1984 P Cr (PLP)

Appellants abovenamed, being aggrieved by judgment, dated 26th hue, (979 of the learned Additional Sessions Judge, Shikarpur, in Session Case No. 37/77, whereby appellants have been convicted under section 302, P. P. C. r/w section 34, P. P. C. and sentenced to suffer imprison ment for life and a fine of Rs. 1,000 each or in default to suffer further R. I. for one year, have preferred the above appeal on the following facts and grounds :-- On 31st of December, 1970 at about 10-20 in the morning, Bhai Khan son of Ghulam Muhammad Jaferi, resident of Taluka Garhi Yasin came to Police Station Garhi Yasin to complain about the murder of -his son Mashkool, aged about 17 years, committed by two persons Sheedo and Hamal, who killed his son with the hatchets at night time, when he was sleeping with his wife Mst. Zarbibi, in his house, near village Loung. The report, which he gave to police read in these words: -- -I reside in my house in deh Habib Jagir, near village Loung Detho. On Wednesday, at breakfast time, my wife Mst. Kabootri, my son Gul Muhammad left with cattle to graze in Lodra Agricultural Farm. I left my son Mashkool, with his wife Mst. Zarbibi, my daughter Doulti, and Mashkool's mother, my first wife Mst. Nazi. Today, early in the morning, my nephew Imamuddin came on mare in Lodra Farm to inform me about the murder, and said that two persons have killed my son. I inquired from Imamuddin about the persons who killed my son. He informed me, that Mst. Zarbibi has informed him, that five persons came in the house to kill his son. I also came and found, that my son was lying murdered. I suspected murder. My son had the hatchet injuries on the head and the neck. I immediately looked at my daughter-in-law. She left the hut. I inquired from my wife Mst. Nazi and other daughter. They were weeping. They told me, that it was Somahani time, Mashkool and his wife Mst. Zarbibi were sleeping on the mat. At about, mid-night time, there was sudden barking of the dogs. Mashkool woke up. They also saw two persons standing there and giving blows to Mashkool with hatchet. They found on the lamp, that one was Hamal son of Kadir Bux Jaferi and other was Sheedo son of Kadir Bux Jaferi. They raised cries. On their cries, three persons, who were standing outside the but, called Hamal and Sheedo, and thereafter they went away. They did not identify these but suspected, that one was Abboo, Bangul, Imamuddin Gindal and Gul Baig. I further inquired from my wife Mst. Nazi, who also told me, that early in the morning Mst. Zarbibi's brother came and talked to her and thereafter, looking to the dead body, he said, that he is going to inform Bhaikhan." In the first report, complainant showed also the suspicion, that his son has been killed by his wife's relations in conspiracy with Mst. Zarbibi, because the boy was recently married and due to his young age, he had suspected his daughter-in-law Mst. Zarbibi, and when he refused to allow her to visit the parents, they killed his son. This first report was recorded by Sahib Khan, who was at the relevant time A. S.-I. at Police Station, Garhi Yasin. He recorded the F. I. R. as Exh.

7. Thereafter, he went to wardat. He found, that wardat was near village Loung in the house of Bhai Khan. He also found the dead body of Mashkool and secured blood-stained earth. He also prepared the mashirnama and prepared the inquest report as Exh. 12, in the presence of Badal and Muhab Ali. Thereafter, he sent the dead body for post -mortem examination. He also recorded the statement of Mst. Zarbibi, Mst. Nazi 'and Mst. Doulti. He also arrested appellants Sheedo and Hamal. On 7th January, 1977 in the presence of same mashirs. He also interrogated appellant Hamal, who took him to village Mari and produced the blood-stained hatchet from his house. He also interrogated appellant Sheedo, who also produced the blood-stained hatchet from his house. On 14th January, 1977, he arrested appellant Imamuddin, who appeared at Police Station. On 10th January, 1977 he produced Mst. Nazi, Mst. Doulti and Mst. Zarbibi before the Magistrate. Thereafter, he sent up the appellant in the Court for trial, after 164, Cr. P. C. statements were recorded of the witnesses. Significantly, it is pointed out, that mashir nama of recovery shows the time of 1-40 mid-day, when the appel lants were arrested and the recovery took place at 4-30 p. m. The recovery is also shown from the house and the arrest is shown at Hamayoon bus stand. During investigation, dead body was also operated in post-mortem. It was found, that Mashkool had nine incised wounds on his body and the medical opinion gave the indication, that death was the direct result of hatchet injuries, sustained during the course of incident. After the investigation, case was sent up in the Court of Sessions, where District Public Prosecutor conducted the prosecution, and examined the material evidence on the record of the Court. During the proceedings appellants were examined to explain the circumstances of recovery and the fact of murder. They had denied the charge of murder and recovery as false. The explanation given by Imam uddin is that, Mst, Zarbibi had informed him, that only two persons came with muffled faces to kill her husband. Imamuddin nowhere has said to Shai Khan when he went to inform him, that the appellants were with muffled faces. This aspect is also significant part of the evidence. Prosecution had examined Bhai Khan Exh.

