1. ' SALEEM AKHTAR, J.-- Niaz Muhammad P.W.1 lodged F.I.R. On 12-5-1980 at about 8-30 a.m. Alleging that in the morning Nazar Muhammad and Allah Rakhio came to Nek Muhammad his brother who asked them to help in painting the regulator. He further asked them to go there and he would follow them on cycle. The complainant who also resided there and works at the same regulator along with Nazar Muhammad and Allah Rakhio proceeded to regulator by Tori Protection Bund.
2. They had covered a distance of 1-1/2 furlongs when h brother Nek Muhammad crossed them on cycle. After a short distance Hashi and Mir Ali resident of Tori Protection Bund armed with gun and Abdul Kari and Abdul Ghani armed with hatchet emerged from the jungle on the souther side of the Bund. Hashim and Mir Ali fired with their gun. Nek Muhamrna raised cry and fell down from the cycle Complainant Niaz Muhammad and Alla Rakhio also raised cries. The appellants then dragged Nek Muhammad from t Bund towards jungle. Abdul Karim took the cycle of Nek Muhammad an followed them. In the meantime complainant's brother Jumo and Jamal Di came there. The accused after dragging Nek Muhammad in jungle gave hatch blow and killed him and threatened all of them not to come near them. Naz Muhammad and Allah Rakhio went to the rescue of Nek Muhammad but Abd Karim and Abdul Ghani gave hatchet blows to them and all of them remained quiet. Hashim, Mir Ali and Abdul Karim took the dead body of Nek Muhamma while Abdul Karim followed them on bicycle of Nek Muhammad. The motive was alleged to be the revenge for the death of Muhammad Teghani father of Abd Ghani and Mir Muhammad who had died his natural death 3/4 years back by the accused were of the view that he had been poisoned by Nek Muhammad.
3. ' After recording F.I.R. Siraj Ahmad S.H.O. Proceeded to place drrence. The accused had fired at the deceased on the protection Tori Bun One empty cartridge of twelve bore gun was found 50 paces from Tori Bund I the Lai jungle. Four wads were also found and all of them were secured. Th marks of cycle wheel were found upto 10 paces from Tori Bund and thereafte there was hard ground. At the place of firing there was blood. Towards its sout there were dragging marks and footprints. At a distance of 23 paces there was Lai jungle where a accused had given hatchet blows. Fresh blood was found an secured. About 218 paces from the place of firing at Tori Bund there appellant's place for storing crops called 'Dera'. From the Lai jungle where hatchet blows were given till the `Dera' there was a trial of blood. Following th blood marks the Investigating Officer reached the appellants dera, the outer hedge of which had been cut at one place. In the pease grass lying in the dera th dead body of deceased Nek Muhammad was found. The blood from that plat was also secured. He found gunshot injuries in the left thigh and lower part of the leg of the deceased. The neck had been cut except the skin of the right side.Incised wounds were seen on the head and all injuries were bleeding. After preparing Mashirnamas the dead-body was despatched through P.C. Shahal Khan. At the wardat Nazar Muhammad and Allah Rakhio were produced who were injured. The Mashirnamas was prepared in presence of the same mashir and the statement of these two witnesses as well as of Jumo and Jamal Din was recorded. Thereafter, Nazar Muhammad and Allah Rakhio were sent to Ghous Pur Hospital for treatment. On 15-5-1980 the I.O. Arrested accused Mir All Abdul Karim and Abdul Ghani and prepared mashirnama in presence of the same mashirs. On arrest accused Mir Ali led to the Police and mashirs to house from where he produced a double barrel gun with 14 pallets wrapped in handkerchief. There was gun powder in small bottle. It was a licensed gun. A mashirnama was prepared for its recovery. The accused Abdul Ghani led to his house and from the roof of his house he produced blood-stained hatchet which was sealed.
4. Accused Abdul Karim led to his house from where he produced hatchet which was also blood- stained. He also produced one cycle from his house belonging to accused Nek Muhammad and mashirnama was prepared. Hashim was arrested on the same day and mashirnama was prepared. After the arrest he produced from his house a double barrel gun with a licence and a belt containing 7 live cartridges of .12 bore. On 17-5-1980 statement of Allah Rakhio and Nazar Muhammad and Jumo was recorded under section 164, Cr.P.C. The bloodstained hatchet, and earth were sent to Chemical Examiner. The examination report says that the earth contained human blood but on the hatchets and handles no blood was detected.
