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Criminal Appeal No. 58 of 1982, decided on 11^th December, 1983.

-- S. 302/34-Murder-Appreciation of evidence-Statements of eye-witnesses and earlier statements under Ss. 161 & 164, Cr. P. C. contrary to medical evidence hence not reliable-Dying declaration in conflict with medical evidence and not proved-Material contra dictions existing in statements of prosecution witnesses-Statement of prosecution witness neither convincing nor corroborating dying declaration-Such statements, held, could not be taken into consi deration-Prosecution held, failed to establish its case against accused beyond reasonable doubt - Conviction and sentence set aside.

1971 P Cr. L J 229; P L D 1958 Lah. 468; P L D 1968 S C 290; 1971 P Cr. L J 279 and 1971 P Cr. L J 279 rel.

P L D 1978 Kar. 710 and 1972 S C M R 578 ref.

S. Muzafar Hussain Shah for Appellant.

Jalaluddin Baloch for Respondent.

Date of hearing : 4th December, 1983.

Appellants abovenamed, being aggrieved by judgment dated 28th February, 1982 of the learned Ex-Officio Additional Sessions Judge, Karachi, in Sessions Case No. 114/74, by which appellants have been convicted under section 302/34, P. P. C. and sentenced to suffer R. I. for life and to pay fine of Rs. 2,000 each or in default to suffer further R. I. for 6 months and appellant Charki was also convicted under section 323, P. P. C. and sentenced to suffer R. I. for 3 months and to pay fine of Rs. 200 or in default to suffer R. I. for one month, and also convicted appellant Lai Muhammad under section 324, P. P. C. and sentenced him to R. I. for six months and to pay fine of Rs. 300 or in default to suffer further R. I. for one month, have preferred the above appeal, on the following facts and grounds

The F. I. R. in this case was lodged by the deceased himself on 12th January, 1973 at 5-01 p. m. at Police Station, Kalakot, about 2 miles from vardat, according to which at about 4-30 p. m., while he was selling fruit on his push-cart at Juman Shah Plot, he saw appellants Lai Muhammad, Charki and co-accused Baboo quarrelling with P. W. Noor Muhammad. He immediately rushed there to avert the quarrel, whereupon appellant Charki gave him stick (lathi) blow on his bead. He was injured and started bleeding. Appellant Laloo (Lai Muhammad) and co-accused Baboo also cudgelled him on back on his bead. P. W. Habibullah and Baboo Garage-Walla however came to his rescue.

F. I. R. (Exh. 23) was taken down by S. I. Ghulam Rabbani (Exh. 22) whereafter he referred the complainant to Civil Hospital, Karachi, for examination, treatment and certificate. Having done so he repaired to the place of occurrence, prepared its memo. (Exh. 24) and examined P. Ws. Noor Muhammad, Habibullah, Abdul Ghani and Baba Budha. He arrested all the appellants at mid-night on the same day. On the next day at about 8-45 a. m. he received information from the hospital that the injured had passed away. He went there, inspected the dead body and prepared memo. thereof (Exh. 11). He also held inquest over the dead body and prepared inquest report (Exh. 12). Finally he got autopsy of the dead body performed and returned it to its relatives. He then handed over case papers to S. H. O. Maula Jan for further action.

S. H. O. Maula Jan (Exh. 25) verified the investigation and on 18th January, 1973 he secured knife article A' from co-accused Baboo by (Exh. 26). On the same day he secured stick (lathi) before him on the same day. He secured both the separate memos. (Exhs. 27 and 28). On 19th January, 1973 he got statements of P. Ws. Chakar, Habibullah, Ghulam Rusul and Noor Muhammad recorded under section 164, Cr. P. C. The appellants were formally challaned by S. H. O. Tahir Din Qureshi as S. H. O. Maula Jan were transferred.

The appellants have pleaded innocence. Appellant Charki has stated, that prosecution witnesses were inimical to him and have implicated him on account of election rivalry. The other appellant as well as co-accused have simply denied the allegations and stated that prosecution witnesses have deposed against them due to enmity. The enmity has not however been elaborated. They have led no defence. Co-accused lqbal alias Baboo has absconded away. 1n this connection evidence of Muhammad Lateef A. S. I. Kalakot has been recorded (Exh. 62). An order on the basis of this evidence has been passed under section 512, Cr. P. C. and action against co-accused Iqbal alias Baboo has been taken under sections 87 and 88, Cr. P. C.

Learned trial Court taking into consideration the evidence adduced before it convicted and sentenced the appellants abovenamed, as herein before mentioned and consequently appellants have filed the above appeal, on the grounds mentioned in memo. of appeal.

