1999 P Cr (PLP)

Muhammad Ismail Bhutto for the State. Date of hearing: 22nd September, 1998. The facts leading to present appeal are as under:‑‑ The F.I.R. in this case was registered on 4‑1‑1989 at Police Station Bhand Mari for offence under sections 302, 34, P.P.C. Complainant Ghulam Hyder stated in the F.I.R. that he was a teacher and resided in village Peroze Shah. He had two sons namely Khadim Hussain and Abid Hussain who resided with him. On that day at 20‑30 hours he and his both sons Khadim Hussain and Abid Hussain were present in their house alongwith other family members when somebody called his son Abid Hussain outside the house. Abid Hussain went out and the complainant and his other son Khadim Hussain and Nizamuddin followed him. They saw X11 Imtiaz, (2) Guloo alias Ghulam Muhammad and (3) Waris and one unknown person standing there with his son. They informed complainant that they had some work with his son Abid Hussain and they took him to their Otaq because some guests were waiting for him. Thereafter, all the four persons took his son with them and, he, his son Khadim Hussain and Nizamuddin returned to their house. Abid Hussain did not return for two hours and, therefore, he and his son Khadim Hussain went to the Otaq of Imtiaz Channa where they saw Abid Hussain lying dead on the ground of Otaq and he had hatchet and knife injuries on his head, face and other parts of the body and was bleeding. On their cries Nizamuddin and other villagers came there and complainant parroted the facts to them. After usual investigation police had submitted challan against the accused. On 31‑10‑1992 charge was framed against three accused namely Guloo, Waris and Imtiaz. All the accused did not plead guilty and claimed trial. During trial proceedings the prosecution examined complainant Ghulam Hyder Exh.9, P.W. Khadim Hussain Exh.10, P.W. Nizamuddin Exh.11, Medical Officer Dr. Wazir Ali Exh.12, Tapedar Muhammad Ayub Exh.l3, P.W. Ali Bux Exh.14, Mashir Shamsuddin Exh.16, P.C. Mithal Exh.l

7. Accused in their statements under section 342, Cr.P.C. has denied the allegations of prosecution and claimed, to be innocent. Learned IIIrd Additional Sessions Judge, Dadu convicted the accused/appellant Imtiaz whereas accused Guloo and Waris were acquitted by him. Accused /appellant Imtiaz was sentenced to suffer imprisonment for life and to pay fine of Rs.50,000 (Rupees fifty thousand only) and in case of default in payment of line the accused was ordered to suffer further imprisonment for three years. Accused was also directed to pay compensation of Rs.50,000 (fifty thousand) to the legal heirs of the deceased and in default of payment of compensation he was ordered to undergo further imprisonment for three years. Against this judgment and sentence the present appeal has been filed, by accused/appellant Imtiaz. Learned Advocate for the appellant has argued the appeal and has also submitted written arguments. He has submitted that the complainant himself has given two versions, his first version is mentioned in the F.I.R. but the version given by him in direct complaint is different. In the private complaint he has mentioned accused Guloo and Waris as witnesses. These accused Guloo and Waris were acquitted by the trial Court. In the private complaint the number of accused was shown to be 5 and their names are (1) S.H.O. Karim Bux, (2) P. C. Muhammad Khan, (3) P.C. Akbar Arain, (4) Imtiaz (present appellant) and (5) Dur Muhammad. The private complaint was ultimately dismissed but it has been produced during trial proceedings as Exh.9/B on page 51 of paper book. The complainant in his cross‑examination has admitted that he had filed direct complaint against Karim Bux and others. Learned Advocate for appellant further submits that P.Ws. Khadim Hussain and Nizamuddin had arrived at the scene of offence after arrival of complainant. The complainant in his cross‑examination admitted that he had not given the names of Gulab alias Ghulam Muhammad, Waris, Ibrahim and one unknown person standing on the door with Abid Hussain. He has also admitted that names of some other persons had been included by the police in the F.I.R. on their own accord. P.W. Khadim Hussain to his examination‑in‑chief has stated that this incident took place on 4‑1‑1989 at y‑00 p.m. and at that time he alongwith P.W. Nizamuddin were proceeding to see their relative and when they reached Otaq of Dur Muhammad they heard some noise from the Otaq. They went to the door of Otaq and saw accused Imtiaz armed with hatchet with two other unknown persons. On seeing them accused Imtiaz started running and the remaining two accused also started running. Thereafter, they saw that Abid Hussain was lying dead inside the Otaq near its outer door. He had hatchet injuries on his person. These witnesses further stated that police did not register the F.I.R. correctly as they had given names of Muhammad Khan Solangi and Akbar Punjabi both of whom were serving in police department alongwith accused Imtiaz, but police did not include the names of those accused in the F.I.R but instead of their names the police had given the names of Ghulam Muhammad and Waris. This witness Khadim Hussain was examined as Exh. 10 and he was confronted with his 161, Cr.P.C. statement wherein he had given different statement. Learned counsel for appellant further submitted that P.W. Nizamuddin EXh.II in his evidence has stated that he and Khadim Hussain were proceeding to see their relative and while passing from the Otaq of accused Imtiaz they heard noise from the side of Otaq. They went there and saw two persons coming out of the door and they were suspected to be Muhammad Khan Solangi and Akbar Arain. They had seen their back and both belongs to police department. According to this witness that as soon as they entered .the Otaq they saw accused Imtiaz giving last blow to deceased Abid Hussain with his hatchet. According to learned counsel for appellant this statement of P.W. Nizamuddin is complete deviation from his statement under section .161, Cr.P.C. which he was confronted. Both the witnesses had deviated from their 161, Cr.P.C. statements and introduced new version before trial Court. The Investigating Officer could not be examined as he has expired and, therefore, contradictions could not be proved. According to learned counsel for the appellant there is no evidence to connect the appellant with the alleged offence. There is no circumstantial evidence also and both the Mashirs of recovery namely Ali Bux Exh.14 and Shamsuddin Exh.16 did not support the prosecution case on the point of recovery. The only piece of evidence is that of last seen but this version had been completely abandoned by P.Ws. Khadim Hussain and Nizamuddin but the same has been partially supported by complainant Ghulam Hyder. Learned counsel for appellant places reliance on decisions reported in PLD 1991 SC 718, 1972 SCMR 15, 1977 SCMR 20, PLD 1977 SC 515 and NLR 1989 Crl.

