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Criminal Appeal No.242 of 1977, decided on 20th February, 1983.

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---S. 307-- Attempt to murder-- Not a single prosecution witness support ing prosecution case against accused except two witnesses against whom accused alleged enmity and who could not be independently corroborated- Prosecution, held, failed to establish case against accused beyond reason able doubt-- Conviction and sentence set aside.

Ghulam Ali Agha for Appellant.

G. R. Warsi for the State.

Date of hearing: 17th February, 1983.

Appellate abovenamed, being aggrieved by judgment dated 12-10-1977 of the learned Second Additional Sessions Judge, Jacobabad, in Sessions Case No.324/76 by which appellant has been convicted under section 307, P.P.C. and sentenced to suffer R.I. for two years and to pay fine of Rs. 500 or in default of suffer further R.I. for six months, has referred the above appeal, on the following facts and grounds.

2. Briefly the facts of the prosecution case are, that on 26-7-1976 at 6.30 p.m. complainant Hamal lodged the F.I.R. at police station City, Jacobabad which reads as under:-

"I reside in Jafferabad and ply donkey cart to earn my liveli-hood. Today on 26-7-1976 at 6.30 p.m. I was standing on road with my relations Shah Murad and Ali Nawaz both sons of Muhammad Usman Talani in front of the dispensary of Dr. Lakhomal I had come to take medicine for Mir Gul son of my maternal-uncle. Muhammad Yusuf son of Ghulam Hyder Brohi resident of Muhammad Ali Brohi came there on motor cycle. On seeing me he stopped motor cycle, got down and declared "that I have lived a long and he would murder me. He aimed his revolver and fired but I avoided and failed down. In the meanwhile I saw a constable who caught of Muhammad Yusif. P.W. Shah Murad and Ali Nawaz also grappled accused. The constable who disclosed his name Asrar Ahmed Leshari of P.S. City immediately snatched the revolver from the accused. The complainant 4ongwith abovenamed witnesses brought the accused and the revolve to the police station and produced him before police and lodged the F. I. R. About 20 days before accused Muhammad Yousuf had fought with my "Masat" Muhammad Nawaz and such case was registered at P.S. Saddar. Because of previous incident the accused attempted to cause my murder by firing revolver shot at me."

D.S.P. Imtiaz Ahmad who was incharge S.H.O. P.S. City recorded the F.I.R. for the offences punishable under sections 307, 506 (2)/188, P.P.C. against the appellant. He arrested the appellant and secured the revolver alongwith its bandolier containing 4 live one empty bullet of .32 bore produced by P.S. Israr Ahmad. On personal search of the appellant, he secured one licence No,1.250 dated 2-6-1976 for the revolver in the name of appellant and a purse containing Rs.65, in presence of Mashirs Lai Bux and Muhammad Sharif under Mashirnama Exh. 7. He proceeded to the Vardat, which was shown by the complainiant and secured a 50 c.c. Honda Motor Cycle without number in presence of Mashirs Israr Ahmed s/o Wali Muhammad and Jaffer under Mashirnama Exh. 9. He then recorded the statements of P.W. Shah Murad, Ali Nawaz and P.C. Israr, Thereafter he handed over the papers to S.H.O. Siraj Ahmed on 7-8-1916, appellant was challaned in the Court of civil Judge 8 F.C.M., Jacobabad. Due to enforcement of law reforms the case came before the IInd Additional Sessions Judge, Jacobabad for trial of the appellant. After perusing on the relevant record the charge for the offences punishable under sections 307 and 188, P.P.C. was framed read over and explained to the appellant, who pleaded not guilty and intended to lead no defence.

3. The prosecution had examined P.W.1 complainant Hamal, P.W. 2 P. C. Israr Ahmed, P.W.3 Mashir Lai Bux, P.W.4 Mashir Israr, P.W.5 Shah Muhammad and P.W. 6 DSP Imtiaz Ahmed. The learned A.P.P. then closed his side vide statement Exh. 12.

4. The case of the appellant is of total denied of the prosecution allegations. He stated that P.C. Israr had taken out the revolver, bandolier bullets and the licence from the bag of property and produced him before police. He admitted that Rs.65 were secured from his personal search.

5. He has further stated, that no P.W. had deposed against him, except P.C. Israr Ahmed with whom he has enmity over matters of children and police has involved him in order to oblige P.C. Israr Ahmed. Appellant had not lead any defence.

6. The learned trial Court taking into consideration the evidence adduced it, convicted and sentenced the appellant abovenamed as herein before 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 as under:-

(a) That all P.Ws, except P.W. 2 did not support the prosecution case and were declared hostile.

(b) That even complainant in his statement before the learned trial Court stated, that appellant was not the same person, who fired.

8. The learned counsel for the appellant in view of above facts on record, submitted that the learned trial Court has come to conclusions, which not at all warranted by evidence on record and consequently impugned judgment cannot be sustained.

9. The learned Advocate appearing for the State at the outset submitted that he was not supporting the impugned judgment in view of the facts mentioned by learned Advocate for appellant, which are on record.

10. I have carefully gone through the R 8 P of the learned trial Court and through impugned judgment and taken into consideration the submis sions of the learned Advocates made before me.

11. It is admitted position, that not a single prosecution witness has supported prosecution case against appellant, except P.W. 2 Israr Ahmad and P.W. 6 Imtiaz Ahmed, on the basis of whose evidence learned trials Court has convicted the appellant.

12. Appellant has suggested enmity, against P.W. 2 Israr Ahmed, no doubt this was denied by said P.W. Keeping this in view and the fact that even complainant before learned trial Court stated, that appellant was not same Muhammad Yusuf, against whom he had lodged F.I.R. in question, it would be unsafe to rely on the sole testimony of P.W. 2 Israr Ahmed, without independent corroboration. The learned trial Court for this purpose has relied upon the statement of P.W. 6 Imtiaz Ahmed Dy. S.P., who had recorded F.I.R. and conducted the same inquiry and convicted the appellant. It may be noted, that recovery of scooter by P.W. 6 Imtiaz. Ahmed is not supported by Mashir P.W. 4 Israr, who was declared hostile. Evidence of P.W. 4 was not at all shaken in his cross examination. Even P.W. 2 Israr Ahmed has given no description of the scooter and/or that it had no number plate on it, in his statement before the learned trial Court and as such it would be unsafe to rely on the statement of P.W. 6 alone for allege recovery of such motor cycle, without corroboration, as P.W. 4 Mashir of the allege recovery has denied such recovery. In view of this, in my opinion statement of P.W.6 also required independent corroboration, which is not at all available in present case.

13. Keeping in view above facts on record and my observations about prosecution evidence, in my opinion prosecution has failed to establish its case against the appellant beyond reasonable doubt.

14. Therefore I allow the above appeal and set aside conviction of the appellant and sentences awarded to him by the learned trial Court and acquit him by giving him benefit of doubt and discharge the bail bonds executed by the appellant in above appeal.

M.Y.H. Appeal allowed.

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