1. ' This appeal is directed against the judgment of second Additional Sessions Judge, Khairpur dated 18-6-1983 convicting appellant Ali Dino under section 302, P. P. C. And awarding him imprisonment for life and fine of Rs, 5,000 and in default thereof R. I. For two years, thereunder and appellant Abdul Karim under section 307, P. P. C. And sentencing him to R. I. For five years and fine of Rs, 2,000 and in default thereof to R. I. For one year more thereunder. Both the appellants were on bail during the pendency of appeal. Their bail was cancelled as both of them have absconded. Their Advocate Mr. N. K. Jatoi has also not appeared on the date of hearing. But the abscondence of the appellants or the absence of their pleader at the time of regular hearing does not relieve the Court of its duty of perusing the record and disposing of the appeal on merits. Reference in this connection may be made to the case of Muhammad Ashiq Fakir (1) where it was held as under :- "What was then the consequence of the non-appearance of the appellant or his pleader, when the appeal was called for hearing by the learned Judge on the 26th April, 1967. The answer is to be found in section 423(1) viz. 'after perusing such record, and hearing the appellant or his pleader, if he appears and the Public Prosecutor, if he appears, the Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeals'. The absence of the appellant or his pleader, therefore, does not relieve the Court from the duty of perusing record and giving reasons in support of the judgment that there is no sufficient ground for interfering with the conviction and sentence of the appellant."
2. ' I have perused the record of this case and have also heard Mr. Sharafuddin Ada the counsel for State.
3. ' Briefly stated the prosecution story is that on 7-6-1978 at about noon time complainant Fakir Muhammad his father Yar Muhammad, his brother Moula Bux and deceased Sobhdar were on their tube-well when all of sudden. Appellants Ali Dino and Abdul Karim and accused Rasool Bux Hidayatullah and Azizullah all armed with guns came there. They abused the complainant party and in return the complainant party also abused them. The accused issued threats to the complainant and asked them to withdraw from their case which they had filed against them. The appellant Ali Dino fired gun at deceased Sobhdar which hit on his forehead, all the accused then gave blows to P. W. Yar Muhammad with butts of their guns. Abdul Karim fired at Moula Bux which hit him on left lumber region. On the {{FOOT NOTE}}
(1) PLD 1970 SC 177 {{FOOT NOTE}} cries P. W. Manjnoo and Arbab came. On seeing them the accused made good their escape and in to that process took away a pair of bullocks of the complainant which were grazing on the land.
4. The motive of the incident is long standing dispute between the Odha community to which the complainant party belonged and Ulro community to which accused party belonged, over land.
5. ' F. I. R. Was lodged by complainant Fakir Muhammad on the same -date at Baberloi Police Station which was taken down by A. S.
1. Muhammad Yousuf who was incharge there at the time of incident. The A. S. I. Proceeded to the scene of offence and inspected the same. He found blood at the scene of offence, as also 3 empty cartridges of 12 bore. He secured and sealed the same. He found Moula Bux and Sobho lying injured at the scene of offence. He inspected their injuries and made the inquiries from them and referred them to hospital. He also noted superficial injuries on the person of Yar Muhammad and did not refer him to the hospital. On 12-6-1978 he received message regarding the death of Sobho. He went and held inquest on the dead body of Sobho. The Investigating Officer arrested appellant Ali Dino and co-accused Azizullah, Rasool Bux and Abdul Karim. Azizullah produced his gun alongwith its licence. On 18-6-1978 the Investigating Officer on coming to know that the stolen bullocks were impounded in the cattle pound took the complainant to cattle pound where complainant identified his stolen bullocks and the same were handed over to the complainant by the Investigating.
6. Officer. The case was then challaned as shown above. A charge was framed against all the accused under section 302/307/392 read with section 34, P. P. C. To which all of them pleaded not 'guilty and claimed to be tried. The prosecution had examined the following witnesses at the trial :- ' Complainant Fakir Muhammad, injured Moula Bux, Wazir, Doctor Ali Nawaz, Doctor Captain Muhammad Anis, Muhammad Pannah, Tapedar, Abdul Aziz A. S. I. Who had produced Ballistic Expert report and Chemical Examiner's report and Investigating Officers, Muhammad S. H.
0. Following points for determination were framed by the trial Court :
(1) Whether Sobho died as a result of injury on his forehead ?
(2) Whether the accused sharing common intention caused the death of Sobho by giving him fire- arm injury and they caused injuries to Moula Bux and Yar Muhammad P. Ws. With intention to kill them ?
