1976 P Cr (PLP)

2. The appellants were tried with four other persons who were acquitted, and according to the prosecution, Jindal deceased, his brothel P. W. Gahi and his nephew P. W. Muhammad Umer had a dera in whirl they stored their wheat crops near village Pir Muhammad Makai Taluka Rohri. The dera was surrounded by a hedge, but on the morning o 3‑5‑1969 when P. Ws. Muhammad Umer and Jindal deceased went to the dera, they found that the cattle of the appellants had broken through the hedge and damaged the crops, therefore Jindal seized the cattle in order to take them to the cattle pond. About a mile and half from the dera, while Jindal was on the way to the cattle pond, the appellants and the acquitter accused came and said that the cattle belonged to them and should not be taken to the cattle pond. As Jindal deceased refused, at the instigation of Mehrab, the son of the Ist appellant, the appellants and the acquitter accused attacked Jindal with the weapons which they were carrying. Jinda fell down unconscious. P. Ws. Dhani Bux, Allah Wadhayo came running on the cries and saw the appellants and the acquitted accused giving blow, to Jindal. P. W. Gahi, leaving P. W. Muhammad Umer and others at the vardat, went to the Pano Akil Police Station and lodged a report against the appellants and the acquitted accused at 4 p.m. The usual investigation; followed and P. W. Muhammad Bux, S. H. O. arrested the appellant; on 5‑5‑1969 and recovered from them the iron plated lathis, used by them in the occurrence vide mashirnama (Exhs. 16 and 17). The recoveries were witnessed by P. W. Fazal who also claimed to have seen Jinda taking the cattle of the appellants to the cattle pond. After them arrest, according to the Investigation Officer, the appellants wanted to record their judicial confessions and accordingly they were brought before the mukhtlarkar and F. C. M. Rohri and their confessions were recorded or 7‑5‑1969 (Exhs. 27 and 28). The acquitted accused were also arrested, but later released on bail. Finally, all the accused were committed to the Sessions Court under section 302 read with section 149, P. P. C.

3. In support of its case, the prosecution examined P. Ws. Muhammad Umer, Dhani Bux and Allah Wadhayo as eye‑witnesses of the occurrence, and the first two witnesses stated that they had seen the two appellants and the four acquitted accused attack the deceased with the weapons which they were carrying. Now. P. W. Allah Wadbayo had given the same evidence in the lower Court, but in the Sessions Court, he said that he laid only been able to identify the two appellants, therefore be was declared hostile, and his lower Court statements ware brought op record under section 288, Cr. P. C. The prosecution naturally examined the brother of the deceased P. W. Gahi who had lodged the F. I. R. (Exh. 11), as a corroboratory witness. It examined the Investigation Officer and P. W. Fazal. P. W. Fazal was examined both as a corroboratory witness and to give evidence about the iron plated lathis recovered from the appellants, and although both be and P. W. Muhammad Bux, S. H. O. said that the lathi recovered from the appellant Wahid Bux was blood‑stained, according to the Chemical Analyser's report (Exh. 24) neither of the lathis were blood‑stained. Then, as the prosecution relied on what it called the judicial confession, it examined P. W. Ghulam Muhammad the mukhtiarkar and F. C. M., who had recorded those confessions and produced the same. Finally, it is sufficient to state that P. W. Dr. Nisar Ahmed, who had carried out the post‑mortem of the deceased, gave evidence about the post‑mortem and stated that the deceased had six injuries. Three injuries were minor, being abrasions and bruises, but the three other injuries were lacerated wounds of which two were grievous and were sufficient in the ordinary course to cause death.

4. I must however point out here that there was gross delay by P. W. Muhammad Bux, S. H. O. in recording the statements of the witnesses under section 161, Cr. P. C. They had been recorded after a delay of 11 days and, contrary to the evidence of P. Ws. Muhammad Umer and Dhani Bux, in all their section 161, Cr. P. C. statements, the witnesses had implicated only the appellants and not the acquitted accused. And P. W. Allah Wadhayo, who had in the lower Court given the same evidence as P. Ws. Muhammad Umer and Dhani Bux, had reverted to his section 161, Cr. P. C. statement in the Sessions Court.

