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Criminal Appeal No. 175 of 1982, decided on 27th Marr' , 1983.

---Ss. 304-II & 334--Culpable homicide not amounting to murder--Prose cution relying on ocular testimony of five witnesses and no other evidence oral or circumstantial corroborating ocular testimony or connecting accused and co-accused with commission of offence--Real brother of deceased appearing as prosecution witness not implicating accused and denying his presence at time of occurrence--Three other prosecution witnesses stating that accused gave a Dang blow on head of deceased but names of these witnesses not figuring in first information report which was not recorded by eye-witness of occurrence--Statement of these witnesses recorded by Police after three days of occurrence--No other evidence left to connect accused with commission of offence--Prosecution failing to prove case against accused- -Conviction set aside.

S. A. Sehgal for Appellant.

Rana Muhammad Anwar for the State.

Date of hearing: 17th March, 1983.

This Criminal Appeal, connected Criminal Revision No.279 of 1982 for enhancement of the sentence and Criminal Revision No.280 of 1982 against acquittal of the- co-accused arise from the judgment of the learned Sessions Judge, Vehari, whereby he on 27-6-1982 while acquitting Shahra, Jagar and Paliya convicted Khalid alias Khalidi appellant and Dulli, Fateh Muhammad and Bahadur under section 304, P.P.C. and under section 334, P.P.C.for causing the death of Ghulam Rasool and injuries to Ghulam Nabi, P.W. and sentenced Khalidi to five years' R.I. and a fine of Rs.2,000 in default thereof six months' R.I. under section 304-II, P.P.C. and the others to one month's R.I. and a fine of Rs. 500 in default thereof fifteen days' R.I. under section 334, P.P.C. It was directed that the fine if realized from Khalidi appellant be paid to the legal heirs of the deceased as compensation.

2. The occurrence took place at 11.30 a.m. on 26-3-1980 in Mandi Movashian in Chak No.225/E B of Police Station Gaggo. The F.I.R. Exh. P.C. was lodged by Ghulam Nabi P.W.6, brother of the deceased at the police station and was recorded at 8-30 p.m. the same day by Muhammad Bashir Ahmad, S.I., P.W.12.

3. The prosecution case in brief is that Ghulam Nabi, P.W.6 and Ghulam Rasool deceased had a joint business with Shahru and Bahadur, co-accused. Ghulam Nabi. P.W. had severed his business terms with his partners who owed a sum of Rs.2,250 to Ghulam Nabi which they had promised to pay back to him on the day of occurrence, in cattle market. As per commitment Ghulam Nabi, Ghulam Rasool, deceased, Atta Muhammad (not produced), Mst. Noor Sain P.W.7 reachei the place of occurrence at 11-30 a.m. They found Shahru, Bahadur, Palliya, Abdul Karim alias Dulli, Jagar and Fateh Muhammad accused persons in the cattle market with their buffaloes. Mst. Noor Sain P.W , demanded the money from Bahadur and Shahru but they refused to pay the same.Thereon, Mst.Noor Sain, P.W.7 put her Dopatta around the neck of Shahru accused. Shahru after having released himself raised Lalkara to the effect that Mst. Noor Sain and her companions be caught hold of and killed. Whereon Dulli caught hold of Ghulam Rasool by his neck and Shahru inflicted Soti blow on his back and he fell down. In order to save Ghulam Rasool. Ghulam Nabi fell on him but was given Soti blow by Bahadur accused, whereas Jagar, Dulli, Fateh Muhammad and Paliya accused gave fist and kicks blows to the deceased. Ghulam Nabi P.W.6, Mst. Noor Sain and others entreated the accused and got the deceased released from them. Ghulam Rasool in injured condition was taken to Gaggo Hospital but the doctor was not available. He was then taken to Burewala hospital where he succumbed to his injuries at 8-30 p.m. on the same day.

4. [Medical Evidence].

5. Ghulam Nabi P.W.6 who was injured during the occurrence was medically examined by Dr. Muhammad Afzal Malik, P.W.15 who found as many as six injuries on his person. All the injuries were simple in nature caused by blunt weapon.

