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Criminal Acquittal Appeal No. 15 of 1964, decided on 28th July 1969.

S. 417‑--Appeal against acquittal‑Accused charged with offence under S. 302, P. P. C. but acquitted by trial Court‑‑Basis of case found to he false and details regarding‑ incident contradictory‑--Names of eye‑witnesses not appearing in F. I. R. Judgment of trial Court not shown to he perverse‑No interference called for.

A. H. Qureshi A. A. G. for the State.

Muhammad Hayat Junejo for Respondents.

Date of hearing: 28th July 1965.

---Present appeal has been filed by the State against the acquittal order passed by the Sessions Judge, Khairpur, who had tried Bashir Ahmed and seven others of offences punishable under sections 302, 307/149, P. P. C.

2. Prosecution case, as disclosed in the first report Exh. R, is, that informant Fateh Mohd. had purchased the house under dispute situated . in village Karondi, Taluka Faizganj one day prior to this incident, from opponent Sharif. No document executed but Fateh Mohd. is alleged to have paid its consideration of Rs. 1,500 in presence of Abdul Aziz and one other. With the assistance of his cousin Ismail (deceased) and his nephew Sher Mohd. (injured) he removed two cots and two boxes and shifted to the present house in the evening along with his mother. All of them passed that night in that house: On the, following morning Sharif Ahmed accompanied by seven other opponents came to this house and asked Fateh Mohd. to vacate it as he was not prepared to complete the transaction but Fateh Mohd. refused to comply with his request. They chained the door from inside and continued to occupy it. Some time later all these opponents along with "their friends" returned back to the house and asked Fatah Mohd. to open the door in order to see the condition of the house. Fateh Mohd. felt nervous and accordingly ran to the otak of Wadero Shahnawaz which is at a call's distance from this house and related these facts to him. He promised to call the opponents and settle the dispute. While he was still there, a servant of Shahnawaz came there and informed them that the opponents had broken open the door and entered the house' forcibly and had started quarrelling with the inmates of the house viz. Sher Mohd. and Ismail. Fateh Mohd. rushed back to his house and found that some women of .the opponent's party had taken possession of the house: Two opponents Sharif and Basharat had thrown Mohd. Ismail on the ground and were giving him blows while the other opponents were assaulting Sher Mohd. Bashir was armed with a pistol while Basharat carried a spear and Sharif was carrying a, hatchet. Fateh Mohd. grappled with Sharif in order to release Ismail but Bashir fired his gun in the air. He left the wardat and ran bade to Shahnawaz raising alarm which attracted Abdul Ghani and others. Opponents thereafter removed "our woman folk out of the house and after that the quarrel was subsided". A jeep was provided by Shahnawaz and he removed Ismail in it to Pukka Chang Police Station where his first report was recorded and he got a letter to remove Ismail to "better hospital" as Ismail was in serious condition. He died on the way. Opponent Sharif had reached the Police station on the same day and lodged his report Exh. 29.

3. Azizullah Head Constable Police after recording the first report Exh. 8 prepared mashirnama Exh. 28 of the injuries of Ismail. He, had also recorded the first report. Exh. 29 lodged by opponent Sharif. Both Sharif and Bashir had injuries and these are mentioned in mashirnama Exh. and 29/1. After the completion of necessary inquiries all these oppo nents were sent up.

4. Bashir and Sharif have admitted the incident. Their case is that this house belonged to them and was in their possession and it was forcibly occupied by Fateh Mohd. and others. They had acted in self‑defence. First report lodged by Sharif is Exh. 29. Remaining opponents have denied all the allegations made against them.

5. Murder of Ismail and injuries to P. .W. Sher Mohd. have been satisfactorily proved by medical and ocular evidence. It is not disputed in defence.

6. Similarly injuries to two opponents Sharif and Bashir have been proved by ocular and medical evidence. These are described under mashirnama Exh. 29/9.

