' SALAHUDDIN PANHWAR, J.---The appellants Qazi alias Dost Muhammad and Khalid have assailed the Judgment dated 16th December, 2009 passed by learned Additional Sessions Judge, Shandadkot, in Sessions Case No,475 of 2003 (Re. The State v. Qazi alias Dost Muhammad and others), culminating to Crime No,39 of 2003, registered at Police Station Miro Khan, under sections 337-F(i), 337-A(ii), 147, 148, P.P.C. (Section 302, P.P.C. Added subsequently), whereby the trial Court convicted the appellants and sentenced them to suffer imprisonment for life under section 302(b), P.P.C. With penal servitude and to pay Rs,100,000 (One lac Rupees) to the legal heirs of deceased Deedar Ali as compensation under section 544-A, Cr.P.C. The benefit of section 382-B, Cr.P.C. Was extended to both of them.
2. Succinctly, the relevant facts are that on 11-8-2003 at 2230 hours complainant Mumtaz Ali son of Murad Ali Gopang lodged the F.I.R. Wherein contended that 7/8 days ago, theft was committed from their shop. They enquired from entire villagers but had suspicion over Abdul Hameed Gopang party. They had asked them to settle the matter amicably but he (Abdul Hameed) refused and used harsh language. While on 11-8-2003 at 2230 hours complainant was sitting in his otak, where accused Abdul Ghafoor, Abdul Hameed, Qazi alias Dost Muhammad, Anwar, Khalid armed with hatchet, Hidayatullah, Zahid, Shahid armed with lathis emanated there. Whereafter, accused Abdul Hameed inflicted back side of hatchet blow to complainant on his right side of elbow, accused Abdul Ghafoor also inflicted him backside of hatchet blow on right side of his shoulder and he fell down. On hue and cry, his brother Deedar Ali and nephew Sadam arrived there. Thereafter, accused Qazi alias Dost Muhammad caused hatchet blows on the head of Deedar Ali; accused.
Anwar Ali gave blunt side hatchet to Deedar Ali on his arm while accused Khalid caused blunt side hatchet blow on his left side ribs. The accused having lathis also caused lathi blows to Sadam.
Thereafter accused persons ran away towards their houses. Complainant along with his brother Deedar, nephew Sadam came at police station and lodged the report against the accused persons.
3. During the course of the investigation Investigating Officer arrested the appellant/accused Qazi alias Dost Muhammad, Abdul Ghafoor and Abdul Hameed on 11-9-2003; on 22-9-2003 he produced P.W. Saddam before Magistrate for recording his statement. On 23-9-2003 accused Abdul Ghafoor and Abdul Hameed volunteered and having led police party, produced crime weapons viz. Hatchets. On the same date accused/appellant Qazi alias Dost Muhammad also volunteered and having led police party produced crime weapon viz. Hatchet. The police sent up all accused persons to face their trial, except accused Anwar and Shahid, who were shown as absconder.
4. The absconding accused persons namely Anwar and Shahid were declared as proclaimed offenders by the learned trial Court. Accordingly, the charge against the appellants/accused and Abdul Hameed, Abdul Ghafoor, Hidayatullah and Zahid was framed at Exh.3, to which they pleaded not guilty and claimed their trial, by that their pleas were recorded at Exhs.3/A to 3/F respectively.
