ZAFFAR HUSSAIN MIRZA, J.---The five appellants were tried along with Gul Muhammad son of Wali Muhammad under sections 302, 323, 148 read with 149, P. P. C. For murdering Rustam son of Mubarak Ali by the learned Additional Sessions Judge, lI, Khairpur. By his judgment dated 26-4-78 the learned Additional Sessions Judge while acquitting accused Gul Muhammad, convicted the present appellants and sentenced them to various terms of imprisonments. Since the learned Additional Sessions Judge recorded the convictions and sentences awarded by him to the various accused in a rather confused manner they are being separately mentioned. Appellants Ditto and Wali Muhammad were found guilty of an offence punishable under sections 302, 148, and 323, P.P.C.
Read with section 149, P.P.C., whereas appellants Lal Bux, Nek Muhammad and Noor Muhammad were found guilty of an offence under sections 302/147 and 323, P.P.C. Read with section 149, P.P.C.
Learned Judge observed that since the fatal injury to the deceased was attributed to appellant Wali Muhammad, he convicted the said appellant under section 302 read with section 149, P.P.C.
And awarded him death sentence. Appellant Wali Muhammad was additionally found guilty under sec--tion 148, P.P.C. And sentenced to one year's R. I. On the third count for the offence under section 323 read with section 149, P.P.C. Learned Judge convicted and sentenced Wali Muhammad to a fine of Rs. 200 and in default to suffer R.I. For four months. He further recorded the conviction of appellants Ditto, Lal Bux, Naik Muhammad and Noor Muhammad under S. 302, P.P.C. Read with section 149, P.P.C. And sentenced them to imprisonment for life and a fine of Rs. 2,000 in default whereof they were ordered to suffer further R.I. For six months. Appellant Ditto was also convicted under section 148, P.P.C. And sentenced to R.I. For one year and under S. 323, read with section 149, P.P.C. Sentenced to pay a fine of Rs. 200 subject to the default clause in which case a further R. I. For four months was ordered. Finally appellants Lal Bux, Nek Muhammad and Noor Muhammad were also convicted under section .147, P.P.C. And under section 32? P. P. C. Read with section 149 ; and were sentenced to suffer R. I. For six month and fine of Rs. 200 (in default R. I. For four months more) respectively. Aggrieved by these convictions and sentences the appellants have come up in appeal before this Court. The learned Additional Sessions Judge has also made a refer--ence for confirmation of death sentence awarded to appellant Wali Muhammad. We propose to dispose of both matters by this judgment.
2. The facts of the case as disclosed in the evidence of the prosecu--tion are that on the date of occurrence, viz. 28-5-75 at about 5-00 p.m. Complainant Mubarak and his son deceased Rustam were working in their land situated in Deh Boharo Lashari, Taluka Kot Diji, District Khairpur when the appellants along with Gul Muhammad came over the land. Appellant Wali Muhammad was armed with a hatchet appel--lant Ditto with adze (waholo) and the remaining appellants with forks.
Acquitted accused Gul Muhammad was, however, carrying no weapon. Upon arrival the culprits started keeping a hedge on the land in order to take over possession by force. Gul Muhammad is said to have, then investigated the other culprits whereupon appellant Ditto gave a blow to the complainant on his bead with the back side of the adze and appellant Noor Muhammad gave him blow with the fork whereas appellant Lal Bux gave him fist blows. Appellant Wali Muhammad gave a blow with the back side of his hatchet to deceased Rustam upon his head and appellant Nek Muhammad struck him with the fork on his arm. As a result of the injuries Rustam fell down on the ground. Upon the cries of the complainant and the deceased, P. Ws. Faiz Muhammad and Habib came running and witnessed the incident. The culprits then went away to their houses. The complai--nant did not immediately report the matter to the Police but next morn--ing he removed his son deceased Rustam in a bullock-cart to Police Station Kot Diji where he lodged his report which was recorded at 8-30 a. m. By S. I. Muhammad Rafique. After recording the F. I. R. The A. S. I.
