ZAFFAR HUSSAIN MIRZA, J.-By this petition, petitioner Bagh A.I seeks to challenge the judgment and order of the Sind High Court, dated 10-3-1983 allowing the appeal of respondent Muhammad Anwar and setting aside his conviction and acquitting him of the charge of murdering Ghulam Muhammad alias Gulo. Muhammad Anwar was tried for the murder of the said deceased and was sentenced to death, besides being directed to pay a fine of Rs. 5,000 or in default to suffer rigorous imprisonment for two years by the learned Sessions Judge, Khairpur.
2. Petitioner Bagh A.I who is the brother of the deceased Ghulam Muhammad had lodged F.
1. R. At, Police Station Baberloi in Taluka Khairpur, on 16-10-1978 at 9-30 a.m. Stating that he was residing along--with his brother Ghulam Nabi in a separate house, whereas his brother Ghulam Muhammad deceased and his younger brother were living with their father at a short distance from his house. The complainant further stated that the Nikah of the dosed with one Mst. Alma daughter of Muhammad Mithal Metlo was performed about 12 months before and the marriage ceremony was to take place on the following day of the date of occurrence. Since the performance of the Nikah they had, however, come to know that Muhammad Anwar accused was on terms of illicit intimacy with the said Mst. Alma: On the day of the occurrence when Bagh A.I was sitting in his house at sunrise time, Ghulam Muhammad deceased and Ghulam Nabi went to their Juwar cultivation for cutting grass. After sometime Ghulam Nabi came running and informed Bagh A.I that Ghulam Muhammad deceased had been given hatchet blows by Muhammad Anwar accused in the Juwar cultivation and he had fallen down with his head severed from the trunk of his body as a result of injuries. Ghulam Nabi narrating the details of the occurrence informed Bagh A.I, that he had already placed the bundle o! Grass on his head when Muhammad Anwar accused appeared at the spot armed with a hatchet. Ghulam Muhammad deceased asked accused Muhammad Anwar to help place the bundle of grass on his head. The latter did so and while deceased was holding the bundle with both his hands Muhammad Anwar gave a hatchet blow on his neck whereupon the deceased fell down and then two more blows were given by Muhammad Anwar to the deceased on his neck as a result of which his head was severed from his body. Bagh A.I went over to the spot and found Ghulam Muhammad deceased having died on account of injuries.
3. Muhammad Anwar was arrested on 17-10-1978. His judicial confession was recorded on the same day. A blood-stained hatchet and blood-stained clothes were recovered from him which were subsequently found to be stained with human blood by the chemical analyser.
4. Muhammad Anwar denied the charge and stated in his 342, Cr. P. C. Statement that he had been falsely implicated at the instance of Ghulam Hussain who had got the deceased murdered as he wanted to marry Mst. Alma. He also repudiated the confession as having been voluntarily made by him and alleged that it was extorted by the police. He also denied the recovery of the blood- stained clothes and hatchet. As regards the prosecution witnesses he stated that they were inimical to him and had been set up by Ghulam Hussain who in fact had married Mst. Alma soon after the death of Ghulam Muhammad.
5. The case of the prosecution rests on the sole ocular testimony of Ghulam Nabi (P. W.) brother of the deceased and corroboration has been sought for his evidence from Bagh A.I (P. W.) also brother of the deceased and Ghulam Hussain the Zamindar of the complainant party. Additionally reliance was placed on the judicial confession which was retracted and the evidence of recoveries mentioned earlier.
6. The medical evidence in this case has assumed importance as the learned Judges of the High Court were greatly influenced by the palpable contradiction between the same and the testimony .Of the sole witness Ghulam Nabi. Dr. A.I Nawaz, Medical Officer has deposed that he found the following external injuries on the body of the deceased :-- "Throat cut completely at the level of route of neck. Cutting tips of both sternoclavicular joints.--- He was of the opinion that the death of the deceased occurred due to "complete cut throat as a result of shock and haemorrhage". There is no mention of more than one injury on the body of the deceased by the medical officer and the reading of his evidence clearly shows that he found only one injury on the deceased.
