' S. A. MURAT, .J.-The appellants Lakhmir, Shahoo and GulB have filed this appeal against the conviction and sentence passed against ea* of them by the Sessions Judge, Dadu, as per judgment dated 31.3-1975, whereby appellant Shako, son of Muhammad Hashim Leghari has been convicted under section 302/34, P. P. C. And sentenced to suffer transportation for life, and also under section 324, P. P, C. And sentenced to R. I. For two years, while appellants Lakhmir and GOO) have been convicted undo section 324, P. P. C. And sentenced each to suffer R. I. For two years.
2. The prosecution story is that on 4-6-1973, at 9-30 p.m. In Dadu Town, one Sahib son of Muhammad Saleh Bhand was murdered with sharp edged weapon. The report about the said crime was lodged by Khan, brother of the deceased, on the same day at 11-50 p.m. At Police Station. Dadu, which is at a distance of one furlong from the place of incident. The F. I. R. Was recorded by Late Mien Muhammad Khan, the then S. 8, O., Police Station Dadu, who later died during investigation of the case. The complainant alleged that he was resident of village of Meinhoo Bhand. On 1.6-1973 there had been a quarrel between his brother Hakim, with one Ebrahim Kheskheli and Uris Leghari in which his brothel, Hakim was injured and admitted for treatment in Dadu Hospital. In the evening, on 4-6-1973, the complainant, alongwith deceased Sahib visited their said brother in hospital. Thereafter firstly they bad a round in 1he Town, and then started for their village. As they reached near hotel of Lund, at Railway Road, they met P. Ws. Sikandar and War; Muhammad who proposed to accompany them to village. As the complainant, the deceased Sahib, and P. Ws. Sikandar and Wali Muhammad, reached near Railway Station Crossing at 9- 30p.m. They found the three appellants and one unknown person standing there. As they reached near them appellant Shahoo warned them to stop else they would be killed. Appellant Shahoo having said so struck the deceased with a knife blow on his stomach, while appellants Lakhmir, Gulab and one unknown person took to Sikandar and inflicted kn fa injuries on him The deceased Sahib and Sikandar fell down on receiving injuries. The complainant was armed with stick with which he gave blows to the unknown assailant. Thereafter all the assailants ran away towards the West after crossing the Rilaway Line. The complainant alleged that they had seen the unknown assailant very carefully who could be identified by them. Thereafter they carried the injured Sahib (deceased) and Sikandar to hospital, but Sahib died on the way. The complainant left the corpse and the injured Sikandar at Hospital and proceeded to lodge the complaint. He alleged that the motive for injuring Sahib and Sikandas was that previously there had been a quarrel between Ebrahim Khas kheli and Uris Leghari, a friend of appellant Lakhmir and others, with Hakim, the brother of the complainant, in which Uris Leghari had received slight injury. The accused allegedly murdered the deceased, by giving injury and had also injured Sikandar with the intention to kill him out of revenge.
3. Late Mien Muhammad Khan, the then S. H.
0. Police Station, Dadu, after recording the complaint proceeded to Civil Hospital. He prepared Mesh mama of injuries on P. W. Sikandar (Exh. 9) before Meshirs Abdulish (P. W. 3) and Kassim. P. W.
Sikandar was then referred to Medical Miles, Civil Hospital, Dadu for eisminstion and treatment.
Dr. Sher Muhammad examined P. W. Sikandar on 4-6-1973 at 11-15 p.m. And found the following injuries on his person as per his report, Exh.
(1) Incised wound lf 4' x muscle deep on lateral side of right shoulder.
(2) Incised wound x a skin deep on the top of right shoulder.
(3) Incised wound 2' x if" x muscle deep on the right lumber region on lateral side. Mien Muhammad then held inquest (Exh. 11) on the deceased In the morning on 5.6-1973, in the presence of mashirs Abdullah (P. W. 3) and Jurio. The dead body of the deceased was than handed over to the Medical Officer, Civil Hospital, for poct-mortem examination. The scene of offence was inspected by Late Mian Muhammad on 5.6-1973 at 7-30 a.m. (Exh.'12) in presence of Ma,hirs Abdullah (P. W. 3) and Jurio. The place of incident was pointed out by the complainant. It was situated on the Railway Road at crossing of roads near Railway Station. At the vardat blood was noticed which was taken into possession by the Investigating Officer and sealed for which mashirnama (EMI, 12) was prepared and also witnesses by mashir Abdullah (P. W. 3). Accused Ghulam Hussain was arrested on 5-6-1973 at 6.30 p.m. By Mien Muhammad Khan in presence of mashirs Khamiso and Abdul Majid He observed eight injuries on hie person. A mashfrnama (Exh. 14) regarding his arrest and injuries on his person was prepared. The investigation, therefore, was taken over on 194-1973 by Mr. Muhammad Mobin, then S. H.
