1. SAJJAD ALI SHAH, J.---Appellant named above has filed this appeal against the judgment dated 15-5-1976 passed by the learned Ist Additional Sessions Judge, Larkana whereby the appellant has been convicted under section 302/34, P. P. C. And sentenced to imprisonment for life for murder of Ghulam Haider and under section 326, P. P. C. To R. I. For one year for causing grievous hurt to P. W.
2. Atta Muhammad complainant. Four other co-accused, namely Bashir, Muhib, Shaman and Illumuddin were also tried along with appellant but they were acquitted by the trial Court on benefit of doubt for lack of corroborative evidence.
3. Briefly stated prosecution story is that Survey No. 362 of Deb Kathia Bazar taluka Warah stands jointly in. Equal shares in the names of Dost Muhammad father of Ghulam Haider (deceased in this case) and Shahabuddin, grandfather of acquitted accused Illumuddin. Dispute between the parties arose when Illumuddin demanded sale of the share of land belonging to Ghulam Haider to him, which was refused by Ghulam Haider. On the day of incident, i. e. 26-12-1973, deceased Ghulam Haider and P. Ws. Atta Muhammad, Haji Abdullah and Abdul Karim were returning from Nasirabad to their village, when at about sunset time, they reached near the land of Hashim Shaikh, they saw five persons, namely Illumuddin empty handed, Bashir armed with a gun, Mumtaz, Muhib and Shaman armed with hatchets. At the instigation of Illumuddin not to spare, Bashir fired from his gun at Ghulam Haider, who became injured and fell down and was then attacked with hatchet blows by Mumtaz, Muhib and Shaman. Complainant Atta Muhammad attempted to intervene but he was fired at by Basbir and in the result, he sustained injuries on face and arm. Mumtaz. Muhib and Shaman gave hatchet blows to complainant Atta Muhammad, who in his self-defence, inflicted two hatchet blows on Mumtaz' P. Ws. Haji Abdullah and Abdul Karim raised cries and in the meantime the five assailants departed from the scene of incident. P. Ws. Went near and found Ghulam Haider having died of injuries. Leaving Haji Abdullah and Abdul Karim near the dead body, complainant Atta Muhammad left for Nasirabad Police Station where F. I. R. Was, filed by him at 7- 30 p. m: on the same day. S. H. O. Habibullah after registering report prepared mashirnama of injuries of complainant and sent him to the hospital. Appellant Mumtaz also came to the police station and filed his report. He was arrested and found injured, so mashirnama of his injuries was prepared and he too was sent to the hospital for examination and treatment. Before that Mumtaz appellant produced his blood-stained hatchet, which was seized and put into sealed parcel. He was wearing blood-stained clothes, which were secured and sealed into a parcel. Acquitted accused Bashir and Muhib had accompanied Mumtaz to the Police Station and they were also arrested. On the following morning S. H. O. Came to the place of occurrence, which was pointed out by P. W. Abdul Karim. It was situated on a Katcha road between Nasirabad and Dera. Dead body of Ghulam Haider was lying there. Blood-stained earth was secured and sealed. Two empty cartridges were recovered from the spot and made into a sealed parcel. S. H. O. Prepared inquest report and despatched the dead body to the hospital for post-mortem examination. On the same day acquitted Shaman was arrested. On 30-12-1973 acquitted accused Muhib while in custody led to the recovery of his hatchet from the manah of his house in village Ganwas. There was no blood on the hatchet. On the same day acquitted accused Bashir, while in custody, led to the recovery of a single barrel from the hedge of his house. The gun was sealed into a parcel. Bashir had no licence for the gun, hence S. H. O. Filed a separate case against him for offence under section 13-D of the Arms Ordinance at the Police Station, sealed parcels were sent to the laboratories and after completion of investigation challan was presented in the Court.
4. Prosecution has examined 9 witnesses in support of its case. P. W. 1 Ali Ahmed has prepared sketch of vardat Exh.
8. P. W. 2, Mehar Ali, Constable is corpse bearer, P. W. 3 Atta Muhammad complainant, P. W. 4 Haji Abdullah and P. W. 5 Abdul Karim have been examined as eye-witnesses of the occurrence, P. W. 6 Allah Bux mashir has attested mashirnama of vardat Exh. 30, inquest report Exh.
5. 31, mashirnama of arrest of appellant Mumtaz Exh.
31. Recovery of his clothes Exh. 32, recovery of hatchet of Muhib Exh. 33, recovery of gun from Bashir Exh. 34 and mashirnama of injuries of complainant Atta Muhammad Exh.
