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Criminal Appeal No.18 of 1977, decided on 28th November, 1982.

---S.307-- Attempt to murder-- Eye-witnesses closely related and belonging to complainant's side and inimical 'towards accused-- Prosecution story not appearing- believable and prosecution witnesses inspiring no confi dence-- Independent Mashir not taken at time of alleged production of blood-stained knife from house of accused-- Knife not sent to Chemical Examiner and no explanation given therefor by Investigating Officer- Prosecution, held, failed to establish case against accused beyond reasonable doubt-- Conviction and sentence set aside.

P L D 1981 Kar. t rel.

Abdul Fateh Muhammad for Appellant.

Rashid Tariq for Respondent.

Date of hearing: 23rd November, 1982.

The appellant abovenamed, being aggrieved by judgment dated 16-12-1976 of the learned Sessions Judge, Hyderabad, in Sessions Case No.2070/76" by which appellant has been convicted under section 307, P.P.C. and sentenced to suffer R.I. 3 years' and to pay fine of Rs.300 or in default to suffer further. R.I. for 6 months, has preferred the above appeal, on the following facts and grounds:-

2. The facts of the prosecution case, in brief, are as follows:-

3. The incident is said to have occurred on 17th February, 1976 at about 4 p.m. in a lane of Shah Muhammad Dahri, about 11/2 miles' away from Police Station Hala, District Hyderabad. The appellant and injured Rabdino (PW.2) are co-villagers and related to each other inasmuch as the injured is married to Mst. Bachul sister of the appellant. The report of the incident was lodged by complainant Lookman (P.W. 1) on the same day at about 5 p.m. at Police Station, Hala, which was recorded by Police Head Constable Muhammad Ayoob (P.W. 6), the then incharge of Hala Police Station at the relevant time. The circumstance under which the incident is said to have occurred has been related by complainant Lookman, in the following terms:-

"Rabdino son of Muhammad Umar Dahri is my cousin, and we both reside in the same house. About 10 years ago, Rabdino gave his sister Mst. Zeenath in marriage to Juman son 'of Amir Bux Dahri, and in exchange Juman gave his daughter Mst. Bachul in marriage to Rabdino. Rabdino has got two sons and two daughters from the wedlock with Mst. Bachul. Eldest son of Rabdino is aged about 6 years. About 2 months ago, Mst. Bachul, wife of Rabdino, on account of domestic quarrel left the house of Rabdino and went to reside with her brother Juman and Kamil (appellant). She took her children also with herself. At about 3 p.m. while I, Rabdino (injured) and Guldin were sitting in our house, there came eldest son of Rabdino, by name Dawti and informed him that his young sister Wahidini was seriously lying ill and asked him (Rabdino) to see her. I here upon Rabdino accompanied his son, Dawti to the house of Juman and Kamil (appellant) who are his brother-in-law. There after I and Guldin at about 4 p.m. left the house and we met Nawab and Mehar, and while we were talking to each other in front of the house of Nawab Dahri. Rabdino (injured) came from the side of the house of Juman and Kamil and met us. I made enquiries from Rabdino about the health of his daughter, who replied that her condition was serious. In the meanwhile, Kamil Dahri (appellant), brother-in-law of Rabdino was seen running towards us carrying a Khanjar (dagger) with black handle. Immediately, on his arrival addressed Rabdino and asked him as to why he had visited their house and that he (appellant) would not spare him and would kill him on the spot. Immediately after saying this, appellant struck a blow with Khanjar (dagger) to Rabdino at his left shoulder and appellant also gave him blow on the shoulder in the back. The appellant attempted to strike-another blow at the neck of Rabdino, but Rabdino raised his left arm and consequently the blow fell on his shoulder, Rabdino on account of receipt of injury raised cries and fell down. We advanced to capture Kamil (appellant), but Kamil, raising shouts at us, threatened us not to advance towards him. We on account of appellant being armed with dagger-- did not to near him and Kamil ran away taking the dagger with himself towards his house. In the meanwhile, Wadero Photo Dahri and other people of the village, came running. Rabdino was lying unconscious and was bleeding from his injuries. We then removed Rabdino in unconscious condition on a cot and report is lodged. Kamil son of Amir Bux has caused injuries with a dagger to Rabdino with intent to murder him."

