1984 P Cr (PLP)

The prosecution in support of its case bad led evidence of complainant Pado (P. W. 1), Dadlo (P. W. 2), Sultan (P. W. 3), Rahim Bux (P. W. 4), A. S. I. Muhammad Shafi (P. W. 5), Depositions of M. O. Abdul Ghani Shah, who examined injured Dadlo, Pado, Rahim Bux and Sultan had been brought on record Exh.

21. Dr. Faiz Muhammad, who performed post-mortem examination on dead body of injured Dilawar was examined, as Court witness. The appellant in their statements have denied the allegations of the prosecution. Appellant Sherdil has admitted, that he had also received injuries in this incident and that Dilawar died on head injury sustained by him in this incident. He has further stated that he, Saidal and Dilawar had purchased 5 heads of cattle and were bringing them along the track passing through uncultivated land. Rahim was standing on this track and remaining were in this field. Rabim abused them and gave hatchet blows to Dilawar, who fell down. The remaining appellants had also given them blows. He (appellant Sherdil) had not given any blow to P. Ws. Appellant Saidal has also admitted to have sustained injuries in this incident and has admitted that Dilawar died of the injury sustained by him in this incident. He has stated that he had lodged counter-report and the prosecution witnesses are accused in counter-case. Appellant Alidad (alias) Walidad has stated, that Dilawar had received injuries in this incident. He has further stated, that he did not know anything about the incident and had come on cries of Saidal, Sherdil and Dilawar from his house. Mitho and Salamoo and also accompanied him having been attracted by cries. P. Ws. Rahim, Dadlo, Sultan and Pado had lathis and hatchets. Dadlo was lying down injured. He was told, that Rahim had given blows to Dilawar and that Pado had given blows to Sherdil and Dadlo and Sultan had given blows to Saidal. Prosecution witnesses bad no injuries. He had separated parties and he has been implicated falsely. Appellant Salamoon has admitted, that Dilawar has sustained bead injury in this incident and had died of the said injury and has further stated that his further statement was the same as that of appellant Alidad (Walidad). Similarly appellant Mitho has stated, that his statement was same as that of Alidad (Walidad). The learned trial Court taking into consideration the evidence adduced before it, convicted and sentenced the appellant above-named as herein before 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 P. Ws. are closely related and the independent P. W. Jabo and Akbar, whose names were mentioned in the F. I. R. were not examined by the prosecution, without any cogent reasons and as such no reliance can be placed on the statement of the interested P. Ws. in view of counter-case arising out of the same incident between the parties, without independent corroboration, which is not at all available in the present case. (b) That I. O. in his statement before the learned trial Court has in fact supported the version of the, appellants regarding the incident in question, but the learned trial Court has failed to take into consideration the above-mentioned grounds in its judgment and merely on the basis of presumption not warranted by evidence on record convicted the appellants. (c) That the complainant party were aggressor and as such appellants exercised their right of private defence of their property, which point has not been considered by the learned trial Court. (d) In the alternative the learned Advocate for the appellants submitted, that incident is of 1973 and the convictions of the appellant being only under section 323, P. P. C. and further as the above appeal has been pending since last over 4 years, it would not be justified to remand back the appellants to judicial custody, as they have suffered on account of prolonged litigation and consequently ends of justice will be met, if the reasonable fine is imposed on the appellants in lieu of imprisonment awarded to them. That the above appeal was called three times, but the learned Advocate for the State was not present and since the above appeal is pending right from 1978 and relates to the incident of 1973, I decided to proceed with it and hear it on merits, with the assistance of the learned Advocate for the appellants. It is admitted position P. W. Padlo, Dadlo and Sultan are interested, witnesses and co-accused in counter-case of murder filed by appellants side and as such it would be unsafe to rely on their statements, without independent corroboration. There were no recoveries made from appellants. In view of this prosecution has relied upon medical evidence for purposes of corroboration. I find material contradiction between ocular and medical evidence. In addition to this there are material contradictions between P. W. Padlo, Dadlo and Sultan, inter se, regarding alleged e injuries caused by the appellants. Learned trial Court has held, that it was free fight between the parties and as such question of applicability of section 34, P. P. C. in my opinion does not arise, as such appellant will be responsible for his own overt act in the incident in question. I have carefully gone through the statements of alleged three injured eye-witnesses. Their evidence does not inspire confidence at all. Even the learned trial Court came to conclusion, that P. Ws. have not given correct version of the incident, as it really happened. There was no damage to crop of the c complainants side and as such alleged motive for start of incident also becomes doubtful. Some of the appellants also had injuries on their person and one of the co-accused Dilawar died on account of injuries received by him in the incident in question. Independent P. Ws. Jabo and Akbar, who could have corroborated the statements of P. Ws. were given up by prosecution, without cogent reasons, in my opinion. Keeping in view my above conclusions, it would be unsafe to convict the appellants on the basis of prosecution evidence recorded before the learned trial Court. Therefore, I allow the above appeal and set aside convictions of the appellants and sentences awarded to them and discharge the bail bonds executed by the appellants in above appeal. M. Y. H. Appeal allowed.