' SALEEM AKHTAR, J.---This appeal is directed against the judgment of a Division Bench of the High Court of Sindh whereby Acquittal Appeal filed by the State was allowed and appellants were convicted under section 302 read with 149, P.P.C. For causing death to Nisar Ali and were sentenced to imprisonment for life. They were also sentenced to pay fine of Rs, 5,000 each and in default of payment of fine sentenced to further R.I. For six months. They were also convicted under setion 148, P.P.C. And sentenced to R.I. For two years. Conviction was also made under section 323 read with 149, P.P.C. For causing simple injuries to Anwar All and Lutuf Ali and sentenced to R.I. For six months.
All the sentences were to run concurrently and the appellants were given benefit of section 382(B), Cr.P.C. While computing their sentences. Complainant Anwar Ali lodged First Information Report on 4-10-1979 at 9-30 a.m. Stating that he alongwith his brother Nisar Ali, the deceased, and uncle Lutuf Ali was going to Police Station Dhamrah. While they were waiting for the bus on the bridge on Wah Road between Larkana and Kamber at about 8-15 a.m. The appellants Yar Mohammad, Gul Mohammad, Allandita, Abdul Ghani and Ghulam Ali (since died) residents of village Biro Chandio came there armed with hatchets. The appellant Gul Mohammad instigated other appellants not to spare deceased Nisar Ali. On such instigation other appellants including Ghulam Nabi caused hatchet injuries to Nisar All who fell down. The complainant and Lutuf All tried to save him on which Gul Mohammad caused hatchet blows to them. Their cries attracted Sadiq Ali, their uncle, who witnessed the incident. Thereafter the appellant accused went away towards their village. The complainant and the witnesses present saw Nisar All lying dead on account of injuries received on various parts of his body. In the FIR motive was attributed to the occurrence 14 days prior to the incident when one Chungo, brother of Gul Mohammad and Rahib had caused injuries to one Deedar s/o P.W. Lutuf Ali, a cousin of the complainant. Achar Korkani had requested not to lodge a report of that incident as it would be settled between the parties after the elections which were due shortly. The matter was not settled and consequently Nisar Ali made an application to the Superintendent. Police, Larkana, against the appellants and some other persons. On the day of incident both the parties had been called at the police station, Dhamrah, and while the complainant party was waiting for the bus they were attacked by the appellants. The FIR was lodged by Anwar Ali at 9-30 a.m. Who produced photocopy of the application which deceased Nisar All had made to S.P., Larkana. The Investigating Officer completed the formalities by preparing the Mashirnama, secured blood-stained earth, prepared inquest report of the dead body and Mashirnama of injuries sustained by Anwar All and Lutuf Ali. He then sent the dead body of Nisar Ali and the injured persons to Civil Hospital. The lnvestigating Officer with the assistance of Nekmard of the village was able to arrest the accused and recovered blood-stained hatchets and clothes of all the five accused persons. He started preparing mashirnamas at 7-30 p.m. And completed by 9 p.m. Mashirnamas are exhibit 27 to 31. Asghar Ali, P.W. 7, who is brother of Lutuf Ali and Sadiq Ali (P.Ws. 4 and 5) and uncle of the deceased and complainant was the Mashir of recovery. Ramzan was also a mashir but he was not examined. He was also related to the deceased and was his cousin. The learned Trial Court on appreciation of evidence acquitted all the accused. An acquittal appeal was filed by State. By the impugned judgment it was allowed and the appellants were sentenced in the aforestated manner.
' Mr. Azizullah Shaikh, the learned senior Advocate Supreme Court, contended that the impugned judgment is a result of misreading of evidence and is in disregard of the principles governing the acquittal appeal. He has taken us through the entire evidence recorded by the prosecution. The prosecution case is based on ocular evidence of Anwar Ali, P.W.3, Lutuf Ali, P.W.4 and Sadiq Ali P.W.S. It was sought to be corroborated by recovery of blood-stained hatchets and clothes and also by the medical evidence of Dr. Ramesh Lal and the Chemical Examiner's report. In support thereof the evidence of Shah Nawaz the Investigating Officer has also been relied upon. The prosecution has also alleged that there was a motive to commit the offence as stated in the F.I.R.
