access to the hedge. So also the recoveries of guns are also doubtful, because apart from the accused who had produced the guns there are other inmates of the house and the house was not in the exclusive possession of the accused persons. It is also not believable that the accused who had concealed their hatchets in the hedge would keep them in the same position as alleged to have been used by them in the commission of the offence. The accused had sufficient opportunity to wash the hatchets but the case of the prosecution that the hatchets were stained with blood becomes doubtful. In these circumstances the recoveries have become doubtful and, therefore, the reports of the experts carry little weight.

8. As regards the reports of the Ballistic Expert and the Chemical Examiner, it is pertinent to note that the articles were sent to the Ballistic Expert on 21-11-1978 and the articles were sent to the Chemical Examiner on 16-6-1979 that is after considerable delay. The Ballistic. Expert's report is Exh. 50 and this report is dated 23-7-1984. It has not been mentioned when the expert had- examined these articles. The report of the Chemical Examiner is Exh.

49. It. is dated 8-12-1979. This report also does not indicate when these articles had been examined but in view of the fact that the articles were sent after considerable delay and the articles have been examined by the experts at the time of their own convenience much after they had received these articles the reports have little evidentiary value. The learned trial Judge has referred to 1980 S C M R 575 wherein it has been mentioned that the delay in submission of crime articles to the Chemical Examiner when no specific question was put to I.O. as to the reason for this delay and it appeared from the record that as one of the accused persons had not been arrested until 14-6-1970 it is possible that the delay might have been on that account. In this case the recoveries were effected an 11-5-1970 and the articles were sent to Chemical Examiner on 19-6-1970. The authority is inapt as the circumstances are quite different. In the present case the I.O. has been questioned by the defence but no plausible reason has been given by the I.O. as to why the delay had been caused. As the reports of the experts can be tendered in evidence without the examination the experts it is, therefore, necessary for the prosecution /investigating agency to send the crime weapons and other articles to the experts without any delay. Keeping in view the way in which the recoveries have been effected the reports of the experts cannot be considered as a corroborative piece of evidence connecting the accused with the offence. The principal eye-witness that is the complainant has not been believed and his evidence has been discarded. Accused Isso and Gul Hassan who have been named by the witnesses have been acquitted. Accused Usman from whom the blood-stained hatchet is stated to have been recovered had been acquitted, but on the same set of evidence the present appellants have been convicted. P.W. Ghulam Sarwar came after Ghulam Hussain had received injuries but Ghulam Hussain has not heard any slogans whereas P.W. Ghulam Sarwar has stated that he had heard Gul Hassan giving 'hakal' to him saying that they were taking revenge of their brother Ghulam Nabi, therefore, there is inconsistency between the statements of the two witnesses.

9. Now the identification of the accused have been made on the voice and in the light of the lantern. It is stated by P.W. Ghulam Hussain that the night was dark. The lantern was burning in the house and P.Ws. Ghulam Hussain and Sarwar had identified the accused in the light when they were returning after committing the incident. The P.Ws. had seen them outside the house and. therefore, the identification even if the accused were known to the witnesses prior to the incident, in the dim light, of the lantern was doubtful. The identification of the accused on the voice is still more doubtful because it cannot be said with certainty that the voice of particular accused is not distinguishable from the voice of another person. As such the identification of the accused by these P.Ws. has become very doubtful. It has been held in the case of Ghazi and others v. The State reported in 1982 S C M R 49 that it is highly unsafe to rely upon opinion of experts when the other pieces of evidence have been discarded. In The State v. Fazal Ahmed and another 1970 P Cr. L J 633 it has been held that the identification in the light of torch is not a sufficient piece of evidence. In Todo v. The State P L D 1961 Kar. 707 it has been observed by a Division Bench that identification of accused in the Hurricane Lamp under shed was not satisfactory when the accused was at a distance of 12 feet. The other infirmity in the prosecution case is that according to the complainant the incident took place at about 5-00 a.m. after the deceased had taken their 'Sehri' as it was the month of Ramazan, but according to the doctor the stomachs of all the three deceased persons were empty. According to the Doctor the deceased persons might have taken last meals at least about 5-00 hours before their death. The medical evidence is thus in conflict with the ocular evidence.

10. Having discussed the evidence of the two witnesses on which the reliance has been placed by the learned trial Judge, it is also material to refer to the reasoning advanced by the learned trial Judge in convicting the appellants. In para. 12 of the judgment while referring to the evidence of the complainant he has stated that the presence of the complainant at the place of incident is not free from doubt. He has deposed that all the three deceased were first given fire-arm injuries and then hatchet injuries but medical evidence shown only one fire-arm injury on the person of deceased Ghulam Kadir. No fire-arm injury was found on the person of the remaining two deceased. Not only this but this witness has deposed that all the deceased had taken meals before the happening of the incident as they used to fast but medical evidence contradicts him. If the learned Judge has discarded the evidence of the complainant on the ground that his evidence is contradicted by medical evidence then there is no sound reason to convict the appellant on the same infirmity which is apparent in their evidence which is in conflict with medical evidence. In para. 13 of the judgment while discussing the evidence of P.W. Ghulam Hussain and Ghulam Sarwar it has been observed "no doubt that Ghulam Hussain had seen the accused at the entrance the house and the lantern was hanging in a 'Mangha' which was at some distance from the entrance. Obviously, the lantern hanging at that height must be giving some light upto the entrance. It cannot be said that light was bright but the presence of dim light, at least, cannot be disputed." He has further observed "though from such a distance on a dim light of the lantern, it is not possible to identify a man with certainty but if the accused persons speak or raise slogan, then the identification by a person, well acquainted with their voice is very much possible."

11. First of all it has hot been stated by P.W. Ghulam Hussain that accused persons have raised any slogan and secondly the learned trial Judge has himself stated that the light was dim and there was only probability of identification in the dim light of the lantern or when the accused persons had raised slogan. The observations recorded by the learned trial Judge itself creates doubt and as such the safer course for dispensation of justice is to discard the evidence of such witnesses. The reasons on which the statement of P.W. Ghulam Hussain has been discarded equally apply to the case of P. W. Ghulam Sarwar. The prosecution witnesses are closely related inter se and the enmity of P.W. Ghulam Hussain and Ghulam Sarwar with the accused has also been borne out from the record. This fact would further put the Court to caution in relying upon the evidence of such interested witnesses.

12. For the reasons discussed above the prosecution has not been able to prove the case against the appellants beyond all reasonable doubt, consequently the appeal is accepted and the convictions and sentences recorded against the appellants are set aside and they are acquitted of the charge. The appeal was accepted by a short order and aforesaid are the reasons in support of such order. S.G.D. Appeal allowed.