2007 PLP 2052 (YLR)

ALI SAIN DINO METLO, J.

Appellant Muhammad Aalam Samtio, uncle of . deceased Ahmed Ali, has challenged acquittal of respondent Shafqat from the charges of murder of his (Shafgat's) sister Mst. Mumtaz Khatoon and her alleged paramour Ahmed Ali.

2. Briefly, facts of the prosecution case are that on 25-1-1993, complainant Muhammad Aalam Samtio and his sister's son Ghulam Mustafa had gone to village Gahi Khan Samtio .with some work and when at about 1545 hours they happened to pass from house of one Mukhtiar Thaheem, they heard three gunshot, reports from latter's house. Immediately thereafter, they saw Gada Hussain Samtio armed with revolver, and his three sons, Shafqat (respondent No.1), Ayaz and Muhammad Khan, armed with shotguns, coming out from the house. They threatened them to remain away and went running to Gada Hussain's daughter Mst. Mumtaz Khatoon working in a nearby field and killed her by making fires upon her. The complainant and his nephew came to know that deceased Ahmed Ali had been taken to. Mukhtiar's house deceitfully and was killed there under a conspiracy. Leaving Ghulam Mustafa at the dead body of Ahmed Ali, the complainant went to Police Station Taluka Larkana and lodged report on the same day at 1900 hours.

3. In the investigation of police Gada Hussain and his two sons Ayaz and Muhammad Khan were found innocent and were, therefore, let off and only respondent No.1 was sent up to stand trial.

4. At trial, prosecution examined nine witnesses, namely, complainant Muhammad Aalam Samtio (P.W.1), Ghulam Mustafa Samtio (P:W.2), P.C. Muneer Ahmed Tunio (P.W.3), Abdullah Samtio (P.W.4), Rawat Jatoi (P.W.5), Dr. Aijaz Ali (P.W.6), Tapedar Dost Ali Zangejo (P.W.7), Inspector Habibullah Jokhio (P. W.8) and Muhammad Khan Tunio (P.W.9).

5. The respondent, while denying the charges and refuting the prosecution evidence, contended that the police had pressurized him to make confession and had detained his womenfolk, including his mother and sisters, at the police station and on his refusal, he was taken to the office of the Mukhtiarkar, Miro Khan, where his signature was obtained by force. In support of his contention, he produced some documents, including copies of telegram and application made to the Sessions Judge, Larkana, complainant about the pressure tactics of police for getting his confession.

6. The trial Court (Ilnd Additional Sessions Judge, Larkana) by its judgment dated 22-11-2005, acquitted the respondent holding that the prosecution had failed to prove its case against him beyond reasonable doubt.

7. The prosecution relied upon three pieces of evidence, namely, ocular evidence, confession and recovery.

8. As regards the ocular evidence, prosecution examined four witnesses, namely, complainant Muhammad Aalam (P.W.1), Ghulam Mustafa (P.W.2), Abdullah (P.W.4) and Rawat (P.W.5). Two of them, namely, Abdullah and Rawat did not implicate the respondent. According to them, they had seen that the two deceased were killed not by the respondent but by an unknown man. Only Rawat was declared hostile but nothing favourable to the prosecution could be brought on record in his cross-examination. Evidence of the remaining two was not relied upon, and rightly so, by the trial Court as they, besides being chance witnesses, had changed their version and deliberately tried to improve the prosecution case. Muhammad Aalam was resident of village Murad Samtio and Ghulam Mustafa, of village Sher Muhammad Samtio, both situated at a far distance from the place of incident

the latter at the distance of about 8/9 kilometers.

9. In order to show that they were not chance witnesses, they changed their version and stated that they and the deceased and- one Ghulam Akber cousin of Ghulam Mustafa had gone to village Ghai Khan Samtio together where they were suddenly attacked upon by Gada Hussain, his three sons and one Mukhtiar Thaheem and the deceased was killed within their sight by the fires made by respondent Shafqat and his brother Ayaz. However, neither Mukhtair was arraigned nor Ghulam Akber was examined' and the direct complaint filed by complainant Muhammad Aalam was withdrawn by him.

10. While claiming that they had gone to the village by a tractor, Ghulam Mustafa showed his ignorance as to whether the complainant had gone to the police station by foot or by any vehicle. Though the complainant claimed that Ghulam Akber was also with them, he did not explain whether he had stayed with Ghulam Mustafa or had accompanied him to the police station or had gone somewhere else. He also did not explain what happened to their tractor. Both the witnesses did not say who fired upon Mst. Mumtaz Khatoon. They do not appear to be the real eye-witnesses.

11. As regards the confession, the trial Court has rightly discarded it. Firstly, the Magistrate, due to his death, could not be examined. Secondly, in presence of so many Magistrates, "including Judicial Magistrates at Larkana, there seems no justification for taking the respondent to Miro Khan situated at the distance of 20-22 miles from Larkana for the purpose of recording his confession by the Mukhtiarkar, an Executive Magistrate. The Investigating Officer failed to give any explanation or - justification for such an exercise. Moreover, the confession is at total variance with the ocular evidence and is not corroborated by any other evidence.

12. Evidence of recovery is not supported by any witness, except the Investigating Officer. Fida Hussain and Ali Khan, shown as witnesses of securing empties from the place of incident, and H.C. Muhammad Ali and P.C. Khan Muhammad, shown as witnesses of recovery of shotgun on the pointation of the respondent, were not examined without assigning any reason. The Investigating Officer has not stated that the empties were sealed and has also not specified from what place the gun was recovered. He had simply ' stated that he had proceeded to the pointed place from where the respondent had produced the gun but did not clarify what was that pointed place. It will be highly risky to rely upon such type of evidence regarding the recovery.

13. Learned counsel for the appellant failed to point out any misreading or non-reading of evidence on the part of the trial Court. The learned A.A.-G. also agreed that the trial Court has appreciated the evidence properly.

14. An order of acquittal is not to be interfered with, unless shown to be perverse. If it has the support of evidence and is reasonably possible, it cannot be disturbed merely because a different view is also possible. It can be set aside only when the Court, on reappraisal of evidence, comes to the conclusion that no finding other than of guilty can be given in the case. In the present case, acquittal of the respondent No.1 is based upon proper appreciation of evidence and is not unreasonable. In view of such facts and circumstances of the case, the appeal was dismissed summarily by a short order passed on 7-12-2006 and these are the reasons. H.B.T./M-72/K Appeal dismissed.