1. ' The appellants Ghulam Hussain and Bachoo have been convicted by the learned 1st. Additional Sessions Judge, Hyderabad under section 302, P.P.C. And both of them have been awarded sentences of imprisonment for life and to pay fine of Rs,10,000 each and in case of non-payment of fine, both of them have to suffer further sentence of one year, while the appellant No,3 Saleem has been convicted under section 323, P.P.C. Read with section 337-A(1) and section 337-E(ii)(a), P.P.C.
2. And to suffer sentence of one year and' fine of Rs,1,000 and in case of non-payment of fine to suffer R.I. For one month more, by the impugned judgment dated 25-2-1997 in Sessions Case No,199 of 1986. The appellants have challenged the impugned judgment, their convictions and sentences stated above, by this appeal.
3. ' Briefly stated the facts as per F.I.R. No,35 of 1986 (Exh.41-A) lodged by the complainant Allah Bux son of Haji Ibrahim by caste Khadio (now said to be deceased). On 24-6-1996 at 21-00 hours at Bulri Shah Karim Police Station District Hyderabad are that on the date of the incident vis 24-6-1986 in the evening he and his cousin Esso son of Aroo were sitting in the Hotel of Haji Muhammad Ibrahim Soomro, situated at Ditta Wah Bus Stop, where the accused Ghulam Hussain, Bachoo, Saleem and Dabood all by caste Sama came there. Ghulam Hussain and Bachoo had knives in their hands and the accused Saleem and Dabood had Lathies and immediately on their arrival Saleem abusing said hold them and not to leave them, as Allah Bux has been visiting the house of our cousin Saleh Samoo and was Karo with his wife. On the instigation of Saleem, accused Ghulam Hussain and Bachoo with intention to kill both of them caused them knife blows and Saleem and Dabood also caused Lathi blows. They raised cries of murder and on their cries Photo son of Usman, Khamiso son of Haji Jummo and Sajjan son of Haji Dino all by caste Khadios came and seeing them the accused made the escape good. The F.I.R. Was registered under sections 307, 114, 34, 504 and 323, P.P.C. The complainant Allah Bux is said to have expired in Hospital on the next day on 25-6-1986, as such, the offence was converted into section 302, P.P.C.
4. ' The appellants Nos. 1 and 2 were arrested by the police on the same day at 21-45 hours and knives were recovered from them vide Mashirnamas (Exh.21) and (Exh.22). The accused Saleem and Dabood were arrested on 25-6-1997 (Exh.23) and Lathis were recovered from both of them vide Mashirnamas (Exhs.41-E and 41-F).
5. ' After usual investigation, the appellants and other co-accused namely Mooso and Muhammad Ali were also challned in the Sessions Court to face trial under sections 302, 307, 323, 504, 34, P.P.C. And the accused Mooso and Muhammad Ali under section 120-B read with section 302, P.P.C.
6. ' The appellants and acquitted accused Dabood were charged under section 302/34, P.P.C. For causing murder of the complainant Allah Bux son of Haji Ibrahim and under sections 307, 323 and 34, P.P.C. For causing murderous assault on the P.W. Esso and under sections 504 and 34, P.P.C. For abusing. The accused Mooso and Muhammad Ali were charged under section 120-B read with section 302, P.P.C.
7. ' The trial Court framed charge (Exh.5) against all the accused named above for respective charges, as stated above. The charge (Exh.5) shows that accused Mooso had expired during pendency of the trial.
8. ' The trial Court proceeded with trial and prosecution examined P.Ws., eye-witnesses and injured Esso (Exh.15), Wali Muhammad (Exh.16) (on the point of criminal conspiracy), Khamiso (Exh.17) and Sajjan (Exh.18) as eyewitnesses, Mashir Muhammad Ishque (Exh.20) as Mashir of arrest of appellants Nos.1, 2 and 3 and acquitted accused Dabbot and recoveries of knives and Lathis from them respectively, dead body (Exh.24) Mashirnama of inquest report (Exh.25-A), Mashirnama of injuries on the person of appellants Nos.1 and 2 (Exh.25-B), S.-I.P. Hakim Ali (Exh.27), who produced police report (Exh.28) and Chemical Examination Report (Exh.29). P.W. Medical Officer Syed Kazim Raza Shah (Exh.30) who produced medical certificate of injured/complainant and P.W. Esso (Exhs.31 and 32) respectively. P.W. Dr. Anwar Hussain (Exh.38) who produced post-mortem report (Exh.39) and lastly P.W. Agha Nisar Ahmed Investigating Officer (Exh.41) who produced F.I.R. Lodged by complainant Allah Bux son of Haji Ibrahim (Exh.41-A). Mashirnama of injuries on the persons of complainant and P.W. Esso (Exh.41-B). Mashirnama of place of incident (Exh.41-C) and Mashimama of recoveries of Lathis from accused Dabood and Saleem (Exh.41-E and Exh.41-F) respectively.
9. Mashirnama of arrest of co-accused Muhammad Ali and Mooso (Exh.41-G). F.I.R. Was lodged by the appellant Ghulam Hussain (Exh.41-H).
10. ' The appellants in their statements under section 342, Cr.P.C. Denied the prosecution case and alleged recoveries, and claimed innocence.
