Appellants Arsallah Khan (26) and Rasool Bux (30) were tried for having committed a murderous assault on Beero (P. W. 1) by the Additional Sessions Judge, Larkana and convicted of an offence under section 307/34, P. P. C. And each 'one of them was sentenced to rigorous imprisonment for 7 years on the above count. They have filed this appeal to question their conviction and the sentence imposed on them as afore-stated.
2. The report (Exh., 5) of the incident was lodged by Beero (P. W. 1) himself at 3 a.m. On 25th January 1967 at Police Station, Shahdadkot which is at a distance of 25 miles from the land of Ghulam Nabi Magsi near village Chuki, where the incident is alleged to have occurred at tipahri the on 24-1-67.
This report was recorded 'at the Police Station by Zamir Hussain Shah (P. W. 4) which was to the following effect :- "I am `hari' of Haji Ghulam Nabi Magsi. On 24-1-67 at about 'tipahri' the I was going to turn the water at the opening of the watercourse "Haji Jar". I reached at my survey number which was cultivated with wheat. When Sheral son of Allah Bux, Arsallah and his brother Rasul Bux, and Diljan Khoso resident of village Piral Khoso emerged from western side. Out of them Sheral was armed with a double-barrelled gun and the rest were armed with hatchets. Then those persons passed from near me. I saluted them as 'Assalam Alaikum'. Dilijan replied my salutation and they proceeded further. I proceeded 5/6 paces ahead when Sheral gave me `Hakal' to stop and said that they will fight with me as they suspected me to have, stolen their paddy from their field. I replied that I have not stolen paddy from their field. On my saying so, as I was standing in front of Sheral, he fired a gun shot at me which hit me on .My leg, as a result of which I fell down. After I fell down, the aforesaid other accused inflicted hatchet blows on my body. I raised cries of `murder, murder'. On my cries Abdul Majid son of Atta Muhammad Brohi resident of near Chuki, Ali Jan son of Ghulam Qadir, Mangsi, resident of Chuki came running immediately. They saw accused giving blows. The accused after inflicting me blows went away running towards south. As a result of having received blows I became unconscious. After a short while my brother Muhammad Nawaz, Khanan son of Allahdino Lashari resident of near Puki came in bullock cart. They asked me aboLit my receiving injuries. I narrated them above facts. They brought me to (word illegible). From there they have brought me to the Shahdadkot. Thereafter I accompanied by respectable man Abdul Aziz Khan son of Muhammad Bux Khoso, have cone to lodge report. The accused have inflicted me blows without any fault of mine and have run away. I lodge complaint. Action betaken."
3. On the lodging of the report investigation commenced. A mashirnama of the injuries on the person of Beero (P. W. 1) was prepared in the presence of Mashir Abdul Majid (P. W. 2) and Ghulam Qadir. He was sent to the Medical Officer, Shahdadkot for examination and treatment. The statements of Abdul Majid (P. W. 2), P. W. Ali Jan (Exh. 12), Muhammad Nawaz, Khanan and Ashraf were recorded by the said Investigating Officer. He then went to the spot and prepared a mashirnama of the scene Ha of the offence (Exh. 8) at the Plantation of Abdul Majid (P. W. 2) in the presence of Mashir Allahdad (P. 'W. 3) and Muhammad Amin. There was also blood at the spot and the places at which the prosecution witnesses Abdul Majid (P. W. 2) and Ali Jan (Exh. 12) were at the the of the incident, were also pointed out to him. He thereafter searched for the appellants but they could not be arrested until the 31st January 1967, on which date they were produced by one Abdul Qadir Khoso at Railway Station, Shahdadkot. On 7th February 1967 the investigation of this case was handed over to Mehrab Khan (P. W. 5) Station House Officer, Police Station, Shahdadkot, who submitted a challan against the appellants in respect of the afore-stated offence in the Court of the First Class Magistrate, Shahdadkot Beero (P. W. 1) was examined by Dr. Abdul Hakim (P. W. 6) on 25-1-67 and he had noticed the following injuries on his person :- "(1) Circular lacerated wound on right forearm --" x 1/8" x 1/8".
