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Criminal Appeal No.183 of 1979, decided on 27th February, 1983.

---S.302/307/34--Murder--Prosecution witnesses related to deceased, admitting enmity with accused and their statement not corroborated independently--Many people coming to place of incident soon after occurrence but prosecution witnesses not disclosing names of assailants to them apparently for reasons that prosecution witnesses wanted to consult each other in order to implicate accused--Recoveries discarded on account of contradictions in statement of Mashir and Investigating Officer Motive not taken as corroborative piece of evidence--Material contradictions existing between eye-witnesses about manner in which incident took place--Non-recovery of empties from place of Vardat creating doubts in statements of prosecution witnesses--Possibility of false implication of accused not ruled out due to admitted enmity between parties Conviction and sentence set aside.

P L D 1981 Kar. 1; P L D 1958 S C 242; P L D 1964 Kar. 356; 1973 S C 1A R 321; P L D 1978 Kar. 710; 1969 P Cr. L J 1168; P L D 1977 SC 557;P L D 1962 S C 269; P L D 1958 S C 242; P L D 1964 Kar. 356; P L D 1978 Kar. 710; 1969 P Cr. L J 1168; P L D 1977 S C 557; P L D 1962 S C 269 and P L D 1970 S C 13 and P L D 1970 S C 274 ref.

Mahmood Hayat Junejo for Appellant.

Date of hearing: 20th February, 1983.

Appellants abovenamed, being aggrieved by judgment, dated 24th May, 1979 of the learner Incharge Sessions Judge, Shikarpur, in Sessions Case No.543/75, by which appellants have been convicted under sections 302 and 307 read with section 34, P.P.C. and appellant No.2 has been sentenced to imprisonment for life and a fine of Rs.1,000 or in default to suffer further R.1. for one year and appellant No.1 has been sentenced to suffer R.I. for 10 years and fine of Rs.1,000 or in default to suffer further R.I. for one year and both appellants have been sentenced to suffer R.I. for 7 years and a fine of Rs. 1,000 each or in default to suffer further R.I. for one year each, respectively, have preferred the above appeal, on the following facts and grounds:-

The facts of the case are these:-

'Yakoob son of Soomer Wadhyo, resident of Garhi Yasin reported at Police Station, Dakhan, that on the morning of the incident, at about breakfast time, he was sitting in his house. His son Moula Bux, Mumtaz and his nephew Shahan went to attend the hearing in the Court of Civil Judge and F.C.M., Garhi Yasin. Shortly, after some time Mumtaz came running and informed him, that he was going with Moula Bux and Shah Muhammad to the Court and when they reached near tail of Muggal Shakh, Allahdino and Ali Hyder Wadhyos came from jungle. Ali Hyder fired at Haji Shah Muhammad, which hit him on his right leg and right ear. Appellant Allah Dino fired at Moula Bux twice, which hit him on his left side of the rib and the leg. When they fell down, he rushed to inform him about the murder. Thereafter, Yakoob and Muhammad went to Vardat and found, that Moula Bux, who was still alive, told them, that Allahdino, Ali Hyder and third person, whose name he did not identify came from jungle and fired at them. Haji Shah Muhammad also narrated the same incident to them. Thereafter, they brought the injured but Moula Bux died on the way."

This investigation was conducted by Mr. Pir Bux. He was Assistant Sub-Inspector, Dakhan. Complainant Yakoob lodged report which he recorded as Exh.7. Then he proceeded to Vardat. It was at Mungar Wah on bullock cart track. He secured the blood-stained earth, sealed in the presence of Muhammad Ayub and Allah Warayo. He also found, the wheel marks, visible on the road Exh.22. On the same day, he examined Mumtaz. On 3rd January, 1975, he examined Haji Shahan. On 4th January, 1975 he arrested appellant Ali Hyder and Allahdino. They were carrying the unlicenced guns. He brought them at police station and registered the case. He has also admitted, that he did not find any empty cartridge on Vardat. So, no gun was sent to the expert.

On 4th January, 1975, A.S.I. Pir Bux had gone in the investigation in Crime No.3 of 1975, in connection with the murder of Moula Bux. While on the way, near Jannah Shakh, he saw two persons with the guns and cartridges and they were Ali Hyder and Allahdino. He secured single barrel gun and two cartridges from one appellant and secured .12 bore gun and two cartridges from others.

On the evidence, concluded in Sessions trial, appellants were examined. They denied murder and assault on Shah Muhammad and also denied recovery of guns. Their case was that the witnesses are giving false evidence due to matrimonial differences.

The learned trial Court taking into consideration the evidence adduced before it convicted and sentenced the appellants abovenamed hereinbefore mentioned and consequently appellants have filed the above appeal, on the grounds mentioned in the memo of appeal. The learned Advocate for the appellants in support of the above appeal submitted as under:-

(a) That all P.Ws. (alleged eye-witness) are interested witnesses. P.W. Mumtaz (brother of deceased) and P.W.3 Shah Nawaz (injured and nephew of complainant did not support the prosecution case. Only P.W.1 Muhammad Yakoob (complainant) has supported the prosecution case, against whom appellants have alleged enmity over matrimonial affairs. Even complainant has admitted enmity in F.I.R. and as such statement of P.W.1 Muhammad Yakoob requires independent corroboration, which is not at all available in present case.