5. ' In their statement accused denied the charge and stated that they have been falsely involved due to enmity.
6. ' The prosecution examined eleven witnesses and the learned trial Judge sentenced all the appellants under section 302/34, P.P.C. To death and fine of Rs,10,000 each and in default to suffer sentence R.I. For two years. Accused Hashimdviir Ali, Abdul Karim and Abdul Ghani were further convicted under section 201/34, P.P.C. And sentenced to suffer R.I. For two years and to pay fine of Rs,2,000 each and in default to undergo further R.I. For six months each. Abdul Ghani and Abdul Karim were further convicted under secion 324, P.P.C. And sentenced to undergo R.I. For one year each and pay fine of Rs,1,000 each and in default to undergo R.I. For three months each. Abdul Ghani and Abdul Karim were further convicted under section 323, P.P.C. And sentenced to suffer R.I.
7. For six months each and to pay line of Rs,500 each and in default to suffer further R.I. For one month each, and in default to suffer R.I. For one month each. Abdul Karim, Mir Ali, Hasham and Abdul Ghani were further convicted under section 401/34, R.I. For one year and further to pay fine of Rs,1,000 and in default thereof further R.I. For three months each. Fifty per cent. Of the line imposed for offences under sections 302/34, P.P.C. 201 and 404, P.P.C. If recovered were to be paid to legal representatives of the deceased Nek Muhammad and 50% of the fines imposed for offences, under section 324/323, P.P.C. If recovered were to be paid to the injured Nazar Muhammad and Allah Rakhio. All the sentences were to run consecutively.
8. ' Mr. Azizullah Shaikh the learned counsel for the appellant has contended that in view of the conflict and contradictions in the evidence of the prosecution witnesses, the charges have not been proved beyond reasonable doubt. In this regard the learned counsel has taken us through the entire evidence recorded by the learned trial Court. P.W.1 Niaz Muhammad complainant is the brother of the deceased. In his statement he has given specific role to the appellants which does not find place in the F.I.R. In the statement under section 164 also such specific role as stated in the statement was not mentioned.
9. ' Therefore, from the scrutiny of the statement of P.W.1 it seems that he has made improvements and tried to fill in the gaps which were left in the F.I.R. And the statement under section 164, Cr.P.C.
10. Nazar Muhammad P.W. 2 is also an eyewitness. He stated that when Hasham and Mir Ali fired at the deceased and he fell down, Nazar Muhammad and Allah Rakhio raised cries, he and Allah Rakhio grappled with appellant but as they were empty handed Abdul Karim and Abdul Ghani gave hatchet injuries to them. The fact that he grappled with the appellants has not been stated by any of the eye-witnesses, nor this fact finds place in the F.I.R. The presence of P.W.2 has been challenged by the learned counsel for the appellant. According to him there was no need for him to come to the house of the deceased in the morning as according to the evidence on record regulator was in between the house of Nek Muhammad and P.W.2. If the work was to be done at the regulator it was normal that a person coming from his house would go straight to the regulator instead of first coming to the house of the deceased and then going back to the regulator. The learned counsel for the appellant has also pointed out that according to P.W. 1 he was reluctant to go to the regulator as he was going to Ghouspur. This was denied by P.W.2. In his cross- examination he stated that on receipt of hatchet injuries he fell down on the path and did not know many blows were inflicted on him and did not follow the accused as he had fallen down, nor P.W.1 followed the appellants. He further stated that he has neither seen the accused inflicting hatchet injuries to the deceased on the bund' or after the appellants had taken him away from there. From this statement it seems that P.W.2 cannot testify about the injuries inflicted on the deceased except that he was fired upon. There are contradictions in his statement and statement recorded under section 164 as in that statement he had stated that after the deceased fell down due to fire injuries Abdul Ghani cut the neck of Nek Muhammad with the hatchet and separated it from the body and Abdul Ghani and Abdul Karim also gave hatchet blows. This statement has not been repeated in Court.
