This is an appeal under section 410, Cr. P. C. Filed by the four appellants against the judgment dated 25-2-1978 passed by the 1st Additional Sessions Judge, Hyderabad, convicting the appellants under sections 307, 326 and 323 read with section 34, P. P. C. And sentencing them each to suffer R. I. For 7 years and to pay a fine of Rs. 2,000 or in default to suffer further R. I. For 6 months.
The appellants were also directed by the learned Additional Sessions Judge under section 544-A, Cr. P. C. To pay compensation of Rs. 1,000 to the complainant injured or in default to suffer further R.
I. For 3 months.
2. The incident had occurred on 2-6-1974 at 5 p. m. In the land of the complainant, Manthar situated in Deh Dali Nandhi, Taluka Hyderabad, at a distance of 4 miles from the police station.
According to the prosecution the appellants armed with hatchets and lathis attacked the complainant, Mantbar and caused injuries to him, on account of enmity which appellant No. 1 had developed because about 8 days prior to the day of incident, the complainant had admonished appellant No. 1 for fighting with one Topo Bagri. Complaint was lodged by the injured himself on the same day at 10 p m. It will be advantageous to reproduce herein below the F. I. R.: "I am `Zamindar'. I own 22 acres of land in `Deh' Nandhi Dali, and I am also nekmard at my village.
About 8 days back, one Mooso Malah had fought with Topo Bagri, who resides in my village.
Therefore, I asked Moosi, Yousuf and Hajan Malaba that you are unnecessarily quarrelling with our persons, whereupon they abused me and my cousin Nimo. The above Malaha also told us that if we shall intervene, they will also kill us. About 3-4 days ago, Mooso and others abused me and told they will see me. I complained to Haji Abdul Karim Jabejo that Mooso and others are saying that they will kill us. At about 5 p. m. Due to rotation of my water. I was cleaning the "Pakbi" (strip of the cultivated land), where namely Mooso son of Mocbaro Mirbahar, (2) Yousuf son of Ghulam Muhammad, (3) Hajan son of Mocharo Malah and Umar son of Qasim Malah came there. They all were armed with hatchets. Ultimately Hajan Malah instigated the above Mir Bahara not to spare us and kill. Whereupon Mooso Malah gave me a sharp-sided hatchet blow on my head. I fell down and Yousuf and Umar gave blunt sided hatchet blows on my head, arms and back, I raised cries whereon, namely (1) Muhammad Dal, (2) Idoo Beroll and Mst. Jannat came there while running.
They gave "hakals", whereupon they left me and went away to their houses. Thereafter my cousin Nimo came there, and took me to the village where they informed Wadero Muhammad Hassan, who advised us to lodge complaint. I have been brought by my cousin and Wadero Muhammad Hassan, I lodge complaint. Justice be done.
Note.-The above complaint was read over to the complainant, who admitted is to be correct and signed therein.
(Sd.)
(Complainant Manthar)."
3. After recording the above F. I. R. Exh. 18-A and preparing a mashirnama of injuries Exh. 18 etc. The Investigating Officer, A. S. I. Masoo Khan P. W. 10 referred the injured to the Medical Officer, Tando Jam for examining and treating him. In consequence thereof, Dr. Rafique Ahmed P. W. 8 Exh. 15 Medical Officer, Rural Health Centre Tando Jam examined the injured on 3-6-1976 and found the following injuries on his person: "(1) Incised wound 2----- x ----- x bone deep over the left side of forehead with an underlying linear fracture of the frontal bone.
(2) Contused wound 1----- x ----- x skin deep over the left temporal.
(3) Contused wound ----- x ----- x skin deep above the right eye-brow.
(4) Contusion 6--- x ----- over the lower part of left side of head.
(5) Contusion 3" x 3/4" over left shoulder.
(6) Contusion 3--- x 3/4" over right loin.
(7) Contusion 3" in diameter over right arm-pit.
(8) Contusion 1----- in diameter over left fore-arm."
4. P. W. 8 reserved his opinion about injury No. 1 but opined that the rest of the injuries were simple, which appeared to have been caused by a hard and blunt weapon like lathi or back side of the hatchet. He also opined that the injury No. 1 was caused with a sharp cutting weapon like hatchet.
However, subsequently he certified injury No. 1 as grievous.
5. The learned Additional Sessions Judge has convicted the appellants on the basis of the ocular evidence which comprised of P. W. 1 Muhammad Exh. 6, P. W. 2 Mst. Jannat Exh. 7, P. W. 3 Khamiso Exh. 8, P. W. 4 Haji Karim Exh.
11. P. W. 5 Nimo Exh. 12, P. W. 6 Edoo Exh. 13, P. W. 7 Achar Exh. 14, P. W. 8 Dr. Rafique Ahmed Exh. 15, P. W. 9 Professor I. M. Jafri Exh. 16, P. W. 10 Masoo Khan Investigation Officer Exh.
