1983 P Cr (PLP)

During the course of trial, the prosecution has examined P. W. Pir Ghulamullah Complainant, P. Ws. Bhoro, Piaro, Irshad Aley Rasool Khan and A. S. I. Karamat Hussain. The appellant has been examined under section 342, Cr. P. C. and he has denied all the prosecution allegations. He has stated that "I am teacher in primary school Sher Dil Khan. On 2‑2‑78 I was on duty in the said school till 12.00 noon. On that day, I had to receive my salary at Shahpurchakar, therefore, I boarded a bus and reached there. At 12.30 p. m. I received my salary from Head Master Primary School, Shahpurchakar. Primary School Shahpurchakar is subcentre from where we receive salary every month. After receiving salary, I came to the hotel of Chand for taking tea. I was taking tea at the hotel alongwith two other caste fellows namely Ali Muhammad and Saddar. Pir Ghulamullah arrived there in jeep alongwith A. S. I. Karamat Hussain, two police constables and 2/3 other persons. Pir Ghulamullah pointed out to me, on which A. S. I. Karamat Hussain took me to police station. After reaching there Pir Ghulamullah asked A. S. I. Karamat Hussain to challan me in Court. I inquired from A. S. I. as to why I was being challaned, on which he asked me to keep quiet and ordered the "Santary" to put me in lock‑up. Pir Ghulamullah Jan has enmity with Amir Ali Mangsi. I am related to Amir Ali Mangsi, and I am a poor school teacher. I have lost my job. I am lame man and weak person by constitution, and it is not possible for me to muster courage to make attempt for murder". The appellant had examined D. Ws. Ali Muhammad and Kirar in defence. The learned trial Court taking into consideration the evidence adduced before it, convicted and sentenced the appellant above‑named as hereinbefore mentioned and consequently appellant abovenamed has filed the above appeal, on the grounds mentioned in memo. of appeal. The learned Advocate for the appellant in support of the above appeal submitted as under:‑ (a) That statements of P. Ws., on account of close relationship and admitted enmity between the parties required independent corrobora tion, which is not at all available in present case. (b) That pistol in question was not recovered from the possession of appellant, but from the shop of P. W 4 Irshad and as such it cannot be used as corroborative piece of evidence against present appellant. (c) There are material contradictions in the statements of P. Ws. about the time and place of the arrest of the appellant and on this ground alone their statements required independent corroboration, (d) That P. W. 3 Piaro, the alleged Mashir of recovery of Pistol etc. is not the resident of locality and as such no reliance can be placed on such recoveries. (e) That learned trial Court has failed to appreciate the statements of D. Ws. properly. In support of above contentions, the learned Advocate for the appellant relied upon cases reported in P L D 1963 S C 17, P L D 1962 Kar. 800 and 1976 P Cr. L J

243. The learned Advocate appearing for‑ the State on the other hand admitted, that he was fully supporting the impugned judgment, as statements of alleged interested P. Ws., have been fully corroborated by P. W. 4 Irshad, who is independent witness and against whom no enmity at all is alleged. I have carefully considered the above submissions made by the learned Advocate before me and have gone through the R & P of the learned trial Court and impugned judgment and cases cited by the learned Advocate for the appellant. In view of admitted enmity between complainant's side and appellant on account of various litigations pending between both the sides, statements of P. W. 1 Pir Ghulamullah (complainant) and P. W. 2 Bhoro in my opinion required independent corroboration. For such corroboration prosecution has relied upon the statements of P. Ws. Irshad and Alley Rasool Khan. I have carefully gone through their statements. Name of P. W. Alley Rasool Khan was not mentioned in F. I. R. and his statement under section 161, Cr. P. C. was recorded next day of the incident and as such no reliance can be placed on his statement for purposes of corroboration of statements of P. W. 1 and P. W. 2 as one weak piece of evidence cannot corroborate another weak piece of evidence. As far as statement of P. W. Irshad is concerned, I find material contradictions in his statement and those of P. W. 1 and P. W. 2 about the place of arrest of the appellant; which is material in view of the statements of defence witnesses examined by the appellant, according to which, appellant was arrested from hotel, where he was taking tea, by I. O. at the pointation of P. W.

1. Statement of P. W. Irshad does not inspire confidence at all. In addition to this prosecu tion relied upon alleged recovery of pistol from the possession of the appellant, as corroborative piece of evidence, on the basis of statement of P. W, Piaro alleged Mashir of recovery and I.O. It is admitted position, that P. W. Piaro is not the resident of locality and his presence at the police station is alleged to be due to the fact, that he had come to lodge some F. I. R. But there is nothing on record to show, that in fact he did lodge any such report. The I. O. has given to plausible explanation for not picking up respectable and independent Mashirs of locality for arrest and‑ recovery of pistol. It may be noted that appellant's defence version, that he was arrested from hotel, has been fully supported by .two defence witnesses produced by‑him and 1 find that their statements were not at all shaken in their cross-examination. Enmity alleged by appellant against the complainant is not disputed by complainant. P. W. 2 was closely connected with complainant and bad accompanied complainant as guard and as such is not independent P. W. at all. Cases cited by appellant's counsel are fully applicable to the facts of present case and in the absence of reliable independent corroboration to support the statements of P. Ws. in my opinion prosecution has failed to establish its case against the appellant, beyond reasonable doubt, specially a complainant received no injury at all, although firing was done at close range, while complainant is alleged to have been sitting on chair, and as such how he was able to avoid hit, is unexplainable, in my opinion. Therefore I allow the above appeal and set aside conviction of the appellant and sentences awarded to him and acquit him and discharge the bail bonds executed by the appellant in above appeal. Appeal allowed.