1. JUDGMENT.
2. FAKHRUDDIN G. EBRAHIM, J.-This appeal by leave of this Court is directed against the concurrent finding of guilt recorded by the learned Additional, Sessions Judge, Dadu, and affirmed in appeal and reference by the High Court of Sind, vide its judgment dated 19th May, 1979, against the three appellants for the murder of the deceased Rustam, for which the first two appellants, Sikandar and Allahdino, have been sentenced to death and the third appellant Ghulam Rasul has been sentenced to life imprisonment.
3. Briefly stated, the facts are that the deceased Rustam was interested in taking the lease for catching fish from the Chandan Canal which flows in front of the village where his father and Ismail, a close relative, resided. The lease rights were auctioned every year. The appellants resented his attempt and threatened to kill him; and ultimately the deceased succeeded in acquiring the fishing rights about 10 to 12 days before the present incident. According to the prosecution this was the motive for his murder. It so happened that Ismail and the deceased took their paddy on a bullock cart for husking to Faridabad and as they were returning at about 2-30 p.m., the appellants emerged from the sat bushes near the lands of Sher Muhammad, a prosecution witness, and after challenging the deceased., who was sitting on the rice bags, the first appellant gave a hatchet blow on his forehead upon which he jumped from the cart and made a bid to escape, but the third appel--lant took him in his grip and the second appellant thereupon inflicted a hatchet blow on his shoulder, followed by the first appellant who caused further hatchet blows on his shoulder and neck. The deceased suffered six such in--juries and died instantaneously. As Ismail had raised cries for help, Sher Muhammad and Darya Khan who were in their fields hastily responded to the call and witnessed the incident. Thereafter, the appellants decamped. Ismail directed Darya Khan to inform his relatives and leaving Sher Muhammad at the spot, he left for Police Post Faridabad where he lodged the first infor--mation report at 3-30 p.m.
4. The first two appellants were arrested on the 30th of August, 1974 and they separately led to the recovery of their washed clothes and blood-stained hatchets. The third appellant was arrested on 1st of September, 1974, and he too led to the recovery of a washed shirt and a lathi which was not blood--stained. These articles were sent for chemical analysis after a lapse of five months and twenty days, as is evident from the letter of the Chemical Exa--miner dated 21st of January, 1975, acknowledging their receipts.
5. The case against the appellants rested on the ocular testimony of Ismail, Sher Muhammad and Darya Khan; corroborative evidence of Qasim; and the recovery of the incriminating articles at their instance. The learned Additional Sessions Judge, Dadu accordingly, convicted them under section 302 read with section 34, P.P.C. And sentenced the first two appellants to death and the third to imprisonment for life. They were also ordered to pay a fine of Rs. 1,000 each, on in default to suffer rigorous imprisonment for six months. The High Court upheld the judgment of the trial Court.
6. Leave was granted by this Court vide order dated 12th August, 1979, on the view that the evidence requires reappraisal for safe dispensation of justice.
7. Mr. A.K. Brohi, learned counsel for the appellants, raised four con--tentions in support of this appeal.
8. Firstly, that this was an un-witnessed crime and the prosecution eye-witnesses were chance witnesses. Secondly, that the learned Judges in the High Court bad totally ignored the evidence of Dr. Ghulam Mustafa, which showed that the deceased, after receiving the first blow, could not have run, as alleged by the eye-witnesses, and that the pro--secution case stood further falsified by the absence of blood on the bags as well as in the bullock cart. Thirdly, that the F. I. R. Was not promptly lodged, as found by the High Court, in view of the medical evidence that 12 hours had elapsed between the causing of the injuries on the person of the deceased and the post-mortem, which would advance the time of incident by at least three hours. The fourth and the last contention of learned counsel was that the learned Judges in the High Court erred in ailing to consider the inordinate delay of fine and a half months in sending the alleged blood-stained articles to the Chemical Examiner without any excuse for this delay.