5. To substantiate its case, prosecution examined P.W.1 ASI Abid Ali at Exh.5 who had recorded the F.I.R.. He produced the attested photo copy of F.I.R. As Exh.5/A as original was burnt by a mob due to assassination of Mohterma Benazir Bhutto; P.W.2 Azizullah, Tapedar at Exh.6 who produced sketch plan at Exh.6/A; P.W.3 Mumtaz Ali at Exh.7; Junior Clerk Uzair Ahmed at Exh.8 to the effect of burning of case property, deposited with record room of the Court and produced such submission report at Exh.8/A; P.W.4 SIO Zulfiquar Ali at Exh.9 who produced mashirnama of dead body, inquest report, mashirnama of arrest and personal search, mashirnama of recovery of hatchets from accused Abdul Ghafoor and Abdul Hameed, mashirnama of recovery of hatchet from accused Qazi alias Dost Muhammad at Exbs.9/A to 9/E respectively; P.W.5 mashir Noor Hussain at Exh.11 who produced mashirnama of place of incident at Exh.11-A; P.W.6 Dr. Mumtaz Ali at Exh.13 who produced post mortem report. Of Deedar Ali, provisional Medico-legal Certificate of injured Deedar Ali, provisional Medico-legal Certificate of injured Mumtaz Ali, Final Medico-legal Certificate of injured Mumtaz Ali, provisional Medico-legal Certificate of injured Saddam Hussain and Final Medico-legal Certificate of injured Saddam Hussain at Exhs.13/A to 13/G respectively; P.W.7 Nadir Ali Bhatti (first Investigating Officer of case crime) at Exh. 14; P.W.8 Saddam Hussain at Exh.16 who produced his 164, Cr.P.C.
Statement at Exh.16/A. Thereafter the side of the prosecution was closed at Exh.17.
6. The statement of accused persons namely Qazi alias Dost Muhammad (appellant No,1), Khalid (appellant No,2), Abdul Hameed, Abdul Ghafoor, Hidayatullah and Zahid Hussain were recorded under section 342, Cr.P.C. At Exhs.18 to 23 respectively, wherein they professed their innocence.
Accused Zahid Hussain in his statement also produced the attested copy of F.I.R. No,122/1992 at Exh.24. However, none of the accused persons came forward to examine himself on Oath or to lead evidence in his defence, as provided under section-340(2), Cr. P. C .
7. The record reveals that at such stage the counsel for complainant moved an application under section 540, Cr.P.C. For recalling, Dr. Mumtaz Ali for further examination-in-chief and production of MLC(s) of injured Mumtaz Ali and Saddam Hussain which application was allowed and re- examination was done. Thereafter, the learned ADPP closed prosecution side, vide statement at Exh.25. Thus, again statement of accused persons namely Qazi alias Dost Muhammad (appellant No,1), Khalid (appellant No,2), Abdul Hameed, Abdul Ghafoor, Hidayatullah and Zahid Hussain were recorded under section 342, Cr.P.C. At Exhs.26 to 31 respectively.
8. Learned counsel for the appellant, inter alia, pleaded that the impugned judgment is against the settled principles of law; the learned trial Court disbelieved the injured witnesses for co-accused persons but believed the same witnesses to convict the appellants; mere injuries on person of the witness are not sufficient to hold the witness to be a witness of truth; medical evidence completely contradicted the ocular account; recovery of crime weapon was full of doubt; enmity between parties was admitted and even there were material contradictions as such the case against the appellants was never proved by prosecution beyond shadow of doubt as such the conviction is not sustainable.
9. Conversely, learned State counsel on behalf of State supported the impugned judgment while arguing that mere acquittal of co-accused is not sufficient to hold the conviction illegal; the appellants/accused were specifically implicated by the witnesses and ocular account stood corroborated by the medical and recovery evidence, therefore, judgment of trial Court is liable to be upheld.
10. After consideration of contentions raised by learned counsel for the respective parties and scanning the evidence, it is pertinent that in the instant matter the prosecution brought the following piece of evidence to claim conviction:--
(i) ocular evidence;
(ii) medical evidence;
(iii) recovery evidence; (iv)motive
11. It would be germane to discuss the ocular evidence first. The prosecution examined two witnesses to establish the charge through ocular evidence i,e, P.W.3 (complainant) Mumtaz Ali and P.W.8 Saddam Hussain. Both these witnesses are injured witness, accordingly. Before evaluating the evidence of these witnesses, I would like to endorse here that injuries on a prosecution witness are only indication of his presence at the spot but are not affirmative proof of his credibility and truth, as held in a case of Muhammad Pervez and others v. The State (2007 SCM R 670), hence it is the credibility of a witness which matters and not mere injuries on his person to give him the status of A truthful witness. In this prospective, I would go further to examine the evidence(s) of both these witnesses. The complainant P.W.3 Mumtaz stated in his deposition that "On seeing them, accused Abdul Ghafoor instigated co-accused Qazi alias Dost Muhammad to commit murder of Deedar.
