1997 P Cr (PLP)

The appellant Gordil son of Karim Bukhsh Kharos alongwith 4 others was tried by learned IInd Additional Sessions Judge, Jacobabad for having committed the murder of his wife Mst. Sihat and by his judgment, dated 1-11-1992 he convicted the appellant under section 302, P.P.C. and sentenced him to imprisonment for life and fine of Rs.25,000 or in default to undergo R.I. for one year more while the remaining 4 co-accused were acquitted. The appellant has challenged his said conviction and sentence under this appeal. The case of the prosecution is that complainant Hazaro lodged report at Police Station, Dodapur on 15-5-1986 in which he alleged that his daughter deceased Mst. Sihat was married to the appellant 8 years prior to the incident and she was driven out of the house by the appellant six months prior to this incident by leveling allegation that she was Kari with one Bhai Khan. It is alleged that the appellant had approached the complainant for the return of Mst Sihat but the complainant refused which annoyed the appellant. On the night falling between 14 and 15 May, 1986 when the complainant and his other family members including his brother Hasan, relative Naseer and deceased Mst. Sihat were sleeping in the house when the complainant woke up on the barking of dogs. He is said to have awakened P. Ws. Hasan and Naseer and on torch light they saw the appellant standing over the cot of Mst. Sihat with a gun in his hand while the co-accused was standing at the entrance. It is alleged that the appellant fired upon Mst. Sihat whereas co-accused kept the complainant and other inmates of the house at bay stating that Mst. Sihat was Kari with Bhai Khan. Thereafter, the accused persons went away. The report was recorded by A.S.-I. Deedar Khan, which is Exh.15. The said A.S.-I, visited the place of Wardat, inspected the same and prepared memo, Exh.21. He also prepared inquest report Exh.22, and thereafter, he arrested the appellant on 3-6-1986 under Mashirnama Exh.27-D. After arresting the remaining accused and completing the investigation, the challan was submitted in the Court. At the trial the charge was framed against the appellant and co-accused Meer, Jaggan, Gul Hasan and Raja for having committed offence under section 302/148, P.P.C. read with section 149, P.P.C. All the accused did not plead guilty and claimed to be tried. At the trial the prosecution examined P.W.1 Hazaro, father of deceased Mst. Sihat. P.W.2 Dr. Ghulam Mustafa, Medical Office. P.W.3 Hasan, brother of complainant. P.W.4 Naseer, nephew of complainant. P.W.5 Noor Muhammad. Mashir. P.W.6 Ali Mardan, second Mashir. P.W.7 A.S.-I. Ali Murad process-server, P.W.8, S.H.O. Karim Bukhsh Jatoi of Police Station, Dodapur examined in place of A.S.-I. Deedar Ahmad who had expired and thereafter vide Exh.28, the prosecution closed its side. The statement of the appellant was recorded under section 342, Cr.P.C. as Exh.29 in which he has denied the prosecution allegations and claimed to be innocent. He has stated that the witnesses have deposed due to enmity. However, he neither wished to be examined on oath nor wanted to examine any witness in his defence. Similarly the statements of the other accused were also recorded. After the examination of the accused, the trial Court convicted the appellant Gordil as already mentioned hereinabove and acquitted the rest of the accused. I have heard Mr. A.Q. Halepota learned counsel for the appellant and Mr. Shaikh Aziz-ur-Rehman, learned counsel for the State. The latter has not supported the conviction and sentence awarded to the appellant. The learned counsel for the appellant submitted that the appellant was entitled for an acquittal on the ground that the learned Judge has erroneously convicted the appellant as on the same evidence four co-accused have been acquitted while the appellant has been convicted: He has further submitted that the trial Court could convict the appellant on the same evidence provided there was some corroboratory evidence. In the present case there was no corroboratory evidence, and therefore, the appellant was entitled for an acquittal. The conviction of the appellant has been recorded on the basis of ocular evidence of P. W. Hazaro P. W. Hasan and P. W. Naseer coupled with motive and the medical evidence. So far as ocular evidence is concerned, it maybe noted that incident had taken place in the dark hours of the night and the source on which the appellant is said to have been identified by the witnesses was a torch light but the said torch was not secured in this case. It is an admitted position that no recovery of any kind was made from the present appellant. The three eye-witnesses p. Ws. Hazaro, Hasan and Naseer have clearly stated that they had seen the four co-accused other than the appellant who had entered their house alongwith the present appellant duly armed with weapons. They are stated to have overpowered the complainant party and thus facilitated the appellant Gordil in killing his wife Mat. Sihat. All the accused persons were named in the F.I.R. The learned trial Judge has disbelieved the evidence of these witnesses so far as the four co-accused are concerned by observing that it is a general practice that innocent persons are always roped with real culprits by the opposite-party and, therefore, the benefit of doubt was given to the four co-accused. The same set of witnesses have been believed by the trial Judge so far as the appellant is concerned. It is now a settled principle of law that the credibility of a witness is not divisible and the same witness who has been disbelieved regarding some of the accused, they cannot be relied upon for the purpose of convicting the other accused without corroboration. In the present case, there is need for corroboratory evidence specially so when there is enmity between the parties as admitted by P.W. Hazaro who states that they had implicated Khan and Khan E Muhammad Kharos in respect of the murder of their cousin Fazal. In respect of the credibility of witnesses I may refer to the case of Ghulam Muhammad v. The State reported in 1987 PCr.LJ 2427.-- "In this case out of 10 accused 7 accused were found to have been falsely implicated. The Supreme Court acquitted remaining three co-accused also on the ground that the same evidence for the purpose of convicting the three remaining accused cannot be relied upon without corroboration. " In this regard there is another case of Rasheed Ahmed v. The State reported in PLD 1976 Kar. 438:-- "In this case also it was observed that where the P.Ws. are discredited in respect of the majority of the accused, the evidence of such witnesses cannot be believed in respect of the remaining accused without independent corroboration and the accused were acquitted." Similarly in the case of Faizoo and Muhammad Ali reported in 1987 PCr.LJ 2427, out of 12 accused 10 were acquitted as ocular evidence was disbelieved against them but the remaining two accused were convicted on the same evidence. It was observed that:-- "Conviction of the two co-accused on the same evidence cannot be recorded without independent corroboration and the accused were acquitted. " From the above discussion it will appear that the three eye-witnesses have been disbelieved against four co-accused by the trial Court but they have been believed against the present appellant contrary to the established principle of law. In the present case there is no independent corroboration to support the testimony of eye-witnesses, and therefore, the conviction of the appellant on the same set of evidence who have been disbeli6ed in respect of the 4 co-accused cannot be relied upon without independent corroboration. In these circumstances the conviction and sentence of the appellant is not sustainable. Accordingly this appeal is allowed, the conviction and sentence awarded to the appellant is hereby set aside. By a short order, dated 30-5-1993 this appeal was allowed and the appellant who was in custody was directed to be released. These are the reasons for allowing the appeal. N.H.Q./G-392/K Appeal allowed.