6. He is the father of the deceased. P. W. Mst. Nazi Exh.

8. She is mother of the deceased. P. W. Mst. Doulti Exh. 9 is 12 years old girl, who is sister of the deceased. P. W. Toofan Ali Exh. 12 is the Corpse-bearer. P. W. Mehboob Ali Exh. 11 is the mashir, in whose presence it is said, that Hamal and Sheedo produced the hatchet. P. W. Dr. Sirichand is Exh. 11 P. W. Badal Exh.

20. He is also the mashir in whose presence, it is said, that the appellants produced the hatchet from their houses. Prosecution had examined Sahib Khan Exh.

22. He is the Investigating Officer, who conducted the investigation. The learned trial Court taking into consideration the evidence adduced before it, convicted and sentenced the appellants above-named as herein before 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 crime, as the presence of the prosecu tion eye-witnesses is doubtful from their own statements: (b) that the light on the basis of which the prosecution witnesses have: alleged to have identified the appellants could not have beep sufficient for such identification. (c) that P. W. Mst. Nazi's contention, that her cloth were seaked with blood is not supported by 10 and besides P. W. 2 Nazi the other allege eye-witnesses is P. W. 3 Mst. Doulti daughter of P. W. 2, who was minor at that time and as such the statements of these two eye-witnesses required independent corroboration, which is not at all available in the present case. (d) that the learned trial Court on the same evidence acquitted co -accused Imamuddin and as such no reliance can be placed on the statements of the prosecution witnesses, on the same grounds as far as present appellants are concerned. (e) that the motive mentioned in the F. I. R. was abandoned by the prosecution at the trial and consequently the statements of the pro secution witnesses cannot be accepted without independent corro boration. In addition to this the learned Advocate for the appellants relied upon case reported in P L D 1974 Kar. 274 in support of his above contention. (f) that P. Ws. the alleged eye-witnesses have admitted, that they did not disclose the names of the assailants to call P. W. 1 Bhai Khan the complainant, who ultimately lodged the F. I. R. (g) that there is delay in lodging of F. I. R. which has not been satisfactorily explained and consequently false implication cannot be ruled out. (h) that the statement of Bhai Khan P. W. 1 (complainant) cannot be used as corroborative piece of evidence as .the same is inadmissible. In support of this contention the learned Advocate for the appel lants relied upon cases reported in P L D 1969 S C 127, P L D 1974 Kar. 27 and 1979 S C M R 214. (i) that the learned trial Court has considered the motive as dispute and enmity over the land, which was not at all alleged in the F. I. R: In view of all above submissions, the learned Advocate for the appel lants submitted, that the prosecution has failed to establish its case beyond reasonable doubt. The learned Advocate appearing for the State on the other hand, submitted that be fully supports the impugned judgment, as prosecution has established it case by P. Ws. Naz Bibi and Mst. Doulti who were the natural witnesses and there is no material contradictions in their statements inter se and no personal enmity is alleged against them. I have carefully considered the above submissions made by the learned Advocates before me and have gone through the R & P of the learned trial Court as well as through impugned judgment and the cases cited by the learned Advocate for the appellant before me. Learned trial Court has rightly discarded recoveries of hatchets at the pointation of the appellants and consequently prosecution case rests only on the statements of P. W. Mst. Nazi and Mst. Doulti and for purposes 'of corroboration, on the statement of P. W. Bhai Khan. Both the eye-witnesses are closely related to deceased, so also complainant. Prosecution abandoned the motive mentioned in F. I. R. completely. This A throws doubt on the veracity of statements of P. Ws. and as such on this ground alone, it would be unsafe to convict the appellant on the basis of the statements of P. Ws. without independent corroboration, which unfortunately is not available due to negligence of police, as I. O. first did not pick up respectable and independent mashirs for recoveries of hatchets and thereafter he did not ensure, that these hatchets were sent to Chemical Examiner. I also find some contradiction in the statement of P. W. Mst. Nazi and Mst. Doulti. Mst. Nazi's contention, that her clothes were soacked with blood of her son, which she showed to I. O. was denied by I. O. Presence of lamp burning at night, when deceased was sleeping with his wife, in the same place where his mother and young sister were also sleeping is also doubtful. Even if lamp was there, it must have been really dim, and as such identification of assailants on such light would be doubtful. There was delay in lodging of F. I. R., which also in my opinion has not been satisfactorily explained by complainant, and con sequently false implication cannot be ruled out. Keeping in view all these facts and my observations, I am of the opinion, that prosecution ha failed to establish its case against the appellants beyond reasonable doubt, specially when P. Ws. Mst. Nazi and Mst. Doulti, in their own admission did not disclose the names of the assailants to the people, who came on vardat, soon after the incident, and this fact supports the contention o the learned Advocate for appellants that it was ether unwitnessed crime or P. Ws. were unable to recognize the assailants at all. 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 benefit of doubt and discharge the bail bonds execu ted by appellants in above appeal. M. Y. H. Appeal accepted.