On his instigation accused Qazi alias Dost Muhammad caused hatchet blow on the head of Deedar Ali which landed on his head, then accused Anwar Ali caused backside of hatchet blow to Deedar which landed on his left arm. This means that as per complainant Mumtaz the appellant/convict Qazi alias Dost Muhammad was alleged to have caused single sharp side of hatchet blow on the head of the deceased. On this the P.W.8 Saddam in his cross-examination stated that "Qazi alias Dost Muhammad caused more than one hatchet blow and probably caused three hatchet blows to the deceased. Thus P.W.8 Saddam does not corroborate the complainant P.W.3 in respect of role attributed to appellant/convict Qazi alias Dost Muhammad.
The complainant P.W.1 stated in his cross-examination that "P. W Deedar became unconscious after falling on the ground" but the complainant in his F.I.R. And the P.W Saddam in his 164, Cr.P.C.
Statement or his examination-in-chief has not stated so. The complainant P.W. Mumtaz stated in his examination that "After registration of F.I.R. Police gave letter for treatment and certificate of injured Deedar and Sadam. Then I brought both injured to Taluka Hospital Mirokhan" but the P.W.
Saddam Hussain stated that "I shifted injured from PS to Taluka Hospital by a donkey cart while complainant Mumtaz remained at PS for registration of F.I.R. Further, the complainant claimed that "I shifted both the injured to CMCH Larkana through Ambulance at about 12.00 mid-night" while the P.W. Sadam stated in his examination that we arranged Datsun, thereafter, we brought injured to CMCH Larakana".
' Both these witnesses claimed to have remained together but the above contradictions suggest otherwise. Not only this but the main allegation against the appellant Qazi alias Dost Muhammad regarding causing sharp side of hatchet blow has also been belied by the Post Mortem report which speaks that there were only four injuries on the person of the deceased. Two of them were lacerated while two were bruise. The P.W. Saddam stated his cross-examination that appellant Qazi alias Dost Muhammad caused three injuries with hatchet to deceased. This also stood belied by the medical evidence. Both these witnesses categorically claimed that deceased was caused hatchet injuries but the P.W.6 Dr. Mumtaz Ali specifically stated in his examination that "From external as well as internal examination of the dead body of deceased Deedar I am of the opinion that death of deceased Dedar had occurred due to cardio pulmonary arrest which is result of septicemia as result of injuries caused by hard blunt substance to vital organs such as brain". This casts serious doubt in the prosecution case. Here I would like to take advantage of the judgment of honourable Supreme Court of Pakistan in case of `Muhammad Ishaque v. The State' reported as 2007 SCM R 108, wherein conflict in medical and ocular account was considered as a genuine doubt and accused were acquitted.
' Not only this but the conduct and attitude of these witnesses were also strange because the complainant Mumtaz is brother of the deceased Deedar but he admitted in his cross-examination that "I only raised cries but did not try to rescue deceased Deedar and P. W Sadam". The P.W.
Saddam also stated in his cross-examination that "I had not rescued to the complainant due to situation". Although in such like situation, it is against the human conduct that he would not attempt to rescue his blood relation, particularly when accused persons are not armed with lethal weapon. Besides this, it also does not stand to reasons that if the attracted empty-handed P. Ws.
