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Criminal Appeal No. 14 of 1983, decided on 4th September, 1983.

--S. 302/34-Evidence, appreciation of-Benefit of doubt-Prosecu tion witnesses and alleged eye-witness of incident not only closely related to deceased but on account of blood-feud between parties not reliable without independent corroboration-Statements of prosecu tion witnesses and medical evidence, in respect of actual shots fired, discrepant-Alleged cart on which deceased supposed to be travel ling, neither recovered nor there were any wheel-marks at vardat in respect of cart-Trial Court relying on alleged absconsion of accused, in respect of which no question put to him under S, 342, Cr. P. C.-Accused convicted on mere conjecture, and surmises-- Benefit of doubt given to accused and acquitted. [Benefit of doubt].

1974 P Cr. L J 77; 1978 P Cr. L J 690; P L D 1983 S C 117 and P L D 1974 Kar. 274 ref.

Muhammad Hayat Junejo for Appellant No. 1.

Agha Ghulam Ali for the State.

Date of hearing: 28th August, 1983.

The appellants abovenamed, being aggrieved by judgment, dated 7^th February, 1983 of the learned 1st Additional Sessions Judge, Shikarpur, in Sessions Case No. 165/83, by which appellants have been convicted under section 302/34, P. P. C. and sentenced to suffer imprisonment for life and to pay fine of Rs. 1,000 each or in default to undergo further R. I. for one year, have preferred the above appeal, on the following facts and grounds:-

The facts of the case are these:-

"On 13th June, 1980, at about 7-00 p.m. Abdul Khaliq son of Bangui Kamboh, residence of Village Sabta, Taluka Garhi Yasin, reported at Police Station, Gaheja, complaining the murder of his brother Abdul Fattah, wherein he stated, that his deceased brother Abdul Fattah was residing in village Sehta. Deceased Abdul Fattah was hari at the land of Major Altaf Hussain. On the day of incident, complainant Abdul Khalique alongwith his deceased brother Abdul Fattah bad gone for making the Batai on the land of Major Altaf Hussain. After making the Batai, at about 6-30 p. m. after taking the share of their corn, complainant Abdul Khalique, alongwith deceased Abdul Fattah was returning to their village. Other P. Ws. Abdullah son of Banho and Haji son of Gambo were also returning with the deceased. Deceased Abdul Fattah was leading them on the bullock-cart, with the grain. When they came at the top of Kehar Shakh, from the southern side of the Shakh, from the bushes, appellant Abdul Qayoom son of Abdullah and appellant Fazulullah son of Habibullah, by caste Kamboh, resident of Nau shero, Taluka Garhi Yasin came out. Both the appellants were armed with single barrel guns. Appellant Fazulullah challenged deceased Abdul Fattah and told him, that as he had murdered his "Puphat" Abdul Haq son of Bhai Khan, they will take revenge for that murder. Then appellant Abdul Qayoom fired his gun aiming at deceased Abdul Fattah. Receiving the gunfire injury, Abdul Fattah fell down. P. Ws. did not go near to the appellants due to the fear, as they were empty handed. Thereafter appellants after making the challenges and firing in the air, ran away towards north. Thereafter, complainant Abdul Khalique and P. Ws. Abdullah and Haji saw injuries on his left side arm and on chest, and he died then and there, after struggling for life. Complainant Abdul Khalique then left the P. Ws. Abdullah and Haji at the dead body of deceased Abdul Fattah and came at Police Station, Gaheja and lodged this F. I. R. The complainant also explains the motive for killing Abdul Fattah, that because Abdul Haq was murdered and the appellants, therefore, satisfying their vengeance, caused the death of Abdul Fattah Kamboh."

On 13th June, 1980 Mr. Fida Hussain A. S. I. Police Station Gaheja, Taluka Garhi Yasin recorded the information of Abdul Khalique (Exh. 7). He went to wardat. He then kept watch over the dead body at night. On 14th June, 1980, Investigating Officer prepared the mashirnama of wardat (Exh. 9-A). He also prepared the inquest report of the dead body in the presence of mashirs (Exh. 19). He recorded the statement of P. Ws. Abdullah and Haji. He made efforts for the arrest of the appellants, but could not succeed. On 10th July, 1980 he handed over the papers to S. H. O. Mr. Abdul Ghani, who handed over the papers to S. H. O. Ali Nawaz, who submitted the challan against the appellants, without making any other investigation.

On 14th June, 1980 Dr. Shamasuddin Kazi, who was the Medical Offcer, Garhi Yasin, examined the deceased and conducted post- mortem.

