KHAIR MOHAMMAD AND Another vs MIR. MOHAMMAD AND 4 Other

1. SALAHUDDIN AHMED, J.-This leave petition is from an order of acquittal passed by the High Court of Sind &. Baluchistan, Karachi. The respondents were convicted under section 302 read with section 34 of the Pakistan Penal Code and while one of, them was sentenced to death, the rest were sentenced to transportation for life. In addition three of the respondents were further convicted and sentenced under section 326/34 of the Pakistan Penal Code. One of the respondents was further convicted' and sentenced under section 13-D of West Pakistan Arms Ordinance.

2. The occurrence is alleged to have taken place on the 24th April 1969, at 5-30 a. m. In the house of Fateh A.I, P. W:

9. The motive for the occurrence is alleged to -be a long-standing enmity between the respondents on one side and the complainant party headed by P. W. Fateh A.I on the other.

3. The prosecution case is that while the two Chowkidars, P. Ws. Khair Mohammad (the complainant) anal Jurial . Were guarding the house of P. W. Fateh A.I, respondents Nos. 1 to..4, two of whom were armed with shot guns and two with hatchets, got on the roof of the house. Respondent Lal Bux fired his gun into the courtyard and killed Noor Ahmad, cousin of P. W. Fateh A.I who was sleeping there.

4. Respondent Saindad struck on the head of P. W. Khair Mohammad with the sharp side of a hatchet, and caused a bleeding injury. Respondent Wali Mohammad also struck the said witness with the blunt side of the hatchet: P. Ws. Khair Mohammad and Jurial cried out and this attracted the notice of the other witnesses who, were sleeping on the roofs of the adjacent houses.

5. The distance from which the deceased was shot has been variously given as 16 feet and 16 feet. P.

6. W. Dr. Abdul Bari found the following injuries on the deceased:

(1) One lacerated punctured wound irregularly lacerated 2" x 1 --" at 3" below the lateral end of the right clavicle on scapular region (the wound of entrance).

(2) Irregularly lacerated wound --" x --" at 4 --" below the left nipple and 1" below the mid axillary line slightly downwards to the nipple (wound of exit).

(3) One irregularly lacerated wound --" x --" and situated 1 --" below 2nd and 5 1/8" from nipple below the mid axillary line (wound of exit).

7. The doctor recovered two wads and four pellets from the wounds. He stated that the deceased was fired at from a distance of a few inches only.

8. The accused persons pleaded not guilty and said they were falsely implicated due to long- standing enmity between them on one side and the complainant party headed by P. W. Fateh A.I on the other.

9. Prosecution has relied upon the evidence of five eye--witnesses as corroborated by some other witnesses. The High Court found that the eye-witnesses, who ate related among themselves, are inimical to the accused persons, and therefore, in the absence of any corroboration, their evidence should trot be accepted. The Court, however, found that there was no such corroboration.

10. The broad features of the case that influenced the decision of the High Court are the following:

(i) Tote ocular evidence in regard to the distance from which the fatal shot was fired is inconsistent with the medical evidence. As may have been noticed already, the shot was stated to have been fired from the roof into the courtyard, a distance of 10 to 16 feet. The evidence of the Doctor who held the post-mortem examination, however, is that the shot was fired from a point almost touching the body.

(ii) P. W. Khair Mohammad has stated that he was injured with a hatchet while he was on the roof of the house and that he bled from his injury. The medical evidence shows an incised wound on the parietal region of this witness which bled. It is, however, curious that no blood was recovered from the roof nor any clothes, quilt or shilly belonging to P. W. Khair Mohammad seized. The Investigation Officer when questioned, stated that he could not say whether the clothes of P. W. Khair Mohammad had stains of blood. Me, however, admitted that Mashirnama was silent as regards the presence of blood on the roof. Although he stated that he found some drops of blood lying on the ground near the cot on the roof, he admitted he did 'not secure the blo6d from the ground because this blood was not connected with the murder of N66r Ahmad. Obviously, this explanation was not accepted by the High Court.

(iii) Although it has been disclosed by the witnesses that foot trackers were engaged to pursue the foot prints of the culprits, none of them was examined and this entitled the defence to an inference that if they had been examined, they would not have supported the prosecution case.

11. Besides these broad features, the High Court found that there were inconsistencies in the evidence of the witnesses in regard to certain material particulars, one of which was whether both the Chowkidars, namely, P. W. Khair Mohammad and Jorial were standing or lying on the cot or patrolling or whether they had lathis or hatchets.

12. The High Court has also referred to some improbabilities o the case, one of which is that the time selected for committing the offences was day-break in a village inhabited by about 800 persons.

13. This Court felt was improbable. The fact that some foot trackers were engaged, might lead to an inference that no body saw and recognised the culprits. The circumstances of the case also do not exclude the likelihood of the occurrence having taken place in the darkness of night. These are matters that react on the truth of the prosecution case, and furnish reasonable grounds for giving the benefit of doubt to the accused persons.

14. We, therefore, do not think this is a fit case in which we should interfere with the order of the High Court.

15. The petition is accordingly dismissed.