The appellant above-named, being aggrieved by the judgment dated 31st January, 1981 of the learned Additional Sessions Judge, Sanghar has filed this appeal as he has been convicted and sentenced by the said judgment to imprisonment for life and a fine of Rs. 1,000 under section 302 read with section 34, P. P. C. And compensation of Rs. 1,000 to the heirs of the deceased in default of payment of fine and compensa--tion, he has been further sentenced to undergo R. I. For three months on each account. The appellant has further been convicted and sentenced to suffer R. I. For 4 years and to pay a fine of Rs. 5,000 under section 307 read with section 34, P. P. C. He was further directed to pay compensation of Rs. 500 to each injured Muhakamuddin and Roshandin and in default of such payment and fine compensation further to undergo 2 months--- R. I. On each account by the said judgment. All the sentences were ordered to run concurrently.
2. The brief facts relating to the incident in question are, that the complainant Mohakamuddin is the hart of one Ali Hassan Mangsi, on his lands in Deh Sarhari. Appellant Mitho, absconding accused Illahi Bux and deceased Dhani Bux were real brothers and were the sons of maternal uncle of the complainant. Both the parties lived in the same village. About 15/16 years back, complainant Mohakamuddin's daughter Mst. Rahiman was betrothed to accused Illahi Bux, at the time when she was minor. Subsequently, absconding accused Illahi Bux became a man of questionable character and indulged in crime and nefarious activities and thus absconded. The complainant therefore did not give his daughter in marriage to Illahi Bux; whereupon all the three brothers are said to have been annoyed with the complainant. The complainant thereafter gave his daughter Mst. Rahiman in marriage to his cousin Roshandin.
3. That on 26th April, 1978 at 3-00 p. m. Complainant Mohakamuddin, his son-in-law Roshandin and their relation Pasand Khan were working in their wheat khara, when absconding accused Illahi Bux armed with rifle, deceased Dhani Bux armed with pistol, while present appellant Mitho armed with hatchet arrived there. According to the prosecution Illahi Bux abused the complainant and asked him as to why he had married his fiancee to Roshandin. The complainant replied, that he was the master of his own affairs, on which Illahi Bux fired, at the complainant which hit him on his left arm.
Accused Dhani Bux fired at Roshandin, which hit him on his abdomen. Accused Illahi Bux fired 2 more shots at Pasand Khan, who cried and fell down on the ground, appellant Mitho is then said to have given a hatchet blow to the complainant. The complainant and his son-in-law Roshandin then picked up tangri (instru--ment for thrashing the corn) and hatchet lying in the khara and caused injuries to Dhani bux and Illahi Bux in their self defence, as a result of which Dhani Bux fell down and died on the spot. On the side of the complainant, Pasand Khan also died as a result of injuries. On the cries and commotion P. Ws. Mohammad, Noor Mohammmad, Sher Mohammad, Abdul Qadir and Razaq Brohi came to the wardat. The complainant succeeded in snatching rifle from accused Illahi Bux. Appellant Mitho in the meantime decamped. The complainant and P. Ws.
Overpowered accused Illahi Bux and caught hold of him. The complainant then left accused Illahi Bux at the wardat, under the care and custody of P. Ws. And went to P. P. Sharhari and lodged his report. He also produced the rifle of absconding accused Illahi Bux, before the Police.
4. That, on the other hand appellant Mitho also appeared at the P. P. Sarhari at 4-00 p. m. On the same day and lodged a report inter alia alleging therein, that he was hari of Ali Hassan Mangsi, in deh Sarhari and-was residing in village Pir Bux Brohi. That one Mohakamuddin Brohi was his father- in-law and was residing in the same village. Illahi Bux and Dhani Bux Brohi were his brothers and were residing with him. It was further alleged, that Illahi Bux was betrothed with Mst. Rahiman,W daughter of Mohakamuddin about 15/ 16 years back, but the marriage had not taken place, lafer on there were differences between the parties, on which Mohakamuddin refused to give the hand of his daughter to Illahi Bux. It was further alleged, that Mohakamuddin had married Mst. Rahiman to his cousin Roshandin about 3/4 months before, on which Mitho, Illahi Bux and Dhani Bux told Mohakamuddin, that he bad not done right thing.
