1976 P Cr (PLP)

M. A. RASHID, J.‑The present appellants have filed this appeal against their conviction under section 302/34, P. P. C. by Mr. Hyder Bux Shaikh. Ilnd Additional Sessions Judge, Sukkur, ride his judgment dated 12.4‑1975 whereby be sentenced the accused persons to suffer imprisonment for life. The prosecution case was that on 18th March 1974 the deceased Khudadad Gadani accompanied by his uncle complainant Bahram went from his village Kashmir Gadani to make some purchases in the town of Khanpur. They left their village at about noon time and reached Khanpur at Manjhand time. There both of them made some purchases. They also met the other two eye‑witnesses Karimbux and Gullan. Khudadad and Gullan left Khanpur at about 5‑00 p.m. They ostensibly caught up with Karim and Gullan about 30 paces from the bus stand on their way to their village, As this party of four reached the watercourse belonging to Sardar Ghulam Muhammad Khan Mahar, across the brick road they were following, accused Ghulam Huasain, who has been acquitted by the learned trial Judge, suddenly emerged from lad bushes. He was armed with a single‑barrel gun, and threatened deceased Khudadad that he is going to avenge tire murder of Raze Muhammad. Khudadad started running and had hardly covered 20 paces when he was fired at by accused Ghulam Husain but was missed. Then the present appellants came out of the lit bushes, all armed with hatchets, and attacked the deceased. The deceased fell down. Accused Ghulam Husain also gave butt blows to the deceased and in the process broke a piece of the butt of his gun. After completing their task all the five escaped from the scene. These three eye‑witnesses then went close to the deceased and found that he was dead. Bahrain proceeded to lodge the F. I. R. at Khanpur police station which he did at 6.30 p.m. while the other two remained with the dead body. After recording the F. I. R. the S. H. O. Mr. Husain Bux repaired to the scene of occurrence. He found the dead body of the deceased lying in a pool of blood with hatchet injuries on the right side. He secured the blood‑stained earth and five teeth of the deceased. He also secured a small piece of wood of the butt and of the gun. There were some potatoes and packets of tea and other things wrapped in a cloth lying near the dead body which was taken in custody. After preparing the necessary mashirnamas of these recoveries he prepared the inquest report and sent the dead body to the hospital for post‑mortem examination. He examined P. Ws. Gullan and Karimbux, and, Attal and Vakil who were present at the wardat. The present four appellants were arrested on 20th March, 1974. On interrogation they volunteered to produce the crime weapons and led the S. H. O. and the mashirs to Babli minor, where they pointed out a place near a small jungle where the hatchets were buried. The place was dug up by one of the mashirs Amirbux and accused Ghani and the four hatchets were recovered for which mashirnama Exh. 13 was prepared. On the next day at about noon the fifth accused Ghulam Hussain appeared at the police station with his gun which was broken into two pieces. He was arrested and the gun was secured from him under a mashirnama. This gun was sealed in the presence of the witnesses, after matching the broken piece recovered from the wardat with the butt of this gun. After completing the investigation he challaned the accused persons in Court. The motive for the crime is alleged to be a murder of one Raza Muhammad who was brother of accused Dur Muhammad and cousin of accused Ayub and Alam and marote of accused Abdul Ghani. This murder was allegedly committed by deceased Khudadad about 2 years prior to the present incident and it had taken place because of a sus picion of illicit relations of Raza Muhammad with one Mst. Sohni, a close relation of deceased Khudadad. Khudadad was, however, acquitted of that charge at the trial about a year prior to the present Incident. Bat soon after the close of such proceedings deceased Khudadad apprehended danger at the hands of the present accused party and the police had started proceed ings , under section 107, Cr. P. C. against 10 persons of each of the two factions. Five of the accused persons were among those proceeded against from their party. The next hearing in those proceedings was fixed for 26th March 1974. On post‑mortem examination of the deceased the doctor found the following injuries on his person:‑ "(1) Incised wound 3' x " x on the right parletal region of head cutting bone and brain. (2) Incised wound 5'x 1'x 3' on the face extending from right eye to the left cheek. (3) Incised wound 7' x 2' on the left side of face and temple, cutting mandible, left ear, left temporal bone and brain. (4) Multiple incised wounds on the chin, left check and mouth, tongue cut, lower jaw broken into pieces." On internal examination the doctor found the scalp was cut. The membrane and brain were also out corresponding to the external injuries. In the view of the doctor the death had taken place‑instantaneously on receipt of the injuries and the time between the death and the post mortem examination was about 18 hours. He was of the opinion that the cause of the death was shock and haemorrhage and that the injuries were sufficient in the ordinary course of nature to cause death. The learned trial Judge found that the evidence of butt blows alleged to have been given by accused Ghulam Hussain was of a very doubtful nature as it did not find any corroboration from the medical evidence and, therefore, while giving benefit of doubt, Ghulam Hussain accused was acquitted. But he found the other accused persons guilty of the charge levelled against them and consequently convicted them as mentioned above. The entire evidence brought forward by the prosecution is of the ocular testimony of Bahram, Karimbux and Gulan. Support