1988 P Cr (PLP)

Azizullah K. Sheikh for the Complainant. Date of hearing: 16th September, 1987. AJMAL MIAN, J.‑‑This Acquittal Appeal is directed against the judgment, dated 15‑5‑1983 passed by the learned Sessions Judge Thatta, in Sessions Case No. 64 of 1980, acquitting the four respondents, who were charged under section 302/34, P.P.C. for murdering Mehboob Thaheem on 18‑9‑1980 at about 1‑30 a.m. at a hotel, situated near the bus‑stop of Haji Noor Muhammad Thaheem, National Highway near Gharo. The F.I.R. was lodged by P.W. Muhammad Jumman, Exh. 11‑A on the basis of the alleged information conveyed by P.W. 2 Muhammad Ramzan. According to the F.I.R. P.W. 2 Nluhammad Ramzan who used to deal in grass business woke the complainant P.W. Muhammad Jumman at 2‑00 a.m. and informed him that he was waiting for his truck which .was to come from Golarchi for going to Karachi at the hotel of Mehboob which was run by Mahboob's son Achar and nephew Nawaz Ali, but since Archar was ill and was admitted in Liaquat Hospital, Karachi, Mehboob was himself sitting in the hotel in his place. It was alleged that since the truck of P.W. Ramzan had not come he slept in the said hotel, whereas Mehboob was sleeping outside the hotel on a cot and that at about 1‑30 a.m. at night P.W. Ramzan woke up on hearing cries of Mehboob. Thereupon, P. W. Ramzan flashed his torch light and saw that respondents Muhammad Issa son of Abdul Rehman Thahim and Alloo son of Golo armed with hatchets were inflicting hatchet injuries and accused Amb son of Saleh who was armed with lathi was standing a few paces from the place of incident. It was also alleged that there was a fourth person standing armed with hatchet near the road whose name was disclosed by P.W. Mir Muhammad, who was allegedly coming after performing his duties in K. D. A. , as Sawan son of Ber. The motive 'was also given in the F. I. R. namely that the respondent Amb and his sister's son Issa had a dispute with Mehboob over the land and their cases were pending.

2. The prosecution in support of the case examined the complainant P.W. 1 Muhammad Jumman, P.W. 2 Muhammad Ramzan, P.W. 3 Mir Muhammad, P.W. 4 Soomer, P.W. 5 Lakhraj, Nlukhtiarkar and F.C.M. who allegedly recorded the confession of respondent Tooh Exh. 18‑A, P.W. 6 Nek Muhammad, Assistant Mukhtiarkar and 3rd Class Magistrate Mirpur Sakro, who conducted the foot‑print test of the respondents through Paggi Hamir Khan PC, P.W.7, Muhammad Bux, Police Constable who handed over the dead body to the Medical Officer Gharo Hospital for post‑mortem, P.W. 8 Dr. Phaghandeep, who carried out the post‑mortem of deceased at 9‑20 a.m. on 18‑9‑1980 and finished the same within 30 minutes and found five incised wounds on the body of the deceased, P.W. ‑9 Muhammad Umar, Tapedar who prepared the sketch of the place of incident Exh. 23‑A, P.W. 10 Hamir Khan, Foot Print Tracker, P.W.11 Murad, one of the Mashirs to the Mashirnamas of arrest and recoveries. The prosecution also produced Mashirnamas of place of wardat, recoveries, Inquest Report and Chemical Analyser's Report. The accused in their 342, Cr.P.C. statements denied the factum of having committed the offence. The learned Sessions Judge, Thatta by his aforesaid Judgment, dated 15‑5‑1983 recorded the acquittal order in respect of all the respondents. The State has filed the above acquittal appeal.

3. We have heard Mr. Waheed Siddiqui, learned counsel for the State, Mr. Azizullah K. Shaikh, learned counsel ‑for the complainant party and Mr. Murtaza Hussain learned counsel for respondents 3 and