11. ' The appellant Ghulam Hussain in his statement under section 342, Cr.P.C. Has stated as under:-- "I and my brother accused Bachoo were taking tea in the Hotel of Ibrahim Soomro where deceased Allah Bux, Esso, Mooso, Umer and Shafi came and attacked me and my brother. Deceased Allah Bux and Shafi were armed with knives who caused us knife injuries whereby we fell down. On cries many people collected and there was fight wherein Allah Bux sustained injuries. I cannot say who caused injuries to Allah Bux. Myself and my brother went to Police Station Bulri Shah Karim and lodged the report, which has been produced at Exh.44/H. I was arrested by the police alongwith Bachoo and then my case was spoiled by police. I filed direct complaint which was dismissed against which I filed a Revision which was allowed and the matter wasd remanded and the case file has been hushed up. I produce photo copy of the direct complaint and attested copy of the revision petition and the order passed by the Sessions Court at Exh.44-A to Exh.44-C. I too filed my written statement Exh.44-D."
12. ' The learned trial Court by the impugned judgment has convicted the appellants as stated above and has acquitted the co-accused Muhammad Ali and Dawood.
13. ' I have heard Mr. Syed Madadally Shah, learned counsel for the appellants and Mr. Ghulam Nabi Soomro, learned Additional Advocate-General for the State, I have also gone through the impugned judgment, evidence on the record and other material available in the paper book.
14. ' The learned trial Court while convicting the appellants has relied upon the prosecution evidence as under:-
(i) Motive
(ii) Medical evidence.
(iii) Ocular evidence.
(iv) Circumstantial evidence.
15. ' Mr. Syed Madadally Shah, learned counsel for the appellants in support of the appeal has made the following submissions:--
(1) That there is controversy of actual death of complainant and the prosecution is silent of his death and the discrepancy has not been clarified by the prosecution as such, death of the complainant has been shrouded with mystery and such discrepancy has damaged the entire prosecution case and made it doubtful.
(2) That the alleged Ocular evidence produced by the prosecution consists of interested and partisan witnesses, who are closely related to the alleged deceased and their evidence required independent and strong corroboration, which is lacking in this case.
(3) That P.Ws. Khamiso and Sajjan were chance witnesses, who as per F.I.R. Had not witnessed the incident and their evidence inspiring no confidence, was otherwise, not reliable and required independent corroboration, which has not been furnished by the prosecution.
(4) That the alleged incident had taken place in the hotel and despite availability of independent and disinterested witnesses, not a single independent witness has been examined by the prosecution, which has rendered the entire prosecution case as doubtful.
(5) That there being controversy and discrepancy of the identity of the deceased, the medical evidence is of no help to the prosecution case. In any case, medical evidence, neither is corroborative piece of evidence nor it has corroborated to the ocular evidence.
(6) That the P.W. Esso, Sajan and Khamiso have suppressed the injuries on the persons of the appellants Nos.1 and 2, as such, they were not truthful witnesses and their evidence was not of any credence and inspiring confidence and to be ruled out of consideration.
(7) That the prosecution having failed to prove as to whose blow proved fatal and caused the death of the deceased and such benefit of doubt is to be extended to the appellants.
(8) That there was counter-version as per F.I.R. Lodged by the appellant Ghulam Hussain but neither the prosecution came with clean hands regarding counter-version nor the learned trial Court considered as to which party was the actual aggressor, which has caused serious prejudice to the case of the appellants.
(9) That motive set up by the prosecution was not proved, which was too weak, flimsy, unreliable and not convincing for the alleged incident and was otherwise very weak piece of evidence, which did not furnish any corroboration to prosecution case but as completely destroyed it.
(10) That negative finding of trial Court on the point of Criminal conspiracy has damaged the motive set up by the prosecution and has adversely affected the case of prosecution.
(11) That the alleged recoveries from the appellants have not been proved by the prosecution and there being delay of about a month in despatching the alleged knives, no reliance could be placed on the Report of Chemical Examiner.
(12) That the prosecution has not proved its case against the appellants beyond any reasonable doubt and the appellants being innocent or entitled to acquittal.
16. ' In support of the above arguments, the learned counsel has relied upon the following decisions:--
(1) 1992 SCMR 96, (2) PLD 1963 SC 17, (3) 1992 PCr.LJ 1320, (4) 1995 PCr.LJ 1302, (5) 1994 SCMR 1928,
(6) 1987 PCr.LJ 659, (7) 1981 SCMR 795, (8) 1995 SCMR 1715, (9) 1985 PCr.LJ 2132, (10) 1997 SCMR 385,
(11) 1997 SCMR 1076, (12) 1995 SCMR 599, (13) 1996 SCMR 308, (14) 1972 SCMR 144, (15) 1980 SCMR 708, (16) PLD 1989 Kar. 293, (17) 1996 SCMR 167, (18) 1971 SCMR 432, (19) 1997 SCMR 290, (20) 1980 SCMR 225, (21) 1977 SCMR 611, (22) 1995 SCMR 1373, (23) 1969 SCMR 777, (24) 1990 PCr.LJ 470, (25)
17. 1997 PCr.LJ 459 and 690, (26) 1979 SCMR 1011, (27) 1995 SCMR 1293, (28) 1997 MLD 997, (29) PLD 1963 SC 152, (30) PLD 1965 Quetta 33, (31) 1990 PCr.LJ 506, (32) 1996 PCr.LJ 1833, (33) 1985 SCMR 1715, (34)
18. 1972 SCMR 264.