35. P. W. 7 is Dr. Wahid Bux P. W. 8 is Habibullah S. H. O. Who had investigated the case. P. W. 9 is Mukhtiar Ahmed, Ballistic Expert.
6. Dr. Ali Khali performed post-mortem examination on the dead body of Ghulam Haider. His deposition recorded before committing Court was transferred to the file of Session. On 27-12-1973 he conducted autopsy on the dead body at hospital Warah. On external examination he found the following injuries :--
(1) A lacerated wound -----x ----- on the right side of forehead near right eye brow.
(2) A lacerated wound -- " x -- " x 2" on the upper part of right side of face.
(3) A lacerated wound ----- x ----- x 1" on the lower part of right side or face.
(4) A lacerated wound -- " x -- " x 2" on the left side of face near nose.
7. Above injuries from Nos. 1 to 4 appeared to be fire-arm injuries.
(5) An incised wound 5" x 1----- x 6--- on the upper part of right eye. Right eye ball was cut.
8. Fracture of bones on the upper part of right side of face, brain matter was visible.
(6) An incised wound 5" x 5" on the right side of skull. Multiple fractures of skull bones on the right side. Brain matter was visible.
(7) An incised wound 6" x 1----- x 5" on the right side of back of skull, uniting with injury No. 6.
9. Fracture of skull bone on the right side of back of skull. The brain matter had come out.
(8) An incised wound 8--- x 2" x 5" on the right side and back of skull uniting with injuries Nos. 6 and
7. Multiple fractures of skull bone on the right side and back of skull. Brain matter had come out.
(9) An incised wound 2----- x ----- x 1----- on the middle part on the back of skull. Fracture of skull bone on the back.
(10) An incised wound 2----- x 1" x 2" on the back of upper part of left side of chest. Fracture of left scapula bone.
10. Above injuries from Nos. 5 to 10 appeared to have deer: caused by the sharp cutting weapon.
11. On the internal examination, found the following damages :-
(1) Multiple fractures of skull bones were present as mentioned above.
(2) Membranes were cut and brain matter had come out. Much haemorrhage present. Two pellets were found.
(3) Fracture of left scapula bone was present as mentioned above. Only little external bleeding due to injury on the back of upper part of left side of chest, as mentioned above.
(4) Stomach contained little digested food.
12. On external as well as internal examination of the dead body he was of the opinion that the cause of death was injuries over the skull by fire-arm and by sharp cutting weapon leading to multiple fractures of skull bones, severe haemorrhage, damage to the brain matter and shock. Injuries Nos. 1 to 4 appeared to have been caused by fire-arm and injuries Nos. 5 to 10 appeared to have been caused by the sharp cutting weapon such as hatchets, injuries Nos. 1, 2, 5, 6, 7, 8 and 9 individually were sufficient in ordinary course of nature to cause death. All the injuries were ante-mortem.
13. Probable time between injuries and death was within about 20 minutes, and probable time between death and Post-mortem was about 16 hours.
14. Deposition, recorded before committing Court of Dr. Wahid Bux in respect of examination of injuries of complainant Atta Muhammad, was transferred to the file of Session. He had examined Atta Muhammad on 27-12-1973 at civil Hospital, Larkana. He found the following injuries on Atta Muhammad-complainant.
(1) One lacerated wound 1----- x -- --- x ----- present below the chin on left side.
(2) One circular and lacerated type of penetrating wound ----- in diameter present on the top of left shoulder medically (entry wound).
(3) One circular lacerated type of penetrated wound ----- in diameter present on the left shoulder laterally (exit wound),
(4) One incised wound ----- x ----- skin deep present on the tip of left index finger.
(5) One oblique incised wound 1----- x ----- x ----- present on the wrist on its extensor surface.
(6) One oblique incised wound 2" x ----- x ----- present on the right palm in-- between the index finger and thumb.
(7) One incised wound 1----- x ----- x ----- present on the terminal part of right middle finger.
(8) One oblique incised wound ----- x ----- cutting the bone underneath, present on the right ring finger.
(9) One oblique incised wound ----- x ----- x 1/3" present on the right little finger.
(10) One abraded bruise ----- x ----- present on the right upper chest.
(11) One abrasion 1/3--- x 1/3--- present on the upper part of left side of neck.
