ZAFFAR HUSSAIN MIRZA, J.-Each of the appellants, namely, Atta Muhammad, Allah Wassayo, Ishaque and Chamesar was tried and convicted under section 302 read with section 34, P. P. C. And sentenced to imprison--ment for life by the learned Ist Additional Sessions Judge, Khairpur (Mr. Amanullah Abbasi).
2. The facts forming the background of the case briefly are that on 23-8-1975 complainant Fateh Muhammad at about sunset time proceeded from his house to Nabi Shah Graveyard for offering "Fateha" and for lighting candles at the graves of his elders as it was the Eid day. His nephew deceased Rab Parto similarly left his own house for the graveyard. Also P. Ws. Amir Bux and Moosa Phulpoto left for the graveyard. The deceased, however, was ahead of the rest of the persons. On reaching the graveyard, they offered "Fateha" and thereafter the deceased went to the Makan of Nabi Shah to drink water while the rest were lighting the candles. P. Ws. Amir Bux and Moosa on their way back from the graveyard also followed the deceased to the Makan of Nabi Shah. When the complainant and witnesses were at a distance of 30 to 40 paces from the Makan they saw the four appellants, and Nawab, Dodo Khan and Fattan all Phulpotos by case armed with hatchets come out of ambush from the trees and started giving hatchet blows to the deceased. They were challenged by the witnesses but the assailants warned them not to come near else they would be done to death. The witnesses then raised cries upon which neighbours came running shouting to say that they were about to reach. In the meantime, the assailants escaped towards the West. P.
Ws. Ahmed A.I, Nabi Dad, and many other people arrived at the scene. Then it was found that the deceased had received serious injuries on his head and other parts of the body, as a result of which he breathed his last. Thereafter the complainant after leaving others at the spot left for the Tando Masti Khan Police Station where he reached at 2-00 a m. And lodged the first Information Report which was recorded by Incharge Head Constable Shah Bux. The complainant in the first report expressed his inability to disclose the reason why the deceased was murdered and stated that the father of the deceased might know the motive.
3. After recording the F. I. R. H. C. Shah Bux left for the scene of offence at 5-00 a.m. On reaching the spot he found the dead body of the deceased lying in the open covered with a sheet. He prepared the mashirnama of the scene of occurrence and the inquest report of the dead body. There was blood, pieces of bones and pieces of flesh of the deceased on the ground. These articles were secured and sealed on the spot in presence of the mashirs. The Head Constable then forwarded the dead body alongwith a letter for autopsy to the Medical Officer, Khairpur through P. C.
Muhammad Yaqoob. In the meantime S. H. O. Agha Mir arrived at the scene and took over the investigation. The S. H. O. Examined P. Ws. Amir Bux,Moosa, Ahmed A.I and Nabi Dad. Thereafter he went after the accused and searched the houses of the appellants for recovering the weapons used in this crime, but no weapon was recovered or secured. He prepared such mashirnama. On 25-8-1975 he examined P. Ws. Nawab and Nabi Shah. On 27-8-1975 the S. H. O. Arrested the appellants in presence of mashirs Morio and Hamid, and prepared such mashirnama. On interrogation each appellant is said to .Have voluntarily produced the crime weapon. First, appellant Atta Muhammad produced one blood-stained hatchet and a blood-stained shirt from behind the shutter of the door of his house. Next, appellant Chanesar produced from the roof of his house a blood-stained hatchet and a blood-stained shirt. There--after appellant Allah Wassayo produced a blood-stained hatchet and a blood--stained shirt from the roof of his house. Finally appellant Ishaque also produced a blood-stained hatchet from the north-west corner of his house.
All these articles were separately secured and sealed immediately at the spot and separate mashirnama were prepared in presence of the aforesaid mashirs. On 1-9-1975 the S. H. O. Got the 164, Cr. P. C. Statements of P. Ws. Amir Bux, Nabi Dad, Hamid A.I, and Muhammad Moosa recorded by the Civil Judge and F. C. M. Khairpur. On ?-9-1975, he called co-accused Nawab, Dodo and Fateh Muhammad as they were implicated in the 164; Cr. P. C. Statements. After interrogating them, however, he did not arrest the said three co-accused. On 5-9-1975, be examined P. Ws.
