1984 P Cr (PLP)

The attendance of P.W. Ghiyasuddin, who was posted as S.D.I at P.S. Pangrio had conducted further investigation into the case, could not be secured. According to the evidence of P.W. Shahrah Khan (Exh.53) the process server P.W. Ghiyasuddin was not traceable. His where abouts were not known. There was also no possibility of securing his attendance. The statement of P.W. Ghiyasuddin recorded in the lower Court, in view of the evidence of the process server, was therefore brought on record under section 33 of the Evidence Act. It is Exh.57. Ghiyasuddin in his deposition recorded in the lower Court had stated, that he conducted further investigation into the case. On 6th July, 1967 he arrested co‑accused Iddal vide Mashirnama (Exh.7). Co‑accused Iddal after his arrest produced a single barrel gun before him. It was loaded with an empty cartridge. It was secured by him vide Mashirnama (Exh.18). It was smelling of fresh discharge. On the same day appellant Muhammad Hassan voluntarily produced a single barrel gun before him, which he took out from the hedge at the back of his house. It was secured vide Mashirnama (Exh.19). The gun was sealed on the spot. He also arrested deceased co‑accused Miro, who produced before him a revolver of .32 bore. It was loaded with an empty cartridge. He secured this vide Mashirnama (Exh.16). He also arrested co‑accused Parho and Mohram vide Mashirnama (Exh.20). Co‑accused Mohram led the police and the Mashirs to his house and produced before him a hatchet, which was not blood‑stained. It was secured vide Mashirnama (Exh.21). On the next day the S. D. I. again visited the village of the applicants as well as co‑accused and arrested co‑accused Mushtaq and appellant Dost Ali in presence of Mashirs Muhammad Taqi and Muhammad Luqman, vide Mashirnama (Exh.33). Co‑accused Mushtaq after his arrested dug out a blood‑stained hatchet from the ground, at the back of his house and produced it before him. He secured the hatchet, vide Mashirnama (Exh.22). Appellant Dost Ali also produced a hatchet before him but it was not blood‑stained. It was secured vide Mashirnama (Exh.23). Co accused Sobdar was arrested on 6th July, 1967. On the next day he led the police and the Mashirs to the land near his house and dug out from there a .12 bore country made revolver loaded with a spent‑up cartridge. It was secured, vide Mashirnama (Exh.15). After completing the investiga tion, he handed over case papers to S.H.O. Muhammad Amjad, who challaned the appellants as well as co‑accused. The prosecution in support of its case in all examined 13 witnesses. P.Ws. Bahadur, Bahawal, Rehmatullah and Muhammad Ghous are the eye witnesses of the incident. Appellants in their statement under section 342, Cr.P.C. denied all the allegations of prosecution and appellant Iddal has stated that P.Ws. Bahadur, Bahawal and Rehmatullah had falsely implicated them in the case because they wanted to grab their and. The witnesses were interested because they were men of deceased Khalid Rauf who was inimical towards them. There was long‑standing enmity between them and Khalid Rauf over land which had led to series of cases between them. Appellant Muhammad Hassan also proclaimed his innocence. He denied to have filed a counter‑report against the complainant party and Nawab Khalid Rauf. He stated that the F.I.R. attributed to him had in fact been manipulated by P.W. Shah Nawab in order to implicate the appellants. The rest of the appellants adopted the statement of appellant Iddal. They proclaimed their innocence and denied the recovery of crime weapons from them. Learned trial Court taking into consideration the evidence adduced before it while acquitting co‑accused Iddal, Mohram, Pohro and Sobdar, convicted and sentenced the appellants above named as hereinbefore mentioned and consequently appellants have filed the above appeal, on the grounds mentioned in memo of appeal. The learned Advocate for appellants in support of the above appeal submitted as under: ‑ (a) That P.Ws. are interested and enimical and as such no reliance can be placed on their statements without independent corroboration, which is not at all available in present case. (b) Alleged counter‑F.I.R. lodged by appellant Muhammad Hassan disbelieved by learned trial Court for cogent reasons. (c) That acquitted co‑accused given benefit of doubt, but appellants convicted in same set of evidence and as such on this ground alone convictions of the appellants cannot be sustained. In support of this learned counsel relied upon cases reported in 1982 S C M R 57, 1982 S C M R 1049 and 1980 S C M R

225. Learned counsel appearing for State at the outset submitted that he was not supporting the impugned judgment, as appellants have been convicted on same set of evidence on which co‑accused persons were acquitted. I have carefully considered the above submission made by the learned Advocate for the appellant and have gone through the Record and proceed ings of the learned trial Court and the impugned judgment and cases cited by the learned Advocates before me. Prosecution case rests upon the statement of P.W.6 Rehmatullah, P‑W.8 Bahadur Khan, P.W.9 Bahawal Khan, P.W.12 Muhammad Ghous. P.W. Bahadur Khan in the F.I.R. had assigned no part to acquitted co‑accused Mohram, Boro and Sobdar, whereas in his deposition before the learned trial Court he stated, that they were armed with revolvers and had caused injuries to the deceased. In view of this admitted fact, the statement of P.W. Bahadur Khan required independent corroboration. In addition to this P,W. Bahadur Khan had also moved application for the 'cancellation of the bail of the accused persons and as such he is highly interested witness. P.W. Rehmatullah is also alleged to be an interested witness, as he had taken lease of the land of deceased. P.W. gahawal Khan's presence is not at all mentioned by P.W. Rehmatullah nor by P.W. Ghous and as such his presence at the scene of offence is not free from doubt. P.W. Muhammad Ghous, the alleged independent eye witness of the incident was not believed by the learned trial Court for the cogent reasons given in the impugned judgment. The recoveries of alleged incriminating articles, even from the present appellants were not taken into consideration by the learned trial Court, as these articles were neither sent to the Chemical Examiner and/or to the Ballistic Expert and as such there is nothing on record to connect the said articles with the crime in question. In addition to this the alleged articles were not even produced before the learned trial Court and consequently no reliance can be placed on such recoveries. In view of these facts on record in my opinion the statement of P.Ws. 6, 9, 8 and 12 required independent corroboration, but the same is not at all available in the present. The prosecution evidence against the acquitted co‑accused was same, as agains, the present appellants and since such evidence was not believed in the case of the acquitted accused persons, it would be unsafe to rely only such evidence in respect of the present appellants. This conclusion of mine is fully supported by the cases reported in 1982 S C M R 51 , 1982 S C M R 1049 and 1980 S C M R

225. The learned trial Court even did not believe, that counter‑F.I.R. alleged to have been lodged by Muhammad Hassan was in fact lodged by him. In view of this in my opinion prosecution has failed to establish its case beyond reasonable doubt against the present, appellants as well, as there is nothing on record to establish the alleged common intention of the present appellants, for causing murder of the deceased. Therefore I allow the above appeal and set aside convictions of the appellants and. sentences awarded to them and acquit them by giving benefit of doubt and direct that all the appellants be released forthwith if not required in any other case. S.G.D. Appeal allowed.