4. None was present for respondents 1 and

2. It may be appropriate to take up each piece of evidence and the reasons for not relying upon the same by the learned Sessions Judge. The ocular evidence in fact comprises of the evidence of the alleged eye‑witness P.W. Muhammad Ramzan, P.W. Muhammad Jumman who was allegedly informed by P.W. Ramzan who upon receiving the above information lodged the report, P.W. Mir Muhammad who was allegedly coming back after performing his duties in the KDA at the relevant time near the place of incident and P.W. Soomer who worked at the relevant time in the KDA from whom the respondents had allegedly inquired about the whereabouts of the deceased. As mentioned hereinabove, there is only one alleged eye‑witness P.W. Muhammad Ramzan. It is an admitted position that he is closely related to the deceased. It is also an admitted position that there was deep rooted enmity between the complainant and accused party, inasmuch as, the deceased was convicted under section 307, P.P.C. for causing grievous injuries to the father of one of the co‑accused and remained in jail for few years. There was also civil litigation between the parties about the land dispute. Keeping in view the above background, if we analyse the testimony of P.W. Muhammad Ramzan, it becomes evident that no implicit reliance can be placed on his testimony for more than one reason. Admittedly the incident had taken place at night and there was no moonlight or other light. The alleged identification by the above P.W. through the torch light is doubtful. Factually his presence at the place of incident appears to be doubtful. According to him he was waiting for his truck of grass for coming over to Karachi and that since the truck had not arrived, ii,: slept in the hotel of the deceased. Nothing has been brought on record to indicate that factually any truck was in fact expected with the grass on the day of the incident. The above alleged eye‑witness seems to be a chance witness. Furthermore, in the F.I.R. he had given the name of fourth accused as Sawan but at the trial at a later stage Sawan was substituted by respondent Tooh. Mr. Azizullah K. Shaikh, learned counsel for the complainant has vehemently submitted that the evidence of the above eye‑witness does not suffer from any infirmity and that the conviction can be recorded on the solitary evidence of the above witness. In furtherance of his above submission he has relied upon the case of Allah Bakhsh v. Shammi and others reported in P L D 1980 Supreme Court 225, in which inter alia it has been held by the Hon'ble Supreme Court that in a murder case, conviction can be recorded on the testimony of a solitary witness. There cannot be any dispute as to the above proposition of law but the testimony of the solitary witness should be such on which implicit reliance can be placed. Since we are not inclined to rely upon the evidence of the above witness, the rati decidendi of the above case is not applicable to the instant case. In our view the learned Sessions Judge has not placed implicit reliance on the testimony of P.W.2 Muhammad Ramzan for cogent reasons.

4. The corroborative pieces of evidence are in the form of the statements of the above witnesses, namely, P.W.1 Muhammad Jumman, P.W.3 Mir Muhammad. In our view, if we have to discard the testimony of P. W.2 Muhammad Ramzan as being chance witness and also oral account of being inimical, the testimony of the above two witnesses as a piece of corroborative evidence cannot be pressed into service particularly for the reason that P.W.1 Muhammad Jumman derives the information from P.W.2 Muhammad Ramzan and secondly he is also closely related to the deceased and, therefore, his testimony also suffers from the same infirmity as of P.W. Muhammad Ramzan. The evidence of P.W. Mir Muhammad also cannot re‑enforce the testimony of P.W. Muhammad Ramzan as nothing has been brought on record to indicate that factually he was on duty at that night and was coming back from the duty as alleged.

5. Another corroborative piece of evidence is the retracted' confession of co‑accused, respondent Tooh, Exh. 18‑A. It has been rightly pointed 'out by the learned Sessions Judge that the alleged confession was recorded after the accused remained in custody for 2 days. Furthermore, the name of Tooh does not figure in the F.I.R. and in fact he was substituted in place of Sawan, his brother‑in‑law. It was stated by the prosecution that there was delay in getting the confession recorded for the reason that there was Friday in between but this plea seems to be false as on the relevant date it was Tuesday, as observed by the learned Sessions Judge.

6. Yet another corroborative piece of evidence is the report or the Foot Print Tracker. In this regard it may be pointed out that the learned Sessions Judge has rightly discarded the above piece of evidence inter alia for the reason that it was not believeable that the foot‑prints could have remained intact by the time when the above foot‑prints were examined by Foot Print Tracker.

7. This lead us to the recoveries in the form of blood‑stained shirt and shalwar and two hatchets. In this regard it may be pointed out that apart from the fact that there was inordinate delay in the despatch and receipt of the above articles from the Chemical Analysers the factum that P.W.11 Murad was made one of the Mashirs to all the Mashirnamas casts doubt as to his credibility. It has come on record that there were number of shops and houses near the place of incident and near the place of arrest and recoveries but all the time P.W. Murad was readily available to the police. In our view, the learned Sessions Judge is right in not placing reliance on the testimony of the above witness. It was contended by Mr. Azizullah Shaikh that the defence has not suggested any question for the prosecution witnesses as to the tampering of the sealed parcels of the blood‑stained articles and, therefore, the delay in despatch of the same cannot be fatal. It will suffice to observe that we have not discarded the recoveries simpliciter on the ground of delay but for the reason that the above Mashir, who was examined was of doubtful character.

8. We are inclined to hold that the learned Sessions Judge has properly appraised the evidence brought on record and has rightly extended benefit of doubt to the accused. The above acquittal appeal has no merits and, therefore, it is dismissed. These are the reasons in persuance of a short order of even date. S. A./S‑1‑22/ K Acquittal appeal dismissed.