3. The learned trial Court has disbelieved the ocular evidence mainly on the ground that all the witnesses were interested witnesses closely related with the deceased and, therefore, unless they are corroborated by independent witnesses, they are not worthy of credit. Anwar Ali, P.W.3, is the brother of the deceased, Lutuf Ali and Sadiq Ali both are uncles of the deceased. Asghar Ali, the Mashir is brother of Lutuf Ali and Sadiq Ali. Their evidence is sought to be corroborated by the mashir for recovery of blood-stained clothes and hatchets who is also closely related to the deceased and the witnesses. Admittedly there was enmity between the accused and the deceased party as is clear from the F.I.R. Itself. Another mashir Ramzan was also a cousin of the deceased but he was not examined. The incident occurred on a busy road on which there is a flow of traffic round the clock as is established from the prosecution witnesses. However, no independent witnesses except the close relatives were examined by the prosecution. The learned Judges of the High Court have taken note of this fact and observed:--- "We do not find any justification for discarding the evidence of the eye-witnesses in the care merely for the reason that the witnesses were related inter se or that they were related to the deceased. Mere relationship of the witnesses to the deceased or to each other inter se cannot make their evidence unreliable unless it is shown that the witnesses had a motive to falsely implicate the accused in the case."
4. In this regard reliance was placed on Niaz and others v. State PLD 1960 SC (Pak.) 387 and Nazeer and others v. State PLD 1962 SC 269 and it was observed that Anwar Ali, Lutuf Ali and Sadiq Ali were natural witnesses of the incident as they had been called to the Police Station, Dhamrah, where they were going to attend a meeting. The learned Judges seem to be impressed by the fact that Anwar Ali and Lutuf Ali had sustained injuries and, therefore, their presence cannot be doubted.
There can be no cavil with the proposition that even witnesses related to the deceased, injured or the complainant if they are in a position to identify the offender and were also present and further that there is no possibility for substitution then their statement can be accepted without corroboration. But if there is exaggeration in their statement and there is some doubt to the veracity then for the safe administration of criminal justice it would be proper to insist on independent corroborative evidence. The principles in this regard have clearly been laid down in Niaz and Nazeer's cases referred above. The learned Trial Court noted that the complainant had tried to implicate Achar and Rahhan Kurkani by giving their names in the F.I.R. But they were not challaned after the investigation. Anwar Ali, the complainant, admitted that he wanted to implicate these persons. This fact makes his evidence of a doubtful nature requiring independent corroboration. Anwar Ali and Lutuf Ali are two witnesses who claimed to be present and have witnessed the incident. As they had intervened they also received hatchet injuries inflicted by Ghulam Muhammad. Their evidence has also been doubted by the learned Trial Court but duly accepted by the learned Judges of the High Court.
5. The learned Advocate for the appellants has contended that their statement is belied by the medical report. In this regard reference has been made to the report of the doctor who has certified that the injuries received by them were simple caused by blunt weapon. Anwar Ali had "lacerated wound 1-1/2 x scalp deep on right paretal region", "contusion 1" x 2" at right side neck"; swelling... ... ......... ..At upper part of back of chest, and contusion 2" x 1/2" at the back of right side chest". Lutuf Ali had one lacerated wound 2" x scalp deep on left paretal region and two contusions....."at back of left side chest". The injuries were simple caused by hard blunt substance and were fresh. The prosecution has relied upon this evidence to prove the presence of the witnesses at the scene of incident. However, the learned Trial Court has disagreed for very cogent reasons. From the injuries received by the deceased it is clear that several injuries were inflicted by sharp side of the hatchet. When P.Ws. Anwar Ali and Lutuf Ali intervened it seems improbable that they would have been struck with a blunt and hard substance. What that blunt and hard substance was has remained a mystery as the prosecution has led no evidence to explain it. It was suggested that these injuries were caused by the use of hatchet from the blunt side. There is no such evidence to substantiate this fact and it is merely a guess work. It is a well settled principle that where there is any discrepancy in the evidence of the prosecution or if it requires some clarification or explanation then the prosecution must explain and clarify the same failing which the benefit will go to the accused. The prosecution has not explained this aspect of the case and, therefore, the suggestion that the injuries were self-inflicted merely to implicate the accused by proving their presence cannot be ruled out.