The learned Advocate for appellants in support of the above appeal submitted as under: -

(a) That no reliance can be placed on the statements of P. Ws. as the said statements are contrary to medical evidence on record and their earlier statements under section 161, Cr. P. C. and 164, Cr. P. C. In support of this the learned counsel relied upon case reported in 1971 P Cr. L J 229.

(b) Dying declaration of the deceased is not in confirmity with medical evidence and further deceased was not capable of lodging F. I. R., which has been treated as dying declaration, in view of the state ments of P. W. Dr. Shamim and Dr. Umar.

(c) That learned trial Court erred in taking the statements of P. Ws. Chakar, Habibullah and Ghulam Rasool under section 33 of Evidence Act, as P. C. Nazir Muhammad who actually went to serve summons on them was not examined, but learned trial Court relied on the statement of P. W. 4 Ghulam Rahim, which did not justify bring statements of these P. Ws. on record under section 33 of the Evidence Act. In support of this contention the learned counsel relied upon cases reported in P L D 1958 Lah. 468, P L D 1968 S C 290 and 1971 P Cr. L J 1331.

(d) That if the statements of P. Ws. Chakar, Habibullah and Ghulam Rasool are discarded, no reliance can be placed on the solitary statement of P. W. Noor Muhammad, without independent corro boration, as his statement is exaggerated and not straightforward, as he has tried to save co-accused Baboo, before learned trial Court and further his statement is not corroborated by alleged dying declaration at all Exh. 23, which itself is weak piece of evidence.

(e) That I. O. did not depose about the contents of Exh. 23, dying declaration and as such no reliance can be placed on said Exh. 23 at all. In support of this the learned counsel for appellants relied upon cases reported in P L D 1978 Kar. 710 and 1972 S C M R 578 and 1971 P Cr. L J 279.

The learned Advocate appearing for the State on the other hand sub mitted. that prosecution by statements of P. W. Noor Muhammad and dying declaration of the deceased and medical evidence on record has established its case beyond reasonable doubt against the appellant. How ever he submitted that in view of the facts and circumstances of the incident, the offence committed by appellants would fall under section 304 (I), p. P. C. and not under section 302/3.4, P. P. C. and as such sentences awarded to appellants on this account be reduced reasonably.

I have carefully considered the above submissions made by the learned Advocate before me and have gone through the R & P of the learned trial Court as well as impugned judgment and cases, cited by the learned Advocate for appellants.

It is an admitted position, that the statements of the alleged eye witnesses are contrary to the medical evidence on record as well as their earlier statements under sections 161, Cr. P. C. and 164, Cr. P. C. and as such no reliance can be' placed on such statements, without independent corroboration. In this connection the case relied upon by the learned Advocate for the appellants reported in 1971 P Cr. L J 229 fully supports the contention of the learned Advocate for the appellants in this connec tion. Prosecution for purposes of corroboration has relied upon the dying declaration of the deceased which beside being in conflict with the medical evidence was not proved in accordance with law, as P. W. 4 Ghulam Rabbani (I. O.) simply produced the same, without disclosing the content thereof and as such in view of cases cited by the learned Advocate fort appellants the said dying declaration cannot be taken into consideration'. It may further be noted, that the statements of P. W. Chakar, Habibullah and Ghulam Rasool were brought on the record of the learned trial Court under section 33 of the Evidence Act, but the process-server who actually went to serve these witnesses was not examined before the learned trial Court. In view of this the case reported in 1971 P Cr. L J 1331 fully applies to the facts of this case. It may further be noted that P. W. 1 Noor Muhammad, in his statement before the learned trial Court tried to save the co-accused Baboo. In addition to this there are material contra dictions in the statement of P. W. 1, as recorded before the learned trial Court and in his earlier statements, which have been brought on record. Further according to this witness the deceased used to speak in Baluchi and was not able to give his statement like a normal person. It is clear from the statement of P. W. 1, that he had exaggerated the incident any his statement is not straightforward nor convincing nor the same is corro borated by the alleged dying declaration of the deceased Exh. 23 and as such it would be unsafe to rely on the sole testimony of this P. W. with out independent corroboration, as in my opinion statements of P. Ws. Chakar, Habibullah and Ghulam Rasool were not legally brought on record under section 33 of Evidence Act. In addition to this the I. O. did not depose in respect of the contents of dying declaration Exh. 23 and as such it ought not to have been taken into consideration, in view of the law laid down by cases reported in P L D 1978 Kar. 710 and 1972 S C M R 578. In view of my above conclusions and findings, in my opinion pro secution has failed to establish its case beyond reasonable doubt against the appellant.

Therefore, I allow the above appeal and set aside conviction of the appellants and sentences awarded to them by impugned judgment and acquit them by giving them benefit of doubt and direct that both the appellants be released forthwith, if not required in any other case.

M. Y. H. Appeal accepted.

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