MUHAMMAD HALEEM, J.------Appellant Mooso was tried for the murder of Roshan, convicted under section 302, P. P. C. And sentenced to transporta--petition for life by the learned Additional Sessions Judge, Larkana, vide judgment dated 6th March 1971. Qaim and Ghulam Muhammad were also tried alongwith him but they were acquitted. He has appealed to impugn his conviction and sentence.
2. According to the prosecution case, the incident occurred at break--fast time on 12th August 1970 outside the house of complainant Ghulam Mohammad in village Abdul Karim Shaikh, taluka Kambar. While Ghulam Mohammad was sitting in his house alongwith his wife and sons, he heard a commotion, whereupon he and his son, Roshan, went out and saw the appellant, acquitted accused, Qaim and Ghulam Mohammad alias Golo, quarrelling with Waloo, who was armed with a hatchet. The others were also armed with hatchets. Both of them intervened to separate them upon which Ghulam Mohammad cried out to Mooso and Qaim that Roshan had come to support Waloo and therefore, he should not be spared, where after the appellant caused a hatchet blow on his head who fell down and became-- senseless. Ghulam Muhammad after informing his cousin Bambho went to police station Drigh, four miles away, where he lodged the F.I.R. At 4-30. p.m. He also took Roshan alongwith him.
3. Khadim Hussain S. H. O. After recording the report sent the injured to Kambar Dispensary for examination and treatment and examined Bambho. He then repaired to the wardat alongwith Ghulam Mohammad but did not observe anything of interest. He examined Mst. Zainab and Noor Mohammad and arrested the appellant and the acquitted accused. The appellant produced a hatchet which was not blood-stained from his house which was secured vide Mashirnama, Exh. 16, in the presence of Rajib A.I and Mohammad Waris. On 13th August 1970 he examined Wali Mohammad and Wahid Bux and on the same day he received information that the deceased had expired in the Civil Hospital, Larkana a day earlier. He sent the dead body for post-mortem examination.
4. Dr. Khudadad performed autopsy on the dead body and noticed "one stitched wound 3' in length on the right parietal region of the skull" which, in his opinion, was caused by some hard and blunt substance such as lathi or back side of the hatchet and that it was sufficient in the ordinary, course of nature to cause death.
5. The appellant, when called upon to enter defence, denied the prosecution case and pleaded that the witnesses were interested and inimical towards him.
6. The trial court while appraising the ocular testimony held that the witnesses are related inter se, that the part of instigation attributed to acquitted accused Ghulam Muhammad was not corroborated and that, therefore, under the circumstances implicit reliance cannot be placed on - -ocular testimony. The trial Court also repelled the part attributed to Qaim of having caught hold of the deceased while the appellant inflicted a blow with the back side of his hatchet on his head on the same premise that it lacked assurance. It further held that the witnesses have indulged in exaggeration while attributing these parts to Ghulam Mohammed and Qaim, and in this context it further reached the conclusion that the evidence was interested which required corroboration.
While considering the case of the appellant, the trial Court held that the part attributed to the appellant is corroborated by medical evidence and that, therefore, to this extent the ocular testimony is "natural and convincing". This is the distinction drawn between the case of the appellant and that of the acquitted accused. While supporting its conclusion the trial Court held that since the blow was given with the back side of the hatchet it was therefore that there was neither blood at the wardat nor on the hatchet. The trial Court further examined the hatchet and observed that the injury could be caused with the backside of such a weapon. Lastly the trial Court observed:-- "I find that it is a common practice in part of this country to implicate as many relatives of the real culprit as possible by exaggerating the facts of the prosecution case. So under these circumstances I find that the prosecution witnesses named above have exaggerated the facts of the prosecution case by implicating accused Qasim and accused Ghulam Mohammad, the relatives of the real culprit accused Mooso."
7. While convicting the appellant therefore the trial court regarded the ocular testimony as convincing having earlier held that no implicit reliance could be placed to the extent that it implicated the acquitted accused. The singular feature which gave credibility to the evidence qua the appellan was his corroboration by the medical evidence. While scrutinizing the evidence we have found that a hatchet blow is ascribed to the appellant in the F. I. R. Which ordinarily means with its sharp side. The reason is not far the seek, for it was a lacerated wound which gave the impression of sharp side blow. However, Ghulam Mohammad, who had lodged the F. I. R moulded his version in Court to bring it in conformity with the medical evidence and stated that the back side of the hatchet was used in giving the blow, Again it was an open wound but it is surprising that no blood was found at the wardat or on the hatchet. A lacerated wound bleeds as the skin is ruptured The trial Court is, therefore, wrong in saying that because the injury was with the blunt side of the hatchet that there was no blood. It also failed to notice that the earlier version was that he was given a hatchet blow but subsequently it turned out to be with same hard and blunt object.
Further, the trial Court having disbelieved the part of instigation, as a result of which it was said that the appellant had caused the hatchet blow, there was no occasion for the appellant to leave Waloo and strike a blow on the deceased as the fight was between him and the appellant and of companions. Again, the assigning of a part by itself does not afford corroboration of the ocular testimony, and we fail to see how the value of the evidence is enhanced if otherwise it is held to be interested requiring corroboration. The trial Court, therefore, fell into error when again it relied on a part ascribed to the appellant which came out from the mouth of those very witnesses, whose evidence it rejected qua the acquitted accused. This is not all. The trial Court also reached the conclusion that the acquitted accused were falsely implicated. There was, therefore, more reason to follow the rule of prudence and not merely to act on the ipse dixit of those witnesses. Judged from this angle the appraisal of evidence was erroneous and conviction cannot be upheld.
8. Even otherwise there is evidence that the deceased was armed and so was Waloo, the appellant and his companions. There was a quarrel going on between Waloo on one side and the appellant and his companions on the other. The deceased is related to Waloo and his appearance at the wardat with a hatchet was likely to give an impression that he had come to fight on his side. It cannot, therefore, be ruled out that there was an apprehension of grievous injury. The very fact that Waloo was left out Shows that the deceased must have exhibited a violent posture to give that impression in consequence of which he was given a blow in self-defence. The trial Court has ruled it out on the premise that it was not mentioned in the F. I. R. That he was armed with a hatchet, but, this fact is admitted by complainant Ghulam Mohammad himself. It was he who had lodged the F.
I. R. And he must be responsible for suppressing this fact but it cannot be denied merely because of its absence from the F. I. R. Moreover, the trial Court held that no injury was found on Ghulam Muhammad alias Golo and, therefore, the right of self-defence cannot be pleaded. This is again erroneous, for the right can be exercised even when there is apprehen--sion. The learned State counsel also fairly conceded to his acquittal.
9. For the foregoing reasons, we are of the view that the prosecution has not established its case against the appellant and while accepting his appeal we give to him the benefit of doubt and acquit him. He shall be released forthwith unless wanted in some other case.