1985 P Cr (PLP)

This Criminal Appeal arises from the judgment of learned Sessions Judge, Gujrat whereby he on 17‑6‑1978 convicted Abdul Waheed appellant under section 326, P.P. C. and sentenced him to R.I. for 7 years and a fine of Rs. 1,000, in default thereof, further R.I. for one year. It was directed that the fine when recovered be paid to the legal heirs of the deceased as compensation.

2. The occurrence took place on 13‑3‑1973 at 10‑30 a. m. at Ara Machine situated in Phalia Road, Mandi Baha‑ud‑Din. The F.I.R. is statement of Exh. P.A. of Mirza Allah Ditta P.W.2 which was recorded by Abdul Khaliq S.I., P.W.16 at' 12‑40 p.m. on the same day in Civil Hospital, Mandi Baha‑ud‑Din. The distance between place of occurrenc and the police station is one mile.

3. The motive as set up by the prosecution was a dispute between the appellant and the deceased over some tools.

4. As for the main occurrence, it has been stated that at the eventful time, the accused came to Ara Machine of the complainant where the deceased Muhammad Hanif was working. There developed an altercation, between the appellant and the deceased as the accused blamed that the latter had brought some tools from Ara Machine of the appellant. During altercation the appellant picked up a 'Nah' (a sharp edged instrument) ‑and struck it on the left thigh of the deceased. The deceased fell down on the ground. He was removed to the Hospital where he expired on the same day. The occurrence was allegedly seen by Ghulam Abbas P.W.1, Mirza Allah Ditta, complainant, P.W.2 and Ghulam Muhammad P.W.

14. The appellant was apprehended on the spot alongwith the weapon of offence. He was wearing blood‑stained clothes at that time.

5. On 13‑3‑1973, Dr. Iqbal Chaddhar conducted post‑mortem examination on the dead body and found following injury: "Incised wound 2" x x 1 deep, going deep under skin and superficial muscle for a distance of 5" situated on the medical side of left thigh 6" above left knee directed upward and slightly oblique." In his opinion the death was due to excessive haemorrhage due to injury to artery and vein (temporal). Such excessive and profused sudden haemorrhage could cause death in the ordinary course of nature. Razi Hussain, Dispenser, P.W.15 proved the post‑mortem report as he could identify the handwriting and signatures of Dr. Muhammad Iqbal Chaddhar.

6. The appellant was produced before Abdul Khaliq S.I. who got removed blood‑stained shirt Exh. P.6 and Shalwar Exh. P.7 from his person. Nah Exh. P.1 was produced before Abdul Khaliq S.I. P.W.16 on the spot which was taken into possession vide memo. Exh. P.B. attested by Mirza Roshan Din P.W.4 and Rehmat Khan P.W.5. The memo. was prepared by Abdul Khaliq S.I. The Serologist Report Exh. P.G. shows that Nah was stained with human blood.

7. To prove its case prosecution examined 16 witnesses. Ghulam Abbas P.W.1, Mirza Allah Ditta P.W.2 and Ghulam Muhammad P.W. 14 have given the ocular account of the occurrence. Mirza Allah Ditta P.W.2 supported the prosecution case. The other two eye‑witnesses have refused to support the prosecution. Ghulam Abbas P.W.1 was declared hostile whereas statement of Ghulam Muhammad P.W.14 recorded under section 164, Cr. P. C. was transferred to the files of trial Court. Mirza Roshan Din and Rehmat Khan P.W.5 were produced to prove the recovery of weapon of offence and blood‑stained clothes of the appellant recovery of weapon of offence and blood‑stained clothes of the appellant. Mirza Roshan Din P.W.4 did not support the recovery. Since the statement of Rehmat Khan was not recorded by the police, therefore, his evidence was disbelieved by the trial Court. Rehmat Khan P.W.5 and Akbar P. W.8 were the witnesses of private arrest of the appellant on the spot. Rehmat Khan has not been believed by the trial Court. Akbar P.W.8 has not supported the prosecution case. The rest of the evidence is of formal nature.

8. When examined under section 342, Cr. P. C., the appellant denied all the incriminating circumstances. He did not produce any evidence in defence.

9. Learned counsel for the appellant contends that the prosecution has failed to prove its case beyond reasonable doubts; that the two eye‑witnesses have not supported the allegations against the appellant; that Mirza Allah Ditta is not an absolutely dependable witness; that the recovery of the clothes and the weapon of offence is fake and that Roshan Din, the father of the complainant has not supported the alleged recoveries. Conversely, the learned counsel for the State has supported the judgment of the trial Court.

10. I have considered the arguments advanced by the learned counsel for the parties with care. I feel persuaded to agree with the learned counsel for the appellant. I find that the two eye‑witnesses namely Ghulam Abbas and Ghulam Muhammad have not supported the allegations against the appellant; that Ghulam Abbas P.W.1 is the real brother of the complainant; that one of the recovery witnesses refused to support the recovery whereas the other was disbelieved by the trial Court on the ground that he had not made any statement before the police and that as for Mirza Allah Ditta, it is in evidence that he had business rivarly with the appellant. That being the position, I am of the view that conviction cannot be safely sustained on uncorroborated testimony of the solitary witness namely Mirza Allah Ditta. So far as the recovery is concerned, the same cannot be used as corroborative piece of evidence, inasmuch as, one witness has been disbelieved and the other had refused to support the prosecution case. In these circumstances, it would be highly unsafe to rely on the statement of the Investigating Officer who is naturally interested in the conviction of the appellant. For all these reasons, I am of the view that the prosecution has failed to prove its case against the appellant beyond reasonable doubt.

11. The upshot of the above discussion is that there being no satisfactory basis to uphold the conviction and while giving him the benefit of doubt the appellant is acquitted of the charge. H. A. K. Appeal accepted.