1994 P Cr (PLP)

SHOUKAT HUSSAIN ZUBEDI, J.

The two appellants namely Dhanoo alias Dhani Bux son of Faiz Muhammad Almani and Abdul Razzaque son of Muhammad Soomar Almani were tried by the learned Judge, Special Court, Suppression of Terrorist Activities, Hyderabad, who by his judgment, dated 3-8-1992 convicted them for an offence under section 395, P.P.C. and sentenced them to suffer R.I. for 7 years each and fine of Rs.5,000 each and in default of payment of fine to suffer R.I. for 6 months more. Both the appellants have jointly challenged their said conviction and sentence under the aforesaid appeal through jail. The facts of the case are that the complainant Muhammad Urs lodged the report at Police Station Husri, in which he stated that on 15-10-1990 at evening time he came back from his lands and after taking his licensed gun alongwith 15 cartridges, he went to his Otaq where his son Ali Nawaz alongwith Allah Dino and Muhammad Bachal were also sitting. At about 8-00 p.m. accused Umer, Dhanoo Ahmed, Abdur Razzaq and Rasool Bux who were all armed with fire-arms came there. They immediately asked the complainant party to raise their hands up and due to fear they remained quiet. Thereafter accused Umer gave a butt blow on the mouth of the complainant on account of which his upper tooth was broken but in the meanwhile he snatched the licensed gun and bandolier from the complainant. All the accused then left the Otaq and while leaving they were firing in the air. On the sound of fire-arms, the villagers also arrived and thereafter they tried to follow the footprints of the culprits and when they were at some distance from their village, the accused had fired upon them on account of which they did not pursue them and returned back to their houses. The next morning, the complainant informed his relatives in Village Haji Ahmed Khan Almani about the above said incident and thereafter they again tracked the footprints with the help of tracker but after some time they lost the footprints. The complainant went and lodged the report. The F.I.R. Exh.12 was recorded by S.I. Muhammad Saleh on 16-10-1990 at 3-30 p.m. He himself took up the investigation of the case and proceeded to the place of Wardat alongwith the complainant. He inspected the place of Wardat and prepared memo. Exh.17. The injury on the person of the complainant was also noted by him, he sent the complainant to the hospital for treatment. Thereafter he handed over the case papers to S.H.O. Ghulam Rasool who conducted the further investigation. The said S.H.O. was on patrol duty on 31-5-1991 when at about 9-30 p.m. he arrested accused Abdul Razzaque under memo. Exh.P.23. Co-accused Dhanoo was arrested by A.S.I. Lai Khan of Police Post Tando Fazal under memo. Exh.24. After the usual investigation, both the accused were challaned by him to face their trial. At the trial, the charge against the appellants was framed to which they did not plead guilty and claimed to be tried. During the course of trial, the prosecution examined P.W.1 Muhammad Urs complainant, P.W.2 Ali Nawaz and P.W.3 Muhammad Bachal the three witnesses who were present at the time of incident. P.W.4 Ali Murad is Mashir of Wardat. P.W.5 S.I. Muhammad Saleh, the first Investigating Officer and PX6 S.H.O. Qhulam Rasool, who completed the investigation and challaned the accused. Thereafter the prosecution side was closed. The statements of the appellants were recorded under section 342, Cr.P.C. wherein they denied the prosecution allegations and claimed that they had been arrested from their village. Appellant Dhano further stated that he has dispute with complainant party over land and therefore, he has been falsely implicated in this case. Both the appellants did not wish to be examined on oath but they wanted to examine witnesses in their defence. However, the appellants subsequently, did not examine the defence witnesses. At the conclusion of the trial, both the appellants were convicted and sentenced as aforesaid. We have heard Mr. Qurban Ali H. Chohan, learned counsel for the appellants and Mr. Abdul Latif Memon, learned AA: G. The latter has not supported the impugned judgment. We have perused the entire evidence on record and so also the impugned judgment. The conviction of the appellants has been recorded by the trial Court on the evidence of the three star- witnesses namely; P.W. Muhammad Urs, his son P.W. Ali Nawaz and P.W. Muhammad Bachal who are all related inter se. Apart from the evidence of the said witnesses, there is no other evidence on record to connect the appellants with the commission of this offence. After going through the evidence of the aforesaid witnesses, we have reached a conclusion that implicit reliance cannot be placed on their evidence. It may be mentioned that P.W. Muhammad Urs and P.W. Ali Nawaz claim to have identified appellant Dhano at the time of incident, while P.W. Muhammad Bachal states that he had identified both the appellants. The factum which has been overlooked by the trial Court is that the incident had taken place at 8-00 p.m. when it was sufficiently dark and there was no source of light, therefore, the culprits could not have been. visible and identifiable by the witnesses. In this