ALI NAWAZ BUDHANI, J.-By a short Order dated 13-5-1982. We had dismissed the appeals and the revision for enhancement of sentence. Following are the reasons for the same.
2. The two appellants Muhammad Yusif son of Fateh Muhammad and Muhammad Sidik son of Muhammad Ismail were convicted and sentenced by the Sessions Judge Mirpurkhas on 29-5-1980, to imprisonment for life and further fined Rs. 5,000 each and in default to suffer R. I. For six months.
The fine if realized was ordered to be paid as compensation to the heirs of the deceased under section 544-A, Cr. P. C: The two appellants have filed separate appeals Nos. 259/80 and 189/80 against their conviction and sentence. The complainant has filed Criminal Revision No. 124/80 for enhancement of the sentence awarded to the appellants. By the same Judgment learned Sessions Judge had acquitted accused Umar and the State has filed acquittal appeal No, 250/80. Accused Umar was also acquitted in a case under Arms Ordinance against which State has filed separate appeal No. 251/80. The instant judgment will dispose of the connected appeals and revision mentioned above.
3. The prosecution facts would at best be gathered from the F.
1. R. Which we propose to give as follows :- ---The complainant is that I am a primary teacher at Bhurgri School Mirpurkhas. Today at 15-45 hours while I was sitting in my house, when: Ismail Shopkeeper came running to me and called me.
He informed me, "while I and my workmen Alimuddin and Abdul Hameed were sitting at my shop, when at about 1-30 O'clock suddenly Siddik Umer and Yousuf Tellies who are already known to me, armed with daggers appeared on the road of Bazar in front of my shop and fought with your brother Mohiuddin. Within our sight they successively stabbed dagger blows to Mohiuddin and made him injured, who fell down on the ground. We tried to rescue Mohiuddin, where--upon Yousuf and others threatened to kill us if we approach to them. Due to fear we could not go near to them.
After injuring Mohiuddin, and seeing him falling on the ground Yousuf and his companions ran away towards Hirabad. We found injured Mobiuddin was bleeding from face, abdomen and other parts of the body. I asked Abdul Hameed and others to take Mohiuddin to Civil Hospital and I am going to inform the relatives of Mohiuddin. Now I have come to inform you". On having such facts from Ismail. I accompanied Ismail to Civil Hospital, where my brother Mohiuddin was lying dead at emergency room. Abdul Hameed informed me there that Mohiuddin succumbed to the injuries in the way near Mania Mosque while, he, Manu and other neighbours carrying him in a tonga to Civil Hospital. Having such facts by Abdul Hameed, leaving the above persons over the dead body of my brother, I have come to the P. S. I lodge complaint that twice (2) before this incident accused Siddik and Mohiuddin had fought with each other in which his brother Mohiuddin was accused and the case was pending against him. Today in order to avenge the previous quarrel, the accused in collusion with each other having got an opportunity, intentionally stabbed my brother Mohiuddin to death with daggers."
4. The F. I. R. Was registered by A. S. I. Wahiduddin at 4-30 p. m. Before the arrival of then complainant at the police station appellant Yousuf also reached the police station and there was injury on his head and he was bleeding. He too wanted to lodge the F. I. R. But the A. S. I. P. Did not take down the same. The A. S. I. Inspected the injury of Yousuf and prepared such Mashirnama. He secured the blood-stained shirt, Banyan and Chadar of Yousuf which he was wearing. The investigating Officer thereafter went to the Civil Hospital and inspected the dead body in the mortuary and prepared inquest report The scene of offence was inspected by the A. S. I. Which was near the dispensary of Dr. Safdar in Chaki Para, Mirpurkhas. Blood was found on the stones lying near the electric pole. He secured the blood-stained stones. He further examined P. Ws. Ismail, Abdul Hamid, Alimuddin and Munna alias Bashir. He also arrested appellant Muhammad Siddik and Umar. On 4-5-1979 blood-stained shirt, shalwar and Dagger were secured at the instance of accused Umar from his house. Similarly blood-stained shirt and. Shalwar. Was muted at the instance of appellant Siddik who led the Police to the discovery of a blood--stained dagger from a place near Kahu Dara. Next day namely on 5-5-1979 appellant Yousuf led the police and produced blood-stained Gararidar knife from under the heap of mud in the street behind Chiragh building.