(b) That reliance placed on motive as piece of corroboration by learned trial Court is misconceived, in view of law laid down by D.B. of this Court, in case reported in P L D 1981 Kar.1.

(c) That learned L.C. did not rely on alleged recovery but considered the statement of P.W.8 Pir Bux (I.O.) as Corroborative statement to the statement of P.W.1 Muhammad Yakoob and on said basis convicted the appellants. Statement of 1.0 in view of the facts and circumstances of the present case ought not to have been relied upon as corroborative piece of evidence, as Mashirs of the recovery have not supported 1.0. and as such it will be unsafe to rely on his statement for purposes of corroboration of the statement of P.W. Muhammad Yakoob.

(d) Dye declaration of the deceased which is oral and is alleged to have been proved by P.Ws., whose statements required corrobora tion, cannot be taken into consideration. In support of this contention the learned Advocate for the appellants relied upon cases reported in P L D 1958 S C 242, P L D 1964 Kar. 356, 1973 S C M R 321 and P L D 1978 Kar. 710.

The learned Advocate for the State on the other hand submitted, that he was fully supporting the impugned judgment on the basis of statement of P.W.1 and 1.0. In support of this contention, the learned Advocate for the State relied upon cases reported in 1969 P Cr. L J 1168, P L D 1977 S C 557 and P L D 1962 S C 269.

I have carefully considered the above submissions made by the learned Advocates before me and have gone through R 8 P of the learned trial Court as well as impunged judgment and cases cited by the learned Advocates before me.

Prosecution case rests upon statement of P.W.2 Mumtaz and P.W.3 Shah Nawaz alleged eye-witnesses and on corroborative evidence of P.W.1 Muhammad Yakoob and alleged oral dying declaration of deceased.

P.W.2 Mumtaz has fully supported the prosecution case. However, in his cross-examination, he has admitted enmity with appellants, 'but in spite of this appellants did not fire at him nor gave him any threats. He further stated that used cartridge was handed over to police at Vardat. Since he has admitted enmity, his statement requires independent corroboration, as he is also brother of deceased.

P.W.3 Shah Nawaz is injured P.W. and a close relation of deceased. In cross-examination he stated, that many people came on Vardat, neither they inquired about incident nor they gave them details or names of assailants. In view of these facts, in my opinion his statement also requires by corroboration, as non-disclosure of names of assailants to persons, who came on spot soon after incident may be due to the fact, that P.Ws, wanted to consult P.W.1, in order to implicate appellants, as they had failed to identify assailants otherwise. This possibility cannot be ruled out.

Prosecution for purposes of statements of above two eye-witnesses has relied upon the statement of P.W.1 Muhammad Yakoob, the complainant and alleged recoveries. P.W.1 Muhammad Yakoob in his F.I.R. has admitted enmity with appellants and as such his own statement independent corroboration and consequently his statement cannot corroborate the statements of 2 P.Ws. alleged eye-witnesses, as one weak piece of evidence cannot corroborate other weak piece of evidence. In the same way oral dying declaration of the deceased cannot be considered as corroborative piece of evidence, as it is alleged to have been made to P.W. Muhammad Mumtaz, whose statement in my opinion requires independent corroboration. In this connection cases reported in P L D 1958 S C 242 and P L D 1964 Kar.356 and P L D 1978 Kar.710 support this conclusion of mine. We are now left with alleged recoveries from the appellants, as corroborative piece of evidence. I find that learned trial Court discarded said recoveries on account of contradictions in the statement of Mashir and I.O. I see no reason to disagree with this conclusion of the learned trial Court. The learned trial Court relied on alleged motive, as corroborative piece of evidence, in disregard of the law laid down by D.B. of this Court in cafe reported in P L D 1981 Kar.1 and as such in my opinion motive, even if proved cannot be used as corroborative piece of evidence for purposes of conviction of the appellants, in the absence of any other corroborative evidence like recoveries etc. There are also material contradictions inter se between eye-witnesses about manner in which incident took place and on account of non-recovery of empties from Vardat, doubt is created in the statements of P.Ws.

The learned Advocate for the State has relied upon cases reported in 1969 P Cr. L J 1168, P L D 1977 S C 557, P L D 1962 S C 269 and P L D 1970 S C 13 and P L D 1970 S C 274, in support of his contention, that statement of injured P.W. Shah Nawaz and alleged dying declaration of deceased were sufficient for conviction of the appellants, as mere relationship and enmity is not bar to accept statements of P.Ws, whose presence is otherwise not doubtful. In my opinion, these cases are based' on different facts and as such not applicable to present case, as there is admitted personal enmity between the parties and false implication cannot be ruled out, as P.W.3 Shah Nawaz injured P.W, stated, that D people who came on spot after incident did not inquire about incident nor they gave names of the assailants to said persons. This is rather unusual in such cases, unless there was some motive to hide the names or assailants were not identified by P.Ws.

In view of my above conclusions and findings, in my opinion, prosecution has failed to establish its case beyond reasonable doubt against both the appellants and as such I allow the above appeal and set aside convictions of the appellants and sentence awarded to them and acquit them by giving benefit of doubt and discharge the bail bonds executed by appellants, in above appeal.

M. Y. H . Appeal allowed.

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