19. ' Mr. Ghulam Nabi Soomro, learned Additional Advocate-General supporting the impugned judgment and the conviction of the appellants has' submitted:--
(1) That the names of the appellants appear in the F.I.R. And respective roles have been assigned to each of them.
(2) That mere relationship of P. Ws. Esso, Sajan and Khamiso with the complainant will not discard their evidence, who were the natural witnesses.
(3) That there is no controversy regarding the death of the complainant and that this point was not raised during trial but has been taken for the first time in appeal. In any case possibility is that the father of the complainant may have two names and he may be called by name of Haji Allah Dino in the village.
(4) That people in village avoid to become witnesses for personal reasons as such, omission on the part of Investigating Officer not to cite disinterested witnesses will not be fatal to the prosecution case.
(5) That recoveries have been proved against the appellants and minor discrepancies in the recovery evidence and delay in despatch to chemical examiner will not vitiate the recoveries.
(6) That motive has been proved and in any case, even if motive is not proved, the ocular evidence having been proved motive will be immaterial.
(7) That though there may be a counter-version but it will not effect the prosecution case.
(8) That there is sufficient corroboration by the evidence of recoveries and medical evidence, supporting the prosecution case as such, appeal merits dismissal.
20. ' I have heard the respective contentions of the learned counsel for the appellants as well as the State counsel. I have also gone through the entire evidence on the record. Before considering the submissions of the learned counsel, I would like to discuss relevant evidence on the record.
21. ' The P.W. Esso (Exh.15) who is eye-witness of the alleged incident has stated in evidence that on the date of the incident at about 8-00 p.m. He and Allah Bux were sitting at the hotel of Haji Ibrahim Soomro, situated near Ditta Wah Town. The appellants and Dawood were sitting at the hotel. The appellants Ghulam Hussain and Bachoo were having knives in their hands while appellant Salim had Lathi in his hand and Dawood was empty handed. Appellant Salim instigated the other accused not to spare the complainant as he was Karo with the wife of Saleh Sammu. On his instigation appellants Ghulam Hussain and Bachoo caused knives blows to the complainant, accused Salim and Dawood caused him Lathi blows. They raised cries and on their cries P.Ws.
22. Photo, Khamiso and Sajan came running raising Hakals and seeing them the accused went away.
23. The P. Ws. Sajan, Photo and Khamiso took him and Allah Bux to Police Station Bulri Shah Karim, S.H.O.
24. Saw the place of incident and thereafter, he registered the case on the complaint of Allah Bux. ' in cross-examination he admitted that the deceased Allah Bux was his cousin. He also admitted that he alongwith complainant Allah Bux were sitting at the hotel of Haji Ibrahim Soomro from 7-00 p.m. None else was present at the hotel except they two and owner of the hotel. He further admitted that accused Bachoo, Dawood, Salim and Ghulam Hussain were also present, but he did not know as to how many persons were sitting in other hotels. He stated that the incident took place at about 8-00 p.m. After about one hour after they reached the hotel. He denied the suggestion that Allah Bux deceased and Shafi were armed with knives and they caused injuries to accused Ghulam Hussain and Bachoo. He denied any knowledge that accused Ghulam Hussain had lodged any F.I.R.
25. ' P.W. Photo was not examined and evidence of P.Ws. Khamiso and Sajan is that on cries of murder murder, they went to the hotel, where they saw appellants Ghulam Hussain and Bachoo causing injuries to Allah Bux with knives and Salim and Dawood with Lathis. Thereafter, the accused went away. P.W. Khamiso admitted that his father Haji Jummu was the cousin of Haji Ibrahim, father of Allah Bux. He stated that there may be 20-25 persons present at the hotel at the time of incident.
26. He denied to have seen any injuries on the person of accused Ghulam Hussain and Bachoo. He admitted that the police arrived at the place of incident and after that F.I.R. Was registered.
27. ' P.W. Sajan stated that 1-2 persons were present in the hotel at the time of incident. Owner of the hotel was absent. He stated that his mother was the Phuphi of P.W. Esso.
28. ' P.W. Muhammad Ishaque Exh.20 is the Mashir of arrest of the appellants and recoveries. Besides he is common Mashir of inquest report, Mashirnama of injuries of appellants Nos.1 and 2, dead body etc. He admits to be cousin of Allah Bux. He admits that he had seen the knives in the hands of accused when they were arrested by the police at Ditta Wah. He admitted his signature on the Mashirnama of injuries of appellants Nos.1 and 2 but denied in cross-examination that he could not say if they had injuries on their persons.
29. ' P.W. Agha Nisar Ahmed (Exh.41) is the Investigating Officer, who admitted in cross-examination that the accused Ghulam Hussain had lodged ' P.W. Syed Kazim Raza Shah (Exh.30) is the Medical Officer who examined Allah Bux son of Haji Ibrahim on 24-6-1986 and found the following injuries on his person:--
(i) Stab wound 1-5 c.m. x .5 c.m. x 5 c.m. At the verterbra column 6 c.m. Below the root of the back of the neck.