18. The prosecution has also brought on record of the Sessions Court under section 33 of the Evidence Act, the statement made by the complainant, Manthar before the Committing Magistrate on the ground that the complainant was not in a position to speak because be was suffering from throat cancer.
According to the prosecution case P. Ws. 1 and 2 (who were allegedly haris of the complainant were allegedly in the field) and the complainants were eye-witnesses of the incident. P. W. 6 Edoo reached the place of incident after hearing the cries from the field of the complainant, whereas P., W. 5 Nemo who is a close relation of the complainant was informed y P. W. 1 about the above incident at his residence. Thereupon, he first went to the police station and brought the police to the place of incident. P. Ws. Kbamiso and Achar were the mashirs, who have not advanced the case of prosecution. P. W.
4. Haji Karim was examined to prove that the complainant had mentioned to him, the incident in respect of Topo Bagri referred to hereinabove, which resulted into enmity. His testimony is in support of the alleged motive. But the defence in the crossexamination of P. W. 4 suggested to him that the complainant had motive to implicate the appellants falsely. Dr. Jaffri's testimony is on the point that the complainant was suffering from cancer.
6. It is noteworthy that the F. I. R. Which was lodged by the complainant himself after 5 hours from the time of the incident, does not mention the fact that P. Ws. 1 and 2 were working in the field, when the complainant was attacked and that they were also eye-witnesses. On the other hand, it discloses that P. Ws. 1 and 2 along with Edoo came running after hearing the complainant's cries.
The relevant portion of the F. I. R. Reads as follows :- "I raised cries where namely (1) Muhammad Dal, (2) Edoo Beroll and Mst. Jannat came there running. They gave hakals whereupon they left me and went away to their houses."
The learned counsel for the appellants Mr. Muhammad Hayat Junejo has contended that according to the F. I. R. The only eye-witness was the complainant himself and that the prosecution had tried to improve upon the case by attempting , to prove that P. Ws. 1 and 2 were also the eye-- witnesses. On the other hand, Mr. Niaz Muhammad Khan, the learned counsel for the State has urged that the above-quoted portion of the F. I. R. Does not indicate that in fact P. Ws. 1 and 2 were not in the field. He has further contended that P. Ws. 1 and 2 must have been in the field, and that after hearing the cries came running towards the complainant. The above contention of the learned counsel for the State is belied by the testimony of the complainant himself as well as by the testimony of P. W. 6 Edoo. The complainant in his statement before the Committing Magistrate had stated that:- "I went on my land along with my hari P. W. Muhammad."
He further stated as under :- "P. W. Muhammad was about 12 ft. Away from me at that time. P. W. Muhammad had also a spade in his hand at that time."
The complainant has not mentioned the name of Mst. Jannat even in his statement before the Committing Magistrate, which apparently was an improvement upon the F. I. R., as it was the first time when it was stated that P. W. Muhammad had gone to the field with the complainant. P. W.
Edoo has stated before the Sessions Court that at the time of the incident he was in his land and that after hearing the cries he crossed "Bhada" and went towards the land of Ghulam Muhammad and that he saw the complainant sitting with the injuries. He has further stated that at that time nobody else was present there and that P. Ws. Muhammad and Mst. Jannat came afterwards.
Though this statement of P. W. Edoo is in contradiction, what he had stated before the Committing Magistrate, but it appears to be in consonance with the contents of the F. I. R. Furthermore according to the complainant's statement he and P. W. 1 had spades in their hands. It is surprising that the complainant in self-defence and P. W. 1 in support of his Zamindar did not cause any injury to any one of the appellants. I am, therefore of the view that at the time of the incident P. Ws. 1 and 2 were not present but they reached subsequently as stated by P. W. 6 and as indicated in the F. I.
R.
7. The question which requires consideration is, as to whether the conviction of the above four appellants can be sustained on the sole ocular evidence of the complainant as there is no other reliable independent corroborative evidence. The alleged recorveries of the two hatchets at the pointation of the appellants Nos. 1 and 2, namely, Mooso and Yousuf, respectively, have been discarded by the learned Additional Sessions Judge, and rightly so, on the ground that the above hatchets had no human blood stains and that the mashirs of the alleged recoveries P. Ws. 3 and 8 had not supported the prosecution case before the Additional Sessions Judge and had stated that no recovery was made in their presence. According to the F. I. R. All the appellants were armed with hatchets and that at the instigation of appellant No. 3, appellant No. I gave to the complainant a hatchet blow from the sharp side on his hand and that Yousuf and Umer gave hatchet blows from the blunt side on the complainant's hand. According to the complainant's statement before the Committing Magistrate, Mooso and Yousuf had hatchets and appellants, Hajan and Umer had lathis in their hands. So, there is a material contradiction between the F. I. R. And the complainant's above statement. Furthermore, according to the medical evidence the complainant had received injury No. 1 by a sharp cutting weapon like hatchet and the other injuries are simple. It is therefore, clear that the assertion contained in the F. I. R. That all the appellants were armed with hatchets appears to be incorrect. The complainant in his statement before the Committing Magistrate has stated that Mooso gave him hatchet blow with the sharp side of his hatchet on his hand, and that accused Yousuf also gave a hatchet blow. The complainant in his above statement has not stated that Yousuf had given hatchet blow from the blunt side. The above statement of the complainant is belied by the above medical evidence. In view of the above material contradictions/discrepancies, the complainant's testimony does not inspire confidence.