5. The plea of the appellants and of the acquitted accused was that they had been falsely implicated on account of enmity and they denied the occurrence. They did not examine any witnesses, but they produced copies of some judgments and orders in order to prove this enmity. They also denied having produced any lathis before the police, and when questioned about their judicial confessions, they said that they were not correct. . And in order to appreciate the view taken by the learned Sessions Judge, I must point out here that in these judicial confessions (Exhs. 27 and 28) what the appellants stated was merely that, as, on the day of the occurrence they found that their cattle were stolen, they were trying to recover their cattle and to catch the thieves. They found that their cattle were being removed by P. Ws. Gahi, Muhammad Umar and Jindal, therefore as they challenged them, Jindal deceased and P. W. Gahi gave lathi blows to the appellant Wahid Bux and as other persons rushed on the alarm raised by them Jindal and others ran away. Finally, they said that after informing the Nekmard, they had also gone to Pano Akil Police Station to lodge an F. I. R. against Jindal and others, but instead, after being kept on waiting, they were arrested.

6. The learned Sessions Judge held that the appellants had failed to prove their plea of entity, and on the other hand he was highly impressed by the ocular evidence especially by the evidence of P. W. Muhammad Umer. The attention of the learned Sessions Judge was however drawn to the delay in recording the section 161, Cr. P. C. statements of the witnesses, and to the fact that in those statements the witnesses had only implicated the appellant and not the acquitted accused. He was of the opinion that this was because of the dishonesty of the Investigation Officer P. W. Muhammad Bux, S. H. O. However; he felt bound by the law to give the benefit of doubt to the acquitted accused which he did. But he was of opinion that the ocular evidence against the appellants was corroborated by the recoveries and by their "judicial confessions as the appellants had at least admitted their presence in these "confessions". Accordingly, he convicted the appel lants under section 302,P. P. C., but as the crime wits not premeditated, he gave them the benefit of the lesser sentence:

7. I would first consider the evidence of P: W. Muhammad Omer ate the learned sessions Judge wan so highly impressed by it. This witness said that on the morning of the occurrence he and Jindal deceased found the appellant's cattle on their dera, therefore they were taking them to the cattle pond: About a mile and a half from their dera, they met the appellants and acquitted accused. The appellants were carrying iron plated lathis whilst one of the acquitted accused, Sabit Ali, had a hatchet, and the other acquitted accused had lathis. The party of the appellants wanted to take their cattle back, but as Jindal refused, Mehrab, the acquitted accused, instigated his party to attack, arid the appellants as well as all the acquitted accused "gave blows to Jindal with their respective weapons, As a result of which he fell down and became unconscious. Dhani Bux. Allah Wadhayo responded to my cries. They also saw the accused giving blow to Jindal". The witness further said that leaving Dhani Buz and Allah Wadhayo to look after Jindal he went and informed P. W. Gahi and it was P. W. Gahi who lodged the F. I. R. (Exh. 11) at Pano Akil Police Station. P. W. Gahi supported this evidence and said that P. W. Muhammad Umer had described the occurrence and implicated the appel lants as well as the acquitted accused. P. W. Dhani Bux also supported P. W. Muhammad Umer's evidence, but, as I pointed out earlier, as P. W. Allah Wadhayo did not and reverted to his section 161, Cr. P. C. statement, in which he had implicated only the appellant, he was declared hostile and his lower Court statement, which supported the evidence of P. Ws. Muhammad Umer and of Dhani Bus, was brought on the record under section 288, Cr. P. C.

