1985 P Cr (PLP)

Rehmat Ali Malik for the State. Date of hearing: 24th June, 1985. This criminal appeal arises from the judgment of the learned Sessions Judge, Jhang whereby he on 11‑3‑1979 while impliedly acquitting Bashir Ahmad appellant of the charge under section 302, P.P. C, convicted him under section 325, P.P.C. for causing grievous hurt to Mst. Naziran deceased and sentenced him to three years' R.I. and a fine of Rs.500 in default thereof to further R.I. for six months.

2. The prosecution case was that Bashir Ahmad and three others after having committed criminal trespass into the house of Mst. Naziran deceased launched assault on her and gave her injuries with fists and kicks. As for Bashir Ahmad appellant, it has been stated at the trial stage, that he gave fist blows on the neck of Mst. Naziran resulting in her death.

3. The occurrence took place on 4‑11‑1978 at 4‑00 p. m. in the house of the deceased situated in Mohallah Dakhli Baghwala, Jhang Sadar, Police Station, Kotwali, Jhang. The F.I. R. .Exh. P. D. was lodged by Muhammad Hussain P.W.6 cousin of the deceased on the same day at 8‑30 p. m. and was recorded by Noor Muhammad Head Constable P.W.4.

4. The motive set up by the prosecution was that there was a dispute over the plot between the deceased's family and Abdur Razzaq acquitted accused.

5. To prove its case, the prosecution examined ten witnesses. Mst. Amiran Begum P.W.7 has given the ocular account of the occurrence. She claimed to have seen the appellant and three co‑accused giving fist and kick blows to Mst. Naziran resulting in her death. She stated that Bashir appellant had given a fist blow on the neck of the deceased. Zawar Hussain P.W.8 and Manzoor P.W.9 have stated that immediately after occurrence, they had seen the appellant alongwith four acquitted accused, coming out of the house of the deceased. Muhammad Hussain P.W.6 had lodged the F.I.R. It may be noted that he is not eye‑witness of the occurrence. The rest of the evidence is more or less of formal nature.

6. When examined under section 342, Cr. P. C. the appellant denied all the incriminating circumstances. In defence he did not produce any witness. The learned trial Court while disbelieving Mst. Amiran to the extent of three acquitted accused, has relied upon her statement against Bashir Ahmad appellant and has convicted and sentenced him as stated above.

7. The learned counsel for the appellant contends that Mst. Amirall the solitary eye‑witness of the occurrence on whose testimony tilt, appellant has been convicted is not an absolutely dependable witness. On the other hand, the learned counsel for the State has support‑i the judgment of the trial Court.

8. I have considered the arguments advanced by the learned counsel for the parties with care. I feel persuaded to agree with the learned counsel for the appellant. I find that the fate of the appeal hinges upon the question of the credibility of Mst. Amiran and the weight to be attached to her statement. Mst. Amiran has stated that the appellant as well as three co‑accused had given fist and kick blows to the deceased in her presence. The trial Court has not believed her to the extent of three co‑accused. No doubt under section 134 of the Evidence Act, conviction can be based on the uncorroborated evidence of solitary witness but the pre‑condition is that he should be absolutely dependable. I have examined the statement made by Mst. Amiran carefully. A scrutiny of her evidence reveals that she cannot attain and has not attained that high standard, in that her statement suffers from infirmities such as major contradictions, material inconsistencies and dishonest improvements so much so in her statement recorded under section 161, Cr. P. C. she did not state the location of the injuries attributed to the appellant. Since her statement suffers from inherent infirmities, I am of the view that it would be in accordance with the rules of safe e administration of justice in criminal cases to exclude it from consideration. Once her statement is excluded, there is nothing on record to connect the appellant with the commission of crime.

9. The upshot of the discussion is that there being no material on record to uphold the conviction he is given benefit of doubt and is acquitted of the charge. S. G. D. Appeal allowed.