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Criminal Acquittal Appeal No. 201 and Criminal Revision Application No. 51 of 1981, decided on 3rd February, 1983.

---- S. 417/439-Penal Code (XLV of 1860), S. 307/114-Appeal against acquittal-Independent and reliable evidence missing in case-Eye-witnesses although injured persons vet on inimical terms with accused and their evidence belied by medical evidence-Held, it will not he safe to convict accused on their testimony in absence of other reliable corroborative piece of evidence-Sessions Judge giving cogent reasons for recording acquittal and his judgment not perverse or contrary to record-Interference declined by High Court.-[Appeal against acquittal].

------S. 417-Acquittal-Court, held, will be reluctant to set aside an acquittal judgment unless Court finds that view found favour with trial Court could not have been formed on basis of evidence on record.

Agha Ghulam Ali for the State.

A. Q. Halepota and, Nooruddin Sarki for Respondents.

Date of hearing : 2nd February, 1983.

By this judgment, we intend to dispose of the above criminal acquittal appeal and the criminal revision application. The above acquittal appeal has been filed by the State, whereas revision has been filed by the complainant party. The same are directed against the judg ment dated 19th February, 1978 passed by the learned Sessions Judge Thatta, in Sessions Case No. 52/76 acquitting both the respondents on charge under section 307/114. P. P. C.

The brief facts leading to the filing of the above acquittal appeal and the revision are that the above two respondents were sent up for trial for causing injuries to Haji Mamon and Allahdino. The prosecution case was that there was dispute over the property between respondent No. 1 Allahwarayo and one Haji Jaffer Halayo, real brother of P. W. injured Haji Mamon. It was alleged that the accused went to one Allahwarayo Katiar's hotel at Halaya, where respondent No. I Allahwarayo started abusing Jaffer Halayo behind his back in the presence of hotel keeper, Allahwarayo, and other persons including Muhammad Khan Halayo, Memon Guja, Ali Bux Sarki; Ahmed Katiar and some other persons. It was further alleged that Haji Mamon brother of Jaffer Halayo also went to the hotel at about 3 p. m. after offering Zuhar prayers and Allahwarayo to desist from hurling abuses on his brother Haji Jaffer. It was also alleged that upon this respondent No. 1 Allahwarayo instigated his nephew Mouladino respondent No. 2 and asked him not to spare Haji Mamon. Thereupon, respondent No. 2 took out a revolver from its bandolier tied around his waist and fired 3-4 shots at him. When P. W. Allahdino Gogo-attempted to intervene, he was also fired upon by respon dent No. 2. After receiving above injuries both the injured fell on the ground and were removed to the civil hospital, Thatta, by their close relations....They were attended by P. W. Dr. Muhammad Tayyab who conveyed the message to P. W. Muhammad Khan A. S. I. P. that he had received two injured persons. The F. I. R. was lodged at. 16-40 hours by P. W. Muhammad Khan at the Police Station, Jherruk, District, situated about 16 miles towards the south from the place of incident. The place of incident described in the F. I. R. was "bus stop, Jaffer Halaya in front of the hotel of Allahwarayo Katiar, at a distance of 16 miles towards south-west of Police Station. The motive given in the F. I. R. was the dispute over the property.

2. The prosecution in support of the case has examined P. W. I Haji Mamon one of the injured persons Exh. 5, P. W. 2 another injured Allah dino Exh. 6, P. W. 3 Muhammad Khan, the complainant Exh. 7, P. W. 4 Mamon son of Sadiq Exh. 9, P. W. 5 Dr. Muhammad Tayyab Exh. 10, who attended the injured at the civil Hospital, Thatta and prepared a certificate of injuries in respect of Haji Muhammad Rahim alias Haji Mamon Exh. 11, a certificate of injuries in respect of Allahdino Exh. 13. P. W. 6 Ali Bux son of Warayal Exh. 37 another alleged eye-witness, and a tenant of P. W. Muhammad Khan, mashirnarna of place of vardat Exh. 18, P. W. 7, Abdul Hakim mashir to the arrest of the two accused Exhs. 19 and 20, P. W. 8 Dr. Majeed Registrar of Medical Surgical Emergency Unit No. I, L. M. C. Hyderabad, where the two injured were treated for the injuries and remained indoor patients for some time, P. W. 9. S. H. O. Jaffer Khan, who recorded the F. I. R. P. W, 10, Muhammad Khan A. S. I. P. at Thatta P. S. Exh. 29, who received the information on 8th April, 1976 at 4-20 from Dr. Tayyab a medical officer of Civil Hospital, Thatta, that he had received two injured persons. He made entry in the station diary Exh. 30, and after reaching the hospital prepared mashirnama of injuries in respect of Allahdino Exh. 31 and in respect of Haji Mamon, Exh 32. He also prepared mashirnama of the blood-stained clothes of the two injured Exhs. 33 and 34.

