1983 P Cr (PLP)

(2) Fire-arm wound of exit 3" x 1" deep into brain cavity on the right occipital region communicating with Injury No. 1 internally mentioned above. On internal examination this witness found that the scalp and membrance of the brain were ruptured at the site of Injuries Nos. I and

2. While the skull was broken at the site of these injuries, the brain was damaged through and through at these sites. In the opinion of the Doctor the death was due to shock and haemorrhage as a result of aforesaid injuries, which were ante -mortem and caused by a bullet. According to him Injury No. 2 is the exit wound of Injury No. 1, which was individually sufficient in the ordinary course of nature to cause the death, of the deceased. On the person of P. W. Muhammad Yousif a septic wound with loose margins on the posterio lateral surface on the upper of the left heal 1 " x 1 " x skin deep, simple in nature was found. In order to determine the kind of weapon he was referred to Civil Surgeon, Dadu, but he did not appear before the latter. On the person of P. W. Hakim following injuries were found which were simple in nature. He has also referred to Civil Surgeon, Dadu for X-ray examination, but it appears that he did not report to the Civil Hospital, Dadu. (1) Abrasion on the top of the left shoulder " x " x nil. (2) Contusion on the lateral surface of the left shoulder 2" x " x nil. (3) Contusion of the back of the left shoulder 3" x " (4) Swelling of the left shoulder. (5) Contusion transversely across the vertebral column of back of chest 3" x 1 " x nil. On completion of investigation all the appellants were challaned in the lower Court for committal inquiry, but on account of abolition of commit ment proceedings, the case was subsequently sent to the Court of Sessions for trial. At the trial all the appellants pleaded not guilty to the charge, while the prosecution examined first informant Muhammad Hassan, Y. W. I, injured Muhammad Yousif, P.W.2, Ali Akbar, P.W. 3 injured Hakim, P. W. 4, Mashir Muhammad Khan, P. W. 5, Tapedar Muhammad Anwar, P. W. 6, Corpse bearer Muhammad Pariah, P. W. 7, Mashir Photo, P. W. 8, S. H. O. Nale Chango P. W. 9 Ali Nawaz, P. W. 10, A. S. I. P Muhammad Hafeez Shah, P. W. 11 A. S. I. P. Ali Ahmed, P. W. 12, Habibullah, P. W. 13, and Dr. Shamsul Haq P. W.

14. The remaining witnesses were given up by the A. P. P. as being unnecessary. In their respective statements appellants have denied the allegations against them and alleged that the witnesses have deposed due to enmity over the lands. Appellant Mahmood has produced 30 documents consisting of complaints in previous cases, depositions of witnesses and judgments to show, that there has been litigation between the parties since long. When questioned about the F. I. R. lodged by him he stated, that be had lodged it against other persons, but it was not properly recorded He has denied that he had sustained injuries at the hands of deceased Birro, as alleged by the prosecution. No evidence in defence was however adduced. The learned trial Court taking into consideration the evidence adduced before it convicted and sentenced the appellants above-named as hereinbefore mentioned and consequently the appellants have filed the above appeal, on the grounds mentioned in the memo. of appeal. The learned Advocate for the appellants in support of the above appeal submitted as under: (a) That all the P. Ws. are inter-related and/or interested witnesses and there is an admitted enmity between the complainant side and the appellant in respect of which various documents were produced before the learned trial Court and consequently no reliance can be placed on the statements of the prosecution witnesses, without independent corroboration which is not at all available in the present case. In support of this contention the learned Advocate for the appellants relied upon cases reported in PLD 1981 kar.1; P L D 1973 S C 321 and 1982 S C M R 49. (b) That the Mashir of the alleged arrest and recoveries from the appellants is closely related to the complainant side and further more the weapons alleged to have be; ,n recovered from the appellants cannot be connected with the crime in question, as there is no Ballistic Expert's report produced by the prosecution. (c) P. W. 2 Muhammad Yousif was not believed by the learned trial Court and as such the doubt regarding the veracity of the statements of the other prosecution witnesses has been created. In support of this the learned Advocate for the appellants relied upon reported in 1982 S C M R 162; 1975 P Cr. L J 206 and P L D 1976 Kar. 438. (d) That there are material discrepancies in respect of the arrest dates of the various appellants and the recoveries also made from some of them were delayed recoveries and as such no reliance can be placed on prosecution evidence at all. In support of this the learned Advocate for the appellant relied upon cases reported in 1978 P Cr. L J

369. The learned Advocate appearing for the State on the other hand submitted, that he fully supports the impugned judgment, for th.- reasons given in the said judgment. I have carefully considered the above submissions made by the learned Advocate for the appellants and have gone through the R & P of the learned trial Court and the impugned judgment as well as through the various authorities cited by the learned Advocate for the appellants. The prosecution case rests on the statements of eye-witnesses P. W. 1 Muhammad Hassan (complainant)., P. W. 2 Muhammad Yousif (brother of P. W. 1), P. W. 3 Ali Akbar (Relation) and P. W. 4 Hakim (Relation). Out of these eye-witnesses the learned trial Court did not believe the statement of P. W. 2 Muhammad Yousif for cogent reasons. P. W. 10 Ali Nawaz is the lessee of the lands in question over which the dispute arose between the parties. This witness has admitted, that previously Taj Muhammad Qaiser, Khan Muhammad Bux and Lai Bux used to cultivate his lands, but thereafter as the said persons misappropriated the produce of the lands, he removed them and appointed Habibullah, Hassan, Yousif, Abbas, Hakim and Pirano as his Haris on the said lands. In view of the statement of this witness, the enmity alleged by the appellants with the complainants party gets support. P. W. 5 Muhammad Khan is one of the Mashirs of the arrest and production and/or recoveries of weapons from the appellants. I have gone through hi, statements and I find that he has deliberately denied portion of his previous statements and his statement does not inspire confidence and as such it will be unsafe to rely on the statement of -such witness. It may further be noted that appellant Abdul Aziz is alleged to have produced the rifle 5 days after his arrest and furthermore in the absence of ballistic expert report, the said gun is not at all connected with the crime in question. Appellant Sbahabuddin is alleged to have produced gun, by which P. W. Yousif is alleged to have received injury. However, the learned trial Court has not believed the evidence of this prosecution witness relating to such injury. Appellant Mahmood had lodged a counter F. I. R. and had injury on his person. However, in the F. I. R. of this ease, no part is assigned to him in the incident in question. It is an admitted position, that four eye-witnesses of the incident namely P. Ws. 1, 2, 3 and 4 are closely related and there is admitted enmity between the parties over the land in B dispute and consequently no reliance can be placed on the statements of these witnesses without independent corroboration, which in the present case, in my opinion is not at all available, as the hatchets allegedly recovered from the appellants did not have blood-stains on them and there is no ballistic expert report regarding the fire-arms recovered and/or secured from the possession of the appellants and as such recoveries of these weapons cannot be used as a piece of corroborative evidence. In view of this the cases reported in P L D 1981 Kar. 1 ; P L D 1973 S C 321 and 1982 S C M R 49 are fully applicable to the present case and consequently prosecution has failed to establish its case against the present appellants, beyond reasonable doubt, in my opinion. Therefore I allow the above appeal and set aside conviction and sentences awarded to the appellants and acquit the appellants by giving them benefit of doubt and discharge the bail bonds executed by the appellants. Appeal accepted.