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Criminal Appeal No. 299 of 1976, decided on 23rd January, 1983.

--S. 307/324- Attempt to murder--Accused caught by public but not a single prosecution witness from public produced-Material contradictions existing in statements of eye-witnesses-Knife alleged to have been recovered from vardat not sent to Chemical Examiner nor it was alleged that same was recovered from exclusive possession of accused-Recovery having no bearing on prosecution case --Accused also getting eight injuries on his person out of which two incised wounds, but that aspect not considered by trial Court in spite of accused's statement to this effect under S. 342, Cr. P. C. --Evidence of eye-witnesses inspiring no confidence and not corrobo rated by independent evidence of locality-Conviction and sentence set aside.

S. Javid for Appellant.

Niaz Ahmad for the State.

Date of hearing: 18th January, 1983.

The appellant abovenamed, being aggrieved by Judgment, dated 23rd September, 1976 of the VIth Additional Sessions Judge, Karachi, in Sessions Case No. 198 of 1975, by which be has been convicted under section 307/324, P. P. C. and sentenced to suffer R. I. for five years and to pay fine of Rs. 1,000 or in default of payment of fine to suffer R. I. for six months under section 307, P. P. C. and sentenced to suffer R. I. for one year under section 324, P. P. C. has preferred the above appeal on the following facts and grounds:-

2. The prosecution story in short is that on 1st April, 1974, at about 10-30 p. m. complainant was coming from Saddar to Karimabad in a Bus. He got down at Karimabad Bus stop and was going by the foot path towards his house, when be reached near Khoja Jammat-Khana, one person bumped into complainant, on which complainant asked hits to walk carefully. This led to quarrel between them. Appellant whipped out a knife (chhuri) from the fold of his shalwar and inflicted number of knife injuries to him. Complainant raised alarm and tried to run to escape more injuries. Appellant followed him and in the pursuit appellant fell down and sustained an injury with his own knife. P. W. Amir Shah, Hawala Khan and Mir Gulab were attracted on the cries. P. W. Amir Shah, tried to get hold of the appellant, on which appellant assaulted him and inflicted him a knife blow. Appellant tried to make good his escape, but he was caught near the vardat by the witnesses. Complainant was taken to the Hospital by P. W. Mir Gulab, where he was admitted as an indoor patient. One A. S. I. had recorded the F. I. R. of complainant on a plain paper in the Hospital. On the same day, duty officer of P. S. Gulberg had also directed A. S. I. Ali Bahadur to proceed to Khoja Jammat-Khana, as some fight had taken place. He proceeded there and saw the above appellant in the custody of the witnesses, including P. W. Amir Shah, sitting over there, who informed him that appellant had caused injuries to Sultan Nadir, who was taken to the Hospital by P. W. Mir Gulab, P. W. Amir Shah and appellant had also injuries on their persons, and A. S. I. was, therefore, taking them to Hospital when on the way, one constable of his police station met him and told him that one persons lying unconscious in the Hospital and he should, therefore, proceed there. A. S. I. got P. W. Amir Shah and appellant Faryad examined by M. O. He then recorded statement of complainant Sultan Nadir on a plain paper and obtained his signature on it. He came to the police station and incorporated contents of statement of Sultan Nadir in 154, Cr. P. C. book. He visited the vardat in presence of mashirs Amir Shah and Hawala Khan and prepared mashirnama. He secured blood-stained earth and chhuri from vardat and sealed them separately. He also recorded statement of P. Ws. Amir Shah, Mir Gulab and Hawala Khan. He challaned the appellant on 6th July, 1974. Appellant was committed to the Court of Sessions on 15th May, 1975, to stand his trial.

3. Appellant pleaded not guilty, appellant denied having caused injuries to complainant Sultan Nadir or to P. W. Amir Shah. He explained that on the day of incident, he was coming to his house, when complainant Sultan Nadir had bumped into him. He told him to walk carefully on which complainant Sultan Nadir abused him. P. W. Hawaldar who happened to be there, gave a dagger blow on his waist. There were two other persons with P. W. Hawaldar, who also caused injuries to him. He further explained that he is innocent.

4. Prosecution examined Amir Shah (P. W. 1), Sultan Nadir (P. W. 2), Mir Gulab (P. W. 3), Ali Bahadur (P. W. 4), Evidence of Dr. Ghulam Rasool, recorded before the lower Court was brought on record under sec tion 509, Cr. P. C. vide Exh. 12.

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

6. The appellant and his counsel were absent, in spite of notice for today hearing having been sent to both of them by Registered Post on 20th December, 1982 and consequently since this appeal is pending from 1976, I decided to bear the same, with the assistance of the learned Advo cate for the State.

7. The learned Advocate for the State took me through record proceedings of the learned trial Court as well as the impugned judgment and out set submitted that he was not supporting the impugned judgment on the following grounds:-

(a) That there are material contradictions inter se in the statements of the three prosecution witnesses, on which prosecution case rest.

(b) That the appellant in the incident in question had received nine injuries, but this aspect is not at all considered by the learned trial Court, in support of appellant's plea of self-defence.

8. I have carefully considered the above submissions made by the learned Advocate for the State and have carefully gone through the record proceedings of the learned trial Court as well as the impugned judgment.

9. Prosecution rests upon the statements of P. Ws. Amir Shah, P. W. Sultan Nadir, P. W. Mir Gulab, P. W. Ali Bahadur and P. W. Dr. Ghulam Rasool. According to allege eye-witnesses of the incident, appel lant was caught by public but not a single P. W. from public has been produced. In addition to this, there are material contradictions in the statements of eye-witnesses, as pointed out by the learned counsel for the State. The allege knife recovered from vardat was not sent to Chemical Examiner not it is alleged that it was recovered from exclusive possession of the appellant and as such this recovery has no bearing at all on pro secution case. It is admitted position, that appellant also had eight injuries on his person, out of which three were incised wounds. Learned trial Court has not at all considered this aspect of the case, in spite of appellant's statement under section 342, Cr. P. C. Learned trial Court simply, on the basis of number of injuries on person of P. W. Sultan Nadir come to conclusion, that appellant had intention to murder him, when there is nothing on record to show, if any injury received by P. W. Sultan Nadir was grievous. Statement of appellant under section 342, Cr. P. C. about injuries received by him is corroborated by evidence of Dr. Ghulam Rasool, in spite of this, the learned trial Court has not considered the effect of so many injuries on the person of appellant, regarding possible plea of self-defence, specially when appellant admittedly was alone in the incident in question.

10. Statements of eye-witnesses do not inspire confidence, on account of contradictions inter se between them. In the absence of any corrobora tive evidence and/or independent witnesses of the locality, about the allege arrest of the appellant, while he was attempting to run away from vardat, s it would be unsafe to rely on statement of P. Ws. who are prima facie interested and have failed to explain so many injuries on the person of the appellant. Therefore, I agree with the contention of the learned Advocate for the State that prosecution has failed to establish its case beyond reasonable doubt against the appellant.

11. Therefore, I allow the above appeal and set aside conviction of the appellant and sentences awarded to him and acquit him, by giving him benefit of doubt and discharge the bail bonds executed by the appellant.

M. Y. H. Appeal allowed.

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