2005 PLP 323 (MLD)

(d) P.W. Abbass Ali, who produced Mashirnama of Identification as Exh. 17/A. (e) P.W. Tappedar Khadim Ali, who produced the Sketch of the place of incident as Exh. 19/A. (f) P.W. Abdul Majeed Saharan; I/O who produced the Mashirnama of recovery as Exh. 20/A of 20/C. (g) P.W. Haji Khan. (h) P.W. Aijaz Ali Bhagat.

4. Thereafter; the Prosecution closed its side whereupon the statements of the accused were recorded as Exhs.31 to 33, wherein they denied the allegations leveled against them. They examined themselves on oath as wall as D.W. Beero in their defence.

5. After having heard learned counsel for the Appellant/Accused as well as learned D.D.A. for the State, the learned Trial Court vide the impugned Judgment found that the Appellant/Accused Mumtaz Ali was guilty of having committed the murder of deceased Manzoor Ali and accordingly convicted him under section 302 P.P.C. and sentenced him to undergo rigorous imprisonment for life as well as to pay compensation of Rs.35,000 to the legal heirs of the deceased. In case of non‑payment the Appellant was to undergo R.I. for six more months. He was given the benefit of Section 382‑B Cr.P.C. The co‑accused Sharif and Jummo were given the benefit of doubt and acquitted.

6. In support of the Appeal Mr. Abdul Sattar Chandio, has firstly submitted that there are Contradictions in the F.I.R. and the depositions of the eye‑witnesses and so also between such eye‑witnesses as well. In this regard he has referred to the deposition of complainant wherein he has stated that he, P.W. Abdullah and D.W. Beero Machi, reached the scene of occurrence simultaneously and saw that accused Mumtaz armed with a pistol and accused Sharif and Jummo armed with hatchets had murdered his son. Upon seeing them, they warned them not to come near and thereafter escaped towards the eastern side. Per learned counsel as much has not been mentioned in the F.I.R. according to which the complainant had only recognized Accused Mumtaz who was armed with a pistol and two unidentified Accused armed with hatchets who were seen by him while they were fleeing away from the scene of incident learned counsel has also submitted that this discrepancy has been admitted by the complainant in his cross‑examination as also that all the accused and the P.Ws. were co‑villagers, hence it is quite strange as to why the unidentified accused were not named in the F.I.R.

7. Next per learned counsel P.W. Abdullah has deposed that he want along with the complainant to the tube‑well which is contrary to the deposition of the complainant according to whom P. W. Abdullah and D.W. Beero came running to the tube‑well from another direction. Again this witness has admitted under cross‑examination that they only saw the backs of the accused hence there would be no question of the identification of the accused at all. Consequently per learned counsel this contradiction between the testimonies of the complainant and P.W. Abdullah has remained unexplained by the prosecution.

8. Next learned counsel has submitted that D.W. Beero Machi in his deposition has totally falsified the prosecution case since according to him when he reached the place of incident, he only saw that the deceased was lying on the ground where a pistol was also available. No one else was present at that time. Per learned counsel this is in total contradiction of the deposition of the other eye‑witnesses. So also the prosecution version that the crime weapon was recovered at the instance of accused Mumtaz, later on.

9. In view of the foregoing contradictions in the testimonies of the eye‑witnesses, learned counsel has submitted that the prosecution has failed to prove its case against the accused beyond any shadow of doubt. For this proposition, he has relied upon Ghulam Nabi v. The State (2001 PCr.LJ 1859). Additionally as both the eye‑witnesses who have been produced by the prosecution are related hence their testimony cannot be accepted at face value and needs to be corroborated which has not been done at all. So also per learned counsel the recovery has been shown after the appellant has remained in Police custody for about 10 days which cannot be relied upon as held in Piyarey Mian v. The State (1978 P L J 369). Learned counsel has also referred to the seat of the injury suffered by the deceased per the Medical evidence on the record viz. the wound of entry was over the right cheek at the angle of the right lip and the wound of exit was over the right eye which suggests that the same was self‑inflicted rather than having been inflicted by another person. Finally per learned counsel where co‑accused Sharif and Jummo were acquitted on the same pieces of evidence, the appellant should also have been acquitted for which proposition he has relied upon Akbar v. The State (2004 SCMR 1185), Sheral v. The State (1999 SCMR 697) and Ghulam Nabi and others v. The State (supra). Consequently learned counsel has prayed that the appellant be also acquitted upon the appeal being allowed.

10. Mr. Anwar Ansari, learned State Counsel has on the other hand fully supported the impugned Judgment and. submitted that the contradictions in the testimonies of the eye‑witnesses are minor in nature and hence should be ignored as on balance both of them have corroborated each other. Similarly as far as D.W. Beero Khan is concerned, he has been bought over by the defence and hence his testimony should be ignored, as in his statement under section 164 Cr.P.C. he has fully supported the prosecution case.

11. I have heard both the learned counsel and have gone through the record with their assistance. My conclusions are as follows:‑‑

12. It would be seen that not only is there a contradiction between the F.I.R. and the deposition of the complainant Habibullah but also between the later and the deposition of the other eye‑witness P.W. Abdullah. In the F.I.R. the complainant has stated that when he along with P.W. Abdullah and D.W. Beero Machi reached the place of incident, they saw accused Mumtaz fleeing away with a Pistol in his hand along with two other unidentified accused who had hatchets in their hands, whereas the deceased way lying on the ground with a bullet injury at the back of his head. However, in his deposition he has stated that when he along with the others reached the place of incident, accused Mumtaz, Jummo and Sharif were present there and had warned them not to come near whereafter they made their escape good. Similarly it would be seen that as the complainant party and the accused were co‑villagers, it was strange as to why the unidentified accused were not named in the F.I.R. again it would be seen that per P.W. Abdullah, he went along A with the complainant to the tube‑well which is contrary to the deposition of the complainant according to whom P.W. Abdullah and D.W. Beero came running to the tube‑well from another direction. So also this witness has admitted under cross‑examination that they only saw the backs of the accused hence there would be no question of the identification of the accused at all by the prosecution witnesses per the memo. of identification test. The aforementioned contradictions have not been explained at all by the prosecution, which casts a shadow of doubt on its version.

13. It would also be seen that the co‑accused Jummo and Sharif were acquitted on the basis that as they were known to the prosecution witnesses no weight could be attached to their identification before the concerned Magistrate. Yet on the same pieces of evidence the appellant was convicted, which is again quite strange and against the settled law laid down by the Honourable Supreme Court in this respect per Sheral v. The State and Akbar v. The State (Supra).

14. Finally it would be seen that the recovery was made from the appellant after 10 days of this arrest, which is again not reliable in the facts and circumstances of the case.

15. For all the foregoing reasons, in my opinion the appellant is to be given the benefit of doubt. Accordingly vide a short order passed earlier, I had allowed this appeal. These are the reasons for the same. H.B.T./M‑161/K Appeal allowed.