(3) Whether the accused committed the theft of bullocks of complainant ?
(4) Whether the accused committed the offence?
7. ' The learned trial Court found all these points against the appellants except point No, 3 and convicted and sentenced them as shown above. On point No, 1 there can be no scope for doubt or disagreement except with the finding as to the fact that the injury was caused by discharge from fire-arm as has been alleged by the complainant and P. Ws. And was not the result of a blow given by hard blunt substance as has been opined by two medical officers examined in this case. It is also to be seen whether any fire-arm injury was sustained by Moula Bux and for that matter whether any injury whatsoever had been sustained by Yar Muhammad. The prosecution had examined Dr. Ali Nawaz, Medical Officer, Government Dispensary, Piryaloi, who had examined, treated and certified the injuries on the person of Sobho when he was still alive, on being referred by Police on 7-6-1978. He found a lacerated wound 1" x scalp, deep on his forehead. He also found two pellets lying inside the wound. He removed those pellets and handed them over to police. On X-ray fracture of frontal bone was detected. In his opinion the injury was dangerous to life and appeared to have been caused by hard and blunt substance such as piece of stone or a piece of brick. He has excluded the possibility of discharge from fire-arm being the cause of this injury and has stated that the pellets appeared to have been inserted in the wound artificially.
8. ' Injured Sobho died in the Civil Hospital subsequently and his postmortem examination was conducted by Dr. Capt. Muhammad Anis, who was Medical Officer at Civil Hospital, Khairpur on 12- 6-1978. He has stated that on external examination he found a lacerated wound 'L' shaped 1 x 1/6"x bone deep and a little above mid area ( f the forehead. The bone was fractured and nature of injury was dangerous. On internal examination he found, on opening the skull, that the frontal bone on left side was fractured and pushed into the brain. Roof of the orbit and floor of interior canal fossa showed multiple fracture-membranes of brain and brain itself were intact but under pressure due to the depressed fracture. Blood clotts were in the area. Liver was enlarged, gullbladder was distended with bile and adherent with surrounding structure. He was of the opinion that the death was due to above injury. He was also of the opinion that the injury would have been caused by stone or back side of hatchet and could not have been caused by discharge from fire- arm.
9. ' It would, therefore, appear that as against the evidence of complainant and P. Ws. Moula Bux and Wazir, there is the abovementioned evidence of two medical officers Dr. Ali Nawaz and Dr. Capt.
10. Muhammad Anis. Both these Medical Officers had categorically stated that this injury on the person of deceased Sobho was the result of a blow with a hard and blunt substance and not by discharge from fire-arm as alleged by the complainant and P. Ws. Dr. Ali Nawaz has gone to the extent of saying that the pellets which were found embedded in the injury were inserted therein artificially.
11. ' The learned Additional Sessions Judge has then dealt with this discrepancy in para. 21 of his judgment :- "The medical evidence of Doctor Ali Nawaz and Doctor Captain Muhammad Anis confirms the ocular evidence as regards the time of incident the number of injury and the seat of injury.
12. However, there is contradiction as to weapon used in injury. According to Doctor Ali Nawaz he found 2. Pellets in the wound but he has opined that injury on the person of deceased Sobho was caused with hard blunt substance i. e. Piece of stone or piece of brick. According to him the pellets appeared to have been penetrated in the wound artificially and discharged by fire-arm. This portion of evidence of Doctor Ali Nawaz and that of Doctor Captain Muhammad Anis that the injury on the person of deceased was caused by blunt weapon is not truthful and appear to have been influenced. According to Mashirnama of injury which was prepared on the day of incident at 1300 hours by the Investigating Officer the injury on the person of Sobho appeared to have been caused from fire-arm vide (Exh. 18). According to inquest report which was prepared attar death of injured by Investigating Officer vide (Exh. 14). The injured had fire-arm injury on his person (Exh. 14). The Mashirnama of dead body dated 12-6-1978 (Exh. 15) also shows that Sobho had fire-arm injury. The circumstantial evidence on the record in the form of Mashirnama and inquest report show that the deceased Sobho received firm-arm injury. The medical evidence to this extent appears to be tampered one."
