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Criminal Appeal No. 52 of 1982, decided on 27th March, 1983.

‑‑S.302/34/447‑--Murder‑-Eye‑witnesses closely related to deceased and blood feud existing between complainant's side and a accused party‑-Previous criminal proceedings pending between parties‑Prosecution witnesses having enmity against accused requir ing independent corroboration and ocular evidence not supported by medical testimony‑--Motive taken as corroborative piece of evi dence contrary to law‑--Prosecution failing to establish case against accused beyond reasonable doubt‑ Conviction and sentence set aside.

P L D 1981 Kar. 1 and 1981 S C M R 132 rel.

Muhammad Hayat Junejo for Appellants.

Agha Ghulam Ali for the State.

Date of hearing: 21st March, 1983.

The appellants being aggrieved by judgment dated 4th March, 1982 of the learned Ist Additional Sessions Judge, Dadu, in Sessions Cases Nos. 340/80 and 22/81, whereby appellants have been convicted under sections 447 and 302/34, P. P. C. and sentenced to 3 months' R. I. on first account and to imprisonment for life and fine of Rs. 4,000 on the second account and in case of default in payment of fine to suffer further R. I. for one year each, have preferred the above appeal, on the following facts and grounds:‑

The prosecution story in nutshell is, that on 24th October, 1980 at 1‑30 p. m. the complainant Haji Gahi lodged his F. I. R. at P. S. K. N. Shah, in which he stated in brief, that about three months earlier Allah Rakhio and Kalimullah Leghari were murdered in his village. That the appellant Yousaf had lodged report of the murder of Allah Rakhio and Kalimullah against his son Muhammad Saffar and nephews Nazzo, Fakiro and Suleman and one Ballo Jamali, who were challaned by the K. N. Shah Police. That on this account the appellants Muhammad, Yousaf, Ismail, Ali Hassan and Ibrahim were annoyed with the complainant party and were issuing threats to them for taking revenge. That on 24th October, 1980 at about 11‑30 a. m. he was grazing his pair of bullocks near his paddy cultivation in S. No 5 of Deb Gharo and at some distance from him is the S. No. 5 where his sons Abdul Khaliq and Ali Ahmed were cutting the flowers of paddy. That the P. Ws. Nek Muhammad and Haji Khan Muhammad were standing at the entrance of the house of Nek Muhammad near his land at that time and were chit chatting. He has also stated in his F. I. R. that at that time they saw the appellants Muhammad, Yousaf and Ismail, who were ambushing themselves in his paddy crop, got up. They had guns in their hands and they challenged his son Abdul Khaliq and all the three fired gunshots one each to Abdul Khaliq, who on receiving gun‑shot fires raised cry and fell down. That his younger son Ali Ahmed, due to fear, ran to him. That he raised cries. That in the mean time, the other companions of the appellants namely the co‑accused Ali Hassan and Ibrahim came from the cultivation of Nasir Khan Leghari near his land on the southern side. That they also had guns in their hands and they instigated the appellants Muhammad, Yousaf and Ismail to fire gunshots again at Abdul Khaliq. That on the gunshot fire reports and on his cries Haji Duro son of Yousuf Arain, Ali Gohar son of Haji Khan Muhammad Leghari, Ali Sher son of Nasir Khan Leghari and others, who were‑standing near by, came running and witnessed the incident. That thereafter, all the three appellants as well as co‑accused ran away towards their houses on southern side. Then he and the other witnesses went to Abdul Khaliq and found him lying in the cultivation and flowers of paddy cut by him and his sickle also was lying there. That Abdul Khaliq was alive and was breathing last and was unable to speak. That he had pellet injuries on his right arm hypochondrium, back of the chest and waist and was bleeding from the injuries. Since there was little water and mud in the paddy crop, the complainant party removed the injured Abdul Khaliq and placed him on a cot at the border of the survey number, where he succumbed to his injuries within no time. That there was hand of Gazi Khan son of Balo Khan Leghari in instigating the appel lants against the complainant party. He then left the P. Ws. on the vardat at the guard of the dead body and himself came to P. S. K. N. Shah, where be lodged his F. I. R.

The S. H. O. Ali Muhammad of P. S. K. N. Shah recorded his F. I. R. Exh. 8. He then repaired to the vardat and visited vardat in presence of the mashirs Ghulam Rasool and Nasir Khan, shown to them by the complainant Haji Gahi, situated if S. No. 5 in Deh Gharo, which was cultivated with paddy crop. He saw the dead body of the deceased Abdul Khaliq lying on the vardat, on a cot on the border of the survey number, who had firearm injuries and was bleeding from the injuries. Then he saw the place, where the deceased Abdul Khaliq had received the injured, where he saw blood lying there. He secured the blood‑stained mud and some blood‑stained pieces of paddy crop and sealed them. He also saw sickle and cut flowers of paddy lying there, which he secured. He also saw three empties lying at some distance from the western side of the place of vardat, in the same survey number. He secured the empties and prepared such mashirnama of vardat Exh. 22. He prepared the inquest report Exh. 23 also in presence of the same mashirs and despatched the dead body of the deceased Abdul Khaliq through H. C. Muhammad Ayub to the M. O. K. N. Shah. He recorded 161, Cr. P. C. statements of the P. Ws. Ali Ahmed, Nek Muhammad, Ali Gohar, Ali Sher and Haji Duro. The H. C. Muhammad Ayub on return from the hospital, produced before him the blood‑stained loin‑cloth and a ring of silver of the deceased, which he secured in presence of the same mashirs and prepared such mashirnama Exh. 26. On 25th October, 1980 he arrested the appellants Yousaf, Ismail and Ali Hassan from their village, in presence of the same mashirs and prepared such mashirnama Exh. 24 of their arrest. On 8th November, 1980 he produced the P. Ws. Ali Ahmed, Nek Muhammad, Khan Muhammad and Ali Gohar before the Mukhtiarkar and F. C. M. K. N. Shah for recording their 164, Cr. P. C. statements. On 9th November, 1980 he submitted interim challan of the appellant Yousaf Ai, Hassan and Ismail in the Court of Civil Judge and F. C. M. K. N. Shah, showing the appellant Muhammad and Ibrahim as absconders. On 24th January, 1981 he arrested the appellant Muhammad in presence of the mashirs A. S. I. Hussain Bux and H. C. Ali Mardan and prepared such mashir nama Exh. 27 of his arrest. On 2nd January, 1981 he challaned the appellants Muhammad with supplementary challan in the Court of Civil Judge and F. C. M. K. N. Shah.

