1975 P Cr (PLP)

This criminal revision application under sections 435 and 439 Cr. P. C. is directed against the judgment dated 23-1-1973 passed by the learned Additional Sessions Judge, Sukkur, whereby he acquitted respondents Ahmad and Nindo in a murder case.

2. Briefly the facts are that on 30-6-71 complainant Allahdino's brother deceased Arab left his village for Nabaho Chachar alongwith P. W. Khair Muhammad for the purpose of purchasing goats. At about noon time P. W. Khair Muhammad came back and informed the complainant that while he and deceased Arab were going to Nabaho village, on the way they were con fronted by the present respondents in the land of Mahi Chachar. They after giving hakals to deceased, inflicted injuries with their hatchets to him as a result of which he died at the spot. P. W. Khair Muhammad further told him that the respondents bad separated the head from the trunk of deceased Arab by means of hatchet blows, and that he had raised cries at that time which had attracted P. W. Manghoo who had also witnessed the incident. On receiving this information from Khair Muhammad, com plainant Allahdino accompanied by P. Ws. Kandero and Bangul went to the vardat and saw the dead body of deceased Arab lying there. P. W. Manghoo who was sitting by the side of dead body also narrated the same facts to complainant Bangul and Kandero. Complainant then left Manghoo, Kandero Bangul at the dead body and himself went to Ghotki Police Station and lodged the F. I. R. with the police. P. W. Wasi Hyder who was Head Constable Incharge at Police Station Ghotki, recorded the F. I. R. of the complainant and proceeded to the vardat and in presence of mashirs Ismail and Bahar visited the vardat and prepared the Mashirnainas of vardat. In presence of the above mashirs Mr, Wasi Hyder secured a pair of shoes which was said to have been left by respondent Nindo at tile time of the incident. He then after preparing inquest report of the dead body of deceased Arab cent the same through P. C. Rasool Bux to Medical Officer Pano Akil for post-mortem examination. P. W. Wasi Hyder, Head Constable arrested the accused on 1-1-1971 and both the respondents produced two hatchets which were secured by him under a mashirnama. The hatchets were sealed, they were washed. The above mentioned Investigating Officer on personal search of the respondents secured their shirts and loin clothes which were stained with blood. He sealed these blood-stained shirts and loin clothes of the accused. Mr. Wasi Hyder the Investigating Officer had also examined P. Ws. Khair Muhammad, Kandero, Bangul and Manghoo. The respondents were challaned after usual investigation on 15-1-1971 under section 302 read with section 34, N. P. C. in the Court of Civil Judge and F. C. M., Ghotki who committed them to stand their trial under section 302 read with section 34, P. P. C. The prosecution on trial have examined Lal Muhammad who is a tapedar, constable Rasool Bux and mashir small. The Inquest Report and securing hatchets and blood-stained clothes from the respondents. P. W. Allahdina is the complainant of this case. P. W. Abdul Karim is the Head Munshi and III Class Magistrate before whom the applicant Nindo was produced to wear the shoes secured from the vardat. Khair Muhammad and Manghoo are the eye-witnesses of the incident. Mr. Wasi Hyder is the Investigating Officer. 'The deposition and the post-mortem examination notes of Dr. Abdul Khaliq Medical Officer who had performed post-mortem examination of deceased Arab has been transferred from the record of lower Court to the record of trial Court. The respondents in their statement under section 342 Cr. P. C. in the trial Court Batty denied the allegations of the prosecution and have said that they have been involved due to enmity. Respondent Nindo has not claimed the pair of shoes secured from the vardat. Both the respondents denied to have produced hatchets and blood-stained shirts before police and mashirs. They produced no defence evidence. I have heard Mr. Jalaluddin Baloch learned counsel for applicant Allahdino, and Muhammad Sulleman Memon Advocate-General for the State and Mr. Agha Imdad Ali counsel for respondents Ahmad and Nindo Mr. Jalaluddin Baloch as well as the learned Advocate General Mr. Muhammad Sulleman Memon have vehemently argued that acquittal order of the Court below is not borne out by the evidence on record and that it was a clear case on record in that the learned trial Court ignored the crucial points and evidence, he was influenced by evidence on record which were not sufficient for acquittal of the accused persons they have therefore submitted that the case may be remanded to the trial Court and the respondents be directed to -stand their trial according to law. It was argued by the learned counsel for the applicant that the trial Court has not considered the facts given by the eye-witnesses and the evidence disclosed in the F. I. R. tend that there is no allegation of delay in lodging the same that the trial Court has failed to apply his mini to the evidence on record, it has failed to consider the fact that the respondents had very strong motive to murder in retaliation of a previous murder of the relation although the deceased was later on acquitted by the Sessions Judge. That no proper weight has been given by the trial Court to recoveries and blood-stained articles particularly where no allegation is made against the Investigating Officer by the respondent arid that the trial Court has wrongly ignored the fact that respondent Nindo had refused to wear the shoes which allegedly belonged to ham, when asked by the