8. I shall presently consider the evidence of the recoveries and the so‑called judicial confession of the appellants, but I would first pause to consider this ocular evidence. Even the learned Sessions Judge held that the attack by all the accused was not premeditated. Further, it is not the case that the cattle of the appellants had ever before damaged the crops of the parry of the Ist informant, therefore I find it a little difficult to believe that Jindal deceased could have insisted on taking the cattle of the appel lants to the cattle pond at the risk of his life. I would further point out here that P. Ws. Dhani Bux and Allah Wadhayo were related to Jindal and as they lived in different villages, Mr. Azizullah Shaikh submitted that they were chance witnesses. Assuming, however, that their presence at the vardat was a coincidence, and coincidences do occur, I am disturbed by the discrepancy between the ocular evidence and the medical evidence. I have referred earlier to P. W. Dr. Nisar Ahmad's description of the injuries to the deceased and in view of the doctor's evidence about these injuries, I find it difficult to believe that the appellants as well as the four acquitted accused had all inflicted blows on the deceased, as claimed by P. Ws. Muhammad Umer and Dhani Bux. Therefore, in my humble opinion, the statement of the prosecution witnesses as recorded in their police statements by P. W. Muhammad Bux, S. H. O., appears la be much nearer the truth, and this means that the prosecution witnesses had deliberately tried to implicate a larger number of persons than had taken part in the attack on Jindal deceased. Here, the plea of the appellants of enmity becomes relevant, but they merely produced documentary evidence in support of this plea, to which I may briefly refer. Thus, Exh. 36, is a copy of a judgment in a suit by one Ali Murad against Mir Khan and others; Similarly Exh. 37 is a copy of a judgment, in .a suit filed by one Wan against the said Mir Khan. The other orders filed also relate to disputes between the said Ali Murad and the said Idan and Mir Khan. Now, P. W. Muhammad Umer admitted that this Idan was related to the party of the accused, but the appellants did not produce any evidence about the identity of Mir Khan. And on the other hand, their attempts to elicit from the prosecution witnesses an admission in their cross‑examination that Mir Khan was related to them failed, therefore the learned Sessions Judge rightly held that the appellants bad failed to prove their enmity. But although enmity has not been proved, the attempt of the prosecution witnesses to implicate innocent persons is a circumstance which is very disturbing and which is not without significance. Finally, as I have pointed out earlier, the police statements of the prosecution witnesses were recorded after a gross and unexplained delay and these statements are inconsistent with the ocular evidence. In these circumstances, on the footing that the grain could 'tie sifted horn the chaff, the ocular evidence was not fit to be accepted without strong corroboration.

9. The learned Sessions fudge wag aware of this difficulty, and he held that the ocular evidence was corroborated only against the appellants, there fore, very reluctantly, he gave the benefit of doubt to the accused. I said "very reluctantly", because, according to the learned Sessions Judge, the prosecution case had been deliberately damaged by P. W. Muhammad Bur, S. H. O." in order to favour the accused. Now, as I shall presently show, this witness had tried to improve on the prosecution case. Further, as mashir for the recoveries lie had selected, P. W. Fatal, who admitted that he was the Nekmard of the party of the first informant. I have referred to this, because I find it difficult to believe that a police officer trying to favour the accused would select as mashir the Nekmard of the first informant's party. Unfortunately, the learned Sessions Judge overlooked this aspect of the case, but he accepted the claims of P. Ws. Muhammad Umer and Dhani Bux and that P. W. Muhammad Bux, S. H. O. had deliberately delayed recording their statements and load further deliberately recorded incorrectly. As the learned Sessions Judge was impressed by this claim of the prosecution witnesses it was very unfortunate that be did not try to obtain the explana tion of the poison concerned, namely P. W. Muhammad Bux, S. H. O. And further, if P. W. Muhammad Bux, S. H. O. had really tampered with the prosecution, this could and should have been proved by the prosecution. Thus, for instance, P. W. Muhammad Umer had said with regard to P. W. Muhammad Bux, S. H. O. "He was transferred. Another S. I. P. recorded my statement after 25 days of the incident." Similarly, in his lower Court statement which was brought on the record by the learned Sessions Judge, P. W. Allah Wadhayo had alleged that P. W. Muhammad Bux, S. H. O., had been removed and be further Said. "On the third day at noon time the Dy. S. P. Sukkur visited the scene of offence". The veracity of the eye‑witnesses was crucial to the prosecution case, yet it did not attempt to examine this Dy. S. P., Sukkur, or any other evidence to show that P. W. Muhammad Bux, S. H. O., had tampered with the evidence in order to favour the accused, therefore it is not possible to ascertain the truth, and I cannot agree with the strictures passed by the learned Sessions Judge on P. W. Muhammad Bux, S. H. O. and I am further disturbed by para. 14 of the judgment from which it would appear that the learned Sessions Judge had relied, in coming to his conclusion, on the fact that P. W. Muhammad Bux, S. H. O. was at present in custody having been run in under some M. L. R." I am constrained to express my very great regret that a Court should condemn any person merely because an unknown and unspecified charge had been made against him. I am therefore poorly impressed by the learned Sessions Judge appreciation of evidence. However, it is not necessary to consider this aspect of the case further, because no appeal has been filed against the acquittal of the four acquitted accused. Mr. Nasiruddin therefore conceded that the convictions of the appellants could not be sustained unless there was some further evidence to implicate the appellants which did not implicate the acquitted accused. Thus, the only question is whether there is any such evidence, and Mr. Nasiruddin supported the view of the trial Court that the evidence of the recoveries and of the confessions amounted to such other evidence.