Subsequently these articles were sent by the S.H.O. To the Chemical Analyser whose report in respect of these articles is in affirmative excepting blood-stained clothes and dagger secured from accused Umar. Ultimately the case was challaned by the S. H. O. Mr. Solangi.
The motive described is that on 22-12-1978 one Muhammad Iqbal who was brother of appellant Siddik had filed a case against deceased Mohiuddin under Section 307, P. P. C. Yousuf appellant was a witness in that case. This offence was committed by the appellants in order to take revenge of that crime.
6. The appellants in their statements under section 342 Cr. P. C. Have denied to have inflicted knife or dagger blows to the deceased. They have also denied that appellant Yousuf had appeared at the police station wearing blood-stained clothes and having an injury on his bead. They have further denied that they had made discovery of the blood-stained clothes, knife or dagger.
According to them these articles have been foisted on them. The appellant Yousuf has further allowed that be was given beating by the Investigating Officer as a result of which he sustained the injury on his head. The appellants further stated that they are falsely implicated so that they may not give evidence in the case filed under section 307, P. P. C.
7. We have heard Messrs Usman Ghani Rashid and Fazal Hussain Mirza for the appellants/accused and Mr. Murtaza Aussain for the, State. Mr. Allahdino Memon was heard on behalf of the private complainant.
8. The evidence against the appellants consists of ocular testimony of the three witnesses namely Ismail, Abdul Hameed and Alimuddin. Their depositions are at Exhs. 8, 12 and 13 .Respectively. The ocular testimony is supported by circumstances namely the recovery of crime weapons and the blood-stained clothes of the appellants coupled with the circumstance that the certificate of the Medical Officer is available to the effect the appellant Yousuf had- sustained injury. Each piece of evidence may be dealt separately
9. The ocular testimony of Ismail, Abdul Hamid and. Alimuddin is very important in this case. The time of occurrence was 3-30 p. m. And it was a broad daylight when the incident took place in the heart of city of Mirpurkhas in a thickly populated area. On the face of it there does not appear any scope for mistaken identity or for substitution or for false implication. P. W. Ismail is a Tailor Master and his shop is adjacent to the scene of offence. P. Ws. Abdul Hameed and Alimuddin were assistants of Alimuddin working in the same shop. They all were sitting at the shop at the relevant time when they heard commotion outside the shop. They saw that appellant Yousuf armed with a knife and appellant Siddik and Umar armed with daggers were giving blows to Mohiuddin who was trying and to save himself by retreating till he reached the electric pole and felt down. These three witnesses had come out of their shops and had made efforts to intervene but they were threatened by the appellants and hence they remained back. The witnesses have also averred that appellant Siddik while giving last blow to the deceased had accidentally hit the head of the appellant Yousuf who was thus injured. In.Nut-shell the evidence of these three eye-witnesses is as above.
10. On the other hand evidence of the Medical Officer shows that the deceased had sustained about 13 injuries and they are as follows
(1) A contused wound l-- x 1/6" x scalp deep on left side forehead.
(2) An incised wound 1-- x 1/6" x 3" deep right front chest on right lateral margin of sternum.
(3) An incised wound 1--" x 1/6 x 3" on right hypocomdrium.
(4) An incised wound 1--" x 1/6" x 3--" pm the left mid axillary line of the chest.
(5) An incised wound 2--" x 1/6" x 3" deep on medial to the left scapula on the posterior surface of chest.
(6) An incised wound 1--" x 1/6" x muscle deep left lumbar region.
(7) An incised wound 3--" x 1-- x skin deep left back of hand.
(8) An incised cut --" x 1/6" on left little finger.