4. P.W. Muhammad Ayub Exh. 16 was working as police head constable incharge Police Station Hala at the relevant time. According to him the injured was brought to the police station at 4 p.m, by the complainant and the other persons on a cot. As his condition was serious he prepared his injury statement before Mashir Muhammad Luqman and Nawab. The injury statement is produced as Exh. 8 Thereafter, he sent the injured to medical officer, Saeedabac with letter through police constable Chulam Hussain as the Medical Officer Hala was out of Headquarter on that day. After having done this, he recorded Vie F.I.R. Exh. 4 of the complainant at 5.00 p.m. soon thereafter he proceeded to the scene of offence alongwith his staff. According to him, the scene of offence was situated in a lane passing, by the house of Nawab in village Shah Muhammad Dahri. Muhammad Usman and Nooruddin acted as Mashirs. He inspected the scene of offence on the pointation of complainant Luqman. According to him, there was blood on the ground and he secured blood-stained earth in his possession packed and sealed it, under Mashirnarna Exh. 13. It is further shown, that while Investigating Officer Muhammad. Ayub was at the Vardat, he received information, that the appellant was available the nearby Bus stand and therefore he proceeded there accompanied by Mashirs Usman and Nooruddin He arrested the appellant at the bus stand in present of the aforesaid Mashirs, under Mashirnama Ex.14. During the interrogation the appellant is said to have volunteered in presence of the abovenamed Mashirs to produce the dagger the offending weapon. He led to Investigation Officer and the Mashirs to his house. The house was under construction. It is said, that the appellant dug into the heap of bricks lying in a corner of the house and took out a knife, which had blood-stained. The Investigation Officer secured the knife in his posses sion, packed and sealed it, under Mashirnama Exh.16. Then he recorded statement of Mehar, Photo and Guldin. He then brought the appellant and the property to the police station. There he lodged the F.I.R. under section 13-D, Arms Ordinance, against the appellant in respect of the knife which, according to the Investigation Officer, was of prohibited size. On 18-2-1976, he visited L.M.C. Hospital, Hyderabad for recording statement of Rabdino as he had been referred by the medical officer, Shaheedabad, for advance treatment. He consulted the incharge surgeon, at L.M.C. ,Hospital Hyderabad, but injured Rabdino, as to whether he was able to give his statement. The Incharge Surgeon permitted the investigating officer. On advise the surgeon incharge, the Investigation Officer recorded the statement of Rabdino at L.M.C. Hospital, Hyderabad. Thereafter Head Constable Muhammad Ayub produced the case papers on 24-2-1976 before the S.H.0 Hala and then the appellant was challaned.

5. Plea of the appellant was of total denial and according to him he has been falsely implicated by the complainant party, who have a dispute with him over matrimonial affairs. He has denied to have caused any injury or produces blood-stained knife before the police. According to him the eye-witnesses are interested and hostile to him.

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

7. The learned Advocate for the appellant in support of the above appeal submitted, that all P.Ws. were closely related and inimical to the appellant, on account of matrimonidl disputes and as such their statements required independent corroboration. The learned Advocate for the appellant submitted, that learned trial Court relied upon allege production of knife by the appellant, although the P.W. 5 Usman, Mashir of the said production is cousin of P.W. Rabdino complainant and not independent Mashir, although independent Mashirs were easily available in the village. The learned counsel further submitted, that knife in question was not sent to chemical examiner and as such even if the allege recovery of knife is believed, but still the same cannot be used as corroborative piece of evidence.

8. The learned Advocate for the State at the outset submitted, that he was not supporting the impugned judgment as all P.Ws. including Mashir of production of knife by appellant are closely related to complainant P.W. Rabdino and there is admitted enmity between complainant side and appellant over matrimonial dispute. The learned counsel further submitted, that knife in question was not sent to Chemical Examiner and as such its alleged recovery is of no consequence at all.

9. I have carefully considered the above submissions of the learned Advocates before me and have gone through R 8 P of the learned trial Court and impugned judgment.

10. P.W. 1 Luqman (complainant), P.W.2 Rabdino (injured) and P.W.3 Nawab, three eye-witnesses of the incident are closely related and belong to complainants side in dispute with appellant, which is obvious from their statements given before the learned trial Court. Appellant in his statement under section 342, Cr.P.C. has alleged enmity with complainant art over admitted matrimonial dispute. It may be noted, that according to prosecution case P.W. Rabdino had gone into the house of appellantl Kamil, but Kamil did not attack him there and followed him and then attacked him in the lane. This prosecution story seems to be unbelievable. Why should appellant give injuries in lane, after P.W. Rabdino left his house in his presence. P.W. Luqman and P.W. Rabdino have stated, that appellant came from his house, whereas P.W. Nawab stated before the learned trial Court, that he came from Northern directions and not from A his house. In view of these facts, statements of these P.Ws. do not inspire confidence. In addition to this, all the eye-witnesses are inter-related and inimical to, appellant according to appellants statements under section 342, Cr.P.C. as they belong to complainant side. The house of appellant is situated in village having number of houses, but in spite of this no independent Mashir was taken at the time of allege production of blood-stained knife by the appellant from his house. Even the knife in question was not sent to Chemical Examiner, for which no explanation has been given by 1.0. All these facts and circumstances create reasonable doubt in the prosecution case against the appellant. Enmity between P.W.I Rabdino and appellant over matrimonial dispute is borne out from the statements of P.Ws. In addition to this D.W. Abdul Majid has supported the statement of appellant under section 342, Cr.P.C. and in my opinion no cogent reasons are given by the learned trial Court in rejecting his evidence. Keeping in view all these facts on record, in my opinion state ments of three eye-witnesses required independent corroboration, which is not at all available in present case, as knife allegedly recovered at the pointation of appellant, though it is alleged, that it was blood-stained it was not sent for chemical examination and Mashir of the said allege recovery is also closely related to complainant side and no attempt was made by 1.0. to get independent mashir from village. In my view, prose cution has failed to establish its case beyond reasonable doubt against the appellant, in view of the law laid down by D.B. of this Court, reported in P L D 1981 Kay. 1.

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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