11. ' Allah Rakhio P.W.8 is the third eye-witness. He claims to have witnessed the incident and given an account how deceased was attacked and killed by the appellant. So far his presence is concerned, in cross-examination he stated that although 4/5 days back he was asked by Nek Muhammad deceased to come to him for carrying out the painting work no specific day or time was given. The question arises why he had chosen this particular day in early morning to come to his house when P.W.2 had also come over there. In his statement he stated that the deceased had told him that Nazar Muhammad could also come for that purpose but this fact was not stated before the police, nor in his statement under section 164, Cr.P.C. This clearly shows that he was making attempt to corroborate the statement of P.W.
2. While describing the incident he stated that appellants emerged and fired in front of the deceased. However, the medical evidence does not corroborate this statement. In fact it contradicts it as the gunshot injuries arc on the back side of the left leg and thigh. Further, in his statement under section 161 he did not state that Abdul Ghani gave hatchet blow on the neck of the deceased, nor he stated that he was given 3/4 hatchet blows and similar blows were given to Allah Rakhio as well. The statement of P.W.8 is riddled with contradictions and infirmities. To corroborate P.Ws.1, 2 and 8 the prosecution examined Jumo P.W.5 who is stated to have reached the place of incident immediately after hearing the cries. He is the brother of the deceased and had seen the appellant taking away the deceased's body after killing him towards south. According to him they were carrying the dead body by holding his leg and arms. The significant change in this statement is that it does not corroborate the statement of other eye-witnesses who have stated that the accused were taking the dead body of Nek Muhamamd by dragging. He stated that he followed the appellant but they fired 2/3 times but this fact does not find place in his statement under section 161, Cr.P.C. He had stated that Abdul Karim had given hatchet injury and nothing was stated about Abdul Karim.
12. ' The circumstantial evidence in support of prosecution consists of Bachal P.W.7 who has acted as mashir. He is a cousin of P.W.2 and is not a resident of the locality. Although P.Ws. Have stated that at the time when the appellants had arrived many persons of the locality had arrived and their names had also been mentioned but none has been examined by the prosecution. They were people of different caste, not related to the deceased or the P.Ws. The appellants had prepared mashirnama of wardat at 9-30 a.m. (Exh.18) and had also recovered one empty cartridge. Inquest report was prepared at 9-45.a.m. And mashirnama of injuries of P.W.2 and 3 was also prepared. In all these mashirnamas Bachal has acted as mashir. After 3 days of the incident the appellants are stated to have been arrested and Bachal acted mashir for the arrest also. He also acted as a mashir for recovery of guns and hatchets. The fact that Bachal is an interested person and not of the locality and has been made mashir in all the relevant mashirnamas, right from the wardat till the arrest and recovery, in our view it will not be safe to rely upon his statement. The recovery of hatchet and gun may be of some inportance as a circumstantial evidence but it can only be relied upon if it is established that it was used in commission of the offence. So far hatchets are concerned according to I.O. And the mashirnama of recovery they were stained with blood but the chemical examiner's report is that no blood was detected. So far the guns are concerned they were not unlicensed. The report of the Ballistic Expert in respect of an empty cartridge of double-barrel gun is in the negative. The other gun being a muzzled one it was not sent to the Ballistic Expert nor could he give any opinion about it.
13. ' The medical evidence is another piece of corroborative evidence which may lead to the important results. In this case three injuries were found on the deceased which are enumerated as follows:-- "(1) Neck was cut at 2nd cervical vertebrae and was only attached with trunk through a piece of skin 4" wide on right side.
(2) Two lacerated wounds each 3" x 1/2" x fracturing occipital bone on occipital region transeversely.
(3) 24 gunshot wounds each 1/6" in D.M. X superficial skin deep. Scattered on back of lower half of left thigh, back of left knee and hack of left leg, and back of right leg. No charring was present."
14. ' These injuries show that the fires were shot from behind and there is no injury on the head as P,Ws.