is sought for this evidence from the medical report as well as the evidence of recovery of hatchets. These witnesses have unanimously supported the prosecution story about the actual incidence of the crime. Their version has been found unreliable as regards the accusation against Ghulam Hussain. The State has also not chosen to challenge this finding of the trial Judge. Perhaps an additional factor in taking that view was that the only circumstantial evidence i.e. the butt part of the gun which allegedly matched with the broken piece of the butt recovered from the scene of occurrence, was not produced at the trial. Be that as it may, but the prosecution has relied upon the same ocular evidence for securing the conviction of the rest of the four accused persons. There can be cases, as in the present one, where prosecution "'1tndsses are proved to be interested, and their evidence is shown to be false, or not reliable, or is of doubtful nature as regards one, or a set of accused persons. In such cases a doubt is always raised as to the truthfulness or reliability of the rest of the evidence of such witnesses as against the other accused persons. In order to sustain a conviction on such quality of evidence it is necessary that such doubts should be satisfactorily resolved through corroboration coming from independent sources. This was the view, laid down by the Federal Court as far back as 1954 in Muhammad Afzal's case (P L D 1954 F C 170) and has been consistently followed. The latest pronouncement in the field being that in Baghali's case (P L D 1973 S C 321) where the relevant observations are: "As has been pointed out by this Court in the case of Thoba v. The State P L D 1963 S C 40 the appraisement of the evidence of eye witnesses has to be based upon a full consideration and evaluation of all the circumstances appearing in the case where there is a total absence of physical circumstances to connect the accused persons with the crime, and there is a background of enmity. In such a situation, the ocular evidence mu9t, in order to carry conviction on a capital charge, come from an unimpeachable source. If such a source is not available, then it must be supported by some strong circumstance which would enable the Court to overcome the inherent doubt which such evidence must necessarily create." In the present case corroboration of the ocular testimony is sought from the medical evidence. The eye‑witnesses are unanimous in saying that all the four accused persons gave hatchet blows at the same time to the deceased. The eye‑witnesses were careful to desist from mentioning the number of blows given by each of the accused persons. They said that they could not give this fact. The medical evidence indicates that there are two hatchet blows on the right side of the head of the deceased and two hatchet blows on the left. This is a situation which in no way supports the ocular evidence. It is not probable that four persons attacking at the same time should inflict injuries found on the person of the deceased by the doctor. It is not possible that a set of two persons each should be able to inflict two injuries on the same spot. Looking at the ocular evidence in the context of the statement of the doctor an improbability is made evident which deepens the doubts against the prosecution story rather than resolves it. Another important circumstance is that of the three eye‑witnesses claiming to have made purchases in the town of Khanpur. Karimbux, who is a petty shop keeper in the village of Kashmir, had been purchases weighing about 10 seers for his shop. P. Ws. Behram and Gullan also made some purchases. None of these things were secured by the Investiga ting Officer from the wardat. This is in spite of the fact that the prosecution claims that P. Ws. Gullan and Karim-bux did not leave the scene of wardat after the incident. This circumstance shows a grave doubt about the contention of the prosecution witnesses that the occurrence took place in their presence. This is in addition to the fact that there are contradic tions and discrepancies in the statement of these three alleged eye‑witnesses as to how they, got together in the town of Khanpur in order to proceed to their respective villages together. Behram claims that Karim and Gullan met him and the deceased when they passed the bus stand of Khanpur about 30 paces away. Gullan says that the moment he came out of the restaurant at the bus stand he found the rest of the three, namely, deceased, P. W. Bahrain and Karim; but Karim bux says that he met the rest of the three near the bus stand. They have not been able to agree with each other as to how they came together in order to proceed to their villages. The evidence of recovery of hatchet is also not worthy of credit. The recovery at the pointation jointly of several accused persons cannot be made the basis of drawing an inference about the conduct of such accused persons unless it can be shown with a degree of particularity that such inference can be drawn with respect to each one of the persons involved in the act. This is the view in Amirali v. State (P L D 1960 Kar. 753). In Khalas Khan v. State (1975 P Cr. L J 172) the view taken is that joint recoveries ale of no use and are not admissible in evidence. In this view of the law the alleged recoveries of hatchets do not advance the vase of the prosecution at all. Having come to the conclusion that the inherent improbablities on which the prosecution case is built up, not having been resolved and there being no material corroboration through independent sources we have come to the conclusion that the prosecution has failed to bring home the charge against the present appellants. We would, therefore, accept their appeal them. The order of such acquittal was announced by us on 3rd March1976 and these are the reasons for the same. Appeal allowed.