6. In this regard another aspect is that the injuries were found by the medical officer to be fresh.
According to the medical report the injured P.Ws. Arrived in the Hospital at 3 p.m. That is about six hours after the injuries had been inflicted. Still the injuries were certified to be fresh. After a lapse of 6 or 7 hours lacerated injuries on a living human being cannot remain fresh. They are bound to change colour and appearance. Anwar Ali and Lutuf Ali had each suffered two contusion injuries and one scalp deep lacerated wound. Contusion is a bruise described as "an infiltration of blood into the tissues following the rupture of vessels, usually capillaries, as a result of the application of blunt force". According to Parikh in "Medico legal post-mortems" "after a bruise has appeared, it tends to get smaller from periphery to the centre and passes through a series of Colour changes "
"A fresh bruise is red at first. The colour changes from red to blue in a day, bluish black to brown (haemosiderin) in about two or four days, green (haemotoiden) in about five to seven days and yellow (hitirubin) in about seven to ten days". The medical report described the injuries sufferred by the witnesses as fresh but the prosecution did not seek any further clarification in this regard. In these circumstances it seems doubtful whether they had received injuries at the time of occurrence and were present at the scene of incident.
7. P.W. Sadiq is also related to the complainant party. He has stated to have seen the incident from 70 to 80 feet. But this evidence also requires corroboration which the prosecution has failed to produce.
8. The recovery of blood-stained hatchet and clothes is an important corroborative piece of evidence. As discussed above Asghar Ali, P.W.7 is the mashir for recovery of blood-stained hatchets and clothes and also arrest of the accused. He is resident of a village which is about 4 or 5 miles away from the place of incident. There were many other persons who had collected in the Autaq of Nekmard where the Investigating Officer had waited before arresting the accused. There were several persons present in that village but no one from the locality was taken as a mashir. Unless from the facts and circumstances of the case it is not possible to obtain mashir of the same locality where the recovery and arrest is made the prosecution may pick up any other person to act as such otherwise it is the duty of the investigating agencies to pick up mashir from the locality itself. In this regard reference can be made to Muhammad. Khan v. Dost Muhammad PLD 1975 SC 607; Afzal v. State 1983 SCMR 1; Niaz Muhammad and others v. State PLD 1983 SC (Azad Jammu and Kashmir) 211; Baila and others v. State 1985 SCM R 854; Malik Aman and others v. State 1986 SCM R 17; Sultan and others v. State 1987 SCM R 1177; Khair Gul v. State 1989 SCM R 491 (Shariat Appellate Bench of the Supreme Court); PLD 1975 Kar.
92. All these cases have been considered and discussed in detail in Yamin Kumhar v. State PLD 1990 Kar. 275, where after considering various authorities it was observed:-- "The provisions of Chapter VII make it clear that they relate to the search of any place but it cannot be restricted only to house or a closed place, it can be an open place, open area, a playground, field or garden from where recovery can be made for which search is conducted. Although in strict sense the provisions of section 103 are restricted to searches under Chapter VlI of Cr.P.C. It has become a practice to apply it to all recoveries made by the Police Officers while investigating any crime. The rules of justice enunciated by section 103 are so embeded in our criminal jurisprudence and so universally accepted that in all criminal cases two mashirs are always cited for recovery and reliance is placed on these witnesses in the ordinary course provided they are independent, respectable and inhabitants of the locality. The residence of the mashirs becomes relevant depending on the facts of the case. The emphasis should be on respectability, independence and impartiality. If the recovery is to be made on public thoroughfare, a bus stand or similar public places the witnesses picked up by the police from the road can be proper witnesses of recovery depending upon the facts and circumstances of the case. However, in order to ensure proper investigation and clear proof preference should be given to the witnesses of the locality particularly witnesses who are respectable. Witnesses procured by the police though respectable lose credibility. Where witnesses are not of the locality the Court should cautiously examine their statement?
