1984 P Cr (PLP)

Date of hearing : 6th November, 1983. Appellant above-named, being aggrieved by judgment, dated 2nd July, 1983 of the learned Sessions Judge, Jacobabad, in Sessions Case No. 45 of 1979, by which appellant has been convicted under section 302/34, P. P. C. and sentenced to suffer imprisonment for life and to pay fine of Rs. 1,000 or in default to suffer R. I. for three months and also directed to pay Rs. 2,000 as compensation to legal heirs of the deceased or in default to suffer further R. I. for six months and further he has been convicted under section 323/34, P, P. C. and sentenced to suffer R. I. for three months and to pay compensation of Rs. 500 to P. W. Muhammad Nawaz or in default to suffer further R. I. for three months, has filed the above appeal, on the following facts and grounds :- Briefly the prosecution case according to the F. I. R. lodged by complainant Abdul Sattar on 13th January, 1979 at 7-00 a. m. is, that on the same day early in the morning, he alongwith his brother deceased Haq Nawaz and Muhammad. Nawaz had left the house for their lands, near their village Garhi Sabhayo by the side of graveyard of Lahoro Baba for picking vegetables, alongwith P. W. Dost Muhammad Lashari. It is said that deceased Haq Nawaz was walking ahead of them and when at 5 a. m. they reached near their lands, they saw four persons emerging out of Babul trees out of whom, he identified appellant Abdul Wahab armed with hatchet, his brother Abdul Latif (brother-in-law of complai nant), while the remaining two were not known to him. It is said that appellant Abdul Wahab was armed with hatchet, while the remaining were armed with lathis, who after hurling challenges caused hatchet and lath! blows to deceased Haq Nawaz, on which P. W. Muhammad Nawaz went forward to rescue, but was given lathi blows. It is said that the complainant and P. W. Dost Muhammad also tried to reach there, but in the meantime all the assistants ran away towards north and there it was discovered, that deceased Haq Nawaz was lying injured on the ground unconscious with injuries on head and leg . from which he was bleeding. P. W. Muhammad Nawaz had also injuries on his left arm and leg with lathis. Then both the injured were brought to the police station, where the F. I. R. was lodged. The motive as alleged in the F. I. R. is, that both the brothers of the complainant were given injuries on account of previous dispute over matrimonial affairs. This F. I. R. (Exh. 12) was initially registered for offences under sections 307, 324, 325/34, P. P. C., whereafter the injuries of both the injured were inspected under mashirnama (Exh. 6) and then they were referred to Civil Hospital, Jacobabad, for examination, treatment and certificate. However, while Investigating Officer Muhammad Usman, the then Additional S. H. O. (Exh. 22) was making preparation to visit the scene of offence when, he received information, vide (Exh. 23) from the hospital to the effect, that injured Haq Nawaz has died. Accordingly, he went to the Civil Hospital and saw the dead body in presence of mashirs and prepared such inquest report (Exh. 7), whereafter he handed over the dead body to P. C. Raheem Bux (Exh. 17) for handing over the same to the Medical Officer for post-mortem examination and report. Then he .recorded statements of P. Ws. Muhammad Nawaz and Dost Muhammad and visited the vardat alongwith the mashirs and complainant which was within the ploughed land of Dost Muhammad Sabhayo, within village Garhi Sabhayo, by the side Quetta Garhi Sabhayo Road, from where he secured blood-stained earth and sealed it at the spot in presence of the mashirs. He also saw three street lights at the vardat and prepared such mashirnama (Exh. 8). Since the appellant above-named was Police Constable posted at P. P. Badani of Police Station Buxapur, as such permission to arrest him from Superintendent of Police was obtained and on the basis of same he was arrested on 14th January, 1979 in presence of mashirs under mashirnama (Exh. 24). On 16th January, 1979 while in custody, the appellant voluntarily led the police and the mashirs towards the boundary of graveyard, from where he produced blood-stained hatchet from the boundaries of graveyard, which was secured and sealed at the spot in presence of mashirs, under mashirnama (Exh. 10). On 18th January, 1979 the statements under section 164, Cr. P. C. of P. Ws. Dost Muhammad and Muhammad Nawaz were got recorded. The appel lant was finally challaned, before sending blood-stained earth and hatchet to the Chemical Examiner, the report of which is positive, has been produced as (Exh. 25). At the trial the charge for offences under sections 302, 323/34, P. P. C. was framed and read over to the appellant, to which he pleaded not guilty and claimed to be tried. Accordingly the prosecution examined P. W. Abdul Nabi (Exh. 5) who produced the mashirnama of injuries (Exh. 6), inquest report (Exh. 7), and the mashirnama of vardat (Exh. 8), P. W. Hazoor Bux (Exh. 9) who produced the mashirnama of securing o: blood'-stained hatchet (Exh. 10), complainant Abdul Sattar (Exh. 11) who produced the F. I. R. at (Exh. 12), P. W. Muhammad Nawaz (Exh. 13), who produced his 164, Cr. P. C. statement at (ExH. 14), P. W. Dost Muhammad (Exh. 15), who produced his 164, Cr. P. C. statement at (Exh. 16) P. W. Rahim Bux corpse-bearer at (Exh.;17), P. W. Doctor Jaichand (Exh. 19) who produced the post mortem report at (Exh. 20), and the injury report at (Exh. 21), P. W. Muhammad Usman the Investigating Officer at (Exh. 22) who produced the letter of Medical Officer (Exh. 23), the mashirnama of arrest of appel lant (Exh. 24) and the report of Chemical Examiner at (Exh. 25), and P. W. Qadir Bux the Tapedar (Exh. 26), who produced the sketch at (Exh. 27). Vide (Exh. 28) the learned D. P. P. closed the prosecution case. At (Exh. 29) the statement under section 342, Cr. P. C. of the appel lant was recorded, whereby he denied the, prosecution case stating, that he has been falsely implicated. He also produced the certified copy of affidavit (Exh. 30) sworn by him in the Court of learned Additional Sessions Judge, Kandhkot, the photostat of entry of Station Diary of P. P. Badani (Exh. 31), dated 11th January, 1979 to the effect; that the process for execution was handed over to him and the photostat entry, dated 13th January, 1979 (Exh. 32) to the effect, that he submitted the report in the Court of Additional Sessions Judge, K4ndhkot, regarding service of process. In defence, he examined P. W. Muhammad Khan, Head Constable, who was Head Constable Incharge of P. P. Badani on 11th January, 1979 and 13th January, 1979, who produced entries of roznamchas (Exh. 34) = (Exh. 31) and (Exh. 35)=(Exh. 32). The learned trial Court taking into consideration the evidence adduced . before it, convicted and sentenced .the appellant abovenamed as herein before mentioned, and consequently appellant has filed the above appeal, on the grounds mentioned in memo. of appeal. The learned Advocate for appellant in support of the above appeal submitted as under :- (a) Motive for alleged o6ence is not convincing. (b) Appellant was alleged to be armed with hatchet, but the same was not used according to medical evidence and consequently P. Ws. changed their statements, before the learned trial Court and as such no reliance can be placed on their statements, without independent corroboration, which is not at sill available. as learned trial Court rejected alleged recoveries from the appellant. (c) It was dark night and as such identification of appellant on basis of two electric poles at distance of 27 and 33 paces, by P. Ws. Dost Muhammad from 100 paces was not possible and as such no reliance can be placed on his evidence, as he is also closely connected with complainant's party. (d) Presence of P. W. 4 is also doubtful, as simple injuries alleged to have been received by him, could be self-inflicted and on account of enmity between the parties, on account of Abdul Latif abscond ing accused, appellant, who is brother of the said Abdul Latif, has been falsely involved. (e) Statement of defence witnesses rejected without. cogent reasons. In support of the above contentions, the learned counsel for the appellant relied upon cases reported in P L D 1953 F C 93, 1983 P Cr. L J 1246, 1978 P Cr. L J 579, P L D 1964 Kar. 275, P L D 1978 Kar. 792, 1968 P Cr. L J 1077, 1983 P Cr. L J 1227 and 1969 P Cr. L J 815 and submitted that prosecution has failed to establish its case beyond reasonable doubt. The learned Advocate appearing for the State on the other hand sub mitted, that though recoveries were doubtful and motive flimsy, but still on the basis of statements of P. Ws. 4 and 5, prosecution has established its case against the appellant beyond reasonable doubt. 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 and impugned judgment and cases cited by the learned Advocate for the appellant. It was alleged in F. I. R. that present appellant was armed with hatchet and caused injuries. However, before the learned trial Court, i view of medical evidence that deceased had no hatchet injuries, P. Ws changed or twisted their statements by saying, that appellant used offside of the hatchet. This fact was not at all mentioned in F.