15. Were staling that 2/3 injuries were implicated by hatchet on his head. Except P.W. Jumo all the eye- witnesses have stated that deceased was dragged from the path through jungle till the place of hiding near the house of the appellant. All these witnesses are unanimous about the dragging of the dead body of the appellant for quite a long distance. The Investigating Officer in the memo of wardat has also described that he detected the dead body through trailing drops of bloods and dragging marks of the body. From the sketch of Tapedar which was prepared very late but on the pointation of P.W.1 Niaz Muhammad it seems that the place from where the dead body was recovered was about 1-1/2 furlongs from the place of wardat. According to I.O. It was about 218 paces away. Thus, the dead body was dragged for more than 1-1/2 furlongs through the Tori Bund path, bushes, jungle and the abandoned Begari Cannal. Therefore, the body of the deceased must bear the dragging marks. According to the I.O. Those marks were found but the medical report does not confirm this finding. It does not speak of any dragging mark on the body of the deceased.
16. This completely contradicts the statement of witnesses including the Investigating Officer and casts serious doubt on the investigation.
17. ' Now coming to the injuries of the two eye-witnesses namely P.W.2 and 8 the same have been described in the medical certificate in the following manner:--
(1) Injuries to Nazar Muhammad
(1) Incised wound 1-1/2" x 1/2" x 1" deep on left scapula with linear cut 4" long at outer tail transeversely.
(2) Linear cut 5" long x superficial skin deep on right scapula.
(3) Two contusions each 4" x 1" on hack left side.
(4) Abraided contusion 2" x 1" on right shoulder.
(5) Lacerated wound 1-1/2" x 1/4" x scalp on vertex. 202/12-5-1980. Nos. 1 and 2 by sharp-edged weapon and others by hard blunt substance.
(2) Injuries to Allah Rakhio P.W.S.--
(1) Lacerated wound 2" x 1/2" x scalp on right parietal region.
(2) Contusion 4" x 1" on left shoulder top.
(3) Contusion 1" x 1" on right shoulder top.
(4) Contusion 2" x 1" on right scapula.
18. ' Linear cut 6" long x superficial skin deep on left glute region longitudinally."
19. ' Out of the five injuries on P.W.2 injuries Nos.1 and 2 were caused by sharp-edged weapon and all other by hard blunt substance such as lathi. In the case of Allah Rakhio P.W.8 injury No,5 was caused by sharp-edged weapon and all other four injuries by blunt substance. They were simple in nature. The learned counsel for the appellants has contended that injuries received by these witnesses are completely contradicted by the statement of witnesses. None of the witnesses have stated that lathi or blunt substance was used while inflicting injuries upon P.Ws.2 and 8. The learned counsel for the State has contended that these injuries could have been caused by the blunt side of the hatchet and this argument has weighed with the learned trial Court. The appellants were stated to have committed murder of the deceased in presence of two persons who allege to have intervened at some stage of the commission of offence. In that state of situation it was most unnatural that the appellants would use the blunt side of the hatchet in causing injuries to the eye- witnesses. The witnesses stated categorically that hatchet injuries were caused to them. It was for the prosecution to have established that how the injuries were caused by the accused persons.
20. Where the injuries are alleged to have been caused by hatchet but they turn out to be contusion, abraised contusion or lacerated wounds then the burden is upon the prosecution to establish how and by which weapon such injuries were caused. If such injuries were caused by the reverse blunt side of the hatchet then such specific statement should have been made by the prosecution witnesses. It is not for the defence to explain nor it is for the Court to draw such presumption in favour of the prosecution.
21. ' Now coming to the injuries which have been caused by sharp-edged weapon the learned counsel has pointed out that they are self-inflicted injuries and could not be caused by hatchet. Such a suggestion was given to the Doctor who testified it to be so. So far Nazar Muhammad is concerned the injuries are on the right left scapula. Injury on the left scapula is 1-1/2" x 1" x 1/2" deep with linear cut 4" long, the other is linear cut skin deep. P.W.8 has suffered superficial skin deep 6" linear cut on left glutcal region. If hatchet injury is caused on these parts of the body then considering the weight and the force it might have been hit there cannot be a linear cut, or superficial skin deep injury only. From the nature of these injuries it is obvious that unless the injured were not wearing clothes the hatchet must have first cut the clothes. The injuries would have bled and clothes would have soaked with blood. However, such clothes of P.Ws. 2 and 8 were not secured by the Investigating Officer, nor noticed by him while preparing mashirnama of injuries of these witnesses.