15. The X-Ray evidence showed fracture of terminal Phallanyx at its terminal and right ring finger.
16. Injury No. 8 was grievous in nature, while rest were simple. Injuries Nos. 2 and 3 appeared to have been caused by discharge from fire-arm, such as gun, while injuries Nos. 4 to 9 were caused by sharp cutting weapon such as hatchet, while injuries Nos. 1 to 10 and 11 appeared to have been caused by bard blunt weapon, such as lathi of back side of the hatchet. All the injuries were fresh at the time of examination.
17. The injured was treated as an indoor patient for about 8 days.
18. Dr. Wahid Bux was examined in the trial Court as P. W. 7 in respect of injuries of appellant Mumtaz. It was testified by the doctor that he has examined Mumtaz on 27-12-1973 at civil Hospital, Larkana and found the following injuries :-
(1) One incised wound 2--- x 1--" scalp deep present on the posterior part of right parietal region.
(2) One incised wound ----- x ----- x ----- present on the lower 1/3rd of left wrist and its extensor surface.
19. The X-Ray evidence showed that there was fracture of right parietal bone. Injury No. 1 was grievous in nature while injury No. 2 was simple. Both the injuries appeared to have been caused by sharp- cutting weapon such as hatchet. Both the injuries were fresh. The injured was admitted in the hospital as an indoor patient for about 2 weeks.
20. The defence of appellant Mumtaz and acquitted co-accused in their statements under section 342, Cr. P. C. Before the trial Court, was denial of prosecution allegations and false implication.
21. Acquitted accused Illumuddin had denied motive alleged by prosecution and claimed enmity with co--accused Bashir due to a theft case. He produced true copy of judgment in that case.
22. Appellant. Mumtaz claimed that he had lodged F. I. R. But the same was neither properly recorded nor investigated by police. He was attacked by complainant and others. He explained that he had injuries on his person, which accounted for blood on his clothes. He further alleged that witnesses were interested and hostile. No witness was examined in defence.
23. We have very carefully examined the record in the light of arguments advanced by learned counsel appearing for each side. It is held by the trial Court that out of three eye-witnesses, two, namely Atta Muhammad complainant and Haji Abdullah are closely related to the deceased, as such they are interested witnesses necessitating looking for corroborative evidence. The trial Court acquitted Shaman for the reason that no recovery was made from him and for the same reason Illumuddin was given benefit of doubt and acquitted. So far Muhib and Bashir were concerned, occular testimony was sup--ported by recovery of hatchet from Muhib and gun from Bashir coupled with positive reports of Chemical Examiner and Ballistic Expert to the effect that human blood was found on the said hatchet and two crime empties recovered from the spot were found to have been fired from the said gun but in this context the trial Court did not believe mashir Allah Bux in respect of above recoveries in view of the fact that his evidence on these recoveries was discrepant and unsatisfactory: Both Bashir and Muhib were given benefit of doubt and acquitted by the trial Court.
24. So far the case of appellant Mumtaz is concerned, it was argued by Mr. Muhammad Hayat Junejo that the trial Court after assessing the evidence brought on the record has acquitted as many as four co-accused on the ground that the eye-witnesses were interested and strong corroborative evidence was not available, hence the conviction of the present appellant is' also not justified on the basis of same evidence which was found insufficient in respect of four acquitted co-accused.
25. We have very minutely scrutinised the whole record and we find that the trial Court has properly appraised the evidence and looked for corroboration, which was not available to supplement the incriminztory evidence against the other co-accused, who had to be acquitted in the circumstances and for the reasons mentioned above. The case of appellant MUmt1Z stands on a different footing and is distinguish able from the remaining co-accused, who have been acquitted for the reason that he has taken a special plea that he wag present at the and caused injuries, in his self-defence, to deceased Ghulam Haider. Immediately after the, incident appellant Mumtaz went to the police station and filed F. I. R. After F. I. R. Of the complainant was recorded. Blood- stained clothes of the appellant were recovered and he also produced blood-stained hatchet which was seized by the police. Injuries were found on his person and he was sent for medial examination. Before the trial Court in his statement under section 342, Cr. P. C. Appellant admitted having lodged counter F. I. R. But claimed that it was neither properly recorded nor investigated by the police. Appellant denied having produced blood-stained hatchet before the police or that his blood-stained clothes were recovered from his person. He had further stated that he had injuries on his person as such, his clothes might have been stained with blood. In view of these circum.
26. Stances it was contended that appellant Mumtaz, right from the initial stage, had made out a case of private defence as he had sustained two incised wounds caused by hatchet, one of which was grievous and seated on the head and also had filed counter F. I. R. In these circumstances it was argued that plea of. Self-defence raised at the earliest possible opportunity causes reasonable doubt that it may be true and it is not necessary that it must be true. Reliance is placed on Safdar Ali's case (PLD 1953 FC 93).
