1992 P Cr (PLP)

P.W.5 Dr. Waqar Hussain he conducted post-mortem P.W.6 Mir Khan Tapedar, who prepared sketch of Wardat. P.W.7 Ghulam Hyder son of Khuda Bux Mashir of inspection of dead body, P.W.8 H.C. Mehar Ali Process server ??????????????????????? At the conclusion of trial, the statements of the accused were recorded under section 342, Cr.P.C. The statement of accused Ghulam Ali is Exh.33. Statement of accused Muhammad Nawaz is Exh.34 and that of accused Rehmani is Exh.35. All the accused denied the prosecution allegations and claimed to be innocent. Accused Ghulam Ali wished to examine 2 defence witnesses namely D.W. Rahim Bux and D.W. Allah Bux. The other accused did not wish to examine any defence witness. At the conclusion of the trial, the trial Court acquitted accused Muhammad Nawaz and Rehmani, but convicted and sentenced accused Ghulam Ali as already mentioned hereinabove. I have heard Mr. Habibullah Shaikh, learned counsel for the accused/appellant, and Mr. Abdul Sattar Chohan, Advocate for A.A.-G. for State. The latter has supported the judgment of the trial Court. . The learned counsel for the appellant contended that the prosecution has failed to prove its case beyond reasonable doubt; that the eye-witnesses Rahim Bux? Allah Bux and Ghulam Hyder are closely related to the deceased and their evidence has been disbelieved to the extent of co-accused Muhammad Nawaz and Rehmani, who have been since acquitted; if same witnesses are to be relied against the appellant, then material corroboration is required which is not available in this case; that the Medical Officer, who first examined the injured as well as the I.O. A.S.I. Riaz Ahmed have not been examined causing material prejudice to the appellant's case; the arrest of the appellant and so also recovery is not proved by the prosecution; at the place of Wardat there was no light near about so-as to identify the assailant and there arc material contradictions regarding the actual place of Wardat. I have anxiously attended to the arguments of the learned counsel for the parties, and I have also reviewed the entire evidence that has been produced by the prosecution, the statement of the appellant and the acquitted accused recorded under section 342, Cr.P.C. and the circumstances appearing in the case, with care. I am of the view that the arguments advanced by the learned counsel for the appellant have a lot of force and therefore, I am inclined to agree with him for the reasons which I shall presently discuss. The incident has taken place at about 10-45 in the night at the bank of River Indus where the boat-people reside in their boats. There is no electric light immediately near the boats of complainant and Ghulam Rasool, but, there is a public light which is situated at a distance of about 27 feet away from the place of Wardat. According to column 4 of F.I.R. place is shown to be `boat of Allah Bux'. In the body of the F.I.R., it is said that complainant, deceased Ghulam Sarwar and P.W. Allah Bux were sitting in the `boat of Rahim Bux'. In his deposition the complainant has stated that he, alongwith deceased Ghulam Sarwar, P.W. Allah Bux and Rahim Bux were sitting in the boat when the accused came in the boat and appellant caused injuries to Ghulam Rasool in the boat. This has been confirmed in the cross-examination of the complainant as under:-- "The accused persons gave blows to the deceased on boat and thereafter he fell down." ??????????? The complainant has shown the place of Wardat to the police and in the memo of Wardat Exh.15, the place of Wardat is shown to be below the boat of Ghulam Rasool at `Pacca land' while the boat of complainant is shown to be about 9 paces away from the place of Wardat. All this will go to show that at the time of lodging the F.I.R., the place of Wardat was shown to be the boat of Allah Bux, then in the body of F.I.R., the complainant shows that they were sitting in the boat of some other Rahim Bux. While deposing in Court the complainant was careful in not saying in whose boat they were sitting. Moreover according to complainant injuries were caused to the deceased in the boat. The complainant is contradicted by P.W.2 Allah Bux, who says they were sitting in the boat of the complainant, but accused caused injuries to the deceased on the ground. The third witness, P.W.3 Ghulam Hyder is not an eye?witness on his own showing. According to him he came on the cries of deceased when injuries had already been caused and he was informed about the facts by the complainant. But complainant is silent and does not say that facts were narrated to Ghulam Hyder. At this stage it may be noted that P.W.2 Allah Bux is nephew of complainant and maternal-uncle of P.W.3 Ghulam Hyder, as such, they are closely related to each other and the deceased. The manner in which the report is lodged is also casting suspicion on the conduct of the witnesses. According to the complainant and the witnesses Allah Bux and Ghulam Hyder, it is said that the injured alongwith all the witnesses proceeded to the police station immediately after the incident, where H.C. Allah Bux prepared memo of injures of deceased Ghulam Sarwar, then