3. Respondent No. 1 in his statement under section 342, Cr. P. C. Exh. 36, stated that on the day of incident, he was at Thatta town and had filed a complaint in the Court of Mukhtiarkar. He also stated that there was a dispute over the property between the complainant and the accused and that the co-accused was his nephew. He had further stated that he made complaint about the abduction of respondent No. 2's wife and because of that he was also involved. He also stated that he was innocent. Whereas the other respondent, Mouladino in his statement under sec tion 342, Cr. P. C. Exh. 37 also stated that there was a dispute between him and Muhammad Jaffer Halayo over the property and that he was arrested from his house in the evening, but no recovery was made. He goes on to state that he was involved to a murder case of Haji Machi in the year 1973; in which case Haji Muhammad Jaffery Halayo appeared as a witness. In support of his above averment, he produced a copy of the judgment, in which Haji Muhammad Jaffer Halayo has been mentioned as a corro borating witness. He has acquitted front the above case. He has also stated that after the above acquittal judgment, he married with a girl by. name Mst .Fatima and that on the day of incident, he bad gone to attend his duty as a Sub-Daroga over Halaya branch, where he was informed by his brother's son Akram that men of Muhammad Yousuf had gone to their house to take his wife Fatima forcibly and that injured Haji Mamon and others resisted. He goes on to state that he reached his house where he was arrested and revolver and cartridges were foisted on, him.

4. It may be noticed that parties are inter related and they reside in the same village known as Halaya, in Taluka Thatta, District Thatta. The witnesses produced by the prosecution except Ali Bux are closely related and they were on inimical terms on account of dispute over the land. It is an admitted position drat there were a number of independent witnesses available as is evident from the mushirnama of the place of vardat but none was examined by the prosecution. The version given by the prosecution witnesses; namely, that at the instigation of respondent No. 1 his nephew respondent No. 2 took out his revolver and fired at Haji Mamon, when ate had come back after offering prayer, and when the other injured Allahdino intervened he was also shot at by the same revolver by respondent No. 1. is belied by the mashirnarna of arrest and the medical evidence. The mashirnama of arrest Exh, 19 indicates that a revolver bearing No. 564801 with the word "police positive special 32 colt" written on the barrel and also the word "MPETG, M. F. G. Company HARTFORM of U. S. A. was allegedly recovered from respondent No. 2, which was allegedly used in the commission of the crime. The-revolver was tied around the waist of respondent No. 2 and allegedly found in red colour bandolier by the Police with two cartridges of .32 bore. It was also stated that respondent No. -4 also allegedly produced four empties of shells. However, the nature of the injuries on the two injured persons indicates that two different types of fire-arms were used and that revolver of the above make could not have been used for causing six pellets injuries to P. W. 1 Haji Mamon. All the alleged eye-witnesses have deposed that respondent No.l2 had caused injuries by rifle. No body has referred to a revolver. Furthermore, the P. W. 7 Abdul Hakim the only mashir produced by the prosecution seems to be a witness on whose testimony no implicit reliance can be placed. According to .him he was passing on the national highway and was going towards Thatta when he was stopped by the police party and was made mashir to the arrest of respondent No. 2 on 8th April, 1976 and that while he was coming back from Thalia on 9th April, 1976, he was again stopped by the Police and was trade mashir to the arrest of respondent No. 1. The above version given by the above mashir seems to be absurd and unbelievable. From the mashirnama, it seems that there were a number of shops near the place of incident. The Police-instead of making independent person of the locality as a mashir had chosen the above P. W. 7 Abdul Hakim. The only witness who was not related to the injured party was P. W. 6 Ali Bux. He has admitted that he was the tenant of the shop of P. W. 3 Muhammad Khan the complainant. His testimony is also belied by the nature of injuries on the person of the two injured. In this view of the matter, there was no independent evidence worth relying upon, on the basis of which the learned Sessions Judge could have recorded convictions against the present appellants.

However, it was argued by Mr. Halepota, learned counsel for the complainant party in the criminal revision that admittedly there were two injured eye-witnesses and that the plea raised by the defence in the cross examination and also in respondent No. 2's statement under section 342. Cr. P. C. was that some men of Muhammad Yousuf had gone to respon dent No. 2's house to take away his wife Mst. Fatima forcibly, which was resisted by the injured P. W. Haji Mamon and others, seems to be false. In our view the prosecution cannot absolve itself from the burden of proof by pressing into service the weakness or the absurdity of the defence plea. The prosecution is to succeed or to fail on its own strength. We are also inclined to hold that the mere fact that the eye-witnesses included two injured persons will at the most indicate that they were the persons who received the injuries but as they were on inimical tems with the accused party and as their version is belied by the medical evidence on record, it will not be safe to convict the accused-persons on their testimony in the absence of other reliable corroborative piece of evidence. We have noticed that the learned Sessions Judge has given cogent reasons for recording acquittal and, therefore, his judgment cannot be said to be perverse or contrary to record warranting interference by this Court. It is by now a well-settled principle of law that the Court will be reluctant to set aside an acquittal judgment unless the Court finds that the view found favour with the trial Court could not have been formed on the basis of the evidence on record.

6. For the aforesaid reasons we dismiss the above acquittal appeal as well as revision.

Appeal dismissed.

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