574. Learned State Counsel does not support the judgment of lower Court and conviction of appellant because the complainant and P.Ws. had improved their statement whereas Mashirs of recovery were declared hostile. The conviction can be passed on evidence of solitary witness if it is found to be reliable. In this case it is admitted position that the F.I.R. was lodged by Ghulam Hyder who has admitted before trial Court that he had lodged private/direct complaint, which has been produced by him as Exh.9/B. The names of some of the accused mentioned in the private, complaint, are not mentioned in the F.I.R. There is no controversy about death of deceased Abid Hussain. Medical Officer Dr. Wazir Ali Exh.12 has deposed that on external examination he found 9 incised wounds on the person of deceased Abid Hussain and in his opinion these injuries were caused by sharp‑cutting weapon such as hatchet. There is no explanation as to how these 9 injuries were caused as there is no eye‑witness of the incident. There is no judicial confession or extra‑judicial confession. The evidence of last seen also cannot be relied upon because the complainant himself has given changed statement. In the private complaint produced as Exh.9/B in para. 6 the complainant has stated that he and his son Abid Hussain and Nizamuddin who is cousin of deceased were in the house when at 8 O'clock somebody called at the door. Complainant went out and saw accused Imtiaz. On inquiry accused disclosed that he had some work with deceased Abid Hussain. Thereafter, Abid Hussain went with Imtiaz. Similar in his statement before trial Court Exh.9. When he was confronted with his Statement in F.I.R. in his cross‑examination, his explanation is that names of other persons had been entered by the police in the F.I.R. on their own. In cross‑examination the complainant stated that after his arrest accused Imtiaz was saying that Abid Hussain had committed sodomy with him and such statement was made by accused Imtiaz before police to save other persons. No other witness has said so. There is evidence of Ali Bux Exh.14 on point of recovery and according to him he was present in his house when he heard cries from the house of deceased Abid Hussain. He went to the house of deceased where women‑folk were saying that Abid Hussain had been killed by Imtiaz at the Otaq of Durroo. He went to the Otaq of Durroo where he found Abid Hussain lying dead and police was present. A.S.‑I. asked him to act as Mashir. A.S.‑I. and police officials went to the house of Durroo and after 15/20 minutes A.S.‑I. and others returned to the Otaq. They had washed clothes and washed hatchet and according to them, they secured the same from the house of Durroo. Mashir has not supported the prosecution case on the point of recovery. So, excepting evidence of complainant there is no other evidence on the point of last seen. Because the complainant changed his version it is not possible to rely on his statement even on the point of last seen. There is no other evidence to connect the appellant with the alleged offence, therefore, benefit of doubt is given to appellant. The judgment and sentence, dated 24‑12‑1997 awarded to appellant by trial Court is hereby set aside. The appellant/accused Imtiaz is hereby acquitted and he shall be released forthwith if not required in any other case. These are the reasons for short order, dated 22‑9‑1998. Q.M.H./M.A.K./I‑49/K?????????????????????????????????????????????????????????????????????? Appeal accepted.