Magistrate, that the trial Court erred in not relying on the corroborative evidence of witnesses who were x: informed by the eye-witness P. W. Khair Muhammad. With the assistance of the learned counsel for the parties I have gone through the evidence and judgment on record. The eye-witnesses of the incident P.W. Khair Muhammad and Manghoo corroborate each other sup ported by the statement of complainant Allahdino, investigating Officer as well as recoveries of blood-stained clothes. The learned trail Judge has dis carded the statement of the eye-wetness Khair Muhammad merely on the ground that he being relation of the deceased is an interested person and that it is doubtful that he has witnessed the incident or he has accompanied the deceased. This conclusion he reached on the basis of minor contradic tions in the statement before the Magistrate as well as in the trial Court. For instance he as stated to have said in enquiry Court that he went with Arab for purchasing goats for tae first time, the same thing he stated in the la4 Cr. P. C, statement but at the same time he had said toy have stated in the trial Court that on the day of incident he was going to village Nabaho Chachar to the shop of the Jago Shop Keeper. The other contradictions which influenced the trial Court was than in the trial Court this eye-witness Khair Muhammad has stated that within his sight the respondents severed head of deceased Arab from his trunk, but in the lower Court he did not specifically said so. It may be stated that this witness never changed his statement with regard to witnessing the incident. At this stage without discussing the evidence of eye-witness Khair Muhammad in detail and without giving any finding to its veracity yet from the evidence adduced by this witness on record it cannot by altogether ignored that his statements are consistent, straightforward and simple, and no material contradiction has been brought out by the defence on vital questions. Besides this witness being a relation of deceased Arab could be the natural person who could have been requested by the deceased to go on an errand, with him. Mere relationship if otherwise there is sufficient evidence, cannot be the ground for out-right rejection of his evidence, specially in murder case. The conclusions of the learned Additional Sessions Judge on this point are also not very sound either. The next eye-witness Manghio's evidence has not been believed by the trial Court mainly on the grounds i.e. (1) he is on casual visiting terms with the complainant and why Manghio chose the particular route to his village instead of other ordinary routes. Now normally to be on casual visiting terms does not induce a person to give false evidence in a murder case where life of a person is at stake. As to the particular route chosen by Manghio which incidentally brought him to the scene of offence, it may be said at this stage that the incident has taken place in the open country side where one can approach the village without much hindrances by different tracks as he was on foot he could choose any of the tracks and may be this one was the shortest, therefore, by going through a particular route does not necessarily make him a chance witness nor his entire evidence as devoid of truth as hold by the trial Court. The other reasons for disbelieving the evidence of Manghio by the trial Court is that in the trial Court he has stated that he was examined by the police after 6/7 days of the incident at Ghotki. If he was present at the incident, reasoned by the trial Judge that he would nave been examined by the police there and then. Perusal of tae record goes to show that initially Mangnio did make statement that he was examined by the police at vardat this fact is supported by the evidence of the investigating Officer who when reached on the v.trdat found Mangaio present and he recorded his statement there and a carbon copy of Manghio statement on the date of incident finds place on the record of the Court below on police file, therefore, mere statement of Manghio that he was examined after 5/6 days at Gnotki could be a slip of tongue or he may have peen examined for the second time at police station, which is unusual with the police, or he may be assisting the respondents although in a shabby way, but this in my opinion is not sufficient to discard his entire evidence on record. Over and above no enmity has been shown against the Investigating Officer by the respondents side who supported the prosecution case including the presence of eye witnesses P. Ws. Maugtao, Khair Muhammad and com plainant Allahdino as well as recoveries of blood-stained clothes of the respondents which were later on examined by the Chemical Examiner who testified that they were blood-stained and gave a certificate which is on the record. Complainant Allahdino gave motive for the murder in the F. I. R. 4/5 years prior to this incident one Muhammad brother of Nindo disappeared from his house anti deceased Arab was suspected and later on charged for the murder but he was acquitted by the Sessions Judge, that is, why respondent killed Arab in revenge. The prior murder of Muhammad and subsequent acquittal of deceased Arab has not been challenged by the defence. The learned trial Judge in my opinion could not discard the evidence of motive either. Mr. Jalaluddin Baloch relied on Nazir Hussain v. Muhammad Shafi (P L D 1965 S C 188) wherein it was hold that rule that statement of interested witness can never be accepted without corroboration is not inflexible. He next relied on Asadullah v. Muhammad Ali and 5 others (PLD1971SC541) wherein it was held that