0., Police Station, Dadu due to the death of Mien Mohammad Khan. He held identification test of accused Ghulam Hussain through complainant Khan on 19-o-l973. In the said test accused Ghulam Hussain was identified by the complainant being she culprit who had participated in commission of the offence along with appellants. A mashirnanta (Erb. 7) to this effect was; prepared. Accused Ghulam Hussain was challaned on 21.64973 in the Court of Sub-Judge and F. C.
M., Dadu with interim charge-sheet. It was alleged that remaining accused could not be rested as they had allegedly absconded. The Investigating Officer searched the houses of the appellants on 18-7-73 in their absence but nothing incriminating was recovered. Appellants, Lakhmir and Shahoo, were arrested on 23-7.1973 while appellant Gulab war arrested on 30-7-1973. All the accused were finally challaned on 2-8-1973 and after committal enquiry they were tried by the learned Sessions Judge, Dadu and convicted and sentenced as aforesaid.
4. Autopsy on the dead body of the deceased was conducted by Dr. Sher Muhammad, who gave his post-mortem report (Exh. 32). He found following one injury on the person of the deceased :- ' Stab-wound 2' xx chest cavity deep on the right side of chest near the mid line.
' According to the report injury was anti-mortem and was caused by some sham-cutting weapon such as a knife. On internal examination he found that skull and vertebrae was normal. Interior thorax wall was Perforated on the right side. Pleura of the rigiit lung was lacerated. Right aterion of the howl was perforated. Both the ventricles were empty. Stomach was healthy and contained undigested food material. All the other organs were normal.
' In his opinion the cause of death was due to shock and haemorrhage as a result of perforation of heart caused by the external injury described above. The external injury was sufficient in ordinary course of nature, to cause death. The internal damage of the shut and heart was the result of external injury. The death was almost instantaneous following the injury.
' In his opinion the injuries on the person of P. W. Sikandu were caused by sharp-cutting weapon like hatchet or Itnife and were simple in nature. The same were about 2 hours old at the time of examination as per Bah.
33. He opined that the said injuries would have taken about a week foe complete cure. He could not say whether P. W. Sikandar was admitted as indoor-patient or was treated as outdoor patient because record was not available with him.
' He further stated that on 6-6-1973 be had received Ghulam Hussain son of Sher Muhammad Leghari from Dadu Police Station for examination, treatment and certificate. He found the following injuries on his person:-
(1) Lacerated wound x scalp deep on the left frontal region.
(2) Abrasion 1' x 1/4' on left parietal region.
(3) Abrasion i" x r on left scapular region.
(4) Multiple abrasion in an area of 3 x 2' on posterior axillary border.
(5) Abrasion 1' x r on the back of upper part of right forearm.
(6) Abrasion x}' on the back of left fore-arm on its upper part.
(7) There was linear abrasion long on left thumb. In his opinion all the said injuries were simple in nature and appeared to have been caused by hard and blunt substance such as laths. The injuries were about 30 hours old at the time of examinat ion. He had examined injured at 10-45 a. m. On 6- 6-1973 and issued such certificate (Exh. 34). The said injuries would have taken about a week to cure completely. He could not say whether the injured was admitted as an indoor patient or outdoor patient as record was not available.
5. The defence of the appellant was one of complete denial. Appellant Lakhmir stated that Hakim, brother of the complainant Khan, had received injury at the hand of his brother Uris and nephew Gulab, and therefore he had falsely implicated him in the case due to the said enmity. He further stated that appellant Shahoo was his cousin, while Gbulam Hussain was his relative. Appellant Shahoo stated that prosecution witnesses were interested inasmuch as the comp'ainant was brother of the deceased and the remaining P. Ws. Were also related to the deceased and that P. W.
Wali Muhammad bad deposed against him due to enmity. Appellant Gulab stated that the complainant party bad involved him in a case for injuring Hakim and he again falsely implicated in this case.
6. As regards motive, complainant alleged that 4-5 days before the incident, his brother Hakim and Uris, brother of appellant Lathmir, had exchanged hot words with each other and had also exchanged blows. According to him, when his brother Hakim, afterwards got down from bus at Pechooha Bus Stand, he was attacked by accused Gulab and Uris. Ebrahim Khaskheli and Rasoolo.
