1984 P Cr (PLP)

9. The learned Advocate for the appellant in support of the above appeal submitted as under:- (a) This is an unwitnessed crime and as such all the prosecution witnesses have spoken lies except P.W.6 Sajjan. (b) The incident in question took place due to quarrel with Umar, but the present appellant is being made scapegoat. (c) That no reliance can be placed on recoveries, as the Mashir of recovery belonged to the complainant party and there is a contradic tion in these statements of the Mashirs of recovery and I.O. and as such no reliance can be placed on such recoveries, in support of this contention the learned Advocate for the appellant relied upon case reported in 1983 P S C 59. (d) That medical evidence shows, that more than three shots were fired and consequently this medical evidence falsifies the statements of P.W.4 Hussain Bux (Complainant) and P.W.5 Mst. Shabiran (daughter of the deceased). (e) That P.W.S Mst. Shabiran is a child witness and as such her statement cannot be relied upon, without independent corroboration. In support of this the learned Advocate for the appellant relied upon cases A I R 1946 (?) 3 and P L D 1965 Kar. 608. (f) That the empty recovered from Wardat was not immediately sent to the Ballistic Expert and consequently no reliance can be placed on such report of the Ballistic Expert. In support of this contention the learned Advocate for the appellant report in P L D 1968 Lah. 869 (g) That there is a discrepancy in the medical and ocular evidence about the number of shots fired at the deceased and as such no reliance can be placed on the prosecution witnesses.

10. In view of the above submissions the learned Advocate for the appellant stated, the prosecution has failed to establish its case beyond reasonable doubt.

11. The learned Advocate appearing for the State on the other hand submitted that he was supporting the impugned judgment, as 'prosecution has proved its case beyond 'reasonable doubt against the appellant, by the statements of prosecution witnesses Nos. 4 and 5, who corroborate each other. In addition to this Ballistic Expert report is positive and the production of the gun by the appellant has been established by Mashir as well as I.O. and as such the learned trial Court had rightly relied upon the said recovery, as corroborative piece of evidence.

12. I have carefully considered the above submission made by the learned Advocates before me and have gone through the R 8 P of the learned trial Court as well as through the impugned judgment and cases cited by the learned Advocate for the appellant, before me.

13. Prosecution had relied upon the statements of three eye-witnesses namely P.W.4 Hussain Bux (complainant P.W.5), Mst. Shabiran (daughter of the deceased), both of whom have corroborated each other, however P.W.6 Sajjan the alleged eye-witness did not support the prosecution and consequently was declared hostile. The appellant has alleged enmity and false implication and as such the prudence requires, that the statements of P.Ws. Nos. 4 and 5 should be corroborated by independent evidence. In this connection the prosecution has relied upon the statement of P.W. Raza Muhammad the Mashir of the alleged recoveries, who no doubt is the cousin of the complainant, but no enmity has been alleged against him by the appellant. The gun in question was sent to the Ballistic Expert whose opinion is positive. However, this opinion of the Ballistic Expert is being attacked by the learned Advocate for the appellant on the ground, that the empties recovered from the Wardat were not immediately sent to the Ballistic Expert and consequently no reliance can be placed on such report. In support of this the learned Advocate for the appellant has relied upon the case P L D 1968 Lah.

869. I have carefully gone through this case cited by the learned Advocate for the appellant and in my opinion this case does support the contention of the learned Advocate for the appellant, as on account of delay in sending the empties forthwith to the Ballistic Expert, the chances of concocting the empties after recovery of firearm, alleged to have been used in the commission of the crime cannot be ruled out. In view of this it would be unsafe to place reliance on the Ballistic Expert report and further the recovery Mashir is related to the complainant side and there are contradiction in his statement and that of the I.O. in respect of said recovery. In addition to this the I.O. is given no explanation,. why independent Mashirs were not picked by him, though such independent Mashirs were available and, therefore, in my opinion no reliance can be placed on such recovery, for purposes of corroboration.

14. The deceased had on his person 22 injuries and. according to the, statement of Doctor, who performed the post-mortem examination on the deceased body, the said injuries were as a result of more than three shots, which is alleged to have been fired by the appellant and consequently the presence of prosecution eye-witnesses namely P.Ws. 4 and 5 becomes doubtful. In addition to this P.W.5 is no doubt a child witness and as such her statement requires careful scrutiny. P.W.6 Sajjan in his statement before the learned trial Court stated, that they had 4 or 5 shots from the Bus stand, but Court unable to see the assailant. This witness has further stated in his examination-in-chief that they did not see P.W.5 Mst. Shabiran at the scene of offence. No doubt this witness was declared hostile by the prosecution. This witness is a independent witness and his statement seems to be straightforward.

15. P.W.1 Doctor Sudhamo, who performed the post-mortem on the body of the deceased, in his examination-in-chief has mentioned, that the number of injuries on the body of the deceased suggested 4 or 5 gun-shots fired at her. This statement of the Doctor in his examination-in-chief creats doubt about the presence of P.W.4 Hussain who heard the gun-shots from distance of at least 70 paces and he is very categorically in his statement, that only three shots were fired. His statement does not inspire confidence at all. In his cross-examination this witness admitted, that the deceased had dispute with Umar, her other son-in-law, who was otherwise also related to the deceased and against whom the deceased had sent Telegram to D.I.-G. Police regarding the alleged robbery.

16. P.W.5 Mst. Shabiran, when examined before the learned trial Court was about 7 to 8 years old and consequently on the day of incident she will be still younger. This witness is no doubt a child witness and her statement under section 161 , Cr.P.C. was recorded after three days. In cross-examination she replied to question that nothing will happen, if one speaks-lies on oath. This shows the immaturity of the witness and the possibility of being tutored and consequently her statement requires independent corroboration, which is in my opinion is not at all available.

17. According to P.W.7 Raza Muhammad the Mashir of the production of gun by the appellant, the appellant did not go inside his house but put his hand in the fence and took out the gun. This witness in his cross-examination admitted, that the complainant is his maternal-uncle and further stated, that independent persons were present at that time. It may be noted that P.W.8 Noor Hussain S.H.O., in his deposition before the learned trial Court stated, that the appellant took them inside his house and then produced the gun from inner fence of his house. This is a material contradiction between the I.O. and the Mashir and since the Mashir is related to the complainant and the provision of section 103, Cr.P.C. were violated by the S.H.O., by not picking independent Mashirs for said recovery, it would be unsafe to rely on such recovery. It may further be noted, that according to I.O. Mashirs remained continuously with him till the gun was produced by the appellant, which means right from 17-2-1978 to 19-2-1978.

17. Keeping in view the statement of the appellant under section 342, Cr.P.C. and the above discussions and observations made by me, in my in opinion prosecution has failed to establish its case beyond reasonable doubt.

18. Therefore, I allow the above appeal and set aside the conviction of the appellant and sentences awarded to him and acquit him by giving benefit of doubt and discharge the bail bonds executed by the appellant. M.Y.H. Appeal accepted.