8. The manner in which the investigation was conducted appears to be also of doubtful nature as according to P. W. 5 Nimo, he went to the Police Station Tando Jam, and reported the matter to the police, who accompanied him to the scene of offence, but according to the statement of the Investigating Officer P. W. 10 the complainant had come to the police station at 10 p. m. Along with 3 persons including one Muhammad Hussain and lodged the F. I. R. It has been contended by the learned counsel for the appellants that if in fact Nimo had first gone to the police station and had reported the matter to the police, there must have been another F. I. R., which has been suppressed by the prosecution. According to the normal practice a police officer cannot leave his police station for the place of incident without first making an entry in the diary, but no such diary has been produced. Be that as it may, if the statement of P. W. 10 is to be taken as correct, in that event it becomes doubtful whether any credence can be attached to the statement of P. W. Nimo. Even otherwise, Nimo's testimony is not very much material.
9. It has been contended by the learned counsel for the State that in any event in the case of appellant, Mooso there is no contradiction between the F. I. R. And the statement made by the complainant before the Commit--ting Magistrate, and therefore, the conviction against him is sustainable. He has further submitted that in the F. I. R. As well as in the statement of the complainant before the Committing Magistrate, it has been clearly stated that the appellant Mooso had given hatchet blow to the complainant with the sharp side of the hatchet, but the learned counsel for the State has overlooked the fact that the complainant in his statement before the Com--mitting Magistrate, has also stated that Yousuf had also given hatchet blow. Whereas according to the medical evidence, as pointed out hereinabove, there is only one injury which could have been caused by a sharp cutting weapon like hatchet. In view of the above material contradiction/discrepancy, it cannot be said with certainty as to who in fact caused the grievous injury to the complainant.
10. (a) The learned counsel for the appellant has submitted that even conviction against appellant Mooso cannot be sustained, in view of the fact that the complainant's testimony is full of contradictions and is not free from doubts. He has placed reliance on the case of Rashid Ahmed v.
State (PLD 1976 Kar. 438) the case of Shahan and 3 others v. State (1972 P Cr. L J 85), the case of Habibullah and others v. State (PLD 1969 SC 127) and the case of Rehmat and others v. State (PLD 1959 SC (Pak.) 109).
(b) The facts of the 1976 Karachi Case were that appellant Rashid along with co-accused Shafi and Badal were tried by the Additional Sessions Judge, Karachi for an offence under section 302 read with section 34, P. P. C. For committing the murder of one Mirza. The trial Court acquitted Shafi and Badal and convicted the appellant and sentenced him to death. It was the case of the prosecution that the three accused, namely, Shafi, Badal and Rashid were carrying a lathi, stone and knife respectively, and that accused Rashid inflicted knife blow on the chest of the deceased, Shafi struck him with a lathi on his shoulder and accused Badal struck him with a stone on his head.
According to the medical evidence there was no lathi or stone injury on the person of the deceased, but had knife injury. Relying upon the medical evidence the learned Additional Sessions.
Judge acquitted accused Badal and Shafi but convicted accused Rashid. The High Court set aside the above conviction against accused Rashid mainly on the ground that after having disbelieved the prosecution case in respect of the two accused the conviction of the third accused on the basis of the same evidence without having some independent corroboration was not safe. It will be advantageous to reproduce hereinbelow the relevant portion of the above judgment at page 444, which reads as under :- "Judged in the light of the above decisions, it will be noticed that the evidence of the prosecution witnesses having been belied by the medical evidence and the witnesses having been disbelieved by the trial Court, and rightly so, as against the two co-accused, their evidence could not be relied upon with regard to the appellant without independent corroboration, e. g. Confession, circumstantial evidence or any confirmatory circumstance which by itself may suffice to show beyond reasonable doubt, the appellant's implication in the crime. There is, however, not an iota of corroborative evidence on record to show beyond reasonable doubt, the implication of the accused in this crime."