Hakim was attacked with hatchat and lathies and was admitted in hospital as a result of injury received in the said incident.
7. Mr. A. K. Brohi, learned counsel for the appellant raised several contentions. He contended that in fact it was an unwitnessed crime. He pointed out, certain circumstances, as will be presently discussed, to show that in fact the P. I. R. Was not lodged at 11-50 p. m. On the fateful day, as alleged, but was lodged on the following day giving incorrect time and in the intervening period the police had collected false evidence. The learned counsel further contended that admittedly the crime was committed in Town on a crossing of busy thoroughfare, surrounded by hotel several shops cabins and a mosque and one would wonder that it may have gone unnoticed by any one from the town, as not a single witness from the town and locality has been produced. According to Mr. Brohi the prosecution waited for the complainant Khan to arrive and until then no report was lodged.
8. The ocular testimony consists of the evidence of complainant Khan, and P. Ws. Sit ander and Wall Mohammad. While circumstantial evidence was allegedly proved through mashir Abdullah, who is mashir regarding injuries on the body of P. W. Sikandar. The injuries on the body of P. W. Sikandsr were also relied upon by the prosecution, for the purpose of corm. Boration. Corroboration is also sought from the alleged abscondance of the appellants after the commission of the offence.
9. There are certain facts which have been pointed out by the learned counsel for the appellants, and of which we have taken due notice, which reflect adversely upon the nature of investigation conducted in the case and which create reasonable doubt regarding truthfulness of the prosecution story. The scene of offence, which was only a furlong away from the Police Station, was not inspected by late Mian Muhammad, the then S. H.
0., Dadu, until the following day, that is, 5-6-1973 at 7-30 a. In. When the blood lying at the scene of offence is said to have been scrapped and put in a box. The 'mashir nama' regarding the dead body of the deceased, Sahib, was also prepared on 5-6-1973 at 6-30 a. In. And was handed over for post-mortem by P. W. 1 to the Medical Officer sometime after 6.30 a. m. And the post-mortem was carried on between 8-30 to 9.30 a. In. It has been pointed out that P. W. Sikandar was sent for medical examination to Dr. Sher Muhammad Balocb, who examined him on 4.6-1973 at 11-15 p. In.
As per his report (Exh. 33). In the said report against the column, showing the number and date of police docket mention is made of "Crime 92 dated 4-6-1973". Which is the number of the First Information Report (Bah. 16). The First Information Report is shown to have been lodged on 4-6- 1973 at 11-15 hours., and it is strange how the reference to crime number, which was yet not registered, could be made in the police docket forwarded to the Medical Officer for the examination of P. W. Sikander, who is stated to have been injured in the incident. According to the Medical Report (Etch. 33), on the injuries, of this witness, the nature of Injuries caused to him have been shown to be simple. This witness, according to the evidence of Khan, did not fall down, but was able to walk within little assistance and in nutural circumstances, he should have been the first person to lodge the First Information Report, which was not done in this case. It Is further noteworthy that P. W. Sander bad already been medically examined at 11-15 p. m. On 4-6-1973 by the Medical Officer, yet a 'mashirnama' regarding his injuries, stated to have been prepared at 00- 15 hrs. Past mid-night 1sn 5-6-1973, was deemed necessary by the prosecution. Mashir P. W.
Abdullah was common witness to all the three mashirnanirs regarding injuries on P. W. Sikandar (Exh. 9) dead body of the deceased (Bxh. 10), inspection of the place of incident (Bah. 12) and inquest report (EMI. 11) and he was admittedly related to the deceased as his father-in-law Buxio Khan, was uncle of the deceased and the complainant. The prosecution did not examine any other mxshir to corroborate his testimony. The mashirnama regarding injuries on P. W. Sikandar was prepared at 00-15 hours past midnight and mashirnama regarding injuries on the deceased (Esti.
10) was prepared at 6.30 a. m. On 5-6.1973 and both of these mashirnamas were witnessed by P. W.
Abdullah.