13. ' I have no hesitation in stating that the learned Additional Sessions Judge has misappreciated the evidence by disbelieving the concurrent opinions of the two Medical Officers and brushing aside the same in such a light manner. The Medical evidence is to be given preference to the ocular evidence specially when the same is given by as many as two Medical Officers and when the ocular evidence is of closely related and inimical witnesses as is the case with the complainant and P. Ws Moula Bux and Yar Muhammad. Where there is a conflict between the medical evidence and ocular testimony of witnesses and the evidence of the prosecution witnesses who are not above reproach and whose evidence does not inspire confidence whereas the medical evidence is not open to any doubt or suspicion, the only safe and judicial method of assessing evidence is to rely upon the medical evidence and to approach the oral testimony with caution testing it in the light of the medical evidence. Reference in this connection may be made to the case of Thakur v.
14. The State (1) where it has been held as follows : - "Where there is a conflict between the medical evidence and the oral testimony of witnesses, the evidence can be assessed only in two ways. A Court can either believe the prosecution witnesses unreservedly and explain away the conflict by holding that the witnesses have merely exaggerated the incident or rely upon the medical evidence and approach the oral testimony with caution testing it in the light of the medical evidence. The first method can be applied only in those cases where the oral evidence is above reproach and creates confidence and there is no appreciable reason for the false implication of any accused. Where the evidence is not of that character and the medical evidence is not open to any doubt or suspicion, the only safe and judicial method of assessing evidence is the second method."
15. ' Even the opinion of Investigating Officer as to the nature of injury given in the Mashirnama of injury or in the inquest report cannot have preference over opinion of the Medical Officer because the police officer is after all a lay man and cannot give scientific opinion about the nature of an injury.
16. Similiar view was taken in an Indian ruling reported in B L J 1954 H C R 1946 (D. B.) where it was held that in the presence of clear and cogent evidence of the doctor and in the face of his withstanding the cross-examination tests successfully the evidence of a layman like a head constable should not be believed on the question of nature of injuries on the body of the deceased.
17. ' In another ruling reported in 1970 P Cr. L J 546 it was held that it was not expected of the Investigating Officer to make a thorough examination of each witness with the skill with which it was done by doctor. The preparation of the Mashirnama of injuries is a routine matter and no particular emphasis can be laid with regard to its correctness for, if the witnesses are injured they are usually sent to the doctor for examination {{FOOT NOTE}}
(1) AIR 1955 Ali. 189 {{FOOT NOTE}} and treatment. The medical evidence has its importance as a corroborative piece of evidence and may even negate the ocular evidence which is wholly inconsistent with it, on material points such as the number of injuries or the weapons with which the injuries were inflicted. Where the doctor's evidence does not corroborate the evidence of the prosecution witnesses it would be unsafe to convict the accused on such statements, which are not corroborated by the medical evidence.
18. Reference in this case may be made in the case of Haji Ghulam Hussain v. The State (1) where a D.
19. B. Of this Court comprising of Muhammad Haleem J. (as he then was) and Jamaluddin H. Ahmed, J. Held as follows :- "After examining the medical evidence it is clear that the injuries on deceased Muhammad Soomar were caused by pellets of a shotgun. These were not caused by firing from the revolver. This evidence of the Medical Officer is in perfect conformity with the opinion of the Ballistic Expert, according to whom the revolver secured in the case had not been used at all. The evidence of the witnesses who said that they saw the appellant firing with the revolver at the deceased S3omar or for that matter even at injured Saleh is completely belied. In view of this conflicting evidence it is not possible to place reliance on the evidence of these witnesses as it does not seem to be corroborated by any circumstances appearing in the case."
20. ' Reference may also be made to well-known case of Safdar Ali v. The State (2) where appeal was accepted and conviction was set aside on the ground of conflict between the evidence of eye- witnesses and that of the medical witnesses. Medical evidence was not taken into consideration and the non-consideration was regarded as a serious commission to consider the material evidence.
21. ' This opinion given by these two medical officers was not even challenged by seeking appointment of an appellate Medical Board. The learned trial Court has not pointed out distinguishing features of this injury from the one caused by a hard blunt substance or those features that show that the injury was similar to the one caused by a discharge from a fire-arm.
22. ' Dr. Ali Nawaz had examined the injuries on the person of P. W. Moula Bux. He found the following injuries :-
(1) Incised wound 2k" x muscle deep on left iliac crest region in lying with it.
(2) A lacerated wound 1/4"x skin deep on extensor side of inter flagable joints of left second and third finger.
(3) A contusion i" x 1/4" on extensor side of metacorpo Flagler joints of right index and middle finger.
23. ' Injuries Nos. 1 and 2 were declared simple while Injury No, 3 which shows fracture of first phalngal bone of right index finger, was declared grievous by him. According to Medical Officer Injuries Nos. 2 and 3 were caused by a hard and blunt substance while injury No, 1 was caused by sharp cutting substance.