(ii) Stab wound 1.5 c.m. x .5 c.m. x 1 c.m. At the right side of front of the neck near right sternocloudo mastoid muscle.
(iii) Stab wound 1.5 c.m. x .5 c.m. x .5 c.m. At the left scapula region..
(iv) Stab wound 2 c.m. x .5 c.m. x .3 c.m. At the left shoulder joint.
30. ' He also examined P.W. Esso on the same day found the following injuries:--
(i) Lacerated wound 3.5 c.m x 5 c.m. x zig zag partially scalp deep at the left parieto occipital region of skull.
(ii) Lacerated wound 1.2 c.m. x .2 c.m. x .2 c.m. x skin deep with swelling at left eye brow.
(iii) Abrasion on the right dorsom of hand near right thumb.
31. ' P.W. Dr. Anwar Hussain (Exh.38) conducted post-mortem of Allah Bux son of Allah Dino on 25-6- 1986 and described the following injuries on his person:--
(i) There was incised wound above the medical part of left clavical at right side of the neck above downwards 4 c.m. x 3 c.m. x cavity deep.
(ii) Stitched incised wound on posterior part of the shoulder 4 c.Ms.
(iii) Stitched incised wound on lateral part of the left scapula, 3 c.m. On removal of the stitched wound air bubbles with blood seen coming from the wound.
(iv) Stitched incised wound on back of the neck at mid line of second and third vertila size 3 cms.
32. On removal of the stitch blood seen coming from wound.
33. ' The Medical Officer in cross-examination stated that the word appearing below the parentage of the deceased was in different ink and hand writing and was not written by him.
34. ' F.I.R. And he produced F.I.R. As (Exh.41-H). He also admitted the place of incident was in busy place.
35. ' I will take up first ground of controversy of the death of the complainant.
36. ' The charge (Exh.5) against the appellants Nos.1 and 2 is that they caused murder of complainant Allah Bux son of Haji Ibrahim. Admittedly F.I.R. Was lodged by the complainant Allah Bux son of Haji Ibrahim and not by Allah Bux son of Haji Allah Dino.
37. ' The prosecution case is that complainant Allah Bux son of Haji Ibrahim had died on 25-6-1986, but evidence of Medical Officer Anwar Hussain (Exh.38) shows that on 25-6-1986 A.S.-I. Hakim All had produced dead body of Allah Bux son of Allah Dino. On a question put to him in cross-examination, he replied that the word appearing below parentage of the deceased is in different ink and handwriting and is not written by him. The post-mortem report (Exh.39) produced by the Medical Officer also shows the name of the deceased as Allah Bux son of Haji Allah Dino, whereas the Medical Officer Syed Kazim Raza (Exh.30) had deposed that he had examined injured Allah Bux son of Haji Ibrahim on 24-6-1986 and Medical Certificate (Exh.31) also shows the name of injured as Allah Bux son of Haji Ibrahim. The Mashirnama of injuries (Exh.41-B) shows the injured as complainant Allah Bux son of Haji Allah Deno. Besides the Mashirnama ('Exh.24) which is the Mashirnama of the dead body also bears the name of father as Haji Allah Deno. Mashirnama (Exh.25-A) and (Exh.28) are also of the same nature. The prosecution has not resolved this discrepancy and mystery remains unsolved as to who was the real deceased. Whether the complainant Allah Bux son of Haji Ibrahim has actually dies as a result of the alleged injuries is not certain from the conflicting evidence on the report. The learned trial Court has also not taken into consideration this important aspect of the case which is going to the root of the case.
38. ' In the case of Yar Muhammad v. State reported in 1992 SCMR page 96 the Honourable Supreme Court of Pakistan has held that if there was any discrepancy in prosecution evidence or if the same required clarification or explanation then prosecution must explain and clarify the same failing which benefit would go to the accused.
39. ' In Sikandar v. State PLD 1963 SC page 17. It was held that if there is a choice between doubting of the statement of eye-witnesses and that of Investigating Officer the benefit of doubt thus occurring should go to the accused. Similar view has been held in Rashid Ali Khan and another v.
40. The State 1992 PCr.LJ page 1320.
41. The prosecution witnesses have also not clarified this position and no witness has said anywhere that the complainant Allah Bux was the son of Allah d Deno.
42. ' Considering the case law and the relevant evidence on record it cannot be definitely said as to whether the complainant Allah Bux son of Haji Ibrahim and the deceased Allah Bux son of Allah Deno are one and the same person.
43. ' The prosecution has also not proved the charge Exh.5 to show that the appellants had murdered Allah Bux son of Haji Ibrahim.
44. ' I, therefore, hold that the prosecution has failed to establish that deceased was no one else but the complainant. Such fact remains in mystery, as such, the charge against the appellants that they murdered the complainant Allah Bux son of Haji Ibrahim does not stand proved.
45. ' The learned Additional Advocate-General while arguing on this aspect of the case stressed that no such plea was taken by the appellants in the trial Court and such controversy has been raised in this Court in appeal for the first time. He further stressed that the father of the Allah Bux may have two names and he may be called by the name of Allah Dino in the village, as such, it was immaterial whether the name of father of complainant was Haji Ibrahim or Haji Allah Dino. I am afraid, I do not find myself in agreement with the stand taken by the learned Additional Advocate- General. The accused may take such plea in trial Court or not and even the accused may not take any defence at all, it is bounden duty of the prosecution to prove its case in all respects beyond any reasonable doubt. Weakness of defence is no ground for prosecution not to prove its case. The prosecution has to stand on its own legs.