' Reference can also be made to Mst. Shabboo v. The State, PLD 1990 SC 1083. Lt was observed as follows:-- "If the entire family indulges in the profession of selling narcotics and that also to lower strata of the society, this to say least is a cruel act against an innocent section of society. If at all the son was acquitted, Shambay her co-accused, it is mentioned in the impugned judgment, was not only convicted but he also accepted the conviction and did not challenge it in appeal. Thus in the circumstances of this case the witnesses have already been found, in the connected trial, to be trustworthy. The time, locality and other circumstances of the case are such that; firstly, no respectable might be available; and secondly if available he might not have considered it suitable for him to be involved, in any manner, in an enterprise like the present one. The technical points regarding section 103, Cr.P.C. Accordingly, in this case have no force."
' In Waqar Zaheer v. The State, PLD 1991 SC 447, the memo of recovery and statement of the complainant described the crime empty to be of .25 bore which was later changed to .32 bore. It was observed that: "The circumstances in which empty was detained by the police till the recovery of the pistol leaves much to be desired. Since this is a case of circumstantial evidence and all other items of evidence have been found suspect, the present recovery cannot be accepted with any degree of safety."
' Reference can also be made to State v. Abbas Ali Shah, PLD 1988 Kar. 409 and Muhammad Achar v. The State; PLD 1990 Kar.
314. The recovery is an important piece of evidence which has according to the circumstances a direct as well as corroborative value. In the present case the Mashir is an interested witness, inimical towards the appellants and was not a resident of the locality. In such circumstances it was not safe to rely upon him as a mashir for recovery. Furthermore Mr. Shaikh has very vehemently argued that the entire statements of the witnesses for the recovery as well as Investigating Officer are completely false and the allegations that injuries were caused to Anwar Ali and Lutuf Ali by Gul Muhammad from whom blood-stained hatchet and blood-stained clothes were recovered are completely belied by the prosecution evidence. He had not taken part in the entire array except that he had instigated the other accused and inflicted injuries on Anwar Ali and Lutuf Ali which were caused to them by, a blunt weapon. Considering the injuries suffered by these P.Ws. The possibility of blood oozing out from them and smearing on the hatchet and clothes of Gul Muhammad is a remote possibility. This aspect of the case completely shakes the prosecution case as without corroborative piece of evidence no credence can be given to the statements of Anwar Ali and Lutuf Ali.
9. The second corroborative piece of evidence was the medical report. So far the relevancy of this report to Lutuf Ali and Anwar All is concerned, it has already been discussed. It, however, supports that Nisar Ali was killed by injuries suffered by him on his lower parts. The Chemical Examiner's report has been discredited by the fact that the parcels were sent to him on 27-10-1979 and were received on 10-1-1980. The report was submitted on 8th May, 1980. There is no explanation where the said parcel remained during the 27-10-1979 to 10-1-1980. The Investigating Officer only stated that he had sealed the parcels and delivered them for sending to the Chemical Examiner but thereafter there is no evidence how it reached and why so much delay was caused in reaching there. The learned trial Court had also noted the discrepancies in the evidence of the prosecution witnesses with regard to the distance of the village, the timing when Lutuf All and Anwar Ali had reached the police station and also the conflict in the evidence of Investigating Officer and witnesses about reaching at the scene of the incident. Although they may not be discrepancies of a major nature, considered in the background of the case where there is enmity, attempt was made to falsely implicate two persons and only interested witnesses have been produced without any reasonable explanation, such discrepancies adversely affect the credibility of prosecution evidence. The overall assessm ent of the evidence does not inspire confidence. The learned Judges of the High Court have termed the discrepancies as minor and not material so as to render the evidence doubtful. It was observed that the conflict between the ocular and medical evidence is based on misreading of evidence as no definite opinion was expressed by the doctor in regard to the actual time which might have elapsed between receiving of the injuries by the deceased or the witnesses and their examination by a doctor. They were of the opinion that the doctor's evidence does not belie the witnesses and if such discrepancies occur these are likely to occur and cannot be termed as material conflict. So far as the number and nature of injuries caused to Anwar Ali and Lutuf Ali is concerned, it was observed that when a number of accused take part in the commission of an offence and different persons receive injuries, such discrepancies do occur and even if the testimony of a witness contained some falsehood, the same could not render his entire evidence untrustworthy. This observation of the learned Judges of the High Court clearly indicates that the evidence of the injured witnesses, in the facts and circumstance as specified above, required corroboration by independent witnesses. The prosecution has not produced any cogent and convincing corroborative evidence to support the statement of these witnesses.
