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Criminal Appeal No. 130 of 1982, decided on 2nd May, 1983.

‑‑Ss. 302, 325 & 323/34‑Murder‑ All eye‑witnesses interested, related inter se and could not be relied without independent corroboration‑Injuries received by accused suppressed by complai nant and prosecution witnesses‑Material contradictions existing in statements of prosecution witnesses which inspired no confidence-- Motive given in first information report changed before trial Court by prosecution witnesses‑--Discrepancy existing between ocular and medical evidence regarding injuries on persons of deceased‑--Presence of prosecution witnesses becoming doubtful‑ Investigation prima facie not seeming above board--Difference of opinion existing regarding time and manner in which accused arrested as well as preparation of mashirnama in respect of articles seized from their possession‑‑Reliance could not be placed on such recoveries for purpose of corroboration‑Case of accused on all fours with that of co‑accused already acquitted‑Prosecution failing to establish case against accused‑Conviction and sentence set aside.

Muhammad Hayat Jaunejo for Appellants.

Nazir Alam for State.

Date of hearing: 27th April, 1983.

Appellants abovenamed, being aggrieved by judgment, dated 12th May, 1982 of the learned First Additional Sessions. Judge, Nawabshah, in Sessions Case No. 103/77, by which appellants have been convicted under sections 302, 325 and 323, P. P. C. read with section 34, P. P. C. and sentenced to suffer imprisonment for life, R. I. for 3 years and R. I. for six months respectively, in addition to compensation of Rs. 5,000 to be paid to the heirs of the deceased or in default to suffer further R. I. for 3 months, have preferred the above appeal, on the following facts and grounds.

Brief facts of the case as stated in F. I. R. No. 35 of 1977 Taluka Nawabshah registered on 8th September, 1977 lodged by complainant Haji Khuda Bux are as under:-

"Complaint is that Ghulam Hussain son of Nabi Bux, Ali Muhammad son of Nabi Bux, Ganwhar son of Punhoon, Sabhago alias Salik son Muhammad Malook and Hakim son of Muhammad Malook Khaskhelis are relations inter se and are resident of same village. About a month back a bullock of my nephew deceased Khair Muhammad was stolen for which Sabbago alias Saleh and Hakim were suspected and they returned him the bullock on the settlement of Nekmard. Because of the incident the said appellant nursed grudge and they told that they would see. Hakim and Sabhago are bad characters and they bring different bad characters and criminal stranger and take them to walk in front of our houses. We have many times restrained them that they have been taking with them stranger criminal for walking around our houses for which many times altercations bad taken place, but they did not improve. To day at about sunset time as usual Sabhago alias Saleh and Hakim brought alongwith them 2, 3 criminal and after taking them round in front of the houses brought them in the otak and started making noise. My nephew deceased Khair Muhammad went and called them and told them that they were not ashamed that they have not yet improved. On saying so Ghulam Hussain abused and instigated Ali Muhammad, Ganwhar, Sabhago alias Saleh and Hakim, who were sitting in the otak and told them to catch them and not to spare them, when Ali Muhammad and Ganwhar were armed with hatchet and other were armed with lathis at that time. On investigation, Ali Muhammad and Ganwhar gave hatchet blows from its sharp side to Khar Muhammad, who after raising cries fell down I entreated them as to why innocent person was being killed by them, on which Ghulam Hussain gave me lathi blow on my right thumb and on my cries Amir Bux and Muhammad Bux came there. They were also fell down on receiving lathi blows from Hakim, Sabhago and Ghulam Hussain. On our cries, Sawai Khaskheli, and Amir Bux Brohi also came there, and then appellant after leaving us went away alongwith their weapons towards their houses. Then we saw that my nephew Khair Muhammad was having injuries with hatchets on his head and on his other parts of body and was profusely bleeding and was unconscious. He breathed his lost when on the way, when we were bringing him to Police Station for report. I complaint that the appellants due to aboved said grudge have murdered my nephew Khair Muhammad with hatchet injuries and rest Amir Bux, Loung, Muhammad Bux and myself have been given blows and made injured."