46. ' In the case of Abdul Hameed v. State reported in 1995 PCr.LJ (Karachi) page 1302 which is D.B.
47. Decision, this Court held that burden of proof is on prosecution and accused only is required to create doubt in the prosecution case and once he succeeds in doing so, he is entitled to benefit of doubt. The arguments of the learned Additional Advocate-General that the father of the deceased may have two names and he may be called by the name of Haji Allah Dino in the village has also no force and is based on presumption as in the entire prosecution evidence such fact has not been clarified nor it has been brought in evidence by the prosecution that Haji Ibrahim and Haji Allah Deno is one and the same person.
48. ' It is also surprising that Medical Officer Dr. Anwer Hussain, who conducted the post-mortem in his evidence clearly stated that the A.S.-I. Hakim Ali had produced dead body of Allah Bux son of Haji Allah Dino and postmortem (Exh.39) also showed the name of the deceased as Allah Bux son of Haji Allah Dino. The medical officer in cross-examination stated that the word appearing below parentage of the deceased was in different ink and handwriting and was not written by him, but Public Prosecutor appearing for the State did not bother to get clarification of this fatal issue. Even the trial Court has not considered this important point while appreciating the prosecution evidence which shows that the trial court had not applied its judicial mind to the prosecution evidence.
49. ' It is more surprising that the Mashirnamas (Exh.41-E), (Exh.24), (Exh.25-A) and (Exh.28) prepared by the police bear the controversial name of the father as Haji Allah Dino but the prosecution is silent and Public Prosecutor did not bother to get their controversy clarified through the concerned witnesses. The contentions of the learned State counsel have, therefore, no substance and are repealed.
50. ' On the point of ocular evidence the learned Additional Advocate-General contended that there were eye-witnesses of the incident including the injured Esso, who have fully supported the prosecution case and the fact that they were closely related to the deceased/complainant will be immaterial. It is argued that the ocular evidence is fully corroborated by the medical evidence, motive and recoveries. On the other hand Mr. Syed Madad Ali Shah, learned counsel for the appellants submitted that the eye-witness may be one solitary injured Esso, remaining witnesses have not witnessed the incident and they could only be turmed as chance witnesses.
51. It is admitted position that P.W. Esso is the cousin of the complainant, P.W. Khamiso's father is the cousin of the father of complainant Allah Bux and the mother of P.W. Sajjan is the Phuphi (father's sister) of P.W. Esso. In the F.I.R. (Exh.41-A), the complainant has clearly stated that P.Ws. Sajjan, Photo and Khamiso came to the place of incident after the incident was over, that means they did not witness the actual occurrence. The learned State Counsel admits this position but contends that the writer of the F.I.R. Is police and it is not the fault of the complainant. The F.I.R. Is early version, which is to be accepted as it is, but nothing has been brought to the contrary as suggested by the State Counsel. The facts will be taken as per F.I.R. Correct to the extent of what it has been stated.
52. ' Be that as it may, evidence of P.W. Esso (Exh.15) is very clear who has stated:-- "Thereafter, accused Bachoo and Ghulam Hussain caused knife injury to Allah Bux, the other accused caused me Lathi injuries, thereafter we raised cries. On our cries Photo son of Usman and Khamiso son of Haji Jummo, Sajjan son of Haji Jummu all Khadios by caste came running. They were raising Hakals and seeing them the accused went away while abusing. "
53. The evidence of P.W. Esso is in confirmative with the F.I.R. Though P.Ws. Sajjan and Khamiso claimed to have witnessed the incident as per prosecution but they have deposed falsely to that extent.
54. Photo has not been examined but P.Ws. Sajjan and Khamiso cannot be declared as eye-witnesses, they may be chance witnesses. Both the witnesses though did not witness the incident but they deposed to have seen the incident, but their version is falsifie. By F.I.R. And evidence of P.W. Esso as such, they have tried to be the eye witnesses of the incident, this shows their interest only due to their closed relationship with the complainant and P.W. Esso. Both the witnesses have otherwise tried to be truthful witnesses but their evidence does not inspire confidence for the reason stated above. Both of them have also materially contradicted with each other and P.W. Khamiso has stated that P.W. Sajjan took Allah Bux and Esso to Police Station Bulri Shah Karim while P.W. Khamiso contradicts him and said they took the injured to Bulri Shah Karim Police Station. P.W. Sajjan says that 1-2 persons were present in the Hotel at the time of the incident while P.W. Khamiso contradicting P.W. Sajjan has deposed that there may be 20-25 persons at the Hotel at the time of incident. P.W. Khamiso also suppressed the injuries on the persons of appellants Nos.1 and 2 and he stated that he did not see any injury on the person of accused Ghulam Hussain and Bachoo. This may be correct as he did not witness the incident. In view of this discussion, I am clear in my mind that P.W. Khamiso and Sajjan are not eye-witnesses of the alleged incident as their evidence does not inspire confidence as such, ruled out of consideration.