10. This show continuous presence of P. W. Abdullah from 00-15 hours on 5-6-1973 to 6.30 a. m.
Which is quite tell-tale. The other aspect of the case is tha admittedly the murder took place on a public place at a crossing of two roads, with a mosque and shops and cabins all around and there was Sufficien street light yet not a single witness from the locality, who may have witne the crime, has been produced by the prosecution. In the light of the above facts, which undoubtedly weaken the prosecution story, the ocular evidence is to be dealt with caution. Now coming to the ocular evidence, much reliance is placed by the prosecution on the testimony of aforesaid P. W. Sikandar whose presence is taken to be confirmed on account of alleged Injuries on his body. Tho mere fact that a witness is alleged to have sustained injuries does not alone necessarily make him a truthful witness. P. W. Sikandar is stated to have been injured and suffered simple injuries. However, the alleged presence of this witness at the scene of incident shown as mere causal, because he was not accused, Ghulam Hussain, since before the incident, yet involved in the alleged quarrel stated to have taken place four to live days earlier to the date of incident, and he was merely a caste fellow of the complainant. According to the complainant, this witness, alongwith Wali Muhammad, had meat the deceased Sahib and complainant Khan, while they were going towards the bus stand to take a bus for their village. It is nowhere alleged that on being accosted by the accused, P.
W. Sikandar took any part in either defending the deceased, or, in, any fight with the culprits. On the other hand, it was complainant Khan, who wielded a cane, or 'lath!', according to the prosecution, and is stated to have used it in beating up accused Ghulam Hussain. P. W. Sikandar in his cross- examination stated that he had gone to Dadu from his village in the afternoon to make certain purchases which were only worth five to six rupees, and the items that be purchased were such trivial things as chillies, salt and potatoes of which also no recovery bas been shown. He admits that there was a shop in the village and items like the ones he is stated to have purchased could well have been bought in his own village without the necessity of travelling to Dadu by bus. He states that he had met the complainant Khan while returning to his village. He has also stated that he knew the accused, Ghulam Hussain, since _before the incident, yet surprisingly be did not inform complainant Khan about the name of this per on, who was to be named in the First Information Report as an "unidentified culprit." He al4o admitted in his cross-examination that the compla nant had told him before the lodging of the complaint that he was unib'e to identify one of the culprits, and even after that he admits not having disclosed the name of Ghulam Hussain. In bis deposition, after giving the natration of the incident, he has stated tint he was admitted in the hospital and made a definite assertion that "in the morning police came and examined my body, "This statement is contrad cted by mashir Abiullah and the mashirnama (Exh. 9) according to which the said mashirnama regarding the injuries on his body was prepared at 00.15 hours, past midnight. He, therefore, clearly stands belied. Dr. Sher Mohammad had examined him at 11-15 p. m.
On 4.64973. Moreover, his statement, that he was admitted in the hospital and was indoor patient for 20 to 25 days, is not supported by any evidence and is, on the contrary, contradicted by P., W. Dr. Sher Muhammad, Medical Officer (P. W. 10), who stated that the injuries suffered by this witness "would have taken about a week to cure completely. "No record from the hospital regarding his stay was prbduced. The very presence of this witness, in the circumstances, appears to be doubtful, and otherwise does not inspite any confidence and cannot be safely relied upon.
' The complainant P. W. Khan as per prosecution story wail directly involved in the incident, and is also stated to have used a cane, or, Iathie, but surprisingly did not himself receive any injury in spite of the fact that as many as four persons, namely, accused Shahoo, Lakhmir, Gulab and Ghulam Hussain were all armed with a knife each. He took active part in the incident and is stated to have struck accused Ghulam Hussain, whom he mentions as an 'unidentified culprit' in the First Information Report. In the First Information Report, he stated that Lakhmir, Gulab and the unknown person (later identified as Ghulam Hussain) gave knife blows to P. W. Wender, whereupon he fell down on receiving the injuries. P. W. Sikandar did not state that be fell down after re.Eiving the injuries and, on the contrary, said that he was helped to walk to the hospital. P. W. Wali Muhammad also stated that P. W. Sikandar had not fallen down on account of the injury. Although both Wali Muhammad and Sikandsr have admitted having known Ghulam Hussain, yet it is strange that this witness did not care to enquire about his identification from them, although they may not have told him so, which was natural if all these persons were together, particularly when he is stated to have inflicted knife injury on P. W. Sikandar. In fact, this aspect of the case casts serious doubt about the presence of this witness also at the time of incident, and supports the contention of Mr. A. K. Brohi, learned counsel for the appellants, that the prosecution waited for him until the following morning to lodge the complaint. The other circumstances, which create doubt about the correctness of the First Information Report, have been earlier noticed in the judgment. It is also rather unnatural that when his brother Sahib was inflicted with the fatal Wow by Shahoo, he chose Ghulam Hussain alone for inflicting lathe blows on him, and commenced assault only when P. W. Sikandar came to be attacked. In natural circumstances he should have come to the rescue of his brother first and should have taken Shahoo for his assault. His evidence is also not corroborated by the Medical Report on the injuries of Ghulam Hussain (Exh 34), and the evidence of P. W. 10 Dr. Sher Muhammad, who described most of the injuries as abrasions, Web, according to the evidence of the Medical Officer, in cross-examination, could have been caused by a fall on the ground. The accused Ghulam Hussain having been acquitted, the alleged injuries said to have been inflicted by, 'cane', 'laths' of 'data: variously described as such, can otherwise also not be relied upon for the purpose of corroboration. There has also been no recovery of any weapon from any of the accused. In the circumstances, the testimony of this witness is not of that quality as may be relied upon safely for basing the conviction.