Muhammad A.I, A.I Nawaz, Allah Wasayo and Abdul Latif. After receiving opinion from the prosecution Branch the S. H. O. Sent up the present appellants only.
4. In the events that happened complainant filed a direct complaint in the Court of District Magistrate, Khairpur on 5-11-1975 wherein it was alleged that the police had been won over by the accused persons, with the result that the police mentioned the names of only four accused (viz. The appellants) in the F. I. R. But in fact there were in all seven assailants including -three more, namely, Nawab, Dodo and Fattan. The last mentioned three culprits were arrested by the police in the first instance but later on only the four appellants were sent up.
5. It may further be stated that for the first time the motive for the occurrence was described in the complaint. It was alleged that accused Chanesar and Dodo had stolen two pairs of bullocks of one Punjabi and had falsely implicated the deceased in the said theft case. In a private settlement before Wali Muhammad Mari, a Nek Mard of the locality the deceased was able to adduce evidence which established that the aforesaid accused had stolen the bullocks in question. The accused were annoyed on this account and had threatened the deceased with dire consequences. The murder of the deceased was in execution of the said threat.
6. The complaint was forwarded to the learned City Magistrate, Khairpur who had ordered process against the accused on 9-12-1975. Both the police case and complaint case were received in the Court of Sessions and were tried together at the request of the Assistant Public Prosecutor incharge.
7. The accused denied the allegations of the prosecution and pleaded their innocence. Appellant Atta Muhammad further stated that he had been falsely implicated on account of enmity. He also stated that appellant Chanesar, co-accused Dodo and Fattan are his uncles, whereas appellants Allah Wassayo and Ishaque and co-accused Nawab are his cousins.
8. As already stated the learned Additional Sessions Judge found the present appellants guilty and acquitted the remaining three accused, namely, Nawab, Dodo and Fattan giving them the benefit of doubt.
9. The evidence in this case consists of ocular testimony of alleged eye-witnesses complainant Fateh Muhammad, P. W. 4, Amir Bux, P. W. 5 Muhammad Moosa, P. W. 6, Ahmed A.I and P. W. 8 Nabi Dad. The next piece of evidence is the motive in support of which besides the complainant, P. W. 12 Iddal and P. W. 13 Muhammad Asif have been examined. Next is the evidence of recoveries which have been testified to by. P. W. 10 Morio. Finally is the evidence of the Medical Officer Dr. Hussain Bux, Exh. 10.
10. At the very outset we might refer to the medical evidence which is of pivotal significance in this case. The medical expert who examined the dead body found the following external injuries
(1) One incised wound 6' x 7' x 5' going through the mouth to the anterior surface of cervical vertebrae.
(2) All the upper and lower teeth were removed off.
On internal examination it was found that trachea oesophagus and all blood vessels of the neck were cut along the muscle. In the - cross-examination the Medical Officer agreed that the loosening of the teeth can be the result of the same injury which was mentioned by him as injury No. 1. It is therefore, apparent that the evidence of the Medical Officer makes out a single injury on the person of the deceased. The rest of the evidence on record is, however, at variance with the medical evidence. The Investigating Officer who saw the dead body at the scene and prepared the inquest report noted the injuries as under :- The mouth is cut and chopped off. There ' is hatchet injury near the right eye. Hatchet injury on the forehead. Injury on the right shoulder like a cut. Hatchet injury on the right ear, entire face is chopped off with hatchet blows, an injury like a cut on the back side of left shoulder. Injury on the left thumb which is cut.
P. W. 10 Morio who was the mashir of the inquest report described the injuries of the deceased in the following words :- "I found injuries in the face of the deceased. His jay was cut and his teeth and pieces of flesh were lying nearby him. His face was cut with multiple injuries. There was blood on his face and forehead .