55. ' Now remains evidence of P.W. Esso who is injured witness. Admittedly, he is the cousin of the complainant and being closely related to him, his evidence requires strong independent corroboration. He has also suppressed the injuries on the person of the appellants Nos.1 and 2 and also denied that he, Allah Bux, Umer, Shafi, Photo and Mooso made attack on Ghulam Hussain and Bachoo on the day of the incident. According to his evidence, the incident took place at 8-00 p.m.
56. When he says:-- "The incident took place at about 8-00 p.m. After about one hour after we reached at the hotel."
57. ' This is directly in conflict that the time of incident in the F.I.R. Which is 8-30 p.m. It is also surprising that in the instant case, P.W. Esso had not received any incised injuries and he received only simple injuries, which were said to have been caused with blunt weapon. Though in the F.I.R. Complainant stated that the accused Ghulam Hussain and Bachoo with intention to kill both of them caused knife blows. The evidence of P.W. Esso is also not inspiring confidence and particularly on the point of suppression of injuries on the persons of appellants Nos.1 and 2, he has damaged his veracity and injured his integrity and shaked the confidence of the Court.
58. ' In the case of Muhammad Iqbal v. Abid Hussain and others, reported in 1994 SCMR 1928, the Honourable Supreme Court of Pakistan held that by suppressing injuries of the accused, eye- witnesses had damaged their veracity and injured their integrity and also shaked the confidence of the court and as such their statement were no more confidence inspiring.
59. ' In the case of Lal v. State reported in 1987 PCr.LJ 659, it was held by the D.B. Of the Lahore High Court, that eye-witnesses purposely suppressing injuries caused to accused held purjured themselves about motive, such witnesses were not at all witnesses of truth. merely fact that P.W. Esso was an injured witness does not mean that what he has stated was truth.
60. ' In case of Sayeed Ahmed v. Zammured Hussain and others reported in 1981 SCMR page 795, it was held that fact of eye-witnesses being injured and injuries being not self-suffered not by itself indicative of witness told truth.
61. ' In Muhammad Jehangir v. State 1995 SCMR page 1715 it was held by the Honourable Supreme Court of Pakistan that presence of eye-witnesses at spot at the time of occurrence no doubt was very much confirmed by the injuries present on their persons but it did not mean that they were witnesses of truth.
62. ' In the case of Faiz Muhammad and another v. State 1985 PCr.LJ 2132 this Court held that presence of injuries on the person of witness only showed his presence at place of occurrence at relevant time nevertheless his evidence had to be scrutinized by Court to find out whether he had spoken truth or not.
63. In view of my discussions I do not give any weight to the evidence of P.W. Esso when his solitary ocular evidence is without any independent corroboration. It is well-established law that medical evidence is not corroborative piece of evidence. I have already held above that the prosecution has failed to prove the actual death of complainant, as such, even medical evidence is of no help to prosecution case nor it furnished any corroboration to prosecution evidence. It is well-settled law that the evidence of closely related witnesses requires strong independent corroboration, which is lacking in this case.
64. ' In the case of Zahoor Ellahi v. The State reported in 1997 SCMR 385, it was held that eye-witnesses who were related to the deceased, their evidence requires independent corroboration.
65. ' In another decision of Honourable Supreme Court of Pakistan reported as 1997 SCMR 1076, it was held that eye-witnesses being related inter se with the deceased their evidence needed corroboration.
66. ' In Atta Muhammad and another v. The State reported in 1995 SCMR 599, the same view was held by the Supreme Court of Pakistan, that prosecution witnesses on account of their close relationship to the deceased were interested witnesses.
67. The contentions of Mr. Syed Madadally Shah, learned counsel' J appearing for the appellants that disinterested witnesses being available but not a single amongst them has been examined by the prosecution has also sufficient force. It has come in evidence that number of persons including the owner of the hotel were present at the time of alleged incident but not a single disinterested witness has been examined by the prosecution, as such presumption under Article 129(G), Qanun- e-Shahadat Order, 1984 will be that such witnesses if examined would have deposed against the prosecution.
68. ' In 1996 SCMR page 308 Bashir Ahmed alias Manu v. The State, it was held that despite the presence of natural witnesses on the spot they were not produced in support of the occurrence and adverse inference under Article 129(G), Qanun-e-Shahadat Order could easily be drawn that in case they were produced they would have not supported the prosecution version.
69. ' In Muhammad Sharif v. Tahirur Rehman 1972 SCMR page 144 it was held that large number of persons had gathered at place of occurrence but all the same prosecution failing to produce single disinterested witness in support of its case, no implicit reliance could be placed on evidence of interested eye-witnesses in absence of corroboration.
70. ' In 1980 SCMR 708, it was observed that no witnesses of locality nor owner of hotel was produced in support of prosecution case nor any independent evidence to corroborate testimony of the three eye-witnesses was produced, as such, the acquittal was upheld by the Honourable Supreme Court of Pakistan in the reported case.
71. ' In PLD 1989 Kar. 293 D.B. Of this Court, observed that despite incident took place at 6-30 P.m. In a hotel where 15-20 persons were watching television programme and no independent witness was produced and solitary witness who was a close relative of the deceased produced by the prosecution as such acquittal was ordered.