(Saddam and Deedar) did not try to rescue complainant or interfere with matter between complainant and accused party then what made the accused party to turn towards such attracted witnesses leaving complainant against whom there was alleged a motive. Here, it would be conducive to refer the judgment of the honourable Supreme Court of Pakistan in the case of 'Allah Bachaya v. State' reported as PLD 2008 SC 349. The operative part whereof, being fitted to circumstances of the case is reproduced hereunder:-- "it is also noteworthy that deceased and the P. Ws. Were four in number the P. Ws. Were closely related to the deceased one of the P. Ws. Sardar Muhammad was son of the deceased. The accused who were two in number were not armed with any fire arm weapon or hatchet. They were carrying the ordinary dhangs. In that case if the witness would present they would have certainly tried to save the lives of their near and dear one especially Sardar Muhammad, if present, being son of the deceased must have intervened.'
' Similarly, honourable Supreme Court in case of Arif Hussain and another v. The State reported in 1983 SCM R 428, has held:-- "It does not appeal to reason that father and brother (of deceased) who reached the spot on the alarm of the deceased Ibrar Hussain would come out of their house without arming themselves properly, or on the spot they would not make any attempt to save the life of one of their dear ones. They could have at least picked up stones from the spot and hit the appellants who were admittedly not armed with fire-arms".
12. Further, these P.Ws. (complainant Mumtaz and Saddam) were found having bruises only i,e, two bruises on person of complainant Mumtaz and one bruise on person of P.W. Saddam but these witnesses did not get X-rays despite advise of the Medical Officer as is clear from the examination of Medical Officer wherein he stated that "The injured was advised for X-Ray from Taluka Hospital Mirokhan but patient refused for having X-Rays from Taluka Hospital, Mirokhan and he demanded that final MC be issued to him without X-Ray".
13. Besides, it is also a matter of record that the learned trial Court Judge disbelieved the evidences of these two witnesses against the other acquitted co-accused persons while holding that:- "As regards the role of other accused Abdul Ghafoor, Abdul Hameed, Hidayatullah, Zahid, both eye-witnesses are not consistent with each other. Complainant deposed that accused Abdul Ghafoor caused backside of hatchet blow to him. He further deposed that accused Zahid, Shahid and Hidayatullah caused lathi blows to P. W. Sadam, but P. W. Sadam deposed in cross that he had not seen accused while causing injuries to complainant. P. W. Sadam has also not pinpointed the accused who caused injuries to him. In the present case, eight accused have been implicated by the complainant party, while deceased sustained four injuries; therefore, the number of culprits cited by the complainant party could be exaggerated particularly in the circumstances, when both eye-witnesses are not consistent with each other in respect of role of accused Abdul Ghafoor, Abdul Hameed, Zahid and Hidayalullah. Even Medical officer deposed that injured complainant and injured P. W. Sadam refused for having X-Rays from Taluka Hospital and they demanded that final MC be issued without X-Rays ," therefore, he issued final MC without X-Ray.
The said act of injured complainant and injured P. W Sadam has created a doubt in respect of injuries caused by accused Abdul Ghafoor, Abdul Hameed, Zahid and Hidayatullah. Moreover, complainant Mumtaz deposed in his testimony that he sustained simple injuries, therefore no any certificate was issued in respect of injures. In such circumstances false implication of accused Abdul Ghafoor, Abdul Hameed, Hidayatullah and Zahid cannot be ruled out particularly when previous enmity is admitted in between the parties".
' The above operative part of the judgment of the learned trial Court shows that the learned trial Court Judge itself not believed the evidence of the said witnesses for allegations levelled against the acquitted co-accused but at the same time has believed the same evidence against the appellants/convicts. It is well-settled principle of law that witness making conflicting statement cannot be said to be a witness of truth. One who is held to be speaking false may not be believed to be speaking truth when his such statement is in a single breath unless otherwise proves else this will take away the golden role of benefit of doubt on which the Safe Criminal Administration of Justice rests.
