1984 P Cr (PLP)

Appellant had denied the allegations in his statement. He had stated, that he had no illicit connections with Tasneem Kauser. He stated that she is his sister. He alleged that lqbal had divorced Tasneem Kauser, because she had refused to give him permission for second marriage. He stated further, that Tasneem Kauser had already received her Jahez and, therefore, there was no reason for making demand for the Jahez. He stated further, that be has got a Clinic in village Kurkuli about 13 miles away from Sanghar. He used to return from that village at 3-00 p. m. On the day of the incident he returned on Motor Cycle at about 8-00 p. m. and that he was taking tea in his house with his mother and sister Tasneem Kauser, when police constables came there and took him to Police Station, Sanghar. Nazeer son of Hassan was already confined in the lock-up where he was also confined and was then involved in this case. Police had beaten him in order to obtain confession. Farooqa Begum mother of Tasneem Kauser calls him as her son, while Tasneem Kauser treats him as brother. Deceased used to ask Farooqa Begum to dispose of her lands in Punjab so that he may usurp .that amount. Appellant stated that the insisted Farooqa Begum not to sell her lands, as she was poor and had no other source of income. For all these reasons lqbal divorced his wife. Iqbal and his father became his enemy. He has been involved falsely in this case. Appellant pleaded not guilty to the charge. He examined no witness in his defence. The learned trial Court taking into consideration the evidence adduced before it, convicted and sentenced the appellant above-named as herein before mentioned and consequently appellant has filed the above appeal, on the grounds mentioned in memo of appeal. Appellant's counsel died pending the above appeal and consequently notice was issued to appellant as well as his surety but according to process server's report, present whereabouts of appellant are not known and even surety has failed to trace him and consequently appellant has become fugitive and therefore, I decided to hear the above appeal on merits, with the help of the learned Advocate for State as the same has been pending since 1979, in view of law laid down by Hon'ble Supreme Court in P L D 1981 S C

265. Learned Advocate for the State in support of the impugned judgment submitted as under:- That prosecution by statement of P. Ws, who had witnessed the incident and by recovery of blood-stained clothes and knife from the possession of the appellant has established its case beyond reasonable doubt and as such he fully supports the impugned judg ment, for the cogent reasons given by the learned trial Court in its impugned judgment. I have carefully considered the above submissions of the learned State counsel and have gone through grounds of appeal mentioned in memo of appeal, as well as R and P of the learned trial Court and impugned judgment. Appellant in his statement under section 342, Cr. P. C. had alleged enmity with deceased Iqbal and his father Sadatali (complainant) over divorce of Mst. Tasneem Kauser, ex-wife of deceased and had stated, that due to this complainant has falsely involved him in this case, on false motive, with the help of other alleged eye-witnesses namely P. Ws. Shah Abdullah and Mahmood Ali, who are his close friends, with the assistance of police. He further denied recovery of blood-stained clothes and knife from his possession as well as recovery of cycle and submitted that mashirs of alleged recovery are also closely connected with complainant. Appellant in grounds of appeal submitted, that statements of P. Ws. of recovery were contrary to alleged mashirnama of recovery. In addition to this appellant has submitted, that incident is alleged to have taken place in chowk, where lot of parsons were present, but still no independent P. Ws. came forward to support the prosecution case. Prosecution even admitted motive at the trial, by not examining Mst. Tasneem Kauser and as such no reliance can be placed on prosecution evidence at all and appellant is entit led to benefit of doubt. I have carefully gone through the statements of P. Ws. Sadatali (complainant) father of deceased, Mahmood Ali and Shah Abdullah. Appellant has alleged enmity against P. W. Sadat Ali the complainant and as such in my opinion his statement requires independent corroboration. For such corroboration prosecution has relied upon statements of P. Ws. Mahmood Ali and Shah Abdullah and alleged recoveries from appellant, I find from the statements of P. Ws. Mahmood Ali. Shah Abdullah alleged eye-witnesses and statement of P. W. Muhammad Suleman mashirs of alleged recoveries that all these three P. Ws. are closely connected, as friends to complainant Sadat Ali. Presence of P. W. Mahmood Ali and Shah Abdullah at the time of incident is by chance. Their statements also do not inspire confidence otherwise also, P. W. Muhammad Suleman, mashir is father of P. W. Mahmood Ali, the alleged eye-witness and was witness to divorce dead of deceased. In view of these facts, in my opinion, it would be unsafe to rely on the statements of these P. Ws. without independent corroboration. Learned Advocate for State for such corroboration relied upon alleged recoveries. As already stated by me, P, W. Muhammad Suleman mashir is interested person, beside this accor ding to mashirnama Exh. 18 of alleged recoveries, knife was secured from pocket of appellant's shirt, but in fact, the shirt produced in Court had no such pocket. In addition to this, it is improbable that appellant would be wearing blood-stained clothes and standing in street, waiting for police to come and arrest him. Even statement of I. G. P. W. 10 Allahdad does not inspire confidence, as he tried to twist his statement in Court to cover up absence of pocket in the shirt of appellant. Appellant has alleged beating against him, after arrest. which is prima facie supported by all these conclusions of mine, in my opinion prosecution has failed to establish its case beyond reasonable doubt. Therefore, I allow the above appeal and set aside conviction of the appellant and sentences awarded to him by impugned judgment and acquit him by giving benefit of doubt and discharge the bail bonds executed by the appellant. Notice issued to surety is also discharged. M. A. K. Appeal accepted.