9. Coming to the first contention that the crime in question was unwitnes--sed, the learned counsel submitted that the two eye-witnesses, Sher Mohammad (P. W. 2) and Darya Khan (P. W. 3) had no apparent reason to be at or near the place of Wardat, for they never owned any land in the vicinity nor was it shown that they were recorded haris working in the vicinity. For this purpose, the learned counsel relied on the evidence of Tapedar, which was rejected by the High Court for the reason that many Zamindars do not prefer to allow the names of haris to be registered with the Mukhtiar kar or Tapedar to avoid tenancy problems, for once a hari is registered in the revenue records of the Government, he cannot be ousted from that land. The High Court further noticed that the oral statement of Tapedar was uncorroborated by the revenue record. More importantly, however, as was pointed out by Mr. Abdul Sattar, learned Additional Advocate-General, the appellants as well as the eye-witnesses resided in the same village. They were known to each other and notwith-- standing the fact that P. Ws. Sher Muhammad and Darya Khan asserted in their examination-in- chief that they were cultivating land in the vicinity, no question was put to them in their cross- examination that they were not cultivat--ing haris in the vicinity. On the other hand, the questions put to them rela--ted to the alleged distance between their land and the place of wardat. The ocular evidence of the said two eye-witnesses, Sher Muhammad and Darya Khan, who have been found by the Courts below to be unrelated and unin--terested, was also challenged on the ground that P. W. Darya Khan had appe--ared as a prosecution witness in the murder case of Pir Bakhah, who was stated to be the brother of P. W. Ismail, which was denied by the latter. The High Court rejected this evidence of alleged enmity on the ground that the incident of Pir Bakhsh's case took place in 1957 and thereafter the parties were living without any hostility. It was further noticed that inspite of the denial of Ismail that the murdered Pir Bakhsh was his brother, no attempt was made on behalf of the defence to establish the alleged identity of Pir Bakhsh. In so far as the other eye- witness Sher Mohammad is concerned, there was not even a suggestion of any enmity with the appellants. The evidence of Ismail P. W. In the absence of any evidence of animosity, cannot also be rejected, merely on the ground that he was the cousin of deceased Rustam. Thus, there was no reason why the prosecution eye-witnesses had wrongly implicated the appellants.
10. The three eye-witnesses have given a straightforward account of the crime, but it was argued that the version was too consistent and too accurate to be true, but such an accurate and consistent version may as well be for the reason that the witnesses had the occasion to watch the incident from very close quarters. These witnesses have been implicitly believed by the two Courts below and since no error is apparent in the appreciation of their evidence, we find no reason for discarding their evidence which, on examination by us, is found to be reliable. It may also be noticed that the F. I. R. Was promptly lodged within one hour of the incident at a Police Post three and a half miles away, and the prosecuting witnesses were duly mentioned therein.
11. It was argued that the appellants were; according to the prosecution, lying in wait for the deceased to arrive, but there is nothing in the record to show that the appellants knew that the deceased could pass that way and that too at the time of the incident. To this, the short answer is that the parties were known to each other, they resided in the same village and the place of wardat is at a distance of half a mile from their village. It cannot, therefore, be reasonably assumed that the appellants may have been aware of the expected . Movements-of the deceased.
12. The second and the third contentions of Mr. Brohi may be dealt with together, for these are premised on medical evidence. The autopsy on the dead body was performed at Mebar ;by Dr. Ghulam Mustafa, who found the following six external injuries on the dead body of the deceased:-
(1) Incised wound 3" x -- " x bone deep. There was a fracture of frontal bone and right. Parietal bone.
(2) Incised wound 6" x' -- " x 2 bone deep, i. e. The fracture of occipital bone on the upper occipital region.
(3) Incised wound 5" x -- " x bone deep, from which the brain matter was coming out with fracture of occipital bone below Injury No. 2.
(4) Incised wound 4" x -- " x fracture of first cervical vertebra-on upper neck.
(5) Incised wound 4' x -- " x muscle deep below Injury No. 4.
(6) Incised wound 2"x -- " muscle deep on right upper shoulder region.
13. On the basis of the external examination of the dead body the doctor was of the opinion that the death was caused due to Injuries 1 to 4, which were caused by sharp-cutting weapon like ,.a hatchet, and death was instantaneous. In the context of this evidence Mr. Brohi referred to the eye- witness version that the first blow given by appellant Sikandar to the deceased Rustam was on his head and the remaining blows were given by appellants Sikandar and Allah Dino with their hatchets on the shoulder and the neck of the deceased, after the latter had come out of the cart and started running when appel--lant Ghulam Rasul had caught hold of him. The argument of the learned counsel was that if the very first blow on the head of the deceased was individually sufficient to cause death in ordinary course of nature, and accor--ding to the doctor's evidence the deceased must have died instantaneously on receiving any of the first four injuries; the prosecution version that the decea--sed came out from the cart after receiving the first blow on the head and tried to run was improbable and that in any event, the first blow having been struck when the deceased was sitting in the cart, blood would be found in the cart.
14. The medical evidence; no doubt, has its importance as a corroborative piece of evidence and may even negate the ocular evidence when it is wholly inconsistent with the ocular evidence, such as the material variation in the number of injuries or the weapons with which the injuries were inflicted.
15. It is, however a different proposition when it comes to the opinion of the doctor on important matters such as the reactions of the injured or the possible time of occurrence which may reasonably be displaced by truthful eye--witnesses.