(2) Lacerated wound on left parietal region of head 2" x 1/8" x 1/8".
(3) Contusion on left shoulder blade 4" x, 1".
(4) Circular lacerated wound on the upper portion of left forearm 1/3" diameter 1/3" deep.
(5) Incised, wound on the lower l/3rd of left forearm on ulnar side 2--" x --" x 1/8'.
(6) Lacerated would on lower 1/3rd of left forearm radial side and fracture of radius.
(7) Lacerated circular wound on anterior aspect of left leg just below the knee-joint --" in diameter.
(8) Two circular lacerated wounds just below injury No. 7--" in diameter.
(9) Lacerated wound on left leg just above ankle joint --" x 1/8" x 1/8".
(10) Lacerated wound over left foot 4" x 1/8" K 1/8".
(11). Contusion on the outer aspect of left thigh 2" in diameter.
(12) Lacerated wound on right leg just below knee joint in diameter.
(13) Circular lacerated wound on right leg last above ankle-- joint --"in diameter.
(14) 5 circular burning marks on tight foot around the ankle-- joint 1/3" in diameter."
According to the doctor, injury No. 6 was grievous in nature and the rest were simple. Injury No. 5 appeared to have been caused by a sharp cutting weapon, such as a hatchet. Injuries Nos. 2, 3., 6, 9, 10 and 11 were caused by a blunt weapon such as a lathi or the backside of a hatchet. The rest of the injuries were caused by the discharge of a firearm.
4. Appellant Arsallah Khan when examined in the committal Court had denied the prosecution allegation qua his participation in the crime and had proclaimed. His innocence. He had attributed enmity as a reason for his implication in the crime. In the trial Court he had alleged enmity against Beero (P. W. 1), Abdul Majid (P. W. 2), Ali Jan (Exh. 12) and Allahdad (P. W. 3) as well as the Investigating Officer Zamir Husain Shah (P. W. 4) without stating the nature of such enmity.
Appellant Rasool Bux had also given the same reasons for his false implication as appellant Arsallah Khan. Sheral and Dilijan who had also participated in the crime along with the present appellants had absconded and are not traceable till today. No evidence in defence was led by the appellants.
5. The trial Court while convicting the appellants had placed implicit reliance on the evidence of Beero (P. W. 1) and Abdul Majid (P. W. 2), Ali Jan (Exh. 12), who had died four days before the day on which the trial commenced, could not, therefore, be examined but his deposition as recorded in the committal Court was brought on record under section 33 of the Evidence Act and read as evidence in the case. Although the trial Court had held that this witness had not implicated the present appellants yet had come to the conclusion that his evidence does not affect the merits of the case, nor does it in any manner indicate that Beero (P. W. 1) and Abdul Majid (P. W. 2) had falsely implicated the present appellants. According to the trial Court this witness had been won over.
There is yet another inference drawn from the fact that the appellants had evaded arrest for six days, and that therefore they bad done so because they were suffering from guilty conscience. This was also treated as a piece of incriminat--ing circumstance although not so specifically stated in the judgment. The motive as assigned by Beero (P. W. 1) had. Also been accepted as true and as forming the reason for the said assault.
6. Mr. Abdul Sattar Pirzada, the learned counsel for the appellants, took me through the entire record. He had urged before me that Beero (P. W: 1) was unreliable and that he had indulged in prevarication and that, therefore, his evidence required corroboration. As for Abdul Majid (P. W. 2) the learned counsel for the appellants had urged that he had ascribed all the injuries by the sharp side of the hatchet and that according to the medical evidence there was only one incised injury.