27. There is absolutely no cavil about the established 'fact that the principles laid down in Woolminton's case are applicable with full force in Pakistan in spite of the provisions of section 105 of the Evidence Act. Pursuant to this established position it is the duty of the Court to review entire evidence that has been produced by the prosecution and the defence in juxtaposition. If after the examination of the whole evidence, the Court comes to the conclusion that there is a reasonable possibility that the defence put for--ward by the accused might be true, then such view would re- act on the whole prosecution case and would entitle the accused to the benefit of doubt, not as a matter of grace but as a matter of right, because in that case it could safely be said that prosecution has failed in its primary duty to prove the case against the accused beyond reasonable doubt. In short it comes down to this that defence plea, even if it is not established as truthful, must be read in conjunction with prosecution evidence and if after the examination in entirety of the whole evidence brought on the record, a doubt is created that defence plea may be true, then benefit of doubt would go to the accused. At the same time the basic principle of law cannot be ignored that it is the duty of the prosecution to prove the case against the accused beyond reasonable doubt and this duty is neither shifted nor curtailed if the accused raises any special plea. In the light of these settled principles, we have to examine the record of the case in order to find out whether conviction of appellant Mumtaz is justifiable particularly when he has raised plea of private defence and the prosecution has discharged its general duty to produce sufficient evidence of incriminating nature to connect him with the commission of crime.
28. Appellant Mumtaz after the incident went and filed F.I.R. Which is on the record as Exh.
47. It reads as under :- "Today at about sunset-time I along with Bashir son of Dur Muhammad and Muhib son of Ibrahim were going to Naseerabad for seeing filmshow along the road leading from Naseerabad to Deran. I was armed with hatchet. When we reached near the machine of Seth Zakaria, Ghulam Haider Ganwas, Atta Muhammad Ganwas, Sarwar Ganwas, Gullo Soho, Atta Muhammad Soho residents of Golo Ganwas taluka Warah were coming from Naseerabad. Out of them Ghulam Haider and Atta Muhammad Ganwas were armed with hatchets, Gullo was armed with a gun and the rest were empty-handed. Out of them Ghulam Haider gave a hakkal and said that we cannot go. Ghulam Haider gave me a sharp-sided hatchet blow on my head and Atta Muhammad Ganwas gave me sharp-sided hatchet blow on my arm. I gave hatchet blows to Ghulam Haider in self defence.
29. Bashir and Muhib ran away and stood at some distance, they gave them hakkal. Upon which they left me. Thereafter Bashir and Muhib carried me away. Muhib brought a bullock cart from the village. Upon which they have brought me here. Now I have come here and lodge report that the accused have given me blows because we have got dispute with the accused over the land."
30. The Investigating Officer had admitted that appellant Mumtaz came to the police station after report of complainant was filed and thereafter report of appellant Mumtaz was also filed and as he was found injured, mashirnama of injuries was prepared. Appellant Mumtaz produced his blood- stained hatchet and his blood-stained clothes which were also recovered by the police. He was arrested in connection which the F. I. R. Of the complainant and was sent to the hospital for examination and treat--ment. Before the trial Court in his statement under section 342, Cr. P. C.
31. Appellant Mumtaz has admitted that he had lodged counter F. I. R. But it was neither properly recorded nor investigated by the police. He has asserted that he was attacked by complainant and others. He had further stated that he had injuries on his person as such, the clothes may be blood- -stained. He further denied the recovery of hatchet and blood-stained clothes from him by the police. The report of the Chemical Examiner is to the effect that the hatched and the clothes recovered from the appellant were stained with human blood. P. W. 7 Doctor Wahid Bux was examined before the trial Court, who had examined the injuries of appellant Mumtaz on 27-12-1973.
32. He found two incised wounds one on the posterior part of right parietal region and the other on the left wrist. The doctor further stated that the X-Ray report revealed that there was fracture of right parietal bone and this injury was grievous in nature, while the other injury on the left wrist was simple. Both injuries were caused by sharp cutting weapon such as hatchet. It is stated by the Investigating Officer before the trial Court that he took no action on the counter F. I. R. Of appellant Mumtaz for the reason that after investigation he found the contents of that F. I. R. To be false. We feel that action of the Investigating Officer was not proper particularly in view of the fact that one of the two injuries found on the person of appellant Mumtaz was declared by the doctor to be grievous in nature. In the circumstances, the Investigating Officer should have waited for the final report of the doctor and when the injury was declared to be grievous, he should have challaned the counter case also before the Court.