5. It was further alleged that at 3-00 p. m. Complainant Mitho was present in his house, when there was a commotion from the Khara of Mohakamuddin, complainant came running to the Khara and found Mohakamuddin and Roshandin giving blows with Tangri and hatchet respectively to Illahi Bux and Dhani Bux. In the meanwhile Ali Mohammad, (1hulam Ali and one Jalbani whose name he did not know, came, intervened and separated the parties. Complainant found Dhani Bux and Pasand Khan lying dead. He also found injuries on the person of Mohakamuddin and Roshandin. He also found, that Illahi Bux had sustained injuries on his head and had run away. The F. I. R. Does not show, that Mitho participated in the alleged fight in any manner.
6. That the Police after usual investigation challaned the present appellant, while case on appellant's complaint was disposed off, as cancelled class.
7. That the case against appellant was ultimately tried before the learned Additional Sessions Judge Sanghar, who after recording the necessary evidence has convicted the above appellant, as described above and consequently the appellant has filed this appeal, on the grounds mentioned in the memo of appeal.
8. The prosecution in support of his case had examined complainant Mohakamuddin. Head Constable Karim Bux, P. W. Mohammad, P. W. Noor Mohammad, P. W. Abdul Razaq. A. S. I. Karamat Hussain, S. H. O. Gul Mohammad Awan, Dr. Alam Kumar, P. C. Ali Nawaz.. Misri Khan, Tapedar and P.
W. Achar, while P. W. Sher Mohammad and Abdul Qadir were given up. The factum of the death of deceased Pasand Khan on 26th April, 1978 in the incident in question and receipt of injuries by the complainant and P. W. Roshan Din is not disputed before me. Further these facts have also been established by evidence of Dr. Alam Kumar, who performed the post-mortem examination of the deceased Pasand Khan and also examined the two injured prosecution witnesses and issued certificates in respect of their injuries.
9. As far as the incident in question as narrated in F. I. R. Exh. 5, the prosecution has examined P. W.
Mohakamuddin (Complainant) and P. Ws. Mohammad, Noor Mohammad and Abdul Razaq.
10. P. W. 1 Mohakamuddin (complainant), who was also injured in the incident in question had deposed, that he knew P. Ws. Mohammad, Noor Mohammad, Sher Mohammad, Abdul Qadir and Roshan Din and stated that they all lived in the same village. He further stated, that he knew appellant Mitho present in the Court as well absconding accused Illahi Bux and deceased Dhani Bux. He further stated that appellant Mitho, absconding accused Illahi Bux and deceased Dhani Bux are brothers and are sons of his maternal uncle. This witness further stated that deceased Pasand Khan was his relative and Mst. Rahiman is his daughter. This witness further deposed that he had betrothed his daughter Rahiman to absconding accused Illahi Bux 6/7 years prior to the incident but since the absconding accused Illahi Bux became a dacoit, he refused to marry his daughter with him and consequently he married his daughter to P. W. Roshandin, who was also murdered during the pendency of this case. This witness further deposed that appellant Mitho, the absconding accused and deceased Dhani Bux got annoyed with him due to this fact, that he got his daughter married to Roshandin. This witness further deposed, that at the time of marriage of his daughter absconding accused Illahi Bux and his brother deceased Dhani Bux were absconding in some other murder case. However, according to this witness both these persons were visiting appellant Mitho, during night time secretly. This witness in his statement further deposed, that on 26th April, 1978 at about 3-00 p. m. He, P. W. Mohammad. P. W. Abdul Razaq, P. W. Noor Mohammad, P. W. Sher Mohammad, P. W. Abdul Qadir, P: W. Roshandin and deceased Pasand Khan were thrashing the corn, when all of a sudden three brothers namely appellant, absconding accused Illahi Bux and deceased Dhani Bux came there. Appellant Mitho was armed with hatchet, while Illahi had a rifle and Dhani Bux was armed witha pistol. This witness further deposed, that Illahi Bux abused him and stated that why did he give his Mang to Roshandin and then he attacked him and fired a rifle shot, that hit him on the left arm. He further deposed, that deceased Dhani Bux fired at P.
W. Roshandin with pistol. Which hit Roshandin on the stomach. According to this witness Illahi Bux also fired at Pasand Khan on abdomen and chest. This witness has further deposed, that appellant Mitho inflicted hatchet blows on Pasand Khan and also gave him a hatchet blow on his head. He further deposed, that they grappled with the accused to save themselves and managed to snatch rifle from the hand of Illahi Bux and caused injury to Illahi Bux with the butt of the rifle and ultimately succeeded in arresting him. He has further deposed, that remaining P. Ws. Caused hatchet blows to Dhani Bux in self-defence. According to this witness, the appellant Mitho managed to run away from the wardat and deceased Pasand Khan died at the spot and thereafter he went to P. P.