F.I.R. was registered at 11-50 p.m. and finally letter was given for removing the deceased to the hospital for examination and treatment as he was alive at that time. As such they will reach the hospital after 11-50 p.m. and not before that time, because F.I.R. was registered at 11-50 p.m. Surprisingly the injured is shown to have been attended at the hospital at 11-30 p.m. on the same day. This only means that the complainant party had gone to the police station obtained the letter for the treatment of injured Ghulam Sarwar but did not lodge the report. In this regard, the defence has made suggestion to the witnesses in the cross-examination, that F.I.R. was lodged after the police was shown the Wardat and the position prevailing at that time. The only inference which can be drawn is that, the witnesses were not aware about the identity of the assailants. This will also explain why the complainant has made efforts to shift the place of Wardat from one boat to another and finally on to the ground. It is also surprising that neither any blood was found at the place of Wardat, nor the clothes of the deceased were secured. The knife alleged to have been recovered from the appellant has also not been sent to the chemical examiner. According to the Tapedar, the light pole at the place of Wardat is situated at a distance of 27 feet from the place of Wardat. It is also an admitted position that the same present set of witnesses have been disbelieved by the trial Court so far as co-accused Muhammad Nawaz and Rehmani are concerned, therefore, if the same are to be used against the appellant then they can be so used provided the evidence of the witnesses are corroborated from some independent source, which unfortunately is not available in this case. There is yet another material lacuna in this case. The medical officer who had initially examined the injuries of the deceased has not been examined. In this regard, the A.P.P. had moved an application before the trial Court to summon the said doctor, which was granted and an effort was also made to trace out the said doctor, but surprisingly, the said doctor's name could not be traced as stated by P.W.5 Dr. Waqar Hussain, who had conducted the post-mortem examination. The examination of the first doctor was very material as the record shows, that the injured had regained consciousness, the medico-legal certificate would have indicated at what time the injured was brought to the hospital and by whom. But the prosecution has failed to either examine that doctor or to bring the medical certificate on record. Another most important circumstance is the non-examination of Investigating Officer A.S.I. Riaz Ahmed and H.C. Allah Buy, who recorded the F.I.R. It is surprising to note that P.C. Mehar Ali (P.W.8) has been examined by the Court as process-server, who was entrusted the process of I.O. A.S.I. Riaz Ahmed. This witness states that in spite of his best efforts, he has not been able to find the present posting of A.S.I. Riaz Ahmed, therefore, he could not be served. The record shows that many times process was issued through S.S.P. Larkana and Khairpur, but his whereabouts could not be known. This is a strange state of affairs, the police department is not in a position to know the present posting of an A.S.I., with the result, the prosecution side has been closed by the Court. Be that as it may, the fact remains that in this case the I.O. has not been examined. As such the arrest and recovery from accused has not been proved in this case, because, even the Mashir P.W.4 Muhammad Hussain has not supported the arrest of accused and the recovery of knife while second Mashir has been given up. To my mind, the appellant is materially prejudiced due to non-examination of the I.O., as material clarification could have been obtained through him regarding the place of Wardat and the surrounding circumstances. So much so, that even H.C. Allah Bux who had registered the F.I.R. has also not been examined without any reason. Had this witness been examined it would have been known when the complainant actually came to the police station, and, when did he issue the letter for the treatment of injured and above all when he had examined the injuries of deceased. All the above circumstances when taken together clearly go to show that the prosecution has not been able to prove the case against the appellant beyond all reasonable doubt. Implicit reliance cannot be placed on the eye?witness, as they are closely related to each other and the deceased, and furthermore, they have already been disbelieved so far as 2 co-accused are concerned. Their evidence can be relied upon against the appellant, only if their evidence is corroborated on material particulars through some independent source, which is not available in the present case. The upshot of the above discussion is that there being no satisfactory basis to uphold the conviction of the appellant, consequently, the appeal is allowed, the conviction and sentence of the appellant are set aside. Appellant is in custody, he is to be released forthwith if not required in any other case. N.H.Q./G-301/K???????? Appeal allowed.