24. ' This medical evidence is also inconsistent and contrary to the evidence of eye-witnesses, who had stated that appellant Abdul Karim had fired gun shot at Moula flux, which hit him. They have not stated that the {{FOOT NOTE}}
(1) PLD 1976 Kar. 1160 (2) PLD 1953 FC 93 {{FOOT NOTE}} accused had given blows to him with a Lathi or hatchet or any other hard and blunt or sharp cutting substance The 3rd victim of the offence is Yar Muhammad. It is alleged by all the eye- witnesses i, e. Complainant and the two P. Ws that accused Rasool Bux gave blows to. Yar Muhammad with butt of his gun. Yar Muhammad was not referred to the Medical Officer and, therefore, I cannot accept the prosecution version that any injury was sustained by Yar Muhammad.
25. ' The ocular evidence in this case consists of the testimony of complainant Fakir Muhammad his brother P. W. Moula Bux and their father P. W. Yar Muhammad. These three persons are closely interrelated as shown above and are also closely related to deceased Sobho, who was a relative of the complainant and P. Ws. The statements of these three eye-witnesses are no doubt in accordance with the F. I. R. But the same cannot be relied upon in absence of strong and independent corroboration because admittedly they are inimical to the appellants and other accused as there is long standing enmity between them and the accused party over the land at which this incident is said to have taken place. In this connection reference may be made to the true copy of F. I. R. Which has been produced in this case as Exh.
43. It is under section 307, P. P. C. And 13(d) of A.
0. It was lodged by appellant Abdul Karim against complainant Fakir Muhammad and others.
26. Complainant Fakir Muhammad is said to have fired pistol shot at the accused Abdul Karim, according to this F. I. R. On 30-4-78 i,e, about one month before this incident. Besides complainant Fakir Muhammad has admitted in the cross-examination that there is long standing enmity between the communities of Ulras and Odha over the lands. The accused party belongs to Ulra community and complainant party belongs to Odha community. He has also made are admission which shows that the complainant party and the accused part} are at daggers drawn for the last many years. Hence it would appear that the complainant and the P. Ws. Had a motive to falsely implicate tilt accused and, therefore, they will be treated as inimical and partisan witnesses. The evidence of such witnesses requires strong and independent corroboration. Reference in this connection may be made in the case o lVusiullah v. Mirza Ali (1): "When such be the case, and the main direct evidence be also that o interested persons, i. e.
27. Enemies of the persons charged, it is propel to ask that the evidence in corroboration should be exceptional strong, almost, if not quite, sufficient by itself to establish the guilt of individual accused persons, beyond reasonable doubt."
28. ' There is no other evidence whatsoever to connect the present two appellants with the crime. The gun which is said to be the crime weapon was recovered at the instance of co-accused Azizullah who had a licence for the said gun. The opinion of the Ballistic Expert is that the 3 empty cartridges secured from the science of offence were fired from that gun. The recovery obviously cannot be used against appellant Ali Dino. The reasoning of the learned Additional Sessions Judge that appellant Ali Din might have used the gun of his uncle is merely a conjecture and cannot treated as a piece of legal evidence.
29. It would, therefore, appear that the ocular evidence of complainer. Fakir Muhammad and P. Ws.
30. Moula Bux and Yar Muhammad unreliable evidence in as much as it comes from the mouth of inimical are partisan witnesses and is not corroborated either by circumstantial evident
(1) PLD 1963 SC or by any other evidence whatsoever and is on the contrary falsified by the' evidence of two Medical Officers and, therefore, cannot be believed by any stretch of argument whatsoever. The case against co-accused Rasool Bux and Azizullah is based on the identical evidence. Both these accused have been acquitted by the learned Additional Sessions Judge on the ground that they had not played any role in the commission of the offence. I am therefore, unable to agree with the finding of the learned Additional Sessions Judge on this point and hold that the prosecution has hopelessly failed to prove its case against the appellants Ali Dino and Abdul Karim.
31. ' The finding of the learned Additional Sessions Judge on point No, 3 is already in negative. This pair of bullocks was not found from the possession of any one of the appellants or accused but was found from a cattle pound. Obviously, there could be no connection between the appellants and the cattle pound.
32. ' Under these circumstances I allow the appeal and set aside the impugned judgment and the conviction recorded against the appellants and the sentence passed upon them and acquit them of the above charges. The appellants were on bail and have absconded. However, in view of the above finding I direct that their bail bonds be discharged and P. Ws. Issued against them be recalled. Notice issued against their sureties are also discharged.