1984 P Cr (PLP)

A formal charge for an offence punishable under section 302 read plead with ed not 34, P.P.C, was framed against the appellants to which they not guilty and claimed to be tried hereafter, the trial of present case started. The prosecution in support of its case has examined P.W.1 Nawab Ali (Exh. 10), P.W.2 Ali Khan (Exh. 12), P.W.3 Haji Ghulam Nabi (Exh 14), P.W.4 Haji Hazoor Bux (Exh. 15), P.W.5 Dr. Abdul Ghafoor (Exh 16), P.W.6 Muhammad Rafique (Exh. 18), P.W.7 Allahdino (Exh. 9) P.W.8 Haji Jam (Exh. 26), P.W.9 Lal Bux (Exh. 27) and thereafter, learned A.P.P. his statement Exh. 29 closed the side of prosecution. The learned trial Court taking into consideration the evidence adduced before it, convicted and sentenced the appellants above named hereinbefore mentioned and consequently the appellants have filed the above appeal, on the grounds mentioned in the memo of appeal. The learned Advocate for the appellants in support of the above appeal submitted as under: -- (a) That this is an unwitnessed murder. (b) That identification of appellant Misri in respect of the call give by him on the basis of his voice cannot be considered to be sufficient for purposes of identification and in support thereof the learned, Advocate for appellants relied upon case reported in 1970 P Cr.L 633. (c) All the P.Ws. are closely related to the deceased including Mashir and in view of the admitted enmity between the parties, no reliance can be placed on their statements without independent corroboration In support of this the learned Advocate for the appellants relic upon case reported in P L D 1981 Kar. 1 and P L D 1973 S C 321 (d) That there was no ocular evidence at all in respect of the murdee in question except circumstantial evidence which has been considered, by the learned trial Court as ocular evidence for purposes of the conviction of the appellants, which is contrary to the law laid, down -by the Superior Courts and as such convictions of the appellants on such evidence, without independent corroboration cannot be sustained. (e) That the alleged recoveries have not been proved by respectable and independent Mashirs. In fact P.W. Allahdino, one of the Mashir, of such allege recoveries had not supported the prosecution case but the learned trial Court has wrongly held, that he has support the prosecution case. The second Mashir which was examined by prosecution had not at all supported the prosecution case in respect of the alleged recoveries, although he was examined after the prosecution realised that P.W. Allahdino, the earlier Mashir has not supported the prosecution case. (f) That there is contradiction in the medical and oral evidence regarding the time of the murder. According to medical evidence on record the murder took place after the deceased has fully digested hi, night food, whereas according to the prosecution witnesses the murder had taken place within 2 hours on taking of such meals. If' view of the above submissions the learned Advocate for the appellant' urged that prosecution has failed to establish its case beyond reasonable doubt against all the appellants above named. The learned Advocate appearing for the State at the outset submitted that he was not supporting the impugned judgment, as the prosecution story of the incident is improbable and furthermore there are no eye witness of the murder in question and the circumstantial evidence based on the statements of P.Ws. who are inter-related and against who' the appellants have alleged enmity and as such their statements require independent corroboration, which is not at all available in the present case, as alleged recoveries cannot be relied upon, as the Investigator Officer failed to pick independent and respectable Mashirs of the locality' although they were available, but have close relation of the complainant, side and further because the Mashirs in question have also not support the prosecution case. I have carefully considered the above submissions made by the learned Advocates before me and have gone through the R 6 P of the learned trial Court and the impugned judgment as well as cases cited by the learned Advocate for the appellants. In view of complainants own admission in F.I.R. that there existed land dispute between parties, on account of which appellants used to threaten them, the story given in F.I.R. how appellant Misri called deceased and deceased went with him, on the face of it looks improbable. No doubt complainant and other P.Ws., before learned trial Court gave up this motive of enmity, perhaps as they realised, it would come in their way, In addition to this, identification of appellant Misri as person, who called the deceased, on the basis of voice, is also doubtful and cannot be relied upon. All P.Ws. are closely related to complainant and in the face of the admitted enmity and disputes between the parties over land, no reliance can be placed on their statements, without independent corroboration, in my opinion, specially as none of the P.Ws. are eye witnesses and their evidence is only circumstantial. Learned trial Court for purposes of corroboration relied upon alleged recoveries from appellants. I have carefully gone through the statements of P.Ws. Allahdino and P.W. Haji Jam, the alleged Mashirs of recoveries. P.W.8 Haji Jam has not at all supported prosecution case in respect of alleged recoveries, whereas P.W.7 Allahdino in his statement before the learned trial Court categorically stated, that appellant Bahram and Khamiso produced nothing before the police, but stated that appellant Misri did produce blood-stained hatchet and clothes. In his cross, he stated, that when police came to Vardat appellants were present, but according to prosecution they were arrested after three days, as mentioned in Mashirnama of their respective arrests. He however, stated that they were not arrested by police at Vardat, though they were present. Statement of P.W. Allahdino, who is also related to complainant does not inspire confidence at all, in view of various contradictions in the said statement itself. Investigating Officer failed to choose independent respectable Mashirs of locality for alleged recoveries, for which he has given no explanation at all and as such no reliance can be placed on said recoveries, in my opinion. In addition to this medical evidence also does not support the time of alleged death. Keeping all this in view, prosecution has failed to establish its case beyond reasonable doubt against the appellants in my opinion. Therefore, I allow the above appeal and set aside convictions of the appellants and sentences awarded to them by impugned judgment and acquit them by giving them benefit of doubt and direct that they be released forthwith, if not required in any other case. S.G.D. Appeal allowed.