10. From the above discussion and on perusal of the evidence recorded by the learned trial Court the following discrepancies can be noted in the prosecution case:-
(1) There is enmity between the parties and the complainant had tried to implicate two innocent persons who were relatives of the appellants.
(2) The prosecution witnesses and the mashir are closely related to the deceased and enmity with the appellant is established.
(3) In this background no strong and independent evidence was produced to corroborate the statement of these witnesses.
(4) Eye-witnesses Anwar Ali and Lutuf All claimed to have been injured but their injury even after seven hours was certified to be fresh injury caused by blunt weapon. The medical evidence, does not support these witnesses.
(5) Asghar Ali, PW.7 is not a resident of the locality but had come over there from the village situated about 4 or 5 miles away and no explanation has been given by the prosecution for his presence and non-availability of any respectable resident of the village where recovery and arrest was made.
(6) Gul Muhammad is stated to have inflicted injuries to Anwar All and Lutuf All which have been certified to be simple caused by a blunt weapon. Considering the nature of injuries as discussed above it has not been explained how the hatchet and clothes of Gul Muhammad were blood- stained.
(7) The parcels sent to Chemical Analyser were despatched on 27-104979 which were received on 10-14980. No evidence has been produced to show where they remained during this period of about 2-1/2 months.
11. In view of these discrepancies the learned trial Court acquitted the appellants. The High Court was hearing an acquittal appeal and the principles for setting aside an order of acquittal are now well settled. Unless the judgment of the trial Court is perverse, completely illegal and on perusal of evidence no other decision can be given except that the accused is guilty or there has been complete misreading of evidence leading to miscarriage of justice, the High Court will not exercise jurisdiction under section 417, Cr.P.C. In exercising this jurisdiction the High Court is always slow unless it feels that gross injustice has been done in the administration of criminal justice.
12. Mr. Azizullah has referred to the following judgment in which the principles of exercising jurisdiction under section 417 have been laid down: ' Sheo Swamp v. King Emperor AIR 1934 Privy Council 227.
' It has been relied upon and quoted by the subsequent judgments which are reproduced hereunder:- ' In Ahmad v. The Crown, PLD 1951 Federal Court 107, it was observed that:- "Before an order of acquittal is reversed it must be shown that the . Judgment of the Sessions Judge was unreasonable or manifestly wrong.
' If two conclusions were equally possible an order of acquittal should not have been reversed".
' In Abdul Majid v. Superintendent of Legal Affairs, Govt. Of Pakistan, PLD 1964 SC 426, while relying on Sheo Swarup's case it was observed that: "Where he (Trial Judge) has read the evidence fairly, and has formulated grounds of doubt which are not perverse or were illogical or unreasonable, there is a clear risk of departure from the rule of the benefit of the doubt in reversing his findings".
' This rule has been affirmed in Ghulam Muhammad v. Muhammad Shard and another, PLD 1969 SC 398, Hanifuddin Khan v. The State, 1972 SCM R 672, Khalid Sahgal v. The State PLD 1962 SC 495, Gul Nawaz v. The State 1968 SCM R 1182, Qazi Rehman Gul v. The State 1970 SCMR 755, Abdul Rasheed v. The State 1971 SCM R 521.