The deceased had also hatchet injuries on his shoulder blade and on his right hand also."
11. In view of the aforementioned conflict between the medical and ocular evidence, learned counsel for the appellants strongly contended that the veracity of the testimony of Y. Ws. Who- claimed to have witnessed the occurrence is seriously jeopardised. He criticised the manner in which the learned Additional Sessions Judge dealt with this aspect of the matter and rejected the evidence of the medical expert to prefer the inquest report in support and corroboration of the version deposed to by the P. Ws. It would be advantageous to refer to the portion of the judgment in which the learned Judge gave his reasons for his conclusions in the following words :-- "The next question for consideration is whether there is conflict between ocular evidence and medical evidence. The P. Ws. Stated that repeated hatchet blows were given to the deceased but the Medical Officer Dr. Hussain Bux has stated that these was only one hatchet blow given to the deceased which caused his death. I had examined from the record as to which version is correct.
The H. C. Shah Bux (Exh. 26) has stated that the deceased had injury under his jaw which had been cut through.. He had another injury on the forehead above the right eye and he had third injury near his right ear. He had fourth injury on his right shoulder. He had fifth injury on his left shoulder from the back side and he had sixth injury on the left hand thumb as it was cut. The inquest report had been prepared in presence of mashirs Morio and I---labi Bux. Mashir Morio has been examined as Exh. 29 who has stated that he found injuries on the face of the deceased . . . . . . . . The inquest report was prepared on 24-8-1975 at 8-15 a.m. The "Medical Officer has stated only about one injury and the record contradicts him. H. C. Shah Bux had prepared the inquest report and he is independent person not related to complainant party and he is supported by inquest report (Exh.
28) which was prepared in the morning after the incident. Thus the P. Ws. Are speaking the truth when they say that the accused had given repeated injuries to deceased. The inference against the P. Ws. Can be drawn if the conflict in medical evidence and ocular evidence is genuine and it should not be artificial. In the present case the Medical Officer Dr. Hussain Bux bad suppressed the different injuries on the person of deceased which were so obvious."
12. We find great force in the submission of the learned counsel for the appellants that the assessm ent of the evidence in this particular aspect and the effect of the conflict between medical and ocular evidence has received all but a very perfunctory treatment by the learned Additional Sessions Judge. We have perused the evidence of Dr. Hussain Bux and find that the prosecution has fully relied upon his testimony without there being even a suggestion of dishonesty. In Pissand and others v. State (1974 P Cr. L J 77), in somewhat similar situation Late Tufail A.I A. Rehman, C. J.
Pointed out that the normal rule is to test the veracity of the eye-witnesses by the consistency of their evidence with the medical evidence and strongly disapproved the rejection of the doctor's evidence without there being a foundation laid for suggesting dishonesty to him. In the present case the doctor's evidence further fits in with the prosecution version regarding the time of the occurrence. The doctor stated that he commenced the post--mortem examination at 10-30 a.m.
On 24-8-1975 and finished it at 11-30 a. m. In the opinion of the doctor the time elapsing between death and post--mortem examination was about 12 to 16 hours. According to the evidence on record the incident took place on the previous evening at about sunset time which is roughly about 15 to 16 hours. Instead of considering the re-action of the conflict upon the veracity of the evidence of witnesses, the learned Judge did exactly the opposite as in the above-cited case. We are quite unable to understand on what principles the learned Judge sought to test the creditworthiness of the medical evidence with the inquest report and resolved the matter by holding that the Medical Officer had suppressed the different injuries on the person of the deceased, which inference was wholly uncalled for and unjustified. Unless there are reasons to doubt the integrity of the Medical Officer or doubts are raised that he may have prepared false record, between him and the H. C., who is not an expert witness, the preference must go to the medical expert's evidence. It was rightly contended that if the prosecution itself entertained doubts regarding the truthfulness of the medical evidence, in the facts of this case it was not difficult to discredit the doctor's testimony by obtaining the opinion of a panel of doctors or even by exhumation of the dead body.