6. On 4-4-1980 Muhammad Bashir Ahmad S.I. , S. H .O. arrested Bahadur, Dulli, and Fateh Muhammad, Khan Muhammad P.W. (not produced) produced stick P.4 before the S.I. allegedly recovered from Bahadur co-accused which was taken into possession vide memo. Exh. P.G. It is remarkable that no recovery was effected from the appellant and the other co-accused.

7. In order to prove its case, the prosecution examined as many as 15 witnesses out of whom Ghulam Nabi P.W.6, Mst. Noor Sain, P.W.7, Faiz Muhammad P.W.8, Muhammad Rafiq P.W.10 and Muhammad Ramzan P.W.11 have given ocular account of the occurrence. Ghulam Nabi P.W.6 and Mst. Noor Sain P.W.7 supported the story of the prosecution as given in the F.I.R. They have not involved Khalidi, appellant, in the case. According to their statements the co-accused namely, Jagar,. Dulli, Fateh Muhammad, Bahadur, Paliya and Shahru had participated in the occurrence and given injuries to the deceased. Faiz Muhammad, Muhammad Rafique and Muhammad Ramzan, P.Ws. have stated that Khalid alias Khalidi, appellant, had given a Danda blow on the head of Ghulam Rasool, deceased.

Ali Muhammad P.W.4, who was produced to prove the recovery of Danda P.4, allegedly recovered from Bahadur co-accused, has not supported the recovery. The evidence of the rest of the witnesses is more or less of formal nature.

8. The appellant when examined under section 342, Cr.P.C. has denied the incriminating circumstances and has taken the plea of false implication on account of party faction. The other accused have also denied the incriminating circumstances.

The appellant as well as the other co-accused did not adduce any evidence in defence.

9. The learned counsel for the appellant submits that the prosecution has failed o prove its case beyond reasonable doubt inasmuch as the name of the appellant is not mentioned in the F.I.R. and the witnesses who have implicated him in the occurrence are also not mentioned in the F. I. R.

As against this the learned counsel for the State assisted by learned counsel for the complainant has supported the-judgment of the learned trial Court.

10. After hearing the learned counsel and going through the record I find that the prosecution has relied on the ocular testimony of five witnesses namely, Ghulam Nabi, P.W.6, Mst. Noor Sain P.W. 7, Faiz Muhammad P.W.8, Muhammad Rafique P.W.10 and Muhammad Ramzan P.W.11 and no other evidence, oral or circumstantial has been led to corroborate the ocular testimony or connect the appellant and the co-accused with the commission of crime. I find that Ghulam Nabi, P.W.6 who is real brother of the deceased has not implicated Khalid alias Khalidi appellant. According to his statement Khalidi was not present on the spot at the time of occurrence. Mst. Noor Sain has also not involved the appellant. Her statement is almost the same as made by Ghulam Nabi P..W 6 As for Faiz Muhammad P.W. 8 Muhammad Rafique P.W. 10 and Muhammad Rarnzan P.W. 11. I find that although they have stated that the deceased was given a Dang blow on has head by Khalidi appellant yet their names do not figure in the F.I.R which was not recorded by an eye witnesses were recorded by police after three days of the occurrence as stated by Muhammad Bashir Ahmad P,W, 12 the Investigating Officer:

I am of the opinion that for the two reasons given above, it would be in accordance. with the safe administration of justice in criminal cases to exclude the evidence of these witnesses from consideration. After having excluded and not relied upon the statements of Faiz Muhammad P.W.8 Muhammad Rafique P.W 10'- and -:Muhammad Ramzan P.W 11 I do not find any other evidence to connect the appellant with the murder of Ghulam Rasool.

11. For what has been stated above the prosecution has failed prove any offence against the appellant Khalidi. He is accordingly acquitted of the charge and, shall be set at liberty forthwith if not required in any other case.

12. As for Criminal Revisions for enhancement and against acquittal, I find that the evidence made by Ghulam Nabi, P. W.6 and . Mst. Noor Sain P.W.7 stand contradicted: by, statements of Faiz Muhammad P.W.8.Mihammad RafiqueiP.W.1 and Muhammad Ramzan P.W. 11 the eyes-witnesses and as such. I am not inclined to issue- notices in the revision petitions.

13. Resultantly Criminal Appeal .filed by Khalid alias Khalidi accepted and the connected Criminal Revisions are rejected.

M.Y.H. Appeal allowed.

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