33. On closer examination it can said that plea of private defence is not substantiated by other material available on the record. For example the appellant has not mentioned in counter F. I. R.
34. Gunshot injuries on deceased Ghulam Haider and complainant Atta Muhammad. Appellant Mumtaz has also not mentioned presence of eye-witnesses Muhammad Panah and Ratio who were present at the time of incident. He has mentioned the presence of other persons who were not named in F. I. R. Of the complainant. In any case it is not the duty of appellant to prove that plea in the light of evidence produced by the prosecution to see whether it reacts on the case of prosecution to create doubt. In this context what on the record we have got is occular testimony of three witnesses out of whom two are closely related to the deceased and there is background of enmity between the parties and four co-accused have been acquitted by the trial Court for lack of corroboration hence we must necessarily look for strong corroboration coming from independent sources so far the present appellant is concerned. The trial Court has held that since appellant Mumtaz has admitted his presence at the spot and participating in. The incident and had filed counter F. I. R. And since, the plea of private defence raised by appellant is false hence his own admission in F. I. R. And 342, Cr. P. C. Statement can be used against him. We do not subscribe to that view and feel that even if the plea of private defence of appellant fails, it is still the duty of prosecution to prove the case against the appellant on its own, conclusively, it is therefore, necessary for prosecution to see whether corroborative evidence is available for conviction of this appellant. The only evidence available is of circumstantial nature, i. e. Recovery of blood-stained hatchet and clothes. Appellant Mumtaz had explained in his 342, Cr. P. C. Statement before the trial Court that since he had received injuries and was bleeding from those injuries hence his clothes were stained from his own blood. It appears to be reasonable explanation as the finding of the Chemical Examiner is also to the effect that the clothes of appellant Mumtaz were stained with human blood. No grouping of blood was done to say that it was blood of any particular person. In the same way appellant Mumtaz had explained the presence of blood on the blade of his hatchet by asserting that he had caused injuries while exercising right of his private defence. In such circumstances the personed of blood on the clothes and hatchet of appellant stands fully explained and' cannot be used by prosecution as inculpatory evidence against the appellant: Apart from what is stated above there is no other corrobortive evidence against this appellant.
35. Motive also shows enmity between deceased and acquitted accused Illumuddin.
36. There are loopholes in the evidence of the prosecution also. When the complainant Atta Muhammad filed his F. I. R. He had not mentioned therein that he caused any injuries to appellant Mumtaz. He also did not produce the hatchet with which injuries were caused to Mumtaz. When the Investigating Officer came to the vardat the hatchet used by complainant Atta Muhammad was never produced before him. What happened to the hatchet of the complainant Atta Muhammad is a mystery. It should have been either produced by complainant at the police station or should have been lying at the vardat. This fact was concealed by the complainant but subsequently when appellant Mumtaz filed counter F. I. R. And was referred to the hospital for the examination and treatment of his injuries, then the prosecution improved the version and the complainant before- the trial Court deposed that he gave two injuries to appellant Mumtaz with his hatchet while exercising right of his private defence. Secondly it is the case of prosecution as stated in F: I. R. That deceased and the other eye-witnesses were returning to their village after purchasing articles from Naseerabad when on the way incident took place. When the Investigating Officer went to the spot he could not find the purchased articles belonging either to the deceased or to any other witness.
37. It is the case of prosecution that acquitted accused Bashir was armed with gun and- the other two acquitted accused, namely Muhib and Shaman and the present appellant were armed with hatchets. Bashir fired from his gun at deceased Ghulam Haider and complainant Atta Muhammad and the remaining three assailants named above, who were aimed with hatchets attacked deceased Ghulam Haider and inflicted hatchet injuries on him and then attacked complainant Atta Muhammad and inflicted hatchet injuries on him. Doctor Ali Khan who performed post- mortem examination on the dead body of Ghulam Haider has testified before the trial Court that the death was due to injuries caused by fire-arm and sharp cutting weapons, collectively.
38. Furthermore injuries caused on deceased as well as complainant are not specifically attributed to the assailants separately because there is general allegation that all the three assailants who were armed with hatchets attacked and inflicted injuries. In this way no injury fatal or otherwise can particularly be pin-pointed on the appellant.
39. In view of what is discussed above, we hold that prosecution has failed in its primary duty to prove the case against the appellant and in the circumstances, the plea of defence raised by appellant creates doubt the benefit whereof must go to the appellant. We therefore, allow the appeal and set aside the conviction and sentence of the appellant. He may be set free if he is not wanted in any other case.