(9) Three incised wounds scattered on leteral side of left thigh each measuring 1--" x 1/6" x muscle deep.
(10) Three incised wounds superficial scattered 1--" x 1/6" on right lower leg.
11. In the opinion of the Medical Officer these injuries were caused either by Knife or by Dagger. The death was due to these injuries. Injuries Nos. 2, 3 and 4 individually and all collectively were sufficient to cause death in the ordinary course of nature.
12. The ocular evidence is criticised by the learned counsel of the appellants on the grounds that the three eye-witnesses are not reliable as they are related and interested and that there is discrepancy in their statements as recorded under sections 161 and 164, Cr. P. C. And the depositions before the trial Court. It has been argued that the witnesses had changed from their statements which they gave before the Police that they were witnessing the incident from inside the shop while in Court they said they had come out of the shop. This criticism has no importance and it does not appear to be very material to create genuine doubt as to the veracity of their evidence. Similarly the objection that independent witnesses like Alisher Tailor and the by on the shop of Tina Dibbeywala were present but their evidence was not recorded by the Police and whose evidence is recorded in the Court. The trial Court has replied to the criticism levelled against ocular evidence. It has been pointed out in the impugned judgment that complainant Inamuddin is Pirzada by caste while P. W. Ismail is a Pathan and P. W. Abdul Hamid is Qureshi and P. W. Alimuddin is Khokhar by caste. Thus, they appear to be not connected with the complainant's party. We have assessed the evidence of three eye-witnesses and to us the evidence appears to be quite natural as these witnesses were working in their shop when the incident attracted them to come out to witness the scene. They had clearly identified and seen the appellants delivering blows to the deceased who ultimately fell down near the electric pole. The appellants then made good their escape. It is a broad daylight incident as these witnesses have no motive to say against the appellants we have also taken into consideration the injury on the person of appellant Yousuf. This injury, in whatever manner it is caused, signifies that Yousuf is one of the culprits and his being present at the scene of offence as assailant, as deposed by the prosecution witnesses, is established. The Police however, did not record the F. I. R. Of Yousuf. Perhaps the police thought that the injury on his person will furnish a circumstance of his presence in the murder case. Thus, we are in agreement with the trial Court in believing the evidence of the three eye-witnesses and the complainant who is a school teacher and a respect--able person.
13. The trial Court believed that appellant Yousuf did produce the Knife Gararidar to the police and that it was blood-stained. Similarly the trial Court held that appellant Siddik led the police to the discovery of blood--stained Dagger. These clothes and weapons of crime were found by the Chemical Analyser to have been stained with human-blood. So far accused Umer is concerned, his case has been distinguished from the case of others inasmuch as the Dagger and clothes secured from him did not carry human--blood, according to the report of the Chemical Analyser. The recovery of clothes in case of accused Umer were made from the Almirah lying in a room of his father's house and also a Dagger was found in the said Almirah. This house belonged to his father.
It was the case of the prosecution that, these articles were lying open, as such the trial Court remarked that false implication of Umar cannot be ruled out. Accused Umar is real cousin of appellant Siddik and a close relative of appellant Yousuf. Hence his false. Implication in addition to accused Yousuf and Siddik cannot be ruled out under the circumstances of the case. The crime weapon and clothes were ping openly in the Almirah, hence exclusive knowledge cannot be attributed to accused Umar. Besides there were other family members living in the same house.
14. The benefit of doubt given to Umar is an act of judicial prudence. We find that the articles secured at the instance of Umar are from the house of his father and the same were lying under the AI trah. This behaviour of the accused by keeping articles in his father's house openly being blood--stained is against the dictums of ordinary prudence of a culprit. To this extent the learned trial Court has given the benefit to accused Umar and we are not inclined to disagree with the trial court on this particular point. The trial Court in extending the benefit of doubt - to accused Umar has followed the judicial. Principles.