Sarhari for lodging report, alongwith the rifle of abscond--ing accused Illahi Bux and produced F. I.
R. As Exh.
5. He has further deposed, that before going to the Police Station, he had left absconder Illahi Bux and injured Dhani Bux at the wardat, under the supervision, of P. Ws. This witness has further deposed that he came back from the wardat with the police when he found Dhani Bux dead and Police referred him and his son-in-law to hospital. He further stated, that he came to know, that after he had left for Police Station, appellant Mitho came to the wardat and managed to get his brother, absconding accused Illahi Bux released and as such, when he came with the Police to the wardat Illahi Bux was not there. He has further deposed, and his son---in-law Roshandin was murdered by absconding accused Illahi Bux and his brother Allah Bux 4-months, after the present incident. This witness in his cross-examination admitted, that appellant Mitho is his son-in-law, but denied that he was residing with him. He also denied the fact, that deceased Dhani Bux had abducted daughter of Allah Warayo, hari of Israr. He also denied, that appellant was not present at the wardat and he has falsely implicated him, as he used to' beat his daughter. He also admitted, that appellant Mitho did not sustain any injuries in the incident in question.
11. The above statement' of P. W. 1 Mohakamuddin has been corroborated by P. W. 3 Mohammad and P. W. 4 Noor Mohammad fully. However, P. W. 6 Abdul Razaq did not support the prosecution case and he was declared hostile, but when he was confronted with his 164, Cr. P. C. Statement, he admitted the same as true. The learned trial Court having believed the prosecution witnesses namely complainant, P. Ws. Mohammad and Noor Mohammad, for the reasons given in his impugned judgment, convicted the appellant above-named as hereinabove mentioned.
12. The first contention raised by the learned advocate 'for the appellant before me was, that there was a counter case for which F. I. R. Exh. 18 was lodged by the present appellant, but the said counter case was not challaned at all and as such this has resulted in mis-carriage of justice, and further shows dishonesty of the investigating agency. In this connection the learned Advocate for the appellant relied upon cases reported in 1979 P Cr. L J 415 and P Cr. L J. 750.
13. The second contention that has been urged before me by the learned Advocate for the appellant was, that all the P. Ws. Are interested witnesses and as such their evidence cannot be relied upon without independent corroboration, especially the statement of P. W..3 Mohammad and P. W. 4 Noor Mohammad, whose names as eye-witness have not been mentioned in F. I. R., Exh.
5. In support of this contention the learned advocate for the appellant relied upon cases reported in .PLD 1965 Kar. 286, 1979 P Cr. L J 41 and 747 and PLD 1981 Kar. 1.
14. The third contention that has been urged before me by the learned Advocate for the appellant was, that ocular testimony of P. W. Mohakamuddin complainant as well as P. Ws. Mohammad and Noor Mohammad are in conflict with the medical evidence, as no hatchet injury on the head of the complainant and/or deceased was found according to post-mortem report and medical certificate issued in respect of P. W. 1, Mohakamuddin, complainant. In this connection the learned advocate for the appellant relied upon case reported in PLD 1973 SC 321.
15. The fourth, contention that has been raised by the learned Advocate for the appellant before me was, that appellant had not received any injury in the incident in question as admitted by the prosecution and as such presence of the appellant at the time of incident is doubtful.
16. The fifth contention that has been raised by the learned Advocate for the appellant before me was that the name of the appellant was not initially disclosed by the complainant to the Police, when he went for lodging the F. I. R. Exh. 5, otherwise the appellant would have been arrested by P.
W., H. C. Karim Hussain, when he went to lodge F. I. R. Exh. 18 in the counter case. This shows, that the F. I. R. In question was not recorded immediately, but subsequently and in such late recording of the F. I. R. The name of the appellant was included on account of enmity.
17. The sixth contention that has been raised by the learned -advocate for the appellant before me was that Exht. 21, mashirnama of recovery of hatchet shows blood on the sharp side of the said hatchet, but no blood is shown on the blunt side at all and since neither complainant nor the deceased had any injuries of hatchet from the sharp side, the investigation conducted by Police was dishonest and as such cannot be relied upon and in this connection the learned Advocate for the appellant relied upon case reported in 175 P Cr. L J 750.
