Find a Lawyer

Criminal Appeal No. 861 of 1979, heard on 3rd July, 1985.

---S.325--Evidence--Prosecution evidence suffering from contradictions and discrepancies--Presence of complainant on spot doubted by trial Court--Other eye-witness produced by prosecution not absolutely dependable--Such eye-witness assigned active participation in crime to acquitted co-accused and trial Court for sound reason not acting upon his statement to extent of acquitted co-accused--Knife recovered from house of accused after three days of occurrence but presence of blood on knife after three days creating doubt as to recovery of blood-stained knife from accused--Prosecution failing to prove its case beyond reasonable doubt--Accused given benefit of doubt and acquitted.

---S. 325--Appreciation of evidence--Conviction on statement of lonely witness can only be sustained if he is absolutely dependable.

Wan Muhammad Akhtar for Appellant.

Sher Ali Khan for the State.

Date of hearing: 3rd July, 1985.

This Criminal Appeal arises from the judgment of learned Additional Sessions Judge, Sargodlra whereby he on 31-5-1979 while acquitting Khadim Hussain co-accused, convicted Fazal Hussain appellant under section 326, P P C and sentenced him to seven years' R.I.

2. The allegations against the appellant were that he by inflicting knife blow on the person of Diwan Ali, his maternal-uncle caused his death on 14-3-1978 at Peshiwela in the area of village Sigh Zarin. F.I.R. is statement' Exh. P.H. of Ghulam Yasin P.W. 7 which was recorded by Javaid Feroze S.H.O. P.W. 9 at 5-30. p.m. on the same day. The formal F.1.R. Exh. P.B./l was drawn up on the same day at 6-40 p.m.

3. The motive as alleged by the prosecution was that Fazal Hussain appellant wanted the hand of Mst. Fatima, the daughter of the deceased for himself but the deceased did not accept the proposal.

4. As far the main occurrence it has been staled that at the eventful time. Diwan Ali deceased, Ghulam Yasin P.W. 7 and Muhammad Amir left for village Sigh Zarin for the purchase of a cow. On the way the appellant and Khadim Hussain came across and started abusing Diwan Alt and declared that he neither gave hand of own daughter, nor did he allow them to get any other "RISHTAAH ". Muhammad Amir and others intervened and the accused went aside. A little afterwards, the appellant and Khadim Hussain followed them running. Khadim Hussain caught hold of Diwan Ali and Fazal Hussain stabbed him on the right thigh. Diwan Ali on receiving the injuries fell down. The appellant and his co-accused decamped. Diwan Ali succumbed to the injuries on the spot.

5. On 17-3-1978 Fazal Hussain was arrested by, Javaid Feroze S. tl .0. P.W. 9. The appellant led to the recovery of blood-stained knife P. 8 from his house in the presence of Mukhtar P.W. 6 and Soba not produced Serologis. Report Exh. P. N. shows that the knife :was stained with human blood.

6. Dr. Muhammad lqbal P.W. 1 found following injuries on the deceased.

1. A stab wound 2 c.m. x 5 c.m. x muscle deep over the femoral region of the right thigh. Right femoral artery was cut and congested; and

2. An incised wound 12 c.m. x 4 c.m. x muscle cut over the anterior outer surface of right upper arm.

In the opinion of the Doctor, the death was due to injury No. 1 which has cut the femoral artery.

7. To prove its case, prosecution examined nine witnesses. Ghulam Yasin P.W. 7 and Ameer P.W. 8 have given the occular account of the occurrence. They stated that it was within their view that Khadim Hussain had caught hold of Diwan Ali and Fazal Hussain had inflicted knife blow hitting his right thigh. Dr. Muhammad lqbal proved the post-mortem report. Mukhtar P.W. 6 and Javaid Feroze P.W. 9 have stated about the recovery of blood-stained knife from the appellant. The rest of the evidence is of formal nature.

8. When examined under section 342, Cr.P.C., the appellant denied all incriminating circumstances. He raised plea of false implication on account of enmity but did not produce any witness in defence.

9. The learned trial Court while disbelieving Ghulam Yasin complainant -- believed the ocular evidence furnished by Muhammad Amir and the recovery of knife P.8 from the appellant and has convicted and sentenced him as stated above.

10. The learned counsel for the appellant contends that although -Fazal Hussain appellant has served out the entire sentence as he was not allowed tail during the pendency of the appeal yet he would question the conviction of the appellant inasmuch as prosecution had failed to prove its case beyond reasonable doubt. Amir P.W. 8 was not a reliable witness and recovery, of knife i.e from the appellant was fake. On the other hand, the learned counsel for the State has supported the judgment of the trial Court.

11. I have considered the arguments advanced by the learned counsel for the parties. 1 feel persuaded to agree with the learned counsel for the appellant. 1 find that two eye-witnesses of the occurrence were produced by the prosecution. Ghulam Yasin P.W. 7 was the complainant A who had lodged the F.I. R. wherein he mentioned the name of Muhammad Amir as an eye-witness of the occurrence. The learned trial Court has for good reasons doubted the presence of Ghulam Yasin on the spot at the time of occurrence. No doubt conviction can be sustained on the statement of one witness but the condition is that he should be an absolutely dependable. To my mind Muhammad Amir is not that type of witness. He assigned active participation in the crime to Khadim Hussain acquitted co-accused, the trial-Court for sound reasons has not acted upon his statement in the extent of Khadim Hussain. The occurrence took place on 14-3--1978 and the knife was recovered on 17-3-1978 from the house of the appellant. In the circumstances of the case, the blood might have been washed away. The presence of blood on the knife after three days of the occurrence creates doubt as to the recovery of blood-stained knife from the appellant. The prosecution evidence also suffers from contradictions and discrepancies. For all these reasons, I am of the view that the prosecution has not been able to prove its case beyond reasonable doubt.

12. The upshot of the above discussion is that there being no satisfactory basis to uphold the conviction and while giving the benefit of doubt Fazal Hussain appellant is acquitted of the charge.

M . Y . H .

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.