On the date of incident i.e. on 8th April, 1977 P, W. 6 Ghulam Hussain was the S. H. O. P. S. Taluka Nawabshah. He registered the F. 1. R. Exh. 9 of the complainant Haji Khuda Bux P. W. 1 (Exh. 8). He inspected the dead body of deceased Khair Muhammad and prepared such mahsirnama Exh. 14, in presence of mashirs Moula Bux and Ghakar and held inquest on the dead body of Khair Muhammad and prepared such report Exh. 15 and prepared memo. Exh. 16 of the injuries on the person of Khuda Bux and Loung. Thereafter he recorded the statements of P. Ws. Amir Bux, Moula Bux, Sawai and Loung at the Police Station, Thereafter he referred the injured P. Ws. Loung and Khuda Bux to Medical Officer for certificate and treatment. He also sent the dead body of deceased Khair Muhammad, through P. C. Muhammad Shah to the Civil Hospital Nawabshah for post‑mortem examination and report. In the meanwhile appellant Ghulam Hussain voluntarily appeared at the Police Station and he lodged report which was registered Exh. 25 and he was arrested in presence of mashirs Moula Bux and Ghakar and such memo of arrest. Exh. 17 was prepared. At the time of arrest appellant Ghulam Hussain was having blood‑stained shirt on his person which was secured and sealed in presence of same mashirs. Appellant Ghulam Hussain bad also injuries on his person, hence appellant Ghulam Hussain and complainant Khuda Bux were taken by him to the Civil Hospital Nawabshah. They were treated as outdoor patient. Thereafter be proceeded to the place of vardat, where injured Amir Bux and Muhammad Bux were lying on separate cots and there was blood also at the vardat which was secured and sealed and memo of vardat Exh. 18 was prepared. Amir Bux was unconscious and Muhammad Bux was in senses. He recorded statement of P. W. Muhammad Bux and referred Amir Bux to Civil Hospital. He suspended further investigation because being late hours of the night and stayed at the vardat and on the following day appellant Ali Muhammad Ghanwar, Sabhago, alias Saleh and Hakim appeared before him, who were arrested in presence of same mashirs Moula Bux and Ghakar and such memo of arrest was prepared as Exh. 19. Thereafter, appellant Ghulam Hussain, who was with him in custody volunteered to produce lathi Article 5 and led him and mashirs to his house from where he produced one blood‑stained lathi lying by the side of wall in the room, which was of landhi style. The lathi was secured and sealed and memo. Exh. 24 was prepared in presence of mashirs. Appellant Ali Muhammad also volunteered to produce blood‑stained hatchet Article 1, used by him in the commission of offence and also produced blood‑stained Banyan which were secured and sealed in presence of the same mashirs and such memo. Exh. 20 was prepared. Appellant Ghanwar also volunteered to produce blood‑stained hatchet Article No. 2 and blood‑stained shirt which were secured and sealed in presence of same mashirs and such memo was prepared as Exh. 21. Appellant Hakim also volunteered to produce blood stained lathi Article 3 and loin‑cloth which were blood‑stained and the same were secured and sealed and such memo Exh. 22 was prepared in presence of same mashirs. Appellant Sabhago also volunteered to produce blood‑stained lathi Article 4 and blood‑stained shirt and shalwar which were secured and sealed and such memo. Exh. 22 was prepared in presence of same mashirs. He thereafter, returned to the Police Station and then went to the Civil Hospital Nawabshah, where he was informed, that injured Amir Bux was not still in a position to make statement. On 18th April, 1977 he was informed, that Amir Bux had expired in the hospital. He went to the hospital and inspected the dead body of Amir Bux in presence of mashirs Moula Bux and Chakar Khan and prepared such memo. Exh. 25. He also held inquest on the dead body of the deceased and prepared such report as Exh. 26. On 23rd April, 1977 he got the statements of Maula Bux, Loung, Sawai and Muhammad recorded under section 164, Cr. P. C. He sent the dead body of Amir Bux for post‑mortem examination. He also sent the blood‑stained Articles secured by him during investigation to Chemical Analyser, who sent his report Exh. 29 wherein he opined that Articles I to 5 mentioned in Exh. 29 were stained with human blood, which blood was not detected in Articles Nos. 12 and 13. After completion of usual investigation the S. H. O. challaned the appel lants before the concerned Court.

Appellants claimed innocence and denied the charge. The appellants have been examined under section 342, Cr. P. C. wherein they have denied to have committed the murder of Khair Muhammad and Amir Bux and having caused injuries to P. Ws. and they stated, that they have been falsely implicated in the case. Appellant Ghulam Hussain stated, that on the day of incident some guests had come in Otaq and when he heard cries coming from the otaq. At that time he was busy in his house for getting meals prepared for them. He went there and found complainant party attacking their guests and they also retaliated in self‑defence and he also intervened to separate them, when he also received some injuries. He then left for Police Station to give information, where S. H. O. took his thumb mark without reading over and he was detained. He states that Jan Muhammad was enimical to them and the complainant party was also not on good terms with them.

