1984 P Cr (PLP)

The prosecution in support of its case had examined P. W. 1, Nasir Ahmed (Complainant) .Exh. 8, P. W. 2 Muhammad Nawaz (Exh. 12), P. W. 3 Ali Nawaz (Exh. 13), P. W. 4 Hussain Dino (Exh. 14), P. W. 5 Badaruddin (.Exh. 15), P. W. 6 Abdul Kadir (Exh. 17), Dr. Bashir Ahmed (Exh. 22), P. W. 8 Koura Khan (Exh. 24) and thereafter the learned A. P. P. by his statement Exh. 26 closed the side of prosecution. The appellants in their statements recorded before the lower Court denied all the prosecution allegations. They had further stated, that the witnesses are interested, inimical and hostile. They bad further stated that the complainant Nasir and his brother Abdul Kadir, who is mashir in this case has implicated them falsely in many affairs. The deceased Ghulam Hyder had committed the murder of Bahadur, he had also enmity with Soomar on land affairs and they have no grievance against the deceased, but the complainant party has enmity with them, who in order to save themselves implicated the appellants. In their defence, they examined Mr. Ghulam Muhammad Moughal Exh. C. M. O., Sessions Court, Sukkur. The learned trial Court taking into consideration the evidence adduced before it, convicted and sentenced the appellants 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 the eye-witnesses of the alleged incident are closely related and in view of the matrimonial disputes between the parties their statements required independent corroboration, which in his opinion was not at all available in the present case. (b) That the alleged recovery of the blood-stained hatchet at the pointation of appellant Sijawal cannot be used as a corroborative piece of evidence, as P. W. 6 Abdul Qadir the mashir of the alleged recovery is closely related to the deceased and the Police could have secured the independent mashir for said recovery, but it was not done and consequently their recovery cannot be used as a corroborative piece of evidence even against the appellant Sijawal. (c) That P. W. 3 Ali Nawaz is the brother of the deceased and his presence is doubtful as he is a chance witness, as he normally resides in Karachi. In addition to this the statements of prosecution witnesses under section 161, Cr. P. C. were not recorded immediately and consequently no reliance can be placed on their statements specially in view of material contradictions infer se. (d) That Exh. 11, the affidavit of the complainant, which was brought on record and on which the complainant has admitted his signatures, clearly shows that this was an unwitnessed crime and consequently the statements P. Ws. 1, 2 and 3 alleged eye witnesses, cannot be relied upon on this ground alone, as this affidavit of the complainant at least has created a reasonable doubt in veracity of the prosecu tion case. In support of his above contentions the learned Advocate for the appellants relied upon cases reported in P L D 1976 Kar. 710 and 1983 P Cr. L J 823, in respect of the statements of P. Ws. under section 161, Cr. P. C. and on 1979 S C M R 557, in respect of P. W. 3 Ali Nawaz's statement and on 1980 S C M R 225 and 1983 S C M R 1, in respect of evidence of P. W. 6 Abdul Qadir, the alleged mashir of the recovery of blood-stained hatchet at the pointation of appellant Sijawal. The learned Advocate in view of above submissions and the cases cited by him submitted, that the prosecution has failed to establish its case beyond reasonable doubt against both the appellants. The learned Advocate appearing for the State on the other hand submitted, that he fully supports the impugned judgment as the prosecution witnesses are natural and the enmity suggested by the prosecution was such, that it gave motive only to the appellants. The learned counsel further submitted, that prosecution witnesses were not put any question can material points in their cross-examination and since the complainant has stated on oath, that he was not read over and explained Exh. 11 alleged affidavit, the learned trial Court was fully justified in ignoring the said affidavit of the complainant. In support of the above contentions, the learned Advocate for the State relied upon cases reported in P L D 1967 Kar. 233, P L D 1971 S C 751 and P L D 1980 Pesh. 193, I have carefully considered the above submissions made by the learned advocates before me and have gone through the record and proceedings of the learned trial Court as well as the impugned judgment and the cases cited by the learned Advocates before me. It is an admitted position, that all the alleged eye-witnesses of the incident are closely related to the deceased and on account of admitted matrimonial disputes between the parties, it would be unsafe to rely on their statements without independent corroboration. For such cor roboration the prosecution relied upon the statement of P. W. 6 Abdul Qadir mashir of the alleged recovery of blood-stained hatchet at the pointation of appellant Sijawal. However, this P. W. is also closely related to the deceased and Investigating Officer has given no reasons, why he did not choose an independent mashir for the alleged recovery. I find great force in the contentions of the learned Advocate for the appellants that P. W. 3 Ali Nawaz who is a real brother of the deceased, and normally resides at Karachi his presence on the day of the incident at vardat is not free from doubt. In addition to this the statements of the prosecution witnesses under section 161, Cr. P. C. were not recorded forthwith. Keeping in view all these facts the affidavit of the complainant Exh. 11, which is brought on record, on which the complainant did not deny his signatures, creates reasonable doubt in the prosecution case as well as regarding presence of P. Ws. 1, 2 and 3 as eye-witnesses. The complainant no doubt in his statement before the learned trial Court stated, that this affidavit was not read over to him and its contents are not correct, but appellants examined D. W. 1 Ghulam Muhammad Oath Commissioner, who categorically stated before the learned trial Court, that he had read over and explained the contents of the affidavit in question to the complainant, who was duly identified by one Mr. Nazir Ahmed, Advocate. In the face of the statement of D. W. 1 Ghulam Muhammad, in my opinion Exh. 11 has created a reasonable doubt about the presence of P. Ws. 1, 2 and 3 at the time of the incident. The cases cited by the, learned Advocate for the appellants regarding delay in recording of statements of P. Ws. under section 161, Cr. P. C., about P. W. 3 Ali Nawaz being a chance witness and P. W. 6 Abdul Qadi the alleged mashir of recovery are fully applicable to the facts of the present case, whereas the cases cited by the learned Advocate for the State are based on completely different facts and as such not at all applicable to the present case. I find no merits in the contentions urge by the learned Advocate for the State, in view of my above conclusions. In my opinion prosecution has failed to establish its case beyond reason able doubt against both the appellants. Therefore, I allow the above appeal and set aside convictions of the appellants and sentences awarded to them by impugned judgment and acquit them by giving them benefit of doubt and direct that both the appellants be released forthwith, if they are not required in any other case. M. Y. H. Appeal accepted.