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Criminal Acquittal Appeal No. 41 of 1982, decided on 5th September, 1983.

-- S. 417-Penal Code (XLV of 1860), S. 302/34-Appeal against acquittal - Trial Court giving cogent reasons for disbelieving recovery and dying declaration and for discarding injuries on person of accused as a piece of corroborative evidence against him Eye-witness not supporting prosecution and not declared hostile and his statement remaining unshaken in cross-examination-Other prosecution witnesses not reliable-Trial Court duly appraising prosecution evidence brought on record and disbelieving same for cogent reasons-Prosecution failing to establish case against accused beyond reasonable doubt-Trial Court, held, justified in acquitting accused.

P L D 1965 F C 126 ; 1968 P Cr. L J 588; P L D 1969 Lah. 24; P L D 1976 S C 44; 1972 S C M R 460; P L D 1980 Pesh. 250, P L D 1981 Kar. 112; P L D 1979 Kar. 513; P L D 1978 Lah. 507 ; P L D 1964 (W. P.) Pesh. 59 ; P L D 1975 Pesh. 205 ; P L D 1981Kar. 41 ;1971 P Cr. L J 1097 ; 1973 S C M R 26 and 1977 P Cr. L J 18 ref.

Rashid Tariq for the State.

Noor Nabi Memon for Respondents.

Date of hearing : 5th September, 1983.

- State being aggrieved by judgment dated 6th October, 1981 of the learned IInd Additional Sessions Judge, Dadu, in Sessions Case No. 59/78, by which respondents above-named and one Ashiq Ali, co-accused were acquitted under section 302/34, P. P. C. vide impugned judgment, has preferred the above acquittal appeal, on the following facts and grounds :--

The complainant Mahboob, who is brother of deceased Abdul Majid, lodged report at Police Post Sita Road on 12th March, 1978 at 11.30 P.M. alleging, that offence took place on the same date at 10.30 p m. It is his case that he and his brother deceased Abdul Majid were residing in Sita Road Town and he is Clerk in Rural Development Department. According to him, they own a hotel in the Bazar of Sita, which is opened at morning, while closed at 9:00 p m. He has further added, that there is a dispute between them and the respondents for the last two years over a shop. The respondents were claiming to be owners of the shop and even a suit was pending in Civil Court K. N. Shah. He has further added, that about 5 or 6 months prior to the incident, respondents moved an application before Martial Law Authorities, Dadu, where it was decided on Holy Qur'an that tenant Soomar shall pay rent to Hashim Ali i.e. respondents which was even paid and receipt executed. On the day of the incident, the complainant has added, that when he and his brother deceased Abdul Majid were returning to the.home after closing the hotel, they saw above three respondents viz. Ashiq Ali, Khalid Jamil and Iqbai at the end of the Railway Platform. The respondents came in front of the complainant and his brother Abdul Majid, the respondent Ashiq Ali instigated his nephew Khalid Jamil and Iqbal not to leave Abdul Majid. Respondent Khalid Jamil, who was armed with revolver opened fire which hit Abdul Majid. Deceased-Abdul Majid grappled with respondent Khalid Jamil, while complainant grappled with respondent Iqbal. Co-accused Ashiq Ali ran away. On cries and commotion P. Ws. Abdullah, Ghulam Ali reached the wardat and snatched the revolver from the hand of respondent Khalid Jamil. Thereafter, P. Ws. Mumtaz and Budho and others also reached to the wardat. The complainant left the respondent in custody of witnesses and took his brother Abdul Majid to Government Hospital Sita Road, where A. S. I. P. of Sita Road, Police Post also reached and recorded the statement of injured Abdul Majid, who subsequently died. The complainant then was taken to P. P. Sita Road, where his report was recorded in the station diary by A. S. I. P. Suba Khan.