To test veracity of ocular evidence, both, ocular and corroborative evidence to be read together and isolating ocular evidence, furnished by the eye-witnesses, from corroborative evidence comprising of in criminating recoveries

High Court, held, fell in error in doing so. It was further held in the same judgment that

"Treatment of evidence, in High Court, not appearing satisfactory

Special Leave to Appeal, against acquittal, was granted." On the other hand Mr. Agha Imdad Ali learned counsel for the respon dent relied on Muhammad Shafi and others v. The State (PLD1967SC167), wherein it was hold that "Ordinarily, independent witnesses are sought for verification of recoveries, but in this case, no disinterested person who had seen the occurrence would come forward for the purpose. The reason was obvious. The recoveries were being made while the sensation of the terrifying occurrence had not subsided, and men were naturally fearful of becoming involved in so serious an affair." This judgment in my opinion instead of helping goes against the arguments of the learned counsel for the respondent. He next relied on Ghulam Rasool v. The State (1968 P Cr. L J 553 1968 P Cr. L J 553) wherein it was held that in "appeal against acquittal-Courts below erring in view of law applicable to facts found and accused found guilty of graver offence `failing to get their due' matter, field deserves attention of District Magistrate to bring such cases to the notice of appropriate authorities for filing appeals against such-like acquittals." Even this judgment in my opinion nowhere advanced the case of the learned counsel for the respondent. He next relied on Ghulam Haider v. The Stare (1968 P Cr. L J 1517) Karachi Bench decision wherein it was held that mere fact that contrary finding may be possible on that evidence regarding the guilt of the respondents would not furnish a valid ground for reversing the acquittal order in revisional jurisdiction essentially resting on the discretion of the High Court, has its well-defined limitations, Technically, the powers of the High Court in examining and reviewing toe evidence on a finding of fact is unlimited, but as remarked by the Federal Court in the case of Anwar and others v. The Crown "the trial Court's view of the evidence, the nature of the error committed, the magnitude of apprehended miscarriage or failure of justice, the possibility and extent of prejudice to the accused, the chances of conviction, the expenses of a re-trial are all relevant factors to be duly weighed." While examining the appellate powers of the High Court in regard to an order of acquittal there can hardly be any dispute to these well defined guidelines while considering the acquittal in the revision application out this judgment do not help the learned counsel for the respondent. During the course of arguments Mr, Imadad Ali Agha learned counsel for the respondent raised a novel argument, that if this Court remanded the case to the trial Court it would amount to conviction of the respondent be cause according to him the Court below will be influenced by the remand order. This argument I am afraid has no force nor the apprehension x expressed has any ground to stand upon because the purpose of remanding in case to trial Court as provided by law, is to rectify the errors such as non-appreciation of evidence, to avoid miscarriage or failure of justice and give further chance to the parties to present their side of the case. It entirely left to the trial Court after retrial to reappraise the evidence and thereafter give a finding on merits without being influenced either by previous evidence or observations with regard to the evidence by this Court in its remand order. I am, therefore, of the opinion that the learned trial Judge has no appreciated the prosecution evidence according to law and he could not dis card the evidence of eye-witnesses as well as the corroborative evidence on the ground shown by him. It must be remembered that a man has lost his life suffering not less than 11/12 hatchet injuries in the broad daylight, the case required more detailed and full discussion of the evidence which is lack ing here. For the reasons given above I accept this revision application and set aside the acquittal order of the learned Sessions Judge, Sukkur dated 23-1-1973 and remand the case to the learned Sessions Judge Sukkur with a direction to assign it to another competent Judge for a fresh trial and decision accord ing to law. Petition accepted. Case remanded.