Find a Lawyer

Criminal Appeal No. 301 of 1969, decided on 17th July, 1984.

‑‑‑S. 307‑‑Evidence, evaluation of‑‑One tainted and hostile piece of evidence, held, could not corroborate another tainted evidence. ‑ [Evidence]

‑‑‑S. 307‑‑Murderous assault‑‑Evidence, appreciation of‑‑Benefit of doubt‑‑No other witness of occurrence except victim of alleged murderous assault‑‑Both accused and such victim having murder enmity and recovery witnesses also enemies of accused‑‑Accused given benefit of doubt and acquitted, in circumstances.‑‑[Benefit of doubt].

Appellant through Jail. Sh. Naim‑ud‑Din Ahmad for the State. Date of hearing: 17th July, 1984.

Muhammad Khan appellant was convicted in Case No. 8/2 pertaining to F.I.R. No. 32, dated 21‑8‑1963, P.S. Laws under sections 307 and 342, P.P.C. by learned Special Magistrate vide order, dated 16‑12‑1968. He was sentenced to seven years' R.I. plus a fine of Rs.1,000 or in default two years' R.I. under section 307, P.P.C. and one year's R.I. under section 342, P.P.C. Both the sentences were ordered to run one after the other. He has come up in appeal through.Jail against his conviction and sentence.

2. Present case was registered on the statement of Mst. Sais Bano P,W.6, mother‑in‑law of Ali Khan P.W.5. This statement Exh. P.D. was recorded at 2‑00 a.m. in the mid‑night on 21‑8‑1963 by Muhammad Aslam Head Constable P.W.8. In this statement, Mst. Sais Bano P.W. stated that Muhammad Yar Mochi came to her house at Khuftanwela on 20‑8‑1963 and informed her that Ali Khan P.W.5 reached his house in injured condition. On this information, she went there and was informed by Ali Khan P.W. that he had gone to Rakh Marri at Deegarwela in search of his cattle. Unexpectedly, Muhammad Khan appellant and his brother Hasham Khan both armed with rifles appeared there. They caught hold of him from his hairs and tied his hands and also gave him butt blows. He was made to walk with them in Nala Nikki. After covering some distance when they reached Dhun Ali Water Pond, they gave him a knife blow in the chest whereafter he fell down pretending to have gone unconscious. Muhammad Khan appellant and his brother threw him in the said pond thinking that he (Ali Khan) would die in the water. The accused then left the spot. It was further stated in the F.I.R. that Ali Khan managed to get himself free and came out of the pond. He reached the house of Muhammad Yar Mochi and disclosed the facts to him. Ali Khan after making the above statement went unconscious. On the basis of her statement, the formal F.I.R. Exh. P.D./1 was recorded. The Police undertook investigation and took in possession Kurta P.1 from the person of Ali Khan P.W.5 vide memo. Exh. P.B. in the presence of Mohabbat Khan P.W.3 and Ajmal Khan p.W.4. The Investigating Officer searched the pond for recovery of the Dhoti and Chappal belonging to Ali Khan which had been lost in the said pond after he had been thrown in the pond by the accused. Muhammad Hassan Head Constable P.W.9 dived in the said pond. He could not find any Dhoti but recovered Chappal P.2 from the said pond belonging to Ali Khan which was taken in possession vide memo. Exh. P.C. in presence of Mohabbat Khan P.W.3 and Ajmal Khan P.W.4. After investigation of the case, the accused was challaned and convicted as stated above.

3. The prosecution examined 12 witnesses during the trial. Dr. M.A. Hameed P.W.1 medically examined Ali Khan P.W. and found one stab wound on the left side of chest and two lacerations; one on collar bone and the other on the middle of right leg. All these injuries were later found to be of simple nature. One injury had been caused by sharp‑edged weapon and two by blunt weapon. Muhammad Yaqoob P.W.2, a Health Inspector had rendered first‑aid to Ali Khan in the house of Muhammad Yar Mochi P.W.7. Mohabbat Khan P.W.3 and Ajmal Khan P.W.4 had witnessed the recoveries of Dhoti P.1 and Chappal P.2 as given in detail above. Ali Khan P.W.5 is the victim and narrated the occurrence as given in the F.I.R. by Mst. Sais Bano P.W.6. Muhammad Yar Mochi P.W.7 supported Mst. Sais Bano by saying that Ali Khan P.W. had reached his house where he brought Mst. Sais Bano on his asking. Muhammad Aslam P.W.8 recorded statement Exh. P.D. of Mst. Sais Bano and sent the same for registration of the case. He also prepared injury statement of Ali Khan P.W. Muhammad Hassan P.W.9 brought out Chappal P.2 from the pond. Mansabdar P.W.10 had recorded the formal F.I.R. Exh. P.D./A. Sajjad Hussain P.W.11 had investigated the case and challaned the accused. Khadim Hussain S.I. P.W.12 formally arrested the accused Muhammad Khan.

4. In his statement under section 342, Cr.P.C. the accused denied the charge. He desired to produce evidence in defence but then expressed his inability to produce the same.

5. I have gone through the entire evidence in this case with the assistance of learned counsel for the State. Ali Khan P.W.5 is the victim and there is no other eye‑witness in this case Ali Khan is admittedly a sworn enemy of Muhammad Khan appellant. They both had murder enmity between themselves. He was challaned for the murder of Fateh Khan related to Muhammad Khan accused. He was convicted by the trial Court but acquitted by the High Court. It was admitted by him that he had enmity of murders with Muhammad Khan appellant and his brother. If Ali Khan had been caught by Muhammad Khan appellant and his brother, they must have killed him and had not left him