18. The last contention that has been raised before me by the learned Advocate for the appellant was, that the names of P. W. Noor Mohammad and P. W. Mohammad have not been shown as eye- witnesses in F. I. R. Exh. 5 and as such the prosecution by citing them as eye-witnesses has tried to improve its case and as such cannot be relied upon. In support of this contention the learned Advocate for the appellant relied upon case reported in PLD 1963 Kar. 5.
19. The learned Advocate appearing for the State submitted; that he does not support the conviction of the appellant, in view of the law laid down by Division Bench of this Court, reported in PLD 1981 Kar. 1.
20. I have carefully considered the above submissions made by the learned advocate for the appellant and have gone through the statements of prosecution witnesses as well as impugned judgment, and have also gone through the authorities cited by the learned Advocate for the appellant as well as those mentioned in the impugned judgment, by .The learned Trial Court.
21. P. W. I, Mohakamuddin, in his examination-in-chief has admit--ted, that deceased Pasand Khan was his relation. P. W. 3 Mohammad in his examination-in-chief has admitted, that deceased Pasand Khan was his cousin and similarly P. W. 4 Noor Mohammad has also admitted, that deceased Pasand Khan was his cousin. Although the later two witnesses have denied their relationship with P. W. 1 Mohakamuddin. This evidence of these three eye-witnesses clearly shows, that these three eye-witnesses are inter-related and interested witnesses. . Further it may be noted that P. W. 1 Mohakamuddin in F. I. R. Exh. 5, while narrating the incident in question has clearly stated, that at time when the incident in question took place he, his son-in-law, Roshandin and deceased Pasand Khan were thrashing their wheat. He has further stated in his F. I. R: that on their cries P. W. Mohammad and P. W. Noor Mohammad came to the wardar, to whom he narrated the above facts. This version as given in the F. I. R. Shows that P. W. Mohammad and P. W. Noor Mohammad were not the eye-witnesses of the incident, otherwise P. W. 1 Mohakamuddin would have certainly mentioned this fact in his F. I. R. It may. Be noted, that P. W. 1 Mohakamuddin the complainant in his F. I. R. Had also stated, that P. W. 5 Abdul Razaq and P. W. Sher Mohammad also came on wardat on their cries. P. W. 5 Abdul Razaq in his examination-in-chief has denied this fact and was declared hostile by the prosecution. Further Exh. 21, mashirnama of the recovery of the production of hatchet, by the present appellant shows, that there were stains of blood on the blade of the said hatchet, whereas the medical evidence of. P. W. 8, pr. Alam Kumar, both in respect of deceased and P. W. 1 Mohakamuddin does not show that either deceased or P. W. 1 Mohakamuddin bad received any injury of the sharp side of any hatchet. In view of all this the testimony of these three interested and inter-related witnesses requires independent corroboration, in order to establish the guilt of the present appellant beyond reasonable doubt. This corroboration is being sought by the prosecution from the recovery of the blood-stained hatchet, at the pointa--tion of the present appellant, but as earlier stated by me, the alleged blood--stains were on the sharp side of the said hatchet, whereas no injuries from the sharp side of the hatchet were found on the person of the deceased nor on P. W. 1 Mohakamuddin and as such in my opinion, even if the said hatchet was recovered at the pointation of the present appellant, then too it cannot be said or be considered to be a corroborative piece of evidence against the present appellant. Further it may be noted, that P. W. 1 in his statement before the trial Court stated, that appellant above named gave hatchet blows on his head as well as hatchet blows to deceased Pasand Khan but the statement of P. W. 8 Dr. Alam Kumar, who perfor--med the post-mortem on the body of the deceased Pasand Khan and had examined P. W. 1 Mohakamuddin for the injuries sustained by him, does not show any hatchet injury either on the head of P. W. 1 Mohakamuddin or on the head of deceased and thus this statement of P. W. 1 Mohakamud--din in is in contradiction of medical evidence. P. W. 3 Mohammad and P. W. 3 Mohammad and P. W. 4 Noor Mohammad in their deposition before the trial Court did not mention anything about the alleged hatchet blow given by the present appellant to P. W. 1 Mohakamuddin. In view of this the presence of P. Ws. Mohammad and Noor Mohammad at the time of the incident, specially as they are not named as eye- witnesses in F. I. R. Becomes doubtful according to me. Therefore, the only evidence that is left, against the present appellant for having caused alleged hatchet blows to the deceased and to himself is that of r. W. 1 Mohakamuddin. It may further be noted, that according to P. W. 6, Karamat Hussain the investigation officer, the above appellant was present at wardar when he reached there, whereas P. W. 11; Asahar the Mashir of the arrest of present appellant; in his deposition has denied, that the present appellant was arrested in his presence or hatchet was recovered at pointation of the present appellant. Lnspite of this, this mashir was not declared hostile. It may further be noted that Exh. 18, which is a F. I. R. Of the counter case lodged by the present appellant was lodged on the same day at 5.30 p. m. And was recorded by the same Head Constable Karim Bux, P. W. 2, still the present appellant was not arrested by him on the basis of F. L. R. Exh. 5, whic4 is alleged to have been lodged earlier by P. W. 1, Mohakamuddin, in which the present appellant has been named as one of the accused. Therefore, the fact, the time and arrest of the above appel-- lant and alleged production of the blood-stained hatchet by him are not free from doubt.