16. The learned Addl. Advocate-General invited our attention to the-following passage in Modi's Medical Jurisprudence (at page 248) in support of his contention that in matters such as the power of volitional act in a victim after l~ receiving a fatal injury cannot, always be conclusively determined by reference to medical evidence :- " Sometimes the prosecution sets up a theory that the victim; after receiving mortal injuries involving a vital organ, such as the brain, heart or abdominal viscera, was able to speak and mentioned or wrote down the name or names of his assailant or assailants. Similarly, the defence may try to prove an if the alibi accused was seen with victim a moment before his death at a particular spot and the victim had afterwards moved to some other place on the ground that he could not have walked after having received the fatal injury. In both these cases the medical witness is required "to state whether a person is capable` of speaking, walking or performing any other volitional act, which would involve bodily and mental power for some time after receiving a fatal injury. A very guarded reply should be given as injuries cause variable reac--tions in individuals, also a few cases have been recorded in which the victims were able to perform some acts as that of walking or climbing requiring same exertion, and survived for some hours or days after receiving very grave injuries, which would ordinarily have proved rapidly fatal:"
17. After quoting the aforesaid passage, the -author gives several case illustrations of variable reaction by injured after receiving a very grave injury, which would ordinarily have proved instantaneously fatal. This Court had, on more than one occasion, considered the relative importance of doctor's opinion in relation to the ocular evidence, and held that ocular evidence, if found reliable, cannot be rejected purely on the basis of hypothetical opinion of the doctor. In the case of Muhammad All v. Ahmad A.I (PLD1974SC51a dying declaration was ques--tioned on the ground that according to the medical evidence it was difficult for the declarant to speak as "wind would escape through the aperture in the trachea." The Court rejected the medical opinion and relied on the evidence of the S. H. O., who had recorded the statement and has deposed that the declarant could "speak clearly and coherently like a normal person".
18. Usman Khan v. State (PLD1969SC293this Court observed as follows "Of late, a tendency has grown to discard the testimony of seemingly reliable and natural witnesses to a crime on speculation as to the manner in which the deceased person in the case was injured or about the time of occurrence with reference to the contents of the stomach. While one can appreciate the anxiety shown by the Judges to test the credibility of the eye-witnesses with reference to the circum--stances attending upon the commission of the crime, it falls to be said that Judges are not experts in medical science to form a safe opinion on these matters. It is desirable, therefore, to summon the doctor who examined the injuries or performed the autopsy as witness and inves--tigate the reasons for his opinion. The same holds true of the opinion given by a Ballistic Expert."
19. As to the absence of blood in the cart, the learned Addl. Advocate General rightly pointed out that the deceased, who received the blow on his head while sitting in the cart, must have immediately got down to escape, but! Met his death when, he had moved eight paces only, for that is where his dead-1 body was found, which adequately explains absence of blood in the cart.
20. The medical evidence was also relied upon by Mr. Brohi with a view to showing that the time.
21. Between death and post-mortum was about 20 hours, which would advance the time of occurrence to 11.00 a. m. Again this, at best, is the opinion of the doctor of the approximate time of death, and in the absence of any cross-examination of the first informant for the, alleged delay in filing the F. I. R. Is of no avail to the defence, when there is reliable ocular evidence.
22. Coming to the fourth and the last contention of Mr. Brohi, relating to the delay in sending the blood- stained articles to the Chemical Analyser, the High Court has been pleased to repel the same in these words :- "From the record it appears that the articles are first sent by the S: H." O. To the Deputy Superintendent of Police who forwards them to the Government Chemical Analyst. There is no cross-examination of the 1. O. Or the S. H. O. And nothing has been brought out to suggest that the Police had played foul and had created false evidence in the case. In our view, the delay in sending the articles for analysis has not materially affected the merits of the case."
23. Mr. Brohi. However, invited our attention to the case of Wazir v. State (PLD 1960 Kar. 676in support of his contention that delay simpliciter must result in rejection of evidence of the Chemical Analyser. In this case, however, the evidence of the Ballistic Expert was not accepted, because there was no evidence that the empty cartridges from the crime weapons recovered were made into sealed parcels at the spot coupled with the fact that there was inordinate delay in sending the crime empties and the weapons to the Expert.
24. Noor Alam v. State (PLD1978SC137the evidence of the Expert was accepted, notwithstanding the delay in forwarding the crime weapon and the empties to the Expert, for the reason :- There is also no evidence to show that the empties and the gun were not kept in sealed parcels, as soon as they were secured. The delay in forwarding them has to be considered in this background.
25. There is no evidence that the sealed parcels were tampered with. And, on the other hand, as there might have been an explanation for the delay in forwarding the sealed parcels, the appellant should have cross-examined P. W.Nek Muhammad Khan about the delay in forwarding the gun and the empties. As he did not, the cases cited do not help the appellant's case, and we agree with the view of the High Court that the recoveries have been proved As in the case of Noor Alam, the evidence in the present case is that the articles found stained with blood were secured under a proper Mashirnama and properly sealed and there was not even a suggestion of any tampering. The Investigating Officer was also not cross-examined as to the delay in sending the parcels to the Chemical Examiner. The High Court was, therefore, not in error in relying on the recoveries as corroboration of the ocular evidence.
26. We have also noticed that the conviction of the appellants would have been properly founded on the ocular evidence of the three eye-witnesses though there was additional corroboration in the shape of recoveries, which can also be relied upon by the prosecution.
27. The result, therefore, is that there is no merit in this appeal and it is accordingly dismissed.