10. I have pointed out earlier that iron plated lathis were recovered from the appellants, but even according to P. W. Fatal, the mashir of the recoveries and P. W. Muhammad Bux, S. H. O., only the laths secured from the appellant Wahid Bux appeared to be blood‑stained However, accord ing to the Chemical Analyser's report (Exh. 24), the laths forwarded to the Chemical Analyser was not blood‑stained. According to the report, a piece of wood was blood‑stained, but Mr. Nasiruddin could not tell us what this piece of wood was and from whom it was secured. On the other hand, only the lathi of the appellant Wahid Bux was supposed to be blood‑stained, only that lathi was sent to the Chemical Analyser, and the report is very clear that the lathi forwarded was not blood‑stained. Clearly therefore the Mashir as well as P. W. Muhammad Bux had falsely tries to improve the prosecution case, and as the laths was not blood‑stained, the recoveries are of no evidentiary value.

11. But, according to Mr. Nasiruddin, and also according to the trial Court, the prosecution case against the appellants was corroborated by their judicial confessions (Exhs. 27 and 28). It is true that the statements of the appellants were recorded before the mukhtiarkar and F. C. M., but I am not able to understand how they could be described as confessions. As I pointed out earlier, in both these statements, the appellants have said that as they found that their cattle had been stolen, they were trying to trace the cattle and the thieves, and found that they were being led away by Jindal and his party. They then said that they challenged Jindal's party therefore Jindal gave a Lathi blow to the appellant Wahid Bux on his head. The appellant Wahid Bux hit back and a tight ensued. Therefore, P. W. Ghani gave lathi blows to the appellant Wahid Bux can fits thighs, brat on the cries raised people came, therefore Andal and others ran away. I see noth ing inculpatory in these statements, and on the contrary they are exculpatory. The learned Sessions Judge was not unaware of this problem, therefore he said that the prosecution case was supported by these so‑called confessions because the appellants had admitted their presence and the injuries to the appellant Wahid Bux. I am astonished at this view. The learned Sessions Judge erred not only in treating the statements as confessions but in taking a part of them out of their context and then using that part to corro borate evidence which was not fit to be accepted without corroboration. In my opinion, neither of the so‑called confessions are confessions nor, in the circumstances discussed, can they be used to support or corroborate the prosecution case against the appellants. But there is no other evidence which can support the prosecution case against the appellants apart from the evidence which implicates both the appellants and the acquitted accused. Therefore, the prosecution has failed to prove its case against the appel lants also. Accordingly, for the reasons given herein, after hearing Mr. Azizullah Shaikh and Mr. Nasiruddin, we had set aside the convictions of the appellants, and allowed their appeal on 5th September 1973. TUFAIL Ali A. RAHMAN, C. J.‑--I agree. Appeal allowed.