After the investigation was completed A. P. P. Mr. Ubedullah Kakepoto conducted the case in the Court and examined complainant Abdul Khaliq. (Exh. 6), P. W. Abdullah (Exh. 8), P. W. Abdul Latif (Exh. 9), P W. Tapedar Ghous Bux (Exh. 10), P. W. Dr. Shamasuddin (Exh. 12), P. W. Haji (Exh. 16), S. H. O. Ali Nawaz (Exh. 17), Investigating Officer, Fida Hussain--(Exh. 18), P. W. Altaf Hussain (Exh. 22) and P. C. Gulab Khan (Exh. 28) and thereafter closed the side of the prosecution.

After the conclusion of the prosecution evidence, appellants were examined under section 342, Cr. P. C. to explain the circumstances of the murder. They have, denied to have committed murder of Abdul Fattah or took the revenge, because of the killing of Abdul Haq. Further, according to appellant Fazulullah, deceased Abdul Haq was brother-in-law of the complainant and he was more concerned with the complainant than to them. Further, according to him, the complainant was informed about this murder of Abdul Fattah at 9-00 p. m. in the Otak of Irzado, where he was seeing Television. Further, according to him, neither the complainant nor the deceased were the haris on the land of Major Altaf.

It may be mentioned, at this stage, that appellant Fazulullah was granted pre-arrest bail and other appellant Abdul Qayoom appeared in the Court after long absconsion. Investigating Officer had recovered no weapon from these appellants and the evidence entirely depends on the eye-witnesses and the motive.

The learned trial Court taking into consideration the evidence adduced before it convicted and sentenced the appellants above-named as hereinbefore mentioned and consequently appellants have filed the above appeal, on the grounds mentioned in the memo of appeal.

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

(a) That P. Ws. 1, 2 and 6 the alleged eye-witnesses of the incident are closely related to the deceased and in view of the blood feud between the parties no reliance can be placed on their statements without independent corroboration, which in his opinion is not at all available.

(b) That the statements of P. Ws. 1, 2 and 6 in respect of number of shots fired are in contradiction of medical evidence on record and as such no reliance can be placed on the statements of such witnesses.

(c) That neither cart, in which it is alleged that deceased was travelling was recovered nor any marks of wheels were found at the wardat and consequently the statements of eye-witnesses completely belied and cannot be relied upon.

(d) That the learned trial Court by its impugned judgment did not consider the statement of alleged eye-witnesses as absolutely correct, but in spite of this, on the basis of conjectures and surmises and on the basis of the absconsion of appellant Abdul Qayoom in respect of which no question was put to the said appellant, has convicted the appellants above-named and as such these convictions cannot legally be maintained.

In support of the above contentions the learned Advocate for the appellants relied upon cases reported in 1974 P Cr. L J 77, 1978 P Cr. L J 690 and P L D 1983 S C 117 and P L D 1974 Kar. 274 and submitted that prosecution has failed to establish its case beyond reasonable doubt.

The learned counsel appearing for the State at the outset submitted, that he was not supporting the impugned judgment, as the statements of alleged eye-witnesses are not corroborated which was necessary in view of the admitted enmity between the parties and furthermore their state ments are contrary to the medical evidence on record. 1n addition to this, no cart was seized and no wheel marks were found at the wardat and consequently the prosecution in his opinion has failed to establish its case beyond reasonable doubt.

I have taken into consideration the above submissions made by the learned Advocates before me and have gone through the Record and Proceedings of the learned trial Court as well as the impugned judgment and the cases cited by the learned Advocate for the appellants.

I find great force in the contentions urged by the learned Advocate for the appellants. I find P. Ws. 1, 2 and 6 alleged eye-witness of the incident are not only closely related to the deceased, but on account of the blood feud between the parties, no reliance can be placed on their statements without independent corroboration. In this view of mine I am fully supported by case reported in P L D 1981 Kar. I. In addition to this I find discrepancy in respect of the actual shots fired between the statement of P. Ws. 1, 2 and 6 and the medical evidence brought on record. Further more the alleged cart, on which the deceased was supposed to be travelling was not recovered nor there were any wheel marks at the wardat in respect of the said cart. I also find that the learned trial Court did not completely rely on the statements of the prosecution witnesses, but on the basis o alleged absconsion of appellant Abdul Qayoom, in respect of which no questions were even put to him under section 342, Cr. P. C., on mere conjectures and surmises has convicted the appellants above-named and as such I see no reason to agree with the conclusions and findings arrived at by the learned trial Court. The cases cited by the learned Advocate for the appellants are fully applicable to the present case and even the) learned State counsel very rightly at the outset submitted, that he was not supporting the impugned judgment, as the statements of the prosecution) witnesses in the present case required independent corroboration, which was not available at all and there was a discrepancy between the ocular and medical evidence, regarding number of shots fired, which made the presence of alleged eye-witnesses doubtful.

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

M. A. K. Appeal accepted.

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