The A. S. I. P. Suba Khan was on petrol duty alongwith subordinate police officials. When he reached near Shakil Cinema, he was informed by one Akbar Solangi, that some quarrel has taken at railway platform. He went there, where P. Ws. Abdullah and Ghulam Ali produce respon dent Khalid Jamil and Iqbal in addition to a revolver. He examined revolver and found five shots were fired, while six was misfired. He prepared mashirnama of arrest of the respondents as well as recovery of revolver in presence of mashirs Atta Muhammad and Allahdad. He sealed the revolver and empties lying in the chamber. He also secured clothes of both the respondents. He sent the respondents P. P. He then proceeded to Government Hospital Sita Road, where injured Majid was lying. He recorded dying declaration of Abdul Majid, in presence of P. Ws. Mumtaz, Muhammad Hassan and the Medical Officer. He could not obtain signature of the deceased, as he died while statement was being recorded. The A. S. I. P. prepared inquest report of the dead body, for taking to Medical Officer for post-mortem examination. He then returned to P. P., where he recorded report of the complainant Mahboob in the station diary. Since offence was committed at Railway Platform, A. S. I. P. Suba Khan handed over papers to S. H. O. Railway Police, who reached Sita Road on 13th March, 1978.

S. H. O. Akbar Ali of Railway Police Larkana after getting information reached Sita Road on 13th March, 1978 at 4:30 a.m. The A. S. I. P. handed over the copy of the report and case property, in sealed condition alongwith investigation papers and custody of two respondents Khalid Jamil and lqbal. The S. H. O. sent information to Larkana for registering regular case. He sent the dead body to M. I. K. N. Shah for post-mortem examination through H. C. Abdul Karim. He went to wardat and prepared a mashirnama. He secured a piece of candle, four buttons of shirt in presence of mashirs. He then examined P. Ws. Muhammad Hassan, Atta Muhammad, Allahdad, Ghulam Ali, Abdullah, Ratio and Dr. Abdul Khalique of Government Hospital Sita Road, in addition to Police Officials. He returned to Railway Police Larkana and referred respondent Khalid Jamil to Civil Hospital Larkana on 14th March, 1978 for examina tion, treatment and certificate. One Mohabat Ali appeared at Police Station Larkana and produced a licence of the Revolver. The S. H. O. secured the same and also recorded a separate case under section 16(b) against Mobabat Ali. On 15th March, 1978 S. H. O. secured documents of litigation from P. W. Soomar. On 27th March, 1978 be put up interim challan of the case by showing Mohabat Ali as a co-accused. Co-accused Ashiq appeared before the police on 16th April, 1978. Finally, the police put up the challan on 6th June, 1978 by including co-accused Ashiq Ali and dropping Mohabat Ali. The Police also sent blood-stained articles to the chemical analyser. The revolver and the empties were forwarded to Ballistic Expert for examination and report.

The prosecution examined complainant Mehboob Exh. 6, he was shown original station diary Exh. 13, which he produced as Exh. 14, P. W. Ghulam Ali Exh. 7, Muhammad Hassan Exh. 8, who produced dying declaration Exh. 9, H. C. Abdul Karim Exh. 10, who had taken the dead body for post-mortem examination. The learned A. P. P. gave up A. S. M. Muhammad Akram and P. C. Ghulam Rasool. The pro secution also examined H. C. Mahboob Ali Exh. 12, who produced original station diary of P. P. Sita Road, Exh. 13, containing the report lodged by Mahboob Exh. 14. The learned defence counsel moved an application Exh. 15, for recalling complainant. P. W. Soomar Exh. 17, A. S. I. P. Suba Khan Exh. 18, who produced mashirnama of wardat, Exh. 19, inquest report Exh. 20, P. W. Abdul Ghafar former police constable Exh. 21. The learned A. P. P. gave up P. W. Abdul Rasool vide statement Exh. 22. The prosecution then examined Tapedar Ali Hyder Exh. 23, who produced sketch of wardat Exh. 24, Dr. Abdul Khalique, who was. medical officer Government Dispensary Sita Road Exh. 25, Mashir Atta Muhammad Exh. 26, he produced mashirnama of the injuries on the dead body, mashirnama of securing of some articles from the wardat by S. H. O. Railway Police Exh. 28, mashirnama of securing of clothes of the deceased Exh. 29. The Prosecution then examined Dr. Asbfaque Ahmed Qureshi, Medical Officer, K. N. Shah, who had conducted post-mortem examination, he had produced post-mortem examination report Exh. 32. The prosecution also examined Dr. Ali Nawaz of Civil Hospital Larkana Exh. 33, who produced injury certificate of respondent Khalid Jamil Exh. 34. The prosecution also examined P. W. Mumtaz Exh. 35, who produced carbon copy of dying declaration as Exh. 36, Abdullah Exh. 37, Akbar Ali S. H. O. Railway Police Station Exh. 38. He produced mashirnama of securing of licence from Mohabat Ali Exh. 39, Chemical analyser report Exh.40, Ballistic Expert Report Exh. 41. The learned A. P. P. closed the side, vide statement Exh. 42.