This, therefore, showed that he had not actually witnessed the occurrence. Besides, it was got proved that he was not on his land at the the of the incident. Additionally, the learned counsel for the appellants had also urged that Ali Jan (Exh. 12) had not supported the prosecution case qua the participation of these to appellants and that his evidence, when read in the context of the deposition of Beero (P. W. 1) and Abdul Majid (P. W. 2i. Could not be reconciled and that therefore it cannot be said beyond a reasonable doubt that. It were the appellants who had caused the injuries on Beero (P. W. 1) I will dispose of all these contentions together.
7. It may be stated here that Beero (f'. W, 1) has not given the salve version in his deposition as was given by him in the F. I. R. With regard to his meeting with the appellants. In the F.I. R. The meeting has been described as under :- "Then those persons passed from near me. I saluted them as `Assalam Alaikum', Dilijan replied my salutation and they proceeded further. I proceeded 5,i6 pace's ahead when Sheral gave me `Hakal` to stop and said that they will fight with me as they suspected me to have stolen their paddy from their field."
While in the deposition the impression given is that there was a premeditated attack by the appellants and his to accomplices Sheral and Dilijan who have since absconded. The said witness has deposed that at the the of the incident while lie was working on his land the appellants came armed and told him, although the word `us' has been used, that he had stolen their paddy corn and so they had come to fight with him and that he should be ready. There is, therefore, the absence of salutation, their proceeding ahead for about 5 or 6 paces and the absence of `hakal' as given by Sheral, the absconding accused, alone and the meeting by chance. Again, the version as given in the F. I. R. Is that on his raising cries Abdul. Majid (P. W. 2) and Ali Jan (Exh. 12) had come running and had seen the appellants giving the blows while in his deposition in Court he has not supported this version but has stated that on receiving the injuries he had become unconscious and afterwards when he had regained consciousness he had seen P. W. Ali Jan (Exh. 12) standing near him and that Ali Jan had informed him that lie had deputed Abdul Majid (P. W. 2) to go to his village and inform his relations about this incident. According to him, he. Had also informed Ali Jan (Exh. 12) of the incident and gave him the names of the appellant and the other absconding accused. Ali Jan (Exh. 12) had also told him that he and Abdul Majid (P. W. 2) had come to the spot running and that they had actually seen the appellants and the absconding accused inflicting injuries on him. There is, therefore a variation in the to versions. Ali Jan (Exh. 12) has also not supported Beero (P. W. 1). Except for Sheral, the absconding accused, he has stated that he did not identify the remaining three culprits who were armed with hatchets and inflicting blows on him. In cross-examination he even went to the extent of saying that he did not know the present appellants and that he had seen Sheral, the absconding accused, for the first the at the wardat and that he was not known to him from before Abdul Majid (P. W. 2) has said that Ali Jan (Exh. 12) was also with him and that he had seen the appellants and the absconding accused inflicting blows on Beero 1P. W. 1). There is therefore, an inconsistency in the version a. Given by Beero (P. W. 1) himself as to at what particular the Abdul Majid (P. W. 2) and Ali Jan (Exh. 12) had reached the 'spot and that further Ali Jan (Exh. 12) does not support either Beero (P. W. 1) or Abdul Majid (P. W. 2) as to the identity of the culprits except Sheral who were inflicting the injuries on Beero (P. W. 1). Beero (P.
W. 1) himself does not say as to which side of the hatchet was used while inflicting the blows on him, yet Abdul Majid (P. W. 2) says that he had seen the appellants inflicting blows with the sharp side of their hatchets. Curiously enough, there is only one incised injury as caused by the sharp side of a hatchet, but there are six other injuries which have been caused by blunt weapons. The claim of Abdul Majid (P. W. 2) to have witnessed the incident, therefore, appears to be very doubtful. I am also of the view that Beero (P. W. 1) does not appear to be a reliable witness. He was convicted for theft and sentenced to 6 months' rigorous imprisonment. Another case of theft was also filed against him about 3 years back. With this background and for the inconsistencies as pointed out, it will not be safe to rely on the evidence ~of Beero (P. W. 1) alone. It is also doubtful if Abdul Majid (P.