7. As regards the guilt of these opponents, the learned Sessions Judge has discussed the entire evidence on record and come to the conclusion that it had not been proved satisfactorily. Reasons given by him appear to be sound and convincing. The main point for consideration in this case would be the possession of the house in dispute, as the incident is admittedly by both the parties. There are two versions regarding its possession. Prosecution has alleged that one day prior to this incident this house was purchased by Fateh Mohd. from Sharif by oral transaction and he had paid him its consideration of Rs. 1,500 in presence of Sher Mohd. and Ismail. With their assistance and help he removed the two cots and two boxes to his new house and took its possession, His old mother had also accompanied him there. All these persons had passed that night in that house. They had further added that this open plot was an evacuee property and the construction on it was raised by Sharif, very recently. No receipt was issued by him as it was contended by Sharif that the plot was an evacuee property and he had received this amount not as the price of construction but by way of purgi. All these allegations are denied by Sharif. His case is that the house belonged to him and he had not sold it to Fateh Mohd. but it was occupied by Fateh Mohd. and others forcibly and further that they had acted in self‑defence. The entire story given by the prosecution appears to be false. As already stated above, the main point for our consideration would be the possession of this house. In this connection the transaction in respect of this house would also be a relevant fact as Fateh Mohd. has alleged to have purchased it from Sharif. According to prosecution, it was an oral transaction. There is nothing in writing. Payment of the consideration was witnessed by Ismail and Sher Mohd. Former is dead and he was the cousin of Fateh Mohd. Sher Mohd. is his nephew. He had received injuries, but we find that he has not supported the prosecution case regarding the transaction. His evidence is to the effect that it was Fateh Mohd. who had informed him that he had purchased the house from Bashir. He does not speak about the payment of consideration in his presence. His evidence shows that Fateh Mohd. had entered into this transaction with Bashir. We find that even Fateh Mohd. has given a version different from what he had stated in his first report Exh. 8. It is correct that this is a contradictory version in respect of the incident. The entire basis of this case is false the details given by him regarding the incident are contradictory: These discrepancies do not merely prove the contradictions but go to show that the entire prosecution case is false. His evidence is to the effect that on the following morning opponent Sharif alone had come to him and had asked for the return of this house. When Fateh Mohd. refused. to return back the house he went away. Thereafter Fateh Mohd: called Abdul Aziz and informed him about these talks. Abdul Aziz also left him. Thereafter all the eight opponents came and intended to take possession of this house forcibly but Fateh Mohd. refused to do it. Thereafter all the opponents again left the house and returned back "with women". On seeing them I left to inform Wadero Shahnawaz . . . . After I came Faiz Mohd. servant of Shahnawaz came running. He told us that the accused had broken open the door and had entered the house. 1 then went running. I entered my house. All the eight accused were present there". This story does not merely contradict the version given by him in his first report but shows that it is false. His mother who is alleged to have passed that night in this house has not been examined. In fact no reference has been made to her in First Report which recites that his children had stayed for the night. If she had been present in the house, she would have tried to intervene and save Ismail and Sher Mohd. Prosecution case further is that two boxes and two cots had been brought by Fateh Mohd. There is no trace about it Fateh Mohd, had stated that he did not know anything about the "luggage" which he had taken there. This is another lie. If he had really brought his luggage in that house he would have claimed it when the police arrived there at the scene of offence. All these circumstances go against the prosecution case regarding the legal possession of the house. We have referred to the discrepancies on material points only not in order to show that no incident had taken place but that its basis or cause i.e. possession of the house by Fateh Mohd. is a false story. Evidence on record shows that, this house is in the centre of village Korandi which consists of four or five hundred houses. Not a single neighbour has been examined in support of the prosecution case regarding the possession of this house. The learned Sessions Judge in his judgment had referred to omissions and contradictions. It is correct that Fateh Mohd had not even mentioned the names of these opponents to Shahnawaz. The names of the eye‑witnesses do not appear in the first report. These defects in the prosecution case do affect the incident but as already pointed out by us this fight is admitted by the opponents. There is only dispute about the cause of quarrel. However, these defects, contradictions and omissions do make out a case that prosecution case in respect of possession of the house is false learned Sessions Judge has relied upon these defects and consequently acquitted. The judgment of the trial Court does not appear to be perverse and p as such we find no reason to interfere. Appeal is accordingly dismissed. Oral order was pronounced on 28‑7‑65 after hearing arguments and the reasons for it are incorporated to this judgment today.

Appeal dismissed.

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