22. Therefore, in view of the above observations made by me regar--ding the prosecution evidence on record, the conviction of the appellant on the basis of the uncorroborative statements of P. Ws.
Mohakamuddin, Mohammad and Noor Mohammad, on the basis of the reasonings given by the learned trial Court, in my opinion was not warranted, in view of the law laid down in the case of Lashkari and 4 others v. State (PLD 1981 Kar. 1) where it has been held : "When feelings between the parties become embittered false implication or inflation in the number of accused very often is resorted to. It is precisely for such reason that the Courts are to be on guard and normally look for some corroboration lending an assurance to the evidence of witnesses." The learned trial Court for such corroboration, while discarding the recovery of hatchet at the pointation of the present appel--lant, has relied upon the motive, as is mentioned in F. I. R. Exh. 5 and F. I. R. Exh.
18. F. I. R. Exh. 5 admits enemity with the present appellant on account of the motive mentioned in the said F. I. R.
But inspite of this the learned trial Court in his impugned judgment has categorically mentioned, that there is no enmity at ail between the parties. The appel--lant above named had raised the plea of alibi and had examined D. W. Taj Mohammad, who is father of P. W. 1 Mohakamuddin, but the learned trial Court has discarded the evidence of D. W. Taj Mohammad, on the short ground, that this theory of alibi was not put to prosecution witnesses and according, to the learned trial Court, this defence was an afterthought. Therefore in view of the discussions and observations hereinbefore made by me, the evidence of P. W.
1. Mohakamuddin, P. W. 3 Mohammad and P. W. 4, Noor Mohammad, the eye-witnesses, required independent corroboration, which is not available on the record, as the learned trial Court itself has not accepted recovery of blood-stained hatchet at the pointation of the present appellant and in the circumstances and the facts of the present case the motive given in F. I. R. Exh. 5 cannot be consider sufficient corroboration of the evidence of these three eye-witnesses: Further, since the incident as narrated by P. W. 1 Mohakamuddin in his deposition as well as in F. I. R. Exh. 5 shows, that there was general fight, but in spite of this, admittedly, present appellant received no injuries at all and further--more the arrest of the present appellant on site has not been supported by A P. W. 11 Aachar, the Mashir, who was not declared hostile and there is nothing on record to show, why present appellant was not arrested, when, he went to lodge his F. I. R. Exh. 13, when his name was already allegeu to have been mentioned in earlier F. I. R. Exh.
5. There is also a discre--pancy between the ocular and medical evidence relating to the injuries received by the deceased and P. W. 1 Mohakamuddin by hatchet, on their heads. Further the counter case filed by the present appellant was not challaned by police, without any cogent reasons and as such the investi--gation in my opinion was not above board.
Furthermore P. W. 3 Mohammad and P. W. 4 Noor Mohammad have not been shown as eye-- witnesses in F. I. R. Exh.
5. In view of all these conclusions arrived a, by me, in my opinion, the presence of the present appellant, at the tune of the incident, is not free from doubt.
23. Therefore, for the reasons given above, I would give benefit of doubt to the present appellant and allow the above appeal and set aside his conviction and sentences and direct, that he may be released forthwith, if he is not required in any other case.