72. Considering the abode case-law I am of the considered view that with holding of disinterested witnesses was not only fatal to the prosecution case but prosecution has itself destroyed the independent corroborative piece of evidence.
73. ' The contentions of the learned Additional Advocate-General that people in village avoid to give evidence for personal reason has also no force as evidence does not show that any efforts were made by the police for such and independent witness.
74. ' The contentions of the learned State Counsel has no force in view of the law laid down in Altaf Hussain v. The State reported in 1996 SCMR 167, wherein their Lordships have observed as under:-- "The arguments that public witnesses do not come forward to support such like recoveries because of risk to their life and liberty nonetheless could not absolve the police of their heavy responsibility to produce witnesses from public."
75. The alleged motive as per F.I.R. (Ehx.41-A) has not been proved by the prosecution. The prosecution has not established that Saleh was in fact the cousin of appellants and that Allah Bux was in fact Karo with the wife of Saleh. There is also no evidence on the record as to why the appellants chose the hotel to attack the complainant and P.W. Esso on the plea of this motive. P.W. Esso had deposed that he and Allah Bux were sitting at the hotel at 8-00 p.m. And the accused were also sitting at that time in the same Hotel. In cross-examination, this P.W. Says that:-- "I and complainant Allah Bux were sitting at the hotel of Ibrahim from 7-00 p.m. None else was present at the hotel except we two and the owner of the hotel."
76. ' If this is correct, then the incident took place at 8-30 p.m. This falsifies the allegations of motive.
77. The P.Ws. Sajjan and P.W. Khamiso could not say about the motive as they came as per F.I.R. After the incident was over. Their evidence, is, therefore, not believable.
78. The learned trial Court appears to have given findings on the point of motive on presumption and not on the basis of any cogent or sound reasons.
79. ' The learned trial Court appears to be not definite and only on presumption has given its findings:- "In my humble view no doubt that accused are not brother or father of Saleh Sammo or his wife but they are admittedly cousin of Saleh, therefore, their motive to murder the deceased upon the allegations of being Karo with the wife of Saleh cannot be ruled out."
80. ' In the case of Hakim Ali and others v. The State reported in 1971 SCMR 432, it was held by the Supreme Court of Pakistan that prosecution though not called upon to establish motive in every case yet once it has set up as motive and failed to establish, prosecution must suffer consequences and not defence.
81. ' In Qalbe Abbas alias Nahola v. The State 1997 SCMR 290. It was held by the Honourable Supreme Court of Pakistan that evidence of motive being always weak piece of evidence cannot furnish sufficient corroboration to ocular evidence.
82. ' In 1995 SCMR 599 it was held by the Honourable Supreme Court of Pakistan that complainant being solitary witness of motive could not corroborate himself.
83. ' In the case of Rasool Bux and another v. The State 1980 SCMR 225 it was held by the Honourable Supreme Court of Pakistan that evidence of motive for crime flimsy and coming from mouth of same witnesses whose evidence sought to be corroborated by motive hence of no corroborative value.
84. ' In 1997 SCMR 611, it was observed by the Honourable Supreme Court of Pakistan that motive as alleged by the prosecution was not good enough to be of any corroborative value as in the present case.
85. The learned trial Court has not even put the question of motive to the I appellants under section 342, Cr.P.C. The question No,2 has been put to N appellants as under.
86. Q.No,2 "It has also come in evidence that prior to the murder of the deceased Allah Bux you were seen talking with accused Moosa and Muhammad Ali talking that deceased was on illicit terms with wife of Saleh was visiting their house and that deceased should be murdered that Moosa and Muhammad Ali provided knives for committing the murder of the deceased?"
87. Since no question was put to the appellants under section 342, Cr.P.C. As such, in the view of law laid down in 1995 SCMR page 1373, 1969 SCMR page 777 and 1990 PCr.LJ 470 (D.B.) the evidence of motive cannot be used against the appellants.
88. ' Besides, the alleged motive is very weak and could not be made basis for the alleged crime. The motive has lost its importance as the learned trial Court has already ruled out criminal conspiracy and has acquitted the accused Muhammad Ali and Dawood against whom conspiracy was alleged regarding motive.
89. ' For the reasons, stated above, I am of the view that alleged motive has not been proved by the prosecution and itx no way is of any help to the prosecution.
90. ' The evidence of recoveries is also not convincing. The Mashir Muhammad Ishaque admittedly is the cousin of complainant and is an interested witness. The knives were not sealed at the spot and there is delay of about one month in sending the same to chemical examiner has lost its sanctity and is of no help to the prosecution point.
91. In the case of Muhammad and another v. The State reported in 1997 PCr.LJ page 459 (D.B.) this Court held that recovery of the hatchet from the accused being itself doubtful, Chemical Examiner's Report showing it to be stained with human blood was of no corroborative value.
92. ' In 1997 PCr.LJ page 690 (D.B.) this Court held that the recovered weapon was not sealed at the time of recovery and there was no guarantee that the same weapon had been sent to ballistic expert.
93. In the present case, no question about Chemical Examiner's Report (Exh.29) has been put to the appellants under section 342, Cr.P.C. As such, it cannot be used against him. Reliance can be placed on 1995 SCMR 1373, 1969 SCMR page 777 and 1997 SCMR page 1011.