7. It has been mainly contended before us that the High Court has proceeded on palpably wrong proposition in holding that Ghulam Nabi, (P. W.) being the brother of the deceased, was an interested witness and, therefore, his sole testimony could not be made the basis of conviction without corroboration. Learned counsel urged that mere relationship with the deceased was per se not enough to discard' the evidence of this witness unless he had a motive for false implication of the accused which was not the case here. It was urged that even in a. Case of interested witness, corroboration is not a rule of universal application, where there is a single accused as substitution is a thing of rare occurrence and cannot be lightly assumed. The appraisal of ocular and corroborative evidence was also criticised as being based on surmises and conjectures. Finally learned counsel for the petitioner also made a grievance that the High Court had wrongly discarded the report of the chemical examiner simply because of delay and urged that no question on the point of delay was put to the investigating officer in the cross-examination.
8. There is no doubt that the learned Judges held the evidence of Ghulam Nabi (P. W.) as interested testimony requiring corroboration. However, the final conclusion reached by the learners Judges did not turn so much on this assumption. It is well-settled that the first step in the assessment of evidence is to evaluate the intrinsic worth of the testimony of a witness and if the Court is not satisfied that the witness was telling the truth, the question whether his testimony would require corroboration or not becomes wholly irrelevant. Evidence of the physical circumstance produced by the prosecution by way of corroboration apparently would) not by itself be sufficient for conviction. In this case we find that the High Court on a proper assessment of the circumstances on record, came to the conclusion that the evidence of Ghulam Nabi (P. W.) was unreli--able and not truthful. In this connection learned Judges have discarded the evidence of motive as unnatural and improbable. The version of Ghulam Nabi (P. W.) that the accused struck three blows with a hatchet on the neck of the deceased, one while be was in standing position and second when- he was knocked down, appears to be in conflict with the medical evidence. The argument of the learned counsel that it was for the accused to have clarified in his cross-examination from the doctor whether the injury found on the neck of the deceased could be the result of a single blow is not tenable. There was an apparent contradiction in the doctor's saying that he found only one injury -and the ocular testimony stating three injuries, which it was the obligation of the prosecution to clarify and not of the accused. Another important aspect that came to light on the' post-mortem examination by the doctor was the semi-digested food and gasses found in the small intestines of the deceased. Learned Judges of the High Court drew an inference from this fact that the deceased had not eaten his breakfast before his death and the presence of faceal matter and gasses in the large intestines indicated that the deceased had not moved his bowels before he met his death. These facts do not fit in with the story of the prosecution that the deceased had left his home in the morning after sunrise. In view of these circumstances it is not possible to hold that the High Court was wrong in rejecting the testimony of Ghulam Nabi, (P. W.) as untruthful. The fact that he was not inimically disposed to the accused would be of no avail to the prosecution if the version of the witness is inconsistent with material facts and circumstances of all unimpeachable character.
9. The other piece of evidence was the judicial confession. The confession having been retracted, the Court had to determine whether it was voluntarily and freely given. However, the High Court found that the confession was recorded by an Honorary Magistrate in a place used by him both as his chamber as well as his Court. There was no record of the usual warning being administered to the accused before time was given to him for reflection and finally the accused was given in the custody of the police after recording confession. Additionally the High Court found the version disclosed in the confession as contrary to the prosecution story, that, in the confession the accused is supposed to have said that the ban of Mst. Alma had been given to him by her father in the first instance bull later on he changed his mind and gave her to the deceased, whereas according to the prosecution case accused only had illicit connections with Mst. Alma. These are valid considerations for rejecting the confession as unworthy of credence and reliance.
10. As for the medical examiner's report it is sufficient to State that the learned Sessions Judge had also rejected this report but in any case in p the absence of other evidence the mere recoveries would not be sufficient to furnish a foundation for a conviction on a capital charge.
11. For all the foregoing reasons, we find no merit in this petition; which is accordingly dismissed.
M. Z. M.