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

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

(a) That all P. Ws. are interested and in view of the enmity between the parties, their statements required independent corroboration, which is not at all available in the present case.

(b) That the motive given in the F. I. R. was changed and as such on this ground also the statement of the prosecution witneses re quired independent corroboration.

(c) That on account of the counter F. I. R. lodged by appellant Ghulam Hussain, there are two versions of the incident in ques tion on record and the prosecution suppressed injuries on the person of appellant Ghulam Hussain and as such no reliance can be placed on the F. I. R. lodged by the complainant.

(d) That there are discrepancies between ocular and medical evidence regarding injuries on the person of deceased Khair Muhammad and Amir Bux and as such no reliance can be placed on the state ments of the prosecution witnesses, without independent corroboration.

(e) That the statement of prosecution witnesses under section 161, Cr. P. C. according to them were recorded after 4 or 5 days, but the I. O. says on the same day and as such prima facie investiga tion seems to be dishonest.

(f) That according to complainant the F. I. R. in question was recorded at 11 p. m. after the start of the investigation. However, the I. O. stated, that the same was recorded immediately. This also goes to prove, that the investigation was not honest.

(g) That there are contradictions in the statements of the prosecution witnesses regarding time and the manner in which appellants were arrested and regarding preparation of mashirnama in respect of article ceased at the alleged pointation and/or production by the appellants. According to I. O. the mashirnamas were made on the spot, whereas according to mashir, mashirnamas were pre pared at the Police Station. In addition to this the mashir in question is not the resident of the locality and consequently no reliance can be placed on such recovery at all.

In support of the above contentions the learned Advocate for the appellants relied upon case reported in 1982 S C M R 1049.

The learned Advocate appearing for the State on the other hand submitted, that the statement of the prosecution witnesses have been fully corroborated by the recoveries in question and as such prosecution has established its case beyond reasonable doubt against all the appellants. However, the learned Advocate for the State submitted that the offence committed by the appellants would fall under section 304 (I), P. P. C. and not under section 302, P. P. C.

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

All eye‑witnesses are interested and related inter se and in view o the enmity between the parties as mentioned in the F. I. R. and the statements of the prosecution witnesses, it would be unsafe to rely on their statements without independent corroboration, specially in view of the counter F. I. R. lodged by appellant Ghulam Hussain and in view of the fact, that the appellant Ghulam Hussain had injuries on his person, which were suppressed by the complainant as well as prosecution witnesses. I support of this contentions, the learned Advocate for the appellants relied upon cases reported in P L D 1980 Kar. 1 and P L D 1973 S C 231, which in my opinion are fully applicable to the present case.

I also find material contradictions in the statements of P. Ws. inter se. The complainant in his cross‑examination before the learned trial Court stated, that thieves, who were sitting in the Otaq alongwith appellants were armed with hatchets and lathis, and when he called them thieves, they got up and attacked them. This is a contradiction of the version as given by him in the F. I. R. in which he has attributed the attack to the appel lants. In addition to this the motive given in the F. I. R. was also changed by him in his statement before the learned trial Court and on this ground also the statements of the prosecution witnesses required independent corroboration. I also find discrepancy between the ocular and medical evidence regarding injuries on the persons of two deceased and on this ground, the presence of the prosecution witnesses becomes doubtful and consequently their statements requires independent corroboration. The prosecution witnesses in their statements before the learned trial Court submitted, that their 161, Cr. P. C. statements we recorded 4 or 5 days after the incident, whereas according to the I. O, such statement were recorded on the same day, and therefore, prima facie Investigation does not seem over board. According to the complainant, F. I. R. was recorded at 11‑00 p. m. whereas according to the I. O. the F. I. R. was recorded forthwith, before he took up the investigation I also find discrepancies in the statements of the prosecution witnesses regarding the C time and manner in which the appellants were arrested as well as regarding preparation of mashirnamas in respect of the article seized from the possession of the appellants. According to the I. O. mashirnamas were prepared on the site, whereas according to the mashir, the said mashir namas were prepared at the Police Station. In view of this no reliance can be placed on such recoveries for purposes of corroboration, merely on the basis of the statement of I. O. as in my opinion, the investigation does not seem to be over board. Keeping in view all these observations made by me, in my opinion, prosecution has failed to establish its case beyond reasonable doubt. It may be noted if these recoveries are discarded the case of the present appellants will be on all fours with that of the acquitted accused Hakim.

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

M. Y. H. Appeal allowed.

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