14. All these judgments were also considered and relied upon in Billu alias Inayatullah v. The State PLD 1979 SC 956, and it was observed as follows:- "The fffst question to be examined, therefore, is as to what was the scope of interference by the High Court in such an appeal. No doubt section 417, Cr.P.C. Itself contains no fetters in that respect but Superior Courts have consistently laid down certain defined and fundamental principles for regulating their jurisdiction in the case of acquittal appeals. In this behalf it will be instructive to reproduce a passage from Sheo Swarup and others v. King-Emperor AIR 1934 PC 227 which reads as follows:- "It will be observed that upon the express terms of the Code (1) an appeal lies from any order of acquittal passed by any Court other than a High Court; (2) such an appeal (the trial not being by jury) will lie upon a matter of fact; (3) on such an appeal the Court may reverse the order of acquittal, find the accused guilty and pass sentence on him. There is no indication in the Code of any limitation or restriction on the High Court in the exercise of its powers as an appellate Tribunal.
Further, it is to be observed that no distinction is drawn as regards the powers of the High Court in dealing with an appeal; between an appeal from an order of acquittal and an appeal from a conviction.
' Many authorities were cited to their Lordships which undoubtedly reveal difference of views as to the powers of the High Court in dealing with an appeal from an order of acquittal on a matter of fact. No useful purpose will be served by examining this long list of decisions. It will suffice if their Lordships state the conclusion which they have reached as the result of careful consideration of the full arguments which were addressed to them. There is in their opinion no foundation for the view, apparently supported by the judgments of some Courts in India, that the High Court has no power or jurisdiction to reverse an order of acquittal on a matter of fact, except in cases in which the lower Court has obstinately blundered, has through incompetence, stupidity or perversity reached such distorted conclusions as to produce a positive miscarriage of justice, or as to produce a glaring miscarriage of justice, or has been tricked by the defence so as to produce a similar result.
' Sections 417, 418 and 423 of the Code give to the High Court full power to review 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 would be reversed. No limitation should be placed upon that power unless it be 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 (1) the views of the trial judge as to the credibility of the witness; (2) 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 (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. 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.
15. Putting the present case to the test laid down by the series of judgments of this Court it is clear that in view of the discrepancies in the evidence pointed out the Trial Court could reasonably come to the conclusion that the appellants are not guilty. In the background of the facts and circumstances and the evidence analyzed it is difficult to observe that the judgment of the learned Sessions Judge is perverse or is a result of complete misreading of evidence or that it is due to incompetence, stupidity or perversity that he has reached any distorted conclusions as to produce a positive miscarriage of justice. The learned judges of the High Court did not take into consideration these principles as well while considering acquittal appeal.
16. We, therefore, allow the appeal and acquit the appellants.
1992 SCM R 108 [Shariat Appellate Bench] {{URDU TEXT}}
(d) Prohibition (Enforcement of Hadd) Order (4 of 1979)- -- Arts. 14 & 27-Constitution of Pakistan (1973), Arts. 203-D & 203-F--Criminal Procedure Code (V of 1908), S. 517- {{URDU TEXT}} "14. Things liable to confiscation.-In any case in which an offence has been committed under this Order, the intoxicant, still, utensil, implement or aparatus in respect or by means of which the offence has been committed shall be liable to confiscation alongwith the receptacles, packages, coverings, animals, vessels, carts or other vehicles used to hold or carry the same." {{URDU TEXT}} 1992 SCM R 113 [Shariat Appellate Bench] {{URDU TEXT}}
(a) Penal Code (XLV of 1860)- - - S. 354-Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 10-Constitution of Pakistan (1973), Art. 203-F- {{URDU TEXT}}
(b) Offence of Qazf (Enforcement of Hadd) Ordinance (VIII of 1979)- -- S. 3-Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 10-Penal Code (XLV of 1860), S. 354-Qanun-eShahadat (10 of 1984), Art. 3- {{URDU TEXT}} "3. Qazf : Second Exception (Accusation preferred in good faith to authorised person).-Save in the cases hereinafter mentioned, it is not qazf to prefer in good faith an accusation of zina against any person to any of those who have lawful authority over that person with respect to the subject- matter of accusation :- (a)
(b)
(c) According to the finding of the Court, complainant has made a false accusation of zina-bil- jabr."
"QANUN-E-SHAHADAT :
3. All persons shall be competent to testify ...................
' Provided that a person shall not be competent to testify if he has been convicted by a Court for perjury or giving false evidence." {{URDU TEXT}}
…and 3 more citing cases