Prepared the mashirnama of the injuries on the person of injured Rustam to presence of mashirs Barkat Ali and Nazir. He also prepared mashirnama of the injuries on the person of the complainant in presence of the same mashirs. He then referred the injured persons to the Civil Hospital, Khairpur for examination, treatment and certificate. He then repaired to the scene of occurrence which was shown to him by P. W. Faiz Muhammad. He found a few drops of blood at the scene. He secured and sealed the blood-stained earth under a mashirnama attested by mashirs Ghous Bux and Hidayat Ali. He recorded the state--ments of P. Ws. Faiz Muhammad and Juman. On 30-5-1975 he received information regarding the death of the deceased and sent H. C. Ghulam Hyder Shah to the Civil Hospital, Khairpur for preparing the inquest report. On 31-5-75 the Investigating Officer arrested appellants from their village in presence of mashirs Ghous Bux and Hidayat Ali and prepared such mashirnama. In the course of investigation appellant Wali Muhammad voluntarily led to the police to his house and produced a blood-stained hatchet from the hedge of his house which was secured and sealed in presence of the same mashirs. Similarly, appellant Ditto led the Police to his house and took out a blood-stained adze Waholo, from the hedge of his house which was secured and sealed. The remain--ing three appellants also led the police to their respective houses and produced a fork each from the hedges of their houses in the case of Naik Muhammad and Lal Bux whereas in case of Noor Muhammad from his cattle-shed, which were secured and sealed and mashirnamas prepared in presence of the same mashirs. On 8-6-75 the Investigating Officer had the statements of P. Ws. Faiz Muhammad and Habib recorded tinder section 164, Cr. P.
C. On 14-6-75 the A. S. I. Submitted the challan in the Court.
3. With the exception of appellant Noor Muhammad all the other appellants are the sons of acquitted accused Gul Muhammad. Appel--lant Noor Muhammad is the maternal aunt's son of rest of the appellants. The defence of the appellants was one of denial. They stated in their statement under section 342, Cr. P. C. That in fact there was a fight between the complainant and his son deceased Rustam and the appellants have been falsely implicated due to enmity over land. According to the appel--lants the land on which the incident allegedly took place was exchanged by the complainant with appellant Ditto and was in his possession which the complainant wanted to take back. The F. I. R. Disclosed besides the name of the complainant himself, the names of two other witnesses, namely, Faiz Muhammad and Habib Marri as eye- witnesses of the inci--dent. However, at the trial the prosecution only examined complai--nant Mubarik and Faiz Muhammad. P. W. Habib was, however, given up by the prosecution on the ground that he had already been declared hostile in the lower. Court for his failure to support the prosecution. In his evidence at the trial P. W. Faiz Muhammad did not support the complainant as an eye-witness of the occurrence. He stated that he was attracted upon the cries and reached the scene when the complainant and deceased were lying in injured condition. He, however, stated that the complainant informed him that the appellants had caused them injuries. He was then declared hostile and cross-examined by the Assistant Public Prosecutor. He was contradicted with his section 164, Cr. P. C. Statement which he declared to have been obtained under police pressure.
1n this behalf in the cross-examination the witness stated that he was detained by the Police after the incident for the purpose of extorting the statement given by him under section 164, Cr. P.C. And was released after the same was recorded. He even alleged that the statement was only recorded by the Clerk in presence of the S. H. O. And not by the, Mukhtiarkar.
4. As far as the evidence regarding the recoveries of crime weapons from the appellants also the prosecution relied upon the testimony of the Investigating Officer alone. Mashir Hidayat Ali was given up by the A. P. P. Incharge on the ground that he was not supporting the pro--secution and mashir Ghous Bux was also given up.
5. The prosecution, therefore, relied upon the sole testimony of the complainant and sought corroboration of his testimony from the evidence of P. W. Faiz Muhammad and the evidence of recoveries of the crime weapons the Chemical Examiner's report was produced in evidence according to which the hatchet and adze were found to be stained with human blood. The next piece of evidence relied upon by the prosecution was the motive.
6. As already observed the deceased had received injuries on 28-5-75 and was received by the Medical Officer on duty at the Civil Hospital, Khairpur Dr. Illahi Bux who found the following injuries on the person of Rustam :- (1)A lacerated wound 2" x --" x scalp deep on left fronts parietal region.
(2)An abrasion ----- on left forearm.
(3)An abrasion on left scapular region.
The injured was unconscious and was admitted as an indoor patient for treatment. Without regaining consciousness the injured scumbed to his injuries on 30-5-75 at 4-30 p. m. After the death of the deceased 1ha Doctor in the autopsy found internal damages as follows :- (1)There was depressed fracture of left frontal and parietal bones.
(2)There was intracranial haemorrhage with clotted blood on the left side of the brain.
In the opinion of the Doctor the death of the deceased was the result of shock and haemorrhage consequent upon injury No. 1 which was individually sufficient to cause death in the ordinary course of nature. The Doctor further opined that injury No. I appeared to have been caused by a hard blunt substance such as a lathi or back side of hatchet whereas the rest of the injuries were simple. The doctor had also examined complainant Mubarik and had found only one injury, a lacerat--ed wound 5" x 1" x scalp deep on right frontal parietal region which was simple in nature.
7. We have heard Mr. Muhammad Hayat Junejo and Mr. Manzoor Hussain, learned counsel appearing for the appellants and the respon--dent respectively.
8. It was first contended on behalf of the appellants that the prose--cution case rests on the sole testimony of the deceased Rustam's father, complainant Mubarik and, therefore, as laid down by their Lordships in the case of Mumtazuddin v. State (PLD 1978 SC 114), conviction can be based on his evidence as a solitary-eye witness only if it is shown that the witness is absolutely reliable or his evidence is corroborated by reliable evidence. However, according to the counsel complainant was not a reliable wit--ness and there is no corroboration of his testimony forthcoming from the evidence produced by the prosecution. In this connection the first circumstance brought to our notice is the inordinate delay in lodging the report with the Police. Now the incident had taken place at 5-00 p.m. On 28-5-75 and the distance between the scene of offence and the Police station was 12 miles. The only explanation given by the complainant is that since he had no conveyance available he stayed back in his house and carried his injured son in a bullock-cart to the police station next morning. It has been rightly argued by the learned counsel for the appellants that the reason assigned by the complainant for not imme--diately reporting the matter to the Police and for seeking medical aid, is highly untenable. If the bullock-cart could be used for transportation next morning there is no reason why the same mode of transportation was not adopted for reporting the matter immediately. After all it was the month of May and there would be sufficient light to undertake the journey over a distance of 12 miles to the police station.
Be that as it may, the fact that the deceased had received a serious injury and had become unconscious would seem to be a very impelling circumstance for seeking medical attention and police assistance immediately. We are therefore, of the view that the learned Additional Sessions Judge was not right in taking the view upon no materials whatsoever that there was possibility that the complainant might have apprehended fear of remov--ing the injured in the bullock-cart at night time. This was clearly not the case of the complainant himself.
9. We have also not found the testimony of the complainant in heren--tly of a reliable quality. His version of the incident is contradicted by the medical evidence in two respects. Firstly the complainant deposed that apart from the main injury inflicted on the deceased by appellant Wali Muhammad with the back side of hatchet, appellant Naik Muhammad inflicted a blow to him with his fork on his arm. Therefore, the deceased had received two injuries according to the complainant whereas the Medical Officer found in all three injuries on the person of the deceased as described above. Secondly as to himself, the complai--nant deposed that he received one injury on his head at the hands of appellant Ditto with the back side of the adze and appellant Noor Muhammad gave him a blow with his fork on his back, as well as appellant Lal Bux inflicted fist blows to him. The fork alleged to have been secured from appellant Noor Muhammad was a six- pronged iron fork with a bamboo handle which was expected to cause a sufficiently serious injury.
However, according to the Doctor the complainant had only one injury on his head. This contradiction with reference to the mashirnama of injuries in which three injuries on the person of the com--plainant were mentioned. In the opinion of the learned Judge there was possibility of the Medical Officer omitting to take notice of minor injuries on the person of the complainant. This was a thoroughly improper approach to this question. Firstly I might say that the ocular evidence of the single witness cannot be said to be inherently of an unimpeach-- able character. Therefore, the proper course for the learned Judge was to approach the oral account as to the manner and number of injuries inflicted with caution. As the oral evidence is not above reproach and does not inspire confidence and there is no reason to doubt or suspect the bona fides of the Medical Officer, the safe course was to accept the medical evidence and test the ocular testimony in the light of such evidence. Clearly, therefore, the conflict in the ocular and medical evidence would seem to re-act on the veracity of the ocular testimony. We are, therefore, of the opinion that this conflict robs the testimony of the complainant's evidence of probative value and, renders it thoroughly unworthy of credit.
10. Additionally the complainant was contradicted with his lower Court statement to the effect that his eyesight is weak and, therefore, he was not in a position to definitely say whether appellant Wali Muhammad to whom principal part in the commission of the offence was attributed, was present at the scene on the day of occurrence Besides he has stated in the lower Court that he did not know as to who had given blows to him and to Rustam as many people had assembled at the scene.
11. As to the motive also the testimony of the complainant appears to us to be not worthy of reliance. The case of the complainant is that the appellants wanted to eject him forcibly front the land in question and had attacked him and his son in furtherance of this object. How--ever, in the lower Court he had stated that prior to the dispute the com--plainant had exchanged this piece of land with the land belonging to the appellants. He had also admitted in the lower Court that the fine imposed by the Government from time to time in respect of the disputed land was being paid by the appellants.
12. Having regard to all the aforesaid circumstances and discrepan--cies in the testimony of the complainant, in our opinion, his evidence is not of a quality on which conviction for a capital charge cart safely be based.
13. Coming next to the corroborative evidence, the learned Addi--tional Sessions Judge found oral corroboration for the ocular testimony of the complainant in the evidence of P. W. Faiz Mohammad, despite the fact that he was declared hostile and was, therefore, labelled by the prosecution itself as an unreliable witness. The learned Judge thought that the evidence of P. W. Faiz Mohammad to the extent that he was given the names of the appellants by the complainant upon his reaching the scene furnishes the oral corroboration of the complainant's version. However, it has been rightly argued by the learned counsel for the appellants that the complainant himself did not depose that he informed P. W. Faiz Mohammad about the incident and the names of the appel--lants.
Consequently, we are unable to understand how P. W. Faiz Mohammad, who was intended to be an eye-witness can be relied upon as a witness to corroborate the complainant.
14. As already observed the prosecution is further seeking corrobo--ration of, the ocular testimony through the evidence of recoveries of crime weapons. As far as the recoveries from appellants Lal Bux, Nek Mohammad and Noor Mohammad are concerned, these are of no value. It is alleged that these three appellants led the Police and produced a fork each from their houses. However, since these articles were admit--tedly not stained with blood no link has been established between these articles and the offence. These are articles of common use by the mem--bers of rustic agricultural community in the villages and cannot, there--fore, be considered as an incriminating circumstance. Thus there is no corroboration as regards these three appellants. As to the remaining two appellants, namely. Ditto and Wali Mohammad, from whose possession the Police is said to have recovered blood-stained adze and hatchet respectively, the prosecution gave up the mashirs in whose pre--sence these articles are said to have been recovered. The learned Additional Sessions Judge has, however, relied upon the evidence of Investigating Officer on the point of recoveries. It is no doubt true that in law there can be no objection to place reliance on the evidence of Investigating Officer to the factum of recoveries. But it was laid down in Mohammad Khan v. Dost Mohammad (PLD 1975 SC 607) that the Courts will ordinarily insist on a strict compliance with the requirements of section 103, Cr. P. C. And view its non-compliance with suspicion, unless an explanation is forthcoming for failure to secure the presence of the respectable witnessess or omission to examine them in Court. As stated earlier one of the mashirs was given up without any reason by the A. P. P. Incharge and the other was dropped on a mere allegation that he was not supporting the prosecution. None of the witnesses including the Investigating officer has, however, stated in his evidence that the mashies had been won over. The failure to examine the attesting witnesses of the recovery memos has, therefore, not been satisfactorily explained. We have also not found the conduct of the Investigating Officer above- board in so far as no effort was made by him to search the houses of the accused when he visited the vardat and examined the witnesses on 29th May. 1975. He has only vaguely stated in his deposition that he tried to arrest the accused persons but has not disclosed the steps taken by him towards that end. The circumstances on the contrary suggest that he took no due interest in the investigation in the first instance and took steps to arrest the accused only after he received information that injured Rustom had expired in the hospital on 30th May, 1975. It is in the evidence of Tapedar Imdad Ali that the houses of appellants Wali Moham mad and Lal 13ux are just adjacent to the scene of occurrence and yet the Investigating Officer did not consider it proper to search their houses for the crime weapons when he first visited the scene. These circumstances militate against the reliability of the sole testimony of the Investigating Officer in regard to the recovery of the alleged incriminating articles.
15. In view of the foregoing discussion, we are of the confirmed opinion that no convictions can be sustained on the sole testimony of the complainant in this case. Mr. Manzoor Hussain, learned counsel appearing for the State has also not supported the convictions and has stated that benefit of doubt must be given to the appellants.
16. In the result, we accept the appeal, set aside the convictions and acquit the appellants.
Consequently the reference for conformational of death sentence also stands dismissed. We had come to the aforesaid conclusion at the end of the hearing of this appeal and had accordingly pronounced our decision by a short order. The above is a record of my reasons for so doing.