regard, we may refer to the evidence of P.W.3 Muhammad Bachal who has stated in his examination-in-chief as follows:-- "There was darkness in the Otaq and no lamp was burning." As the aforesaid statement has come in the examination-in-chief portion, it has to be owned by the prosecution and therefore, it will be deemed to be the prosecution case, that not only there was darkness in the Otaq but there was no source of light. This being the position; the question which arises is that how the witnesses could identify the culprits. Apart from this aspect of the matter, there is evidence on the record to show that there was enmity between the appellants and the complainant party, and in this regard, the complainant's son P.W. Ali Nawaz has admitted in his cross-examination as under:-- "It is correct that there was dispute between us and accused Dhanoo over a plot of land." The aforesaid excerpt from the evidence of P.W. Ali Nawaz clearly establishes the fact that there was enmity between the parties. This being so, the three material witnesses who are related inter se, their evidence cannot be relied upon without independent corroboration, and in the present case there is no corroboratory evidence on record. Furthermore, while evaluating the evidence-on-record, we have noticed that the complainant Muhammad Urs in his deposition has improved upon the version as given in the F.I.R. lodged by him. According to the F.I.R., the complainant identified and named five accused except an unknown accused, but in his deposition, he identified only accused Umer, Dhano and Rasool Bux. Again referring to the F.I.R., it will be noticed that complainant has not mentioned therein who actually snatched the gun from him but in his deposition in Court, he has placed that responsibility on accused Umer and Dhano. In the F.I.R. the complainant has stated that accused Umer caused butt blow on his mouth due to which his upper tooth was broken but no such medical certificate was placed on record. In respect of accused Abdul Razak, the complainant states that he is doubtful as to his identity but in the F.I.R. he has not only named Abdul Razak, he has also given his parentage and caste. It appears for reasons best known to the complainant, he has tried to absolve accused Abdul Razak and Ahmed. In these circumstances, it will not be wrong to say that the complainant is not speaking the whole truth. In respect of the other two witnesses that is, P.W. Ali Nawaz and P.W. Muhammad Bachal, they have both identified accused Razak and Dhanoo in Court, but both of them are silent as to who snatched the gun from the complainant. It may be noted that the complainant does not claim that his two teeth were broken due to gun butt blows, but P.W. Ali Nawaz and Muhammad Bachal both claim that two teeth of the complainant were broken. Where the complainant is silent regarding the presence of any light in the Otak, P.W. Ali Nawaz states that a lantern was burning in the Otak while P.W. Muhammad Bachal has stated there was darkness in the Otak and no lamp was burning. When the complainant claims that he had brought the police to the place of Wardat, P.W. Muhammad Bachal claims that one Bagh had brought the police at the Wardat. Another surprising aspect is that the complainant claims to have identified three accused, his son P.W. Ali Nawaz claims to have identified four accused and P.W. Muhammad Bachal had identified five accused while all the accused are said to be residents of the same village. P.W. Muhammad Bachal has also claimed that the police came at the Wardat on the next morning at 6-00 a.m. but this obviously is not possible as the report was lodged on the next day at 3-30 p.m. Therefore, the police had no occasion to visit the Wardat before 3-30 p.m. In this regard the Investigating Officer P.W. Muhammad Saleh S.I. has stated in his evidence that the complainant came to lodge the report on 16-10-1990 at 3-30 p.m. which was recorded by him and then he proceeded to the place of Wardat. From the above discussion, the position which emerges is that there is enmity between the parties on account of dispute over a plot of land. There seems to be a doubt regarding availability of any source of light at the Otak of A the complainant and in this regard P.W. Muhammad Bachal has stated there was darkness in the Otak and no lamp was burning. The complainant has deliberately tried to absolve accused Ahmed and Abdul Razak in his evidence, when in fact he had named them in the F.I.R. As already discussed above, there are material contradictions between the evidence of the three main witnesses. Lastly on account of admitted enmity, the evidence of the three witnesses P.W. Muhammad Urs, P.W. Ali Nawaz and P.W. Muhammad Bachal cannot be relied upon unless corroborated by an independent source which is lacking in this case. Consequently, we are of the view that the impugned judgment is not sustainable. Accordingly, we allow this appeal and set aside the conviction and sentence awarded to the appellants. By a short order, dated 14-7-1993 we had allowed this appeal and directed that both the appellants be released if not required in any other case. These are the reasons for the same. N.H.Q./D-118/K Appeal allowed.