W. 2) had witnessed the crime as alleged above and to have identified the culprits in view of what has been observed as above. In the context of the above evidence Ali Jan (Exh. 12) has not supported the prosecution case. His evidence cannot be reconciled with the evidence of Beero (P.
W. 1) and Abdul Majid (P. W. 2) qua the participation of the present appellants in the crime. Both Beero (P. W. 1) and Abdul Majid (P. W. 2) have admitted the presence of this witness at the relevant tune and it is not possible to ignore his evidence. It would thus be unsafe to accept the evidence of Beero (P. W. 1) and Abdul Majid (P. W. 2)' for the purpose of basing conviction thereon in the absence of any corroboration of their evidence. The participation of the appellants in the crime has not, therefore, been proved beyond a reasonable doubt.
8. The learned counsel for the appellants had also urged before me that there was enmity between the appellants and Beero (P. W. 1). 1 do not agree with this contention of the learned counsel for the appellants because the enmity that was alleged was for to remote to be a cause for their false implica--tion. Abdul Majid (P. W. 2) and Ali Jan (Exh. 12) are said to be the men of Ghulam Nabi Mangsi, who is the Zamindar of the village and that, according to the learned counsel for - the appellants, there is a dispute 'between him and Saifullah and that it was therefore at the instance of this Haji Ghulam Nabi that Abdul Majid (P. W. 2) had given evidence. This allegation of enmity is without any substance.
9. The trial Court has not considered the various aspects of the case as brought opt above and has merely satisfied itself by saying that since, as there was no enmity as between Abdul Majid (P. W. 2) and the appellants, it was therefore placing implicit reliance on the evidence of this, witness. Merely being a disinterested witness would not be sufficient for holding that his evidence was true. The inherent improbabilities in his evidence has also to be seen and that if from the evidence it appears that his presence was doubtful, the fact that he was disinterested would not make him a truthful witness. The trial Court has merely taken the evidence of Abdul Majid (P. W. 2) as corroborating the evidence of Beero (P. W. 1) without analysing and weighing the effect of the inconsistencies and the improbabilities in their version of the incident. The learned trial Court has again wrongly held that the medical evidence has corroborated these to eye-witnesses. In fact, it has already been brought out from the evidence of Abdul Majid (P. W. 2) that the blows were given by the sharp side of the hatchets, although there is only one incised injury as caused by a hatchet while six others were those that were caused by blunt weapons. At' least to this extent his evidence is not supported by the medical evidence. Beero (P. W. 1) himself does not say whether he was given blows by the sharp side or by the back side of the hatchets. How could then there be the corroboration by the medical evidence? This corroboration even otherwise would not establish the participation of the appellants in the crime. As for the distance from which the crime was witnessed the learned trial Court has said that there is a very minute contradiction yet much will depend upon how quickly after the cries this witness had traversed the distance of 200 paces so as to have come so close as 20 paces and thus to have witnessed the crime. The very fact that he had ascribed all the blows by the sharp side of the hatchet negatives his claim of having seen the blows being inflicted on Beero (P. W. 1). In this 'context the contradiction assumes importance. The presence of only one incised injury on Beero (P. W. 1.) although all the injuries were ascribed to him from the sharp side of the weapon on by Abdul Majid (P. W. 2), has been explained by the trial Court by observing that since he had come running to the wardat it would not have been possible for him to have seen as to with which side of the hatchet the injuries were being inflicted. This witness has not given any explanation. The learned trial Court has given its own explanation which is not sustainable at all. This contradiction has also been described as minor, which to me appears to be an approach to resolve all doubts in favour of the prosecution. This was a very serious contradiction as it affected the question of his actual claim to have witnessed the crime.
10. The motive has only been stated by Beero (P. W. 1) and if the witness himself is not reliable it will not be safe even to rely on the allegation of enmity as it is not corroborated or proved by any other evidence.
11. In the result and for the reasons given above, I would set aside the convictions and the sentences imposed 'on the appellants and acquit them of the charge. Their appeal is accordingly accepted.