1984 P Cr (PLP)

Appellant above-named, being aggrieved by judgment dated 16th, Febuary 1982, of the learned IVth Additional Sessions Judge, Hyderabad. In Sessions Case No. 199/1977, by which appellant has been convicted under section 302, P. P. C. and sentenced to suffer imprisonment for life and to pay a fine of Rs. 2,000 or in default to suffer further R. I. for years, has preferred the above appeal, on the following facts and grounds:-

2. Briefly stated on 30th June, 1977 one Hassan lodged a report at the police station wherein he alleged, that his brother was cutting grass from their fields of cotton cultivation, where appellant Anwar at about 6-00 p. m. armed with hatchet came and threatened Ghulam Hussain, that he will not be spared since he (Ghulam Hussain) had misbehaved with his father. It is alleged, that saying this appellant Anwar gave blows to Ghulam Hussain with sharp side of the hatchet and thereby caused bit, injuries which later resulted in his death. That this incident was wit nessed by Allahdino, Arzi and Bahar Ali, who were present and were working at the land of the deceased as well as the adjoining land, where the incident took place. It is further alleged, that this incident took place as a follow up of an earlier incident, in which altercation had taken place between the appellant and the deceased Ghulam Hussain and appellant had threatened deceased of dire consequences. A. S. I. Anayat Khan registered the case and took up investigation. A. S.-I. then went at the place of wardat and inspected the dead body of the deceased and scene of offence. He prepared such mashirnama and inquest report in the presence of mashirs and then sent the dead body to Civil Hospital for post-mortem. He also secured blood-stained earth from the place of wardat, sealed the same and prepared such mashirnama in the presence of mashirs. He also recorded the statement of P. Ws. Bahar Ali, Allahdino and Arazi, Jamal and Haji among others. He then went to the village of Ghazi Sauf, where be arrested the appellant from his house, in the presence of mashirs. He also secured blood-stained shirt and shalwar of the appellant. He also recovered the blood-stained hatchet from the house of appellant. He sealed the articles so secured and prepared such mashirnama, in the presence of mashirs. These articles later were sent for chemical examination and report. He then got recorded the statement of witnesses under section 164, Cr. P. C. before the Magistrate. A. S .1. Anayat Khan after completion of investigation handed over relevant papers to the S. H. O., Sekhat Police Station, who after completion of verification and necessary investigation etc. chalianed the appellant in Court to stand his trial.

3. Charge was framed and was read over to appellant in Court to which he pleaded not guilty.

4. Prosecution examined P. W. 1, Imdadullah (Tapedar), Exh. 6 P. W. 2 Ghulam Hyder (mashir), Exh. 8 P. W. 3 Hassan tcomplainant), Exh. 14, P. W. 4 Allahdino, Exh. 16 Exh. 5, P. W. 5 Arzi Exh. 18, P. W. 6 Bahar Ali Exh. 20, P. W. 7 Inayat Ali A. S.-I. (I. O.) Exh. 22, P. W. 8 Dr. Saifuddin Medical Officer Exh. 23 and P. W. 9 Ghulam Muhammad Memon, S. H. O. Exh. 26.

5. Appellant in his statement under section 342, Cr. P. C. stated, that he has been implicated in this crime due to enmity with the com plainant party. He however, led no evidence in his defence

6. The learned trial Court taking into consideration the evidence adduced before it, convicted and sentenced the appellant above-named, as hereinbefore mentioned and consequently the appellant has filed the above appeal, on the grounds mentioned in the memo. of appeal.

7. The learned Advocate for the appellant in support of above appeal submitted as under :- (a) That there was delay of 7 hours in lodging of F. I. R which has not been explained satisfactorily. (b) That there is contradiction in the statement of I. O. and P. W. 2 the mashirs of the allege recovery in respect of the said recoveries relating to the time of arrest of the appellant. (c) That ocular evidence is interested and on account of enmity suggested by the appellant, no reliance can be placed on such evi dence, without independent corroboration, specially as no cut grass was found at the place suggested by the prosecution witnesses. p. W. 4 Allahdino is nephew of the deceased, P. W. 5 Arzi is the uncle of the deceased and P. W. Baqar Ali, no doubt allege to be eye-witness, has a shop 9 miles away from the wardat and has tried to explain his presence on account of water turn P. W. Hassan is not the eye-witness, P. W. Ghulam Hyder, the mashir beside being relation of the deceased, his statement contradicts the statement of I. O. (d) That the motive suggested for the crime is flimsy. In support of the above contentions the learned Advocate for the appellant relied upon case reported in P L D 1967 Kar. 162, P L D 1973 S C 321 and P L D 1981 K ar. 1.

8. The learned Advocate appearing for the State at the outset sub mitted, that he was not supporting the impugned judgment, as all the prosecution witnesses are interested and enmity is alleged against them. In addition to this, recoveries are doubtful and as such there is no indepen dent corroboration of the statements of the prosecution witnesses.

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

10. The contentions urged by the learned Advocate for the appellant, hereinabove mentioned have great force. There was delay in lodging of F. I. R. of nearly 6 hours, which in my opinion has not been satisfactorily explained. It is also admitted position, that all prosecution witnesses including mashir P. W. Ghulam Haider are interested witnesses and A closely related to the deceased and there was an admitted enmity' between the complainant side and the appellant, as suggested to the prosecution witnesses and as such the statements of the prosecution witnesses required independent corroboration, in view of the law laid down by Hon'ble Supreme Court in P L D 1973 S C 321 and P L D 1981 Kar. 1, which in my opinion is available in the present case. However, prosecution for such corroboratian had relied upon production of the blood-stained hatchet by the appellant. It may be noted, that there are material contra dictions in the evidence of P. W. Ghulam Haider and P. W. Inayat S.H.O. regarding the time of the arrest of the appellant and as such no reliance can be placed on such recovery, in view of the facts of the present case on record. P. W. Ghulam Haider is also not independent mashir, as he is related to complinant`s party.

10. The learned Advocate appearing for the State has rightly conce ded, that the prosecution has failed to establish its case beyond reasonable doubt, in view of the contentions raised by the learned Advocate for the appellant. I have carefully gone through the statements of the eye witnesses and find that it was not possible for them to hear talk which took place between the deceased and the appellant, as they were on their own admission 50 to 60 paces away from both of them. Their statement do not inspire confidence. In view of this conclusions and findings arrived at by the learned trial Court cannot be sustained.

12. Keeping in view my above observations, I agree with the conten tions of the learned Advocate for the State as well as the learned Advocate for the appellant, that the prosecution has failed to establish its case beyond reasonable doubt, against the present appellant.

13. Therefore, I allow the above appeal and set aside conviction of the appellant and sentences awarded to him and acquit him by giving him benefit of doubt and direct that he may be released forthwith, f not required in any other case. M. B. A. Appeal accepted.