1984 P Cr (PLP)

The learned Civil Judge and F. C, M. K. N. Shah sent up the case to the Court of Sessions, for trial as contemplated under section 190 (3), Cr. P. C. The learned trial Court, had framed the charge against the appellants vide Exh. 2 and has recorded their plea vide Exh.

3. The prosecution had examined the complainant Haji Gahi Exh. 7 and the P. Ws. Ali Ahmed, Nek Muhammad. Dr. Allah Warrayo, Ali Sher, Tapedar Muhammad Idris, Muhammad Ayub, Nek Muhammad, S. H. O. Ali Muhammad and Muhammad Soomar. The A. P. P. has given up the P. Ws. Haji Khan Muhammad and Ali Gohar and had closed the prosecution side. The statements of the appellants Yousaf, Ismail, Ali Hassan, Muhammad and Ibrahim had been recorded as Exhs. 32 to 36, in which they had denied all the allegations and have on the contrary, alleged that the P. Ws. have deposed against them due to enmity, but they have led no defence, vide their statement Exh.

37. The learned trial Court taking into consideration the evidence adduced before it, while acquitted co‑accused Ali Muhammad and Ibrahim, convicted and sentenced the appellants above named, as hereinbefore mentioned and consequently the appellants have filed the above appeal, on the grounds mentioned in the memo of appeal. The learned Advocate appearing for the appellants in support of the above appeal submitted as under:- (a) That all prosecution witnesses are closely related and on account of admitted enmity between the parties, on reliance can be placed on their statements without independent corroboration, which is not at all available in the present case. (b) That no recoveries were made from the appellants, but the pro secution for purposes of corroboration has relied upon medical evidence. However, medical evidence in question in the present case does not corroborate the prosecution witnesses, as according to the Doctor the injuries on the body of the deceased were as a result of one shot, whereas P. Ws. in their 164, Cr. P. C. statements had clearly stated, that three appellants had fired shots at the deceased, which bit the deceased. However, before the learned trial Court the prosecution witnesses tried to change their statements in order to bring them in line with the medical evidence and as such no reliance can be placed on the statements of the prosecution witnesses at all. (c) That co‑accused Ali Hassan and Ibrahim were acquitted on the same evidence and as such convictions of the present appellants cannot be maintained. (d) That P. Ws. tried to involve innocent persons according to the learned trial Court and as such they were acquitted and conse quently no reliance can be placed on the statements of such P. Ws. without independent corroboration. In support of this contention the learned Advocate for the appellants relied upon cases reported in 1982 S C M R 162 and 1049 and 1975 P Cr. L J 206. (e) That the complainant against whom the motive is alleged was present at the time of incident, according to prosecution, but the appellants caused no harm to the complainant at all and as such no reliance can be placed on the statements of the prosecution witnesses, in view of the law laid down by Hon'ble Supreme Court in case reported in 1979 S C M R

557. The learned Advocate appearing for the State at the outset submitted, that he was not supporting the impugned judgment, in view of the grounds urged by the learned Advocate for the appellants, as there is a blood feud between the parties and consequently the statements of the prosecution witnesses required independent corroboration, but the same is not at all available in the present case and the reliance for such corroboration made by the learned trial Court on the medical evidence was not justified, as the said medical evidence is contrary to the statements of P. Ws. Recorded under section 164, Cr. P. C. as well as their statements recorded before the learned trial Court. 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 the impugned judgment and the cases cited by the learned Advocates before me. It is admitted position, that all eye‑witnesses are closely related to deceased and there exists blood feud between the complainant's side and appellant's side, as a result of which at least two murders had taken place, and some other criminal proceedings are pending between the parties. In view of this, I agree with the contention of the learned Advocate for appellants and State counsel, that statements of P. Ws. require independent corroboration, in present case. Learned trial Court for purposes of said corroboration has relied upon the medical evidence on record. I have carefully gone through the statement of P. W. 4 Dr. Allah Warayo, who has clearly stated before the learned trial Court, that injuries on person of the deceased were due to one shot only, whereas P. Ws. have attributed one shot each, to present appellants, which shots according to these P. Ws. hit the deceased. In their statements under section 164, Cr. P. C. they also attributed fire‑arm shots to acquitted two accused persons. In view of this, I fail to understand, how learned trial Court came to conclusion, that medical evidence has corroborated ocular evidence of P. Ws. The reliance of the learned trial Court on motive, as corroborative piece of evidence, is also contrary to law laid down by D. B. of this Court in case reported in P L D 1981 Kar. 1 and 1981 S C M R 132. 1n view of this factual position, I find no independent corroborative evidence on record to support the statements of P. Ws. who admittedly have strong enmity with the appellants, on account of two previous murders, in which close relations of complainant have been challaned and were facing trials. Therefore, prosecution has failed to establish its case beyond reasonable doubt, in my opinion cases cited by the learned Advocate for appellants fully support his contentions, raised before me. For above reasons, 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 appel lants be released forthwith, if not required in any other case. M. Y. H. Appeal allowed.