1. R. It is clear from F.

1. R. and statements of P. Ws. that there existed disputes between both the parties and as such statement of P. W. Abdul Sattar (complainant) a real brother of the deceased and P. W. Muhammad Nawaz (injured), who is also brother of deceased required independent, corroboration. For such corroboration, prosecution has relied upon the statement of P. W. Dost Muhammad and alleged recovery of hatchet from the possession of appellant. P. W. Dost Muhammad is his statement before the learned trial Court stated, that he and complainant saw the incident from 100 paces. It is admitted position that incident took place at about 5-00 a. m. on 13th January, 1979, and identification is alleged on the basis of two street lights, which were admittedly 27 and 33 paces apart from vardat and as such identification of, appellant and other alleged co-accused by P. W. Dost Muhammad and complainant is doubtful and as such no reliance can be placed on their statements, without independent corroboration, as presence of street lights were not mentioned in F. I. R. at all, and consequently statement of P. W. Dost Muhammad which itself requires corroboration cannot corroborate statements o; either complainant and/or P. W. Muhammad Nawaz, in my opinion, as one weak piece of evidence cannot corroborate another weak piece of g evidence. Motive by itself cannot be used as corroborative piece of evidence, in my opinion. However, in present case, present appellant hart no motive against deceased. Motive if any was available to absconding co-accused Abdul Latif, brother of present appellant, according to state ment of P. W. 4 Muhammad Nawaz. It may further be noted, that according to Exh. 25 Chemical Examiner Report, which shows that there was human blood on hatchet, without specifying whether the said blood was on blade or handle. Presumbly on blade, but according to all P. Ws appellant had not used sharp side of hatchet. Hence in my opinion, recovery of such hatchet, even if it is believed, does not connect the said hatchet with crime in question and cannot be used as corroborative piece of evidence against present appellant. Even learned trial Court discarded said recovery against present appellant for cogent reasons. In addition to this appellant by statement of D. W. Muhammad Khan, prima facie has established his alibi; which also throws doubt on prosecution case against H the present appellant. Reasons given by learned trial Court to discard statement of D. W. are not cogent, in my opinion. In view of my above conclusions and findings, in my opinion, prosecution has failed to establish its case against above-named appellant, 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 direct that appellant be released forth with, if not required in any other case. M. Z. M. Appeal allowed.