22. An assessm ent and appreciation of the entire evidence of the prosecution witnesses leaves the impression that in view of material contradictions on material facts and incident the same is not trustworthy, P.W.1, P.W.2, P.W.5, and 18 P.W.7 are all related to each other. There is established enmity between the appellants and the deceased's party. In these circumstances, unless there is strong evidence to corroborate the statement these witnesses it is not safe to rely upon them. In Rehmat and others v. The State PLD 1959 SC 109 it was observed as follows:-- "Where the entire case rests on ocular evidence which is subject to such general doubts, it is obviously not consistent. With the safe administration of justice to select for conviction those persons upon whom the eye-witnesses fix specific parts in the accomplishment of the crime. The case fails against each of the accused persons unless there be evidence aliunde e.g. a confession or circumstantial evidence, which by itself may suffice to show, beyond reasonable doubt, his implication in the crime."
23. It can be noticed that the ocular evidence is also contradicted by the medical evidence. So far deceased is concerned one P.W. Has stated that neck was completely separated and cut of but other witnesses did not say anything of this nature. However, according to the medical evidence the head was attached to the body through skin only. Furthermore, the deceased's body did not contain dragging marks. So far injuries inflicted on P.W.2 and P.W.5, the contradiction and improbabilities have been discussed above. Where there is material contradiction between the ocular evidence and medical evidence preference should be given to medical evidence and the occular evidence should be disbelieved. Reference can be made to 1981 SCMR 132, 1983 SCMR 1292, PLD 1968 Lah. 1344, PLD 1988 Kar. 521 and PLD 1988 Lah.
24. 1344.
25. ' It has been contended by the learned counsel for the State that two eyewitnesses have suffered injuries, and therefore, their presence cannot be disbelieved. The nature. Of injuries received by these witnesses has been discussed above. Their injuries do not correspond with the medical evidence so far the lacerated wounds caused by blunt weapon are concerned. The incised wounds are of such a nature and on such part of the body that possibility of its inflicting by a friendly hand cannot be ruled out. As discussed above, the injuries and presence of these witnesses at the scene of occurrence is suspicious and doubtful. Reference can be made to Murad and others v. The State 1980 P Cr. L J 1290 where it was held that injured witnesses are not necessarily true witnesses.
26. Similar observation was made in Bakhshal and others v. The State 1990 P Cr. L J 1. In this case there was a difference of opinion between the two learned Judges of this Court and it was referred to a third learned Judge whose judgment has not been reported, but he has agreed with the judgment of Sajjad Ali Shah, J. (as he then was) that as injuries received do not reconcile with the description such injured witness should not he believed. The rule deduced from these authorities is that the injured witness must establish that he has received injuries described by him at the scene of occurrence and if the description and nature of injuries are contradicted by the medical evidence then Court would be justified in disbelieving such witness. Mr. Azi/ullah Shaikh has pointed out that although the cycle was recovered as claimed by P.W.10 it was not produced in Court and it was not stated by any witness that cycle was recovered and belonged to the deceased. However, as we have disbelieved the recovery witness the claim by the prosecution to recover the cycle of the deceased from the possession of Abdul Karim has not been proved.
27. ' The learned counsel for the appellant contended that conviction under both sections 302 and 201, P.P.C. Is illegal. In this regard reference has been made to Muhammad Shafiq v. The State 1984 P Cr.
28. L J 2011 and Abdul Ghafoor v. The State 1984 P Cr. L J 2119. If an accused is convicted under section 302, P.P.C. He cannot be convicted under section 201, P.P.C. On assessment of evidence and consideration of the issues involved, as discussed above, we are of the opinion that the prosecution has failed to prove beyond reasonable doubt that the appellants have committed murder of Nek Muhammad and inflicted injuries to Nazar Muhammad and Allah Rakhio. In the facts and circumstances of the case the appellants are entitled to the benefit of doubt. We refuse to confirm the death sentence and acquit the appellants. The appeal is allowed. They shall be set at liberty unless required in any other case.