' The last prosecution witness is Wall Muhammad, who again had casually met the deceased and complainant Ghulam Hussain while they were said to be going for boarding a bus. There are several minor discrepancies in his statement. But above all, this witness clearly perjured himself by denying in cross-examination that he did not lodge any report at Police Station Bhan regarding an incident in which Rasoolu, Mazer, Jafar Laghari and Uris Legbari had attacked him in Bhan village, and in which Hakim son of Saleh Muhammad, the brother of the complainant, bad been cited as witness. He was later confronted with the original copy of the complaint (Bah. 50), which was summoned and produced by Muhammad Raman. Head constable, who proved the same as per deposition (Bib. 49). The evidence of this witness, therefore, is not trustworthy. #TBS . #TBE
10. Corroboration sought from the allegation, that the accused had absconded after the commission of the offence, is found to be incorrect, as would appear from the deposition of the Investigating 0534 Muhammad Mobin (P. W. 9). In his cross-examination, although he alleged having visited the house of the accused, Shahoa, Guist, and Lakhmir, two/three times before their arrest, but, when confronted with the case diary, he had to admit that it was only on 18-7.1975, when he had searched their house.
11. The Investigating Officer, Mohd. Mobin also confirmed that late Mien Muhammad, the deceased Enquiry Officer, had examined Muhammad Ayub and one Muhammad Yousuf on a-6-73, He had also examined Amir Muhammad, Muhammad Siddiq and All Gohar on 5-6-73. Yousuf had a hotel near the place of incident, while Ayub and Amir Muhammad witnesses had also cabins near the place of incident. Muhammad Siddiq had a sweatmeat shop near the scene of occurrence. As these witnesses had been examined by the former Enquiry Officer, it is surprising why they were not relied upon and examined by the prosecution, particularly because these witnesses belonged to the vicinity of the place of incident. In the circumstances, Mr. A. K. Brohi, learned covnsel fur the appellants, rightly contended that an adverse inference is to be drawn against the prosecution.
12. The story cf motive sel up by the prosecution is also not proved. In the alleged quarrel said to have taken place 4/5 days before the fateful incident admittedly neither the deceased nor P. W.
Sikandar had taken any part. In the F. I. R. It was stated that in the alleged incident Hakim bad received injuries and he was admitted in Dadu Civil Hospital. However, this version was considerably Improved by the complainant in his deposition before the trial Court where be stated that Hakim was attacked by the accused with hatchet and lath!. It was further added that the said incident was rep: rted to the police and was under investigation. These emtelhsbments, made in connection with the impelling motive, raise reasonable presumption that the purpose behind the same was to make the incident look grave because the earlier version given in the F.
1. R. Was rather of a trivial nature. No attempt was made to prove the presence of Haim in Dadu Civil Hospital and no F.
1. It showing details of the alleged incident has been produced. In the absence of any evidence it may well be reasonably presumed that the very story regarding Hakim lyirg admitted in Dadu Civil Hospital for tieatment was designed to show the preser ce of the complainant In Dadu Town, away from his own village, on the fateful day.
If in the fabric prosecution story motive is inextricably interwoven and the prosecution fails to prove the same, such failure must tear bole in the entire prosecution story making it unworthy of any evidence yielding to a reasonable pies= ption of innocence in favour of the accused.
13. The learned Sessions Judge has disbelieved these very witnesses against accused ghulam Hussain who was equally implicated by them, Mr. Brohi, therefore, rightly contended that their evidence was indivisible and if the witnesses could have falsely implicated the said Ghulam Hussain, they may as well have implicated the appellants and their evidence cannot be believed and disbelieved at the same time. This objection is well taken.
14. In the circumstances the appeal succeeds and the conviction and sentence of the appellants is bet aside. We have already, as per oar earlier short order, directed the appellants to be set at liberty and the reasons which had persuaded us to do so are recorded herein.