13. If therefore, the medical evidence is to be accepted, it will have to be held that the deceased was inflicted only a single injury. With this background the ocular evidence is to be analysed in order to assess the weight than can be given to the testimony of the alleged eye-witnesses.
Complainant Fateh Muhammad states in his deposition that he and the other witnesses were at a distance of 30 to 40 paces from the scene when they saw some persons coming from different directions and upon reaching the scene they started giving hatchet blows to the deceased. He states that all the seven culprits were armed with hatchets. He also states that they saw that the culprits had caused multiple injuries to the deceased and cut him into pieces. Similarly P. W. 4 Amir Bux stated that he saw all the seven assailants showering hatchet blows to the deceased. The next witness is P. W. 5 Muhammad Moosa who states that out of the seven assailants one, namely Fattan was armed with a lathi and the rest with hatchets and all the assailants jointly inflicted hatchet blows on the person of the deceased. P. W. Ahmed A.I and P. W. 7 Nab I Dad are both said to have come to the scene of offence upon hearing cries. They state that they saw accused Fattan with a lathi and the remaining accused with blood--stained hatchets in their hands while running away from the scene. Upon reaching the spot they saw that the deceased had hatchet injuries on his face and on his left and right shoulders and lathi injuries on his body. Considering the evidence of the medical expert the version of the aforesaid witnesses appears to be grossly exaggerated. If seven or six assailants armed with hatchets had even caused one injury each, there would be at least six injuries on the person of the deceased. But the aforesaid witnesses categorically stated that the culprits inflicted multiple injuries upon the deceased. Complainant Fateh Muhammad and P. W. Amir Bux attributed hatchet injuries to all the seven accused but it seems that realising the fact that the inquest report shows only six injuries, an attempt was made by the sub--sequent witnesses to reduce one hatchet and make the number of culprits armed with hatchets to six, so that it fits in with the inquest report. However, the learned trial Judge has disbelieved the evidence of these witnesses as to three of the acquitted accused which shows that he also came to the conclusion that the witnesses were exaggerating their testimony to implicate the said three accused. In fact the learned Judge categorically stated that in reaching the conclusion that the present appellants are guilty of the offence, he has relied on the evidence of complainant Fateh Muhammad. The learned Judge has further clearly stated in the judgment that he cannot accept the evidence of P. W. Ahmed A.I and Nabi Bux as their evidence was unconvincing.
14. We have therefore, reached the conclusion that the evidence of witnesses in material particulars is - palpably unreliable and it will not be safe to base a conviction on a capital charge upon ocular testimony which even as regards the main incident is demonstrably exaggerated. In addition we find that the corroborative evidence is also not above board. It is in the evidence of the Investigating Officer that on the same day when the F. I. R. Was lodged he searched the houses of the appellants but did not find anything incriminating. Yet strangely enough on the third day be secured blood-stained hatchets from the house of each of the appellants and three of the appellants produced blood-stained shirts. As stated above there is no reason to reject the medical evidence which disclosed only a single injury and therefore it is not possible to hold that four blood-stained hatchets were secured from the appellants.
15. Mr. S. Nasiruddin, learned counsel appearing for the State urged A that the complainant Fateh Muhammad's evidence be sifted and the part relating to the first injury attributed to appellant Atta Muhammad be accepted. In doing so counsel argued, corroboration can be found in the medical evidence and recovery of blood-stained hatchet from the said appellant. However, we are unable to agree with the learned State Counsel that in the facts and circumstances of this case it would be proper to do so. In the face- of major part of testimony of the complainant. Being rejected as untrustworthy, it will be totally improper to place reliance on a small part of his evidence which will amount to giving an entirely new shape to the prosecution story from that disclosed by the witnesses.
16. For the foregoing reasons, we would acquit the appellants and set aside their convictions and sentences. They shall be released forthwith if not required in any other case.
17. We had announced the decision in this appeal on 6-2-1978 and above are the reasons therefor.
Appeal. Accepted. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.