' Moreover, the complainant and P.W. Saddam are closely related inter se; No doubt that there is no cavil in proposition of law that mere relationship is not sufficient to disbelieve the evidence of a witness but in the instant case enmity between parties is admitted therefore, rule of prudence requires that evidence of interested and inimical witness if not corroborated by independent circumstances then such evidence cannot be credited with truth.
14. In the instant case the ocular account is not supported with other corroborative pieces of evidence. The medical evidence entirely cuts the ocular account at its root because the allegation was that of use of sharp side of hatchet but medical evidence has belied it by holding that injuries on person of the deceased were all caused by hard and blunt substance. Further, the numbers of injuries, claimed through ocular account, on person of the deceased are also not corroborated with medical and even inquest report. It is settled principle of law that it is not the medical evidence through which the guilt or innocence is determined but medical evidence has to be given its due weight when the prosecution comes forward with a claim of injuries to be from specific weapon (identity whereof is not typical one), seating and place of causing the injuries because it would be medical evidence alone which could corroborate' such aspect of the ocular account.
15. As regards the recovery of crime weapon(s) at the pointation of the appellants. Such piece of evidence is also not free from doubt, because I.O. P.W. Zulfiquar admitted in his cross-examination that "1 have not produced departure and arrival entries in my evidence". Needless to say that accused persons were in custody who allegedly prepared to produce crime weapons and then I.O.
Took them for such recovery proceedings but non production of the departure and arrival entries by prosecution brought serious doubts over such claim of the prosecution. I.O. Claims in his cross- examination that hatchet recovered from accused Qazi alias Dost Muhammad was stained with blood but the mashir P.W. Noor Hussain has not stated and even the mashirnama of recoveries does not speak so. The mashir P.W. Noor Hussain admitted in his cross-examination that "Co- mashir Mukhtiar is my brother. Complainant is my cousin". The places, wherefrom the hatchets were recovered, were not in exclusive use of the appellants but such recovery places happened to be common places as was admitted by P.W. Mashir Noor Hussain in his cross-examination that "The place of recovery of hatchet is situated 1 KM away from my village. The place of recovery of hatchet from accused Qazi alias Dost Muhammad is common way". Not only this but as per Mashir P.W. Noor Hussain there had gathered number of other persons at time of such recovery proceedings who did not agree to become mashir, however, the I.O. Has not stated so nor placed any thing on record justifying non-association of independent mashirs because he admitted in his cross-examination that "Mashirs Noor Hussain and Mukhtiar were arranged by the complainant".
These entire aspects make it quite obvious that recovery evidence was also not free from doubt hence was not corroborating the ocular account.
16. So far as to the motive, as claimed that complainant had suspected accused Abdul Hameed to be involved in theft of his shop and that accused had threatened him for dire consequences.
The prosecution did not examine a single witness to establish that there had been any theft in shop of the complainant or that complainant party had demanded a faisla from accused party.
The complainant admits in his examination that "I did not lodge F.I.R. Regarding theft committed from my shop". Further, if threat was for the complainant then what had made the accused party to turn towards those (P.Ws. Saddam and deceased Deedar) leaving complainant against whom there was alleged a motive is also such a fact which is also against the human conduct. On the other hand the complainant admitted in his cross-examination that "It is a fact that Sikander had lodged F.I.R. Bearing Crime No,122/1992 at PS Mirokhan against me, Deedar (deceased) and Mukhtiar (co-mashir) this admission rather gives a motive for false implication, particularly when the incident was matter of record.
17. What has been discussed above and examined on the touchstone that evidence of interested and inimical witness if not corroborated by independent circumstances then such evidence cannot be credited with truth as the same is required to be examined rather cautiously. Hence I am of the view that prosecution has failed to bring the guilt home against the appellants beyond shadow of reasonable doubt, therefore, in such like situation it would not be safe to uphold the conviction, recorded by the learned trial Court Judge. Accordingly, the appeal of the appellants was accepted by short order dated 1-8-2013; consequently they were directed to be released forthwith, if not required in any other case crime. These are the detailed reasons whereon.