15. As against appellants Yousuf and Siddik, there is overwhelming evidence. On no account the ocular testimony against them could be discard ed. Further the clothes and crime weapons secured from them contained human blood as per report of the Chemical Analyser. This circumstances corroborates the ocular testimony. The injury on the person of Yousuf is an additional circumstance which indeed corroborates the ocular testimony of the three witnesses.
16. We are of the considered view that the findings of the learned Sessions Judge in respect of the appellants Yousuf and Siddiq is sound based on good reasons. We, therefore, dismiss the appeals filed by the two appellants against their convictions.
17. After having dismissed the appeals of the appellants we now advert to the Criminal Revision No. 124/80 in which the applicant Inamuddin who was complainant in the murder case in the trial Court, had prayed that the sentence of Sdidiq and Yousuf be enhanced. In this respect again we refer to the observations of the trial Court which are pertinent on the point. While dealing with the quantum of punishment the trial Court has observed that it is not clear as to which of these two appellants had given the three fatal blows to the deceased. Therefore, it would not be desirable to award capital punishment to any one them. Reference is made to 1968 P Cr. L J 791. In this decision I.B. Khamisani and Waheeduddin Ahmed, JJ. Held that when fatal injury causing death of the deceased is not attributable with certainty to one or the other or the two accused, liability of the accused in the circumstances would be constructive and sentence of death was reduced to the transportation for life. Three assailants were involved in the inflicting of injuries on the person of the deceased. Injuries Nos. 2, 3 and 4 individually were sufficient to cause death of the deceased in the ordinary course of nature. Since these injuries are not attributable to any of the two appellants singly, the liability of the appellants in constructive in nature and as such lesser punishment was found to be proper for the ends of justice. In this respect also we find that the trial Court has given a sound decision. There are no strong grounds, in the circumstances of this case, to enhance the punishment awarded by the trial Court to the appellants. We reject the Revision Petition 124/80.
18. So far the appeal against acquittal ref accused Umar is concerned benefit of doubt is extended to him on the principle that incriminating circum stance does not implicate the accused Umar. The recovery of blood-stained clothes and the dagger from Umar is disbelieved by the trial Court and the house did not belong to the accused Umar. Besides the articles were not blood-stained as per report of the Chemical Analyser.
19. The entire evidence led during the trial against accused Umar has been appraised and assessed by the trial Court minutely and we do not find any flaw with the conclusions arrived at by the trial Court.
20. The principles which justify the interference by the superior Courts with orders of acquittal have been laid down by our own Supreme Court are to be found enunciated in the case of Fateh Muhammad v. Bagoo and another (1) and Serajuddin v. Kala (2). These principles are reiterated in PLD 1964 (W. P.) Kar. 356 wherein it is observed as follows:- "These principles are that unless it can be demonstrated with certainty that none of the grounds on which the trial Court has purported to acquit is at all supportable, the superior Court will be reluctant to interfere even though upon the evidence on record and the facts and the circumstances of the case, this Court might well have come to a different conclusion if it was trying the case."
21. Special importance attaches to the view formed of the credibility of witnesses by the trial Judge when the matter comes up before an appellate Court in an appeal against acquittal. In the case reported in PLD 1954 FC 174 their Lordships had reproduced the observation of Judicial Committee bearing upon this aspect in the case of Sheo Swarup (3) at p. 404. We reproduce the same hereinbelbw ; ---Sections 417, 418 and 423 of the Code give to the High Court full power to revise at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it he found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (PLD 1960SC286) the views of the trial Judge as to the credibility of the witnesses; (PLD 1964SC26) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (LR611A398) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate Court is disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witness. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well-known and recognised in the administration of justice.---
22. In view of these decisions of the Superior Courts, we are not inclined to accept the appeal against the acquittal of accused Umar filed by the State. The same is dismissed.
23. Similarly the Acquittal Appeal No. 251/80 in respect of the Arms Ordinance on the same grounds is hereby dismissed.
24. As a result of our above discussion we dismiss the appeals and the revision and maintain the judgment and sentence of the trial Court.