(c) In the case of Shahan and 3 others v. State a Division Bench of the erstwhile High Court of West Pakistan, Karachi Bench, was pleased to take the view that if the number of injuries caused do not commensurate with the number of accused involved benefit of doubt should be given to the accused. In this regard, it may be pertinent to quote hereinbelow para. 11 at p. 90 of the above judgment which reads as follows :- "We are now left with the case of the appellants Hote and Niaz Ali. Beyond the ocular testimony of the two witnesses there is no other corroborative evidence against them. In the face of P. Ws.
Mumtaz's admission that there is old enmity between Bhuttos and Jatois we cannot entirely rule out the possibility of the prosecution witnesses adding to the number of persons accused in the murder. Appellant Niaz Ali is the son of Shahan and appellant Hote is brother of Habibullah. It is possible that their names were also mentioned with a view to involve as many members of the family as could be involved. The medical evidence speaks of two injuries the first one by a lathi and the second by a hatchet. The Medical Officer has not thrown light on the number of blows which could have caused the lacerated wound. It may be, that this injury was caused by a single blow or by multiple blows. In the absence, however, if any evidence on the subject, however, draw an inference which is advantageous to the accused persons and hold that there was a single injury which caused all the damage to the skull of the deceased. In this view of the matter we feel pursuaded to give the benefit of doubt to appellants Niaz Ali and Hote."
(d) The facts of PLD 1969 SC were that 5 appellants were convicted under sections 304 and 34, P.
P. C. For the murder of their villager, one Allahwasayo by the learned Additional Sessions Judge.
Larkana, three of them were sentenced to death and two were awarded transportation for life.
There was only sole eye-witness, one Khudabux who made certain concessions in favour of the accused person in his cross-examination. While discussing the above aspect their Lordships of the Supreme Court were pleased to observe as follows at page 132: "According to the learned Additional Advocate-General this was a gratuitous admission which the witness had made to favour the accused as there was no external proof of that beating. The witness has to be taken on his words. If he has made a false concession in favour of the accused persons and had compromised his integrity, his veracity is evidently damaged. If he is capable of making a false statement for one party he is equally capable of making it for the sake of the other party. But the inherent improbabilities in his story are more important."
(e) Referring to the last case cited namely Rehmat v., State, wherein 11 persons were charged with the murder of 3 persons and 5 of them were acquitted and 5 were convicted. 'In this case also the ocular testimony was inconsistent with the medical evidence on record. Their Lordships of the Supreme Court, while accepting the appeal of the 5 convicts were pleased to observe at page 118 as follows :- "In our opinion, the approach of the learned Judges to the appraise--ment of the evidence of individual witnesses was not based upon a full comprehension of all the circumstances appearing in the case, from the making of the initial report, up to the recording of evidence at the trial. When the evidence of the eye-witnesses is examined in the light of all the circumstances which we have enumerated, a possibility clearly arises that the implication of some or all of the eleven persons accused in the case was based not upon direct knowledge of their partici--pation, but upon conjecture aided by the motive of revenge. Where the entire case rests on ocular evidence, which is subject to such general doubts, it is obviously not consistent with the safe administration of justice to select for conviction those persons upon whom the eye--witnesses fix specific parts in the accomplishment of the crime. The case fails against each of the accused persons unless there be evidence aliunde, e. g. a confession or circumstantial evidence which by itself may suffice to show, beyond reasonable doubt his implication in the crime. No circumstantial evidence or admission of this nature appears against any of the accused persons in the present case. In our opinion, each of them was entitled to acquittal on the ground that the case had not been proved against all or any of them beyond reasonable doubt by the prosecution evidence."
11. The principles deducible from the above cited rulings inter alia are as follows :-
(a) if ocular testimony is belied by the medical evidence, an accuse cannot be convicted on the basis of such ocular evidence without having some independent corroborative evidence.
(b) If ocular testimony is disbelieved by the Court in respect of some of the accused, it will not be safe to convict the other accused on the basis of the same ocular testimony without having some independent corroborative evidence.
(c) If the number of injuries caused to the deceased/injured person do not commensurate with the number of the accused, benefit of doubt be given to the accused.
(d) If ocular testimony is not free from doubts, an accused cannot be convicted solely on such evidence unless there be evidence aliunde, e. g. a confession or circumstantial evidence, which by itself may sufice to show beyond reasonable doubt his implication in the crime.
12. In the instant case, there is one eye-witness, viz. The complainant, Manthar, whose testimony is doubtful because of contradictions/discrepancies referred to hereinabove, and there is no other independent corroborative piece of evidence, so, it will not be safe to convict the appellants on the basis s of such evidence. Furthermore, if the above evidence is to be disbelieved for reviewing appellants Nos. 2 to 4-'s case, it will not be safe to believe the same evidence without having some independent corroboration (which is lack--ing in the instant case) for convicting appellant No 1.
I would, therefore, accept this appeal and set aside the conviction and sentences awarded to the appellants. They are to be released forthwith if not wanted in any other case.