94. ' In the case of Yaqoob Shah v. The State 1995 SCMR 1293 the recovery was effected on 31-5-1985 and sent to laboratory on 13-6-1985, their Lordships of Supreme Court of Pakistan held the report of fire-arm expert of no avail to the prosecution.
95. There is also conflict between the evidence of Investigating Officer and Mashir Muhammad Ishaque on the point of place of recovery. The Investigating Officer says that knives were recovered at the police station while as per Mashir Muhammad Ishaque, the knives were in the hands of accused persons, when they were arrested by the police at Ditta Wah. As per F.I.R. (Exh.41-A) the distance between Ditta Wah Bus Stop and police station is five miles.
96. ' In view of this glaring contradiction and the fact that Mashir Muhammad ishaque is closely related to the complainant and that knives were not sealed at the spot and sent to chemical examiner after about a month, the alleged recoveries stand vitiated and are of no help to the prosecution case nor the same have furnished any corroboration to the prosecution case.
97. ' Yet another important fact has not been considered by the learned trial Court. There is no clear evidence as to whose knife below proved to be fatal. In the case of Muhammad Tufail v. State reported in 1997 MLD page 997 this Court has held that the general impression given by the eye- witnesses was that all the three accused had caused injuries to the deceased but who had caused the fatal injury, prosecution was silent about it. In the reported case the accused was acquitted.
98. The contention of the learned counsel for the appellants that there was a counter-F.I.R. Lodged by the appellant Ghulam Hussain (Exh.41-H) requires consideration, which has not been given due weight by the learned trial Court. There is clear admission of P.W./Investigating Officer Agha Nisar Ahmed, that he had registered the F.I.R. Lodged by the appellant Ghulam Hussain but the prosecution has not come to truth, as to why the complainant party was not prosecuted. There is even no evidence that this F.I.R. Was disposed of by the police in any way. Even the direct complaint filed by the appellant against the complainant party was not considered by the trial Court. There is order dated 30-4-1987 of the learned third Additional Sessions Judge, Hyderabad (Exh.44-C). These documents show that there was a counter-version, which should have been taken into consideration. The counter-F.I.R. Could have furnished the ground to hold as to which party was aggressor. Considering this aspect of the case, I am of the view that the appellants have seriously been prejudiced in their defence and are entitled to this benefit of doubt.
99. ' Mr. Syed Madadally Shah, learned counsel for the appellants persuaded to hold that under the circumstances of the case, though the appellants have not pleaded the right of private defence but on account of counter-version they may be entitled to such right if the same could be spelt out from the evidence on record. The learned counsel has referred to decisions reported as PLD 1965 Quetta (D.B.) page 33, 1990 PCr.LJ (D.B.) Karachi page 506, PLD 1963 SC page 152 and 1996 PCr.LJ (D.B.) Peshawar page 1833.
100. ' The learned counsel has also relied upon 1992 SCMR page 96 and 1985 SCMR 1715 in support of his plea that in cases of counter-versions where the complainant party has not only suppressed injuries on the persons of accused party and also suppressed the counter-version, the accused party was found entitled to acquittal.
101. ' In the case of Muhammad v. Ghous and 4 others 1972 SCMR page 264 it was held that fight between two parties and there being two versions, each side claiming other to be aggressor. Mere fact that complainant party suffered greater number of injuries, would not relieve it of the initial act of aggression. Possibility of defence-version being true, High Court was found right in acquitting the accused.
102. ' In case of Nasrullah and another v. The State reported in 1985 SCMR page 1715 it was held that suppression of injuries of accused by all eyewitnesses, his counter-version, getting support from recoveries form house of complainant made prosecution case of one sided attack and lent credence to plea of accused and thus was acquitted.
103. ' The case-law cited by the learned counsel fully supports contentions raised by him and I am in agreement with his submissions that the appellants may have and be entitled to the right of their private defence, if their counter-version should have been taken into consideration by the police as well as the learned trial Court. Admittedly, counter-F.I.R. (Exh.41-H) has been, lodged by the appellant Ghulam Hussain on the very day of the incident, and admitted by the Investigating Officer Agha Nisar Ahmed and there is Mashirnama of injuries (Exh.25-B) on the person of the appellants Nos. 1 and 2 and such injuries have been suppressed by the witnesses. Considering all the facts and case law discussed above, I am of the view that the appellants are entitled to acquittal.
104. ' I have already disbelieved P.W. Esso, as discussed above and no question under section 342, Cr.P.C. Statement has been put to accused Salim regarding injury of P.W. Esso. As such, conviction of the appellant Salim under section 323 read with sections 337-A(1) and 337-E-2(a), P.P.C. Is also not sustainable and merits to be set aside.
105. ' The upshot of the above discussion is that the prosecution case was pregnant with serious doubts and was full of discrepancies and confusions and considering all the aspects of the case, prosecution evidence and case law, discussed above, I am of the considered view that the prosecution has miserably failed to prove its case against all the appellants beyond any reasonable doubt. I, therefore, allow the appeal set aside convictions of the appellants and sentences awarded to them and acquit them of all the charges. The appellants Nos.1 and 2 are in custody and they are ordered to be released from the custody forthwith, if they are not required in any other case. The appellant No,3 is on bail and his bail bonds are discharged.