All the three respondents did not plead guilty to the charge and claimed to be tried. In their statements they denied the allegations against them to be false. Respondent Khalid Jamil produced true copy of F. I. R. as well as challan of a murder case lodged on 5th- July, 1972 to show that there was enmity between deceased Abdul Majid and his relatives on one side and Muhammad Ali and Latif Chandias on other side. Respondent Khalid Jamil has added, that on the night of the incident, when he and his cousin Iqbal and uncle Mohabat were sitting in their house. P. C. Ghulam Ali came and brought them to the scene of offence and produced before the S. H. O., Muhabat Ali was asked to take his revolver with him which was secured by the police. He has added that his uncle Ashiq Ali was out to Usta Muhammad. Co-accused Ashiq Ali had pleaded that he was not present and had gone to Usta Muhammad side District Jacobabad. The respondents have not examined any witness in defence.

The learned trial Court taking into consideration the evidence adduced before it acquitted the respondents above-named as well as co-accused Ashiq Ali by impugned judgment dated 6th August, 1981 and consequently the State has filed the above acquittal appeal, on the grounds mentioned in the memo of appeal.

Learned Advocate for the State in support of the above appeal sub mitted as under :--

(a) That conclusions and findings of the learned trial Court are not in accordance with the evidence on record.

(b) That learned trial Court has not properly appraised the evidence brought on record and consequently has erred in coming to conclu sions and findings which are not at all warranted by record.

(c) Motive was duly proved by occular and documentary evidence on record, but still the learned trial Court came to conclusion that the same was not proved.

(d) That learned trial Court discarded statements of P. Ws. com plainant, Mebboob, Abdullah and Mumtaz, without assigning any cogent reasons.

(e) That learned trial Court wrongly disbelieved dying declaration of the deceased; which was duly proved by statements of P. Ws.

(f) That learned trial Court erred in discarding the statement of P. W. Atta Muhammad, mashir of recovery, though he is indepen dent witness.

In support of above contentions, the learned Counsel relied upon cases reported in P L D 1956 F C 126, 1968 P Cr. L. J 588, P L D 1969 Lah. 24, P L D 1976 S C 44, 1972 S C M R 460, P L D 1980 Pesh. 250, P L D 1981 Kar. 112, P L D 1979 Kar. 513, P L D 1978 Lah. 507, P L D 1964 (W P) Pesh. 59, P L D 1975 Pesh. 205 and P L D 1 1981 Kar. 41 and submitted that the impugned judgment of the. learned trial Court in the interest of justice be set aside and appellants be convicted in accordance with law.

The learned Advocate appearing for respondents on the other hand submitted as under:-

(a) That all P. Ws. are inter-related to the deceased and in view of admitted enmity between the parties, their statements required independent corroboration, which was not at all available and con sequently the learned trial Court was fully justified in its conclusions and findings.

(b) That presence of P. W. 1 was doubtful, in view of the statement of P. W.-2 Ghulam Ali.

(c) That injuries on person of respondent Khalid Jamil have been explained by the said respondent in his statement under section 342, Cr. P. C. and his explanation is fully supported by the fact, that said respondent was not sent for treatment and certificate on the day of his arrest.

(d) P. W. Mumtaz according to I. O. refused to give his statement under section 161, Cr. P. C. and as such no reliance can be placed on his statement at all.

(e) P. W. Mahboob Ali was a chance witness and P. W. Abdullah; the alleged mashir is related to the deceased.

(f) That according to P. W. 12, Dr. Ashfaq Ahmed who performed post-mortem examination on the body of deceased it was impossible for deceased to have given dying declaration after receiving injuries.

(g) That Ballistic Expert Report did not support prosecution case, in respect of revolver alleged to have been seized from the possession of respondent Khalid Jamil.

(h) That there are interpolation in alleged dying declaration and as such on this ground also the same could not be relied upon, as rightly held by the learned trial Court.

In support of above contentions the learned . counsel relied upon cases reported in 1971 P Cr. L J 1097, 1973 S C M R 26 and 1977 P Cr. L J 18 and submitted that State has failed to establish any grounds for interfering with the impugned judgment.

We have carefully considered the above submissions made by learned advocates before us and have gone through Record and proceedings of the learned trial Court and impugned judgment as well as cases cited by the learned advocates before us.

Prosecution in support of its case had relied upon ocular evidence of P. Ws. Mahboob, Ghulam Ali, Mumtaz and Abdullah and for motive on the statement of P. W. Mehboob and Soomar. As far as dying declaration was concerned prosecution relied upon statements of P. Ws. Muhammad Hassan, Mumtaz. A. S. I. Suba Khan, Dr. Abdul Khaliq and complainant Mahboob. Prosecution also relied upon injuries on person of respondent Khalid Jamil for purposes of corroboration of P. Ws., in addition to alleged recovery of revolver and Ballistic Expert Report.

P.W.-1 Mahboob (complainant) the only eye-witness of the actual incident in his statement admitted enmity with the respondents over shop dispute and as such his statement required independent corroboration, for which prosecution relied upon the alleged arrest of the respondents on spot, with revolver from possession of respondent Khalid Jamil, dying declaration of the deceased and injuries on person of the repondent Khalid Jamil.

Learned trial Court discarded alleged recovery of revolver from the possession of respondent Khalid Jamil, as piece of corroborative evidence, on the ground that Ballistic Expert Report did not prove, that the said revolver was used for firing of empties alleged to have been found in its chamber, on alleged recovery of the said revolver from possession of respondent Khalid Jamil, for cogent reasons. We see no grounds toy interfere with this conclusions and findings of the learned trial Court, as we agree with the cogent reasons given by learned trial Court in support of its findings in question. Similarly learned trial Court did not rely on alleged dying declaration of the deceased for the cogent reasons given in its impugned judgment. We also see no reason to disagree with this conclusion of the learned trial Court, as we find the reasons given by the learned trial Court sound and plausible. As far as alleged injuries on the person of respondent Khalid Jamil, we find that respondent was not immediately sent for medical treatment and certificate, and consequently statement of said respondent under section 342, Cr. P. C. explaining the said simple injuries on his person cannot be overlooked. In view of this, we see no reason to interfere with the conclusion of the learned trial Court in discarding said injuries as piece as of corroborative evidence against the said respondent. It may be noted that P. W. 2 Ghulam Ali, the alleged eye-witness of the incident did not support prosecution case at all, but was not declared hostile. We find his statement was not shaken in his cross-examination. We find his statement straightforward and convincing. According to this, P. W. he was first person to reach vardat on hearing shots and he found deceased ; lying injured on platform and was alone. He further stated, that he did not see respondents and/or acquitted co-accused on or near vardat. He further stated that S. H. O. took deceased to hospital on cot. He further stated, that P. Ws. Mahboob Ali, Mumtaz and Bhudo came after he had reached vardat. In view of the statement of P. W. Ghulam Ali, who was not declared hostile by prosecution, no reliance can be placed on the statements of P. W. Mahboob Ali, Mumtaz, Atta Muhammad and others. Even alleged dying-declaration of deceased does not mention, that P. W. Mahboob Al' was with him at the time of incident. In the face of such prosecution evidence on record, learned trial Court was fully justified in coming to conclusions and findings, that prosecution had failed to establish its case beyond reasonable doubt against respondents as well as co-accused Ashia Ali. We find that learned trial Court has duly appraised prosecution evidence brought on record and thereafter for cogent reasons disbelieved the same. In view of this, we find no force in the contentions urged by learned State counsel before us and cases cited by him are not at all applicable to present case, as they are based on different facts, whereas cases cited by learned counsel for the respondents fully supports his contentions.

Therefore we find no force in the above appeal, which is consequently' dismissed. Bail bonds, if any executed by respondents are hereby' discharged.

Appeal dismissed.

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