Dr. Allah Warrayo Exh. 13 bad conducted the post‑mortem exami. nation of the dead body of the deceased.

The learned Civil Judge and F. C, M. K. N. Shah sent up the case to the Court of Sessions, for trial as contemplated under section 190 (3), Cr. P. C.

The learned trial Court, had framed the charge against the appellants vide Exh. 2 and has recorded their plea vide Exh. 3. The prosecution had examined the complainant Haji Gahi Exh. 7 and the P. Ws. Ali Ahmed, Nek Muhammad. Dr. Allah Warrayo, Ali Sher, Tapedar Muhammad Idris, Muhammad Ayub, Nek Muhammad, S. H. O. Ali Muhammad and Muhammad Soomar. The A. P. P. has given up the P. Ws. Haji Khan Muhammad and Ali Gohar and had closed the prosecution side. The statements of the appellants Yousaf, Ismail, Ali Hassan, Muhammad and Ibrahim had been recorded as Exhs. 32 to 36, in which they had denied all the allegations and have on the contrary, alleged that the P. Ws. have deposed against them due to enmity, but they have led no defence, vide their statement Exh. 37.

The learned trial Court taking into consideration the evidence adduced before it, while acquitted co‑accused Ali Muhammad and Ibrahim, convicted and sentenced the appellants above named, as hereinbefore mentioned and consequently the appellants have filed the above appeal, on the grounds mentioned in the memo of appeal.

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

(a) That all prosecution witnesses are closely related and on account of admitted enmity between the parties, on reliance can be placed on their statements without independent corroboration, which is not at all available in the present case.

(b) That no recoveries were made from the appellants, but the pro secution for purposes of corroboration has relied upon medical evidence. However, medical evidence in question in the present case does not corroborate the prosecution witnesses, as according to the Doctor the injuries on the body of the deceased were as a result of one shot, whereas P. Ws. in their 164, Cr. P. C. statements had clearly stated, that three appellants had fired shots at the deceased, which bit the deceased. However, before the learned trial Court the prosecution witnesses tried to change their statements in order to bring them in line with the medical evidence and as such no reliance can be placed on the statements of the prosecution witnesses at all.

(c) That co‑accused Ali Hassan and Ibrahim were acquitted on the same evidence and as such convictions of the present appellants cannot be maintained.

(d) That P. Ws. tried to involve innocent persons according to the learned trial Court and as such they were acquitted and conse quently no reliance can be placed on the statements of such P. Ws. without independent corroboration. In support of this contention the learned Advocate for the appellants relied upon cases reported in 1982 S C M R 162 and 1049 and 1975 P Cr. L J 206.

(e) That the complainant against whom the motive is alleged was present at the time of incident, according to prosecution, but the appellants caused no harm to the complainant at all and as such no reliance can be placed on the statements of the prosecution witnesses, in view of the law laid down by Hon'ble Supreme Court in case reported in 1979 S C M R 557.

The learned Advocate appearing for the State at the outset submitted, that he was not supporting the impugned judgment, in view of the grounds urged by the learned Advocate for the appellants, as there is a blood feud between the parties and consequently the statements of the prosecution witnesses required independent corroboration, but the same is not at all available in the present case and the reliance for such corroboration made by the learned trial Court on the medical evidence was not justified, as the said medical evidence is contrary to the statements of P. Ws. Recorded under section 164, Cr. P. C. as well as their statements recorded before the learned trial Court.

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

It is admitted position, that all eye‑witnesses are closely related to deceased and there exists blood feud between the complainant's side and appellant's side, as a result of which at least two murders had taken place, and some other criminal proceedings are pending between the parties. In view of this, I agree with the contention of the learned Advocate for appellants and State counsel, that statements of P. Ws. require independent corroboration, in present case.

Learned trial Court for purposes of said corroboration has relied upon the medical evidence on record. I have carefully gone through the statement of P. W. 4 Dr. Allah Warayo, who has clearly stated before the learned trial Court, that injuries on person of the deceased were due to one shot only, whereas P. Ws. have attributed one shot each, to present appellants, which shots according to these P. Ws. hit the deceased. In their statements under section 164, Cr. P. C. they also attributed fire‑arm shots to acquitted two accused persons. In view of this, I fail to understand, how learned trial Court came to conclusion, that medical evidence has corroborated ocular evidence of P. Ws. The reliance of the learned trial Court on motive, as corroborative piece of evidence, is also contrary to law laid down by D. B. of this Court in case reported in P L D 1981 Kar. 1 and 1981 S C M R 132. 1n view of this factual position, I find no independent corroborative evidence on record to support the statements of P. Ws. who admittedly have strong enmity with the appellants, on account of two previous murders, in which close relations of complainant have been challaned and were facing trials. Therefore, prosecution has failed to establish its case beyond reasonable doubt, in my opinion cases cited by the learned Advocate for appellants fully support his contentions, raised before me.

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

M. Y. H. Appeal allowed.

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