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Petitioner: DIN MUHAMMAD VS Respondent: THE STATEHonorable Justice Illahi Bakhsh KhamisaniM. H. Junejo,Ali Raza
1969 P Cr
1969 P Cr. L J 1372
[Karachi]
Before Illahi Bakhsh Khamisani, J
DIN MUHAMMAD AND OTHERS‑Appellants
Versus
THE STATE‑Respondent
Criminal Appeal No. 172 of 1967, decided on 22nd January 1968.
(a) Penal Code (XLV of 1860), S. 302‑Murder‑Eye‑witnesses inimically disposed towards accused‑Evidence of witnesses appear ing exaggerated and belied by medical evidence‑Such evidence, in circumstances, cannot be implicitly relied upon for holding accused guilty.
(b) Penal Code (XLV of 1860), S. 302‑Murder‑Evidence of prosecution witnesses corroborated by injuries on accused's person and recovery of bloodstained shirt and lathi‑Conviction upheld.
M. H. Junejo for Appellants.
Ali Raza for the State.
Date of hearing : 22nd January 1968.
JUDGMENT
The appellants, Din Muhammad, Muhammad, Haji Habib and Saleh, have been convicted under section 302/34, P. P. C. for the murder of Yar Muhammad and sentenced to transportation for life each. They have filed this appeal.
2. The facts of the prosecution case briefly are that on 5th July 1966, at about 9‑30 p. m. Yousuf came to Noor Muhammad, father of deceased Yar Muhammad, and told him that the appellants had caused injuries to Yar Muhammad on account of which he had fallen down. Noor Muhammad went on the scene and after seeing his son lying with injuries, went to the police Outpost at Orderolal and lodged his first information report Exh. 8 at 12‑30 p. m. on the same day.
3. The Police during the course of investigation visited the scene of offence and prepared its mashirnama. They also recorded the statements of the witnesses. The appellant Muhammad, who was arrested on 5th July 1966, was found to be wearing a shirt which was stained with blood. It was accordingly secured under mashirnama Exh. 29 in the presence of mashir Faiz Muhammad P. W. 10. He also produced a lathi which had stains, of blood on it which was secured under mashirnama Exh. 30 in the presence of the same mashir. Muhammad had also two incised injuries on his person. Shirt and lathi secured from Muhammad were sent to the Chemical Analyser whose report Exh. 40 discloses human blood on them. After the usual investigation was completed, the appellants were challaned.
4. The appellants, when questioned, denied the allegations made against them and attributed tile filing of this case to enmity with the witnesses. They have not examine any witness in defence.
5. The question whether Yar Muhammad sustained injuries and died on account of them is not disputed. The evidence of Dr. Ghulam Kadir Exh. 41 also shows that there were two contusions on his head which were ante‑mortem and sufficient in the ordinary course of nature to cause death. The evidence of the witnesses has also established this issue beyond doubt.
6. The only question, therefore, that needs to be decided in this appeal is whether the appellants caused injuries to the deceased which resulted in his death as alleged by the prosecution. For the purpose of proving their case, the prosecution have relied in main, upon the evidence of Yousuf P. W. 3, Khamohn P. W. 4 and Junto P. W. 5. All these three witnesses have unanimously stated that the appellants were differently armed, Din Muhammad having a Biano, Muhammad having a lathi and Haji Habib and Saleh having hatchets with them. They have also stated that all the four of them gave injuries to the deceased which resulted in his death. The reason given by them all for Yar Mohammed being assaulted is that while the deceased was passing by the house of Haji Habib he was told not to do so. The evidence of these witnesses has been supported by the evidence of Murad P. W. 6, Moosa P. W. 7 and Noor Muhammad P. W. 2. All these three witnesses have also lent support to the evidence of these witnesses and have stated that they were informed by Yousif, Kamoon and others that the four appellants had caused injuries to deceased Yar Muhammad with weapons they were wielding.
7. The evidence of these witnesses has been criticised by the learned counsel for the appellants firstly on the ground that they were enemies of the appellants and have therefore falsely implicated them. The enmity alleged is that appellant Din Muhammad had filed a criminal case under section 424 and 109, P. P. C. on 13th June 1966 against Ali Muhammad, Din Mohammad. Wali Muhammad and Jan Muhammad, Hingoras. Din Muhammad accused in that case was admittedly brother of Noor Muhammad father of deceased, P. W. 2 in the case. This case of course ended in discharge of the accused because of non‑appearance of the complainant on 15th July 1966. The reason why the complainant remained absent on 15th July 1966 is explained by the learned counsel for the appellants on the ground that in the mealtime appellant Din Muhammad had been arrested in this cage and could not appear before the Court on 15th July 1966. The leaned counsel for the appellants has also stated that Khamoon P. W. 4., the only independent Hindu witness examined in the case had also enmity with Muhammad in that Khamoon's mother Jian had been converted to Islam by Muhammad and passed on to one Jio. Apart from the alleged enmity of the witnesses with the appellants, the main ground on which the learned counsel for the appellants has laid great stress is that the evidence of the witnesses appears to be exaggerated in chat they have stated that all the four appellants gave injuries to deceased Yar Muhammad with the weapons they were holding whereas the evidence of Dr. Ghulam Kadir Exh. 41 belies that evidence by showing that there were only two contusions on the head of Yar Muhammad which resulted in his death. The learned counsel for the State has also conceded that the evidence of the witnesses appears to be exaggerated in that they seem to have involved more persons than the persons who had participated in the commission of the crime. Under these circumstances, the evidence of the witnesses itself will not be such as could be implicitly relied upon for the purpose of holding the appellants guilty of the offences with which they have been charged. It is necessary for the purpose of relying upon their evidence to look out for its corroboration. Admittedly there is no corroboration of the evidence against appellants Din Muhammad, Haji Habib and Saleh. The evidence of the witnesses against appellant Muhammad however stands corroborated by two injuries appearing on his person. It also stands corroborated by the fact that when he was arrested on 5th July 1966, he was wearing a shirt which was found to be stained with blood. It was consequently secured under mashirnama Eah. 29 in the presence of mashir Faiz Muhammad P. W. 10 by A. S. I. Jamilur Rahman P. W. 12. The appellant Muhammad also produced a lathi on the same day which had stains of blood on it. This lathi was secured under mashirnama Exh. 30 by the same police officer in the presence of the same mashir. The lathi produced by the appellant Muhammad and shirt recovered from him were sent to the Chemical Analyser whose report Exh. 40 shows that there was human blood on them. Faiz Muhammad P. W. 10 and A. S. I. Jamilur Rahman P. W. 12 have also fully supported the case of the prosecution. Under these circumstances, the evidence against appellant Muhammad can be accepted with certainty whereas the evidence against the rest of the appellants can be considered to be doubtful. On this view of the matter. I accept the appeal filed by Din Muhammad, Haji Habib and Saleh and considering the evidence against them to be doubtful give the benefit of the doubt to them, and acquit them. They are in jail and shall be released forthwith if not required in any other case. So far as the case of appellant Muhammad is concerned, his appeal stands dismissed. The conviction of appellant Muhammad under section 302/34, P. P. C. stands confirmed.
Order accordingly.