1. ' Appellants have called in question the judgment, dated 28-4-1981 passed by learned Ilnd, Additional Sessions Judge, Dadu in Sessions Case No,273 of 1976 whereby the appellants have been convicted and sentenced to suffer life imprisonment under sections 302/149, P.P.C. Whereas co-accused Ali Bux has been acquitted by the learned trial Court on the same set of evidence.
2. ' Brief facts of the case are, that complainant Habibullah lodged report with P.P. Sindhi Butra on 11-1- 1975 at about 4-30 p.m. Alleging therein that the offence took place on the same day at the Tipehri time (afternoon). He has stated in the report that he is the resident of Village Daromari and is a Hari and according to him on the date of incident at afternoon time he went out of his house for looking after the cultivation and when he reached in street in front of the mosque when dead accused came out of his house and who was armed with Dandri. It is case of the complainant that the dead accused Roshan abused him and told that since he has prevented him not to pass near his house why he has come there. Thereafter, there was exchange of harsh words between the complainant and dead accused Roshan and both of them abused each other. It is further alleged that the dead accused Roshan attacked and caused injury on the arm of complainant with Dandri and on cries P.
3. Ws. Salikh, Mehar, Habib and others came and saved the complainant and on commotion the accused Gul Sher, Mehar, Ali Bux and Piroo, Sohrab also reached. Accused Ghulamoo was armed with Lathies while accused Ali Bux was empty handed. Ali Bux instigated remaining accused and thereafter accused Piroo caused hatchet blows to Salikh from sharp side of the hatchet while accused Mehar also caused hatchet blow from the blunt side. Accused Sohrab and Gulsher caused blows to P.W. Mehar and Habibullah and dead accused Roshan also caused Dandri blow and on the cries and commotion Ranjha, Imamdin, Sher Khan and Piral rushed to the Wardat and also witnessed the incident. The report also disclosed that in the fight accused party also sustained injuries. The complainant then went to P.P. Butran where his report was recorded by H.C. Abdul Hamid, H.C. Abdul Hamid also recorded counter-case lodged by the accused party under sections 323, 324, 148 and 149, P.P.C. On the same date at 4-30 p.m. H.C. Abdul Hamid sent copy of both the reports to main Police Station Thari Mohabat through P.C. Dhani Bux for incorporating the same in book under section 154, Cr.P.C. Muhammad Shah, Sub-Inspector who was Incharge at Police Station, Than Mohabat after recording both the reports in 154, Cr.P.C. Register as Crime Nos.6 of 1975 and 7 of 1975 proceed to Wardat on next morning, after collecting papers from P.P. Butra. The Wardat of both the cases were common in village Daro Mad. He verified the investigation conducted by H.C. Abdul Hamid and also saw the Wardat himself. He secured and sealed blood- stained earth from the Wardat in presence of Mashirs and also noted marks of struggle. He examined P.Ws. Habib Ranjho, Imamuddin. Piral, Sher Khan Ali Nawaz and Azizullah. On 13-1-1975 he arrested dead accused Roshan, Piroo, Soharab and Ali Bux from village Daro Mari. On interrogation accused Piroo produced a hatchet as well as Lathi of his brother Ghulamoon. The hatchet was blood-stained. Police secured both these articles and sealed the hatchet in presence of Mashirs.
4. Accused Sohrab is said to have produced two hatchet belonging to him and his father Gulsher. The hatchet of Gulsher was stained with blood. The S.-I. Secured both the hatchet in presence of Mashirs. Accused Ali Bux produced a hatchet of his injured son Mehar which was not stained with blood. However, police secured the same. On interrogation dead accused Roshan produced a Dandri from his house which was not stained with blood. The A.S.I.P. Arrested accused Gul Sher.
5. Gulamoon and Mehar from Government Hospital Mehar where they were indoor natients. On 16-1- 1975 notice ant 164 statement recorded of P.Ws. Habib Ranjho and Mehar from the Court of Civil Judge and F.C.M., Mehar. The S.I.P challand both the cases. Accused Roshan died during pendency of the trial while remaining accused were facing trial.
6. ' The prosecution examined P.W.1 W.H.C. Ghulam Mustafa of Police Station, Dadu as Exh.1, who deposed that dead Roshan Chandio was murdered subsequently and even F.I.R. Was recorded on 5-3-1976 as Crime No,37 of 1976 copy of the F.I.R. Has been produced on record as Exh.2. In view of such statement, the case of the dead accused Roshan was abated. Prosecution then examined P.W.2 P.C. Khamiso Khan who had taken the dead body of Salekh for postmortem examination as Exh.8, P.W.3 Tapedar Amamuddin as Exh.9 who produced sketch of Wardat as Exh.10. The learned A.A.P. Gave up P.W. Mehar who was reported to be dead vide statement as Exh.11. P.W.4 Habibullah complainant as Exh.12 who produced original diary as Exh.13, P.W.5 Habibullah as Exh.14, P.W.6 Ranjho as Exh.15. The learned A.P.P. Gave up P.W. Imamuddin, Piral and Sher Khan as well as Muhammad Ismail vide statement as Exh.16. The learned A.P.P. Moved an application under section 33 of Evidence Act as Exh.17 that evidence of P.W. Mehar be allowed to be brought on the record and statement of dead P.W. Mehar recorded by Civil Judge and F.C.M. Mehar was brought on record as Exh.18. The prosecution also examined A.S.-I. Muhammad Moosa who produced Mashirnama of injuries on the dead body, P.W.7 Mashir Atta Muhammad as Exh.21 who produced two Mashirnama of injuries of witnesses as Exh.22, 23 and Mashirnama of Wardat as Exh.24 and Mashirnama of arrest of four accused as Exh.25, Mashirnama of securing of hatchet from accused Piroo Mashirnama securing of hatchet from accused Sohrab as Exh.27, Mashirnarna of securing hatchet from accused Ali Bux as Exh.28, Mashirnama of securing Dandari from the date accused Roshan as Exh.29, mashirnama of arrest of remaining three accused from Civil Hospital Mehar as Exh.30, P.W.8 Muhammad Shah A.S.-I. Who investigated the case as Exh.31, he produced carbon copy of the counter-case as Exh.32, copy of station diary of the counter case as Exh.33, chemical analyzer report as Exh.34. The learned A.P.P. Moved an application under section 509, Cr.P.C. For bringing up on record deposition of Dr. Shamsul Haq recorded by Civil Judge and F.C.M. Mehar. It was allowed as Exh.36. The injury certificate was also brought on the record as Exh.37 with X-ray report as Exh.38, and final report as Exh.39, alongwith injury certificate of deceased Salikh as Exh.40 and post-mortem note as Exh.42, injury certificate of Habibullah as Exh.43. The learned A.P.P. Closed the side vide statement as Exh.44.
7. ' All the six accused in their statements under section 342, Cr.P.C. As Exhs.45 to 50 have denied the allegations against them to be false. Accused Gulsher, Mehar and Ghulamoon admitted that they were caused injuries by P.Ws. The accused did not examine any witness in their defence vide plea Exh.51.
8. ' Learned trial Court after hearing learned counsel for the parties and gone through the evidence passed the judgment in terms as stated above.
9. ' Mr. Allah Bachayo Soomro, learned counsel for the appellants, has argued that the appellants were arrested on 13-1-1975 and the occurrence took place on 11-1-1975 at 12 noon time. According to him there is a counter-case filed from the side of appellants.
10. ' He has further submitted that co-accused Ali Bux has been acquitted by the trial Court on the same set of evidence. He has further submitted that the ocular testimony is being belied by the medical evidence and according to the learned counsel it is a case of prosecution that hatchet blows have been caused to deceased and injured by sharp-cutting weapons whereas medical evidence reveals that the injuries found on the person of the deceased in injured persons are result of blunt substance weapon. According to him the witnesses before the trial Court have suppressed their role played by them whereas they caused injuries to the appellants and their relatives.
11. ' On the other hand Mr. Anwar Ansari, Advocate for A.A.-G. For the State, has submitted that there is admittedly glaring inconsistency between the ocular testimony and the medical evidence and has not controverted the contentions raised by the learned counsel for the appellants and has not supported the impugned judgment.
12. ' I have heard learned counsel for the parties and with their assistance I have gone through the evidence adduced by the prosecution and have examined very carefully medical evidence.
13. Admittedly the counter-case has been filed from the side of the appellants and the witnesses who have been nominated in the counter-case had suppressed their role before the trial Court which they played during the commission of offence. Admittedly the plea of self-defence is also spelt out from the evidence rendered by the prosecution witnesses. I have carefully gone through the medical evidence and I have gone through the evidence of the witnesses who have deposed before the trial Court that the injuries caused to deceased and injured are result of hatchet blows from sharp-cutting weapons whereas the medical evidence reveals that the deceased and injured-sustained injuries on their person by way of blunt substance. It has been held by the superior Courts that in counter-cases it is to adjudge as to who is aggressor and who has aggressed and the benefit of doubt has been given to the accused in such circumstances.
14. Admittedly plea of self-defence is also spelt out from the evidence adduced by the prosecution.
15. Admittedly the witnesses who have been examined by the prosecution have suppressed their role while deposing there .Evidence before the trial Court and thus, they cannot be called as honest witnesses. Reference can be made in a case reported in 1979 SCM R 214 wherein. Honourable Supreme Court has observed that fundamental requirement before the trial Court is to see whether the witness is honest or dishonest and it is not requirement before the trial Court to B see whether the witness is interested, disinterested or hostile and in the instant case the witnesses have deposed before the trial Court and have very cleverly suppressed their role played by them during the commission of the offence and in the light of aforementioned authority of the Honourable Supreme Court, the prosecution witnesses are not honest witnesses and their evidence cannot be relied upon. Upshot of the above discussion is that the prosecution has miserably failed to prove its case beyond reasonable doubt against the present appellants. Accordingly I set aside the conviction and sentence and in result this appeal is allowed. Appellants are on bail, their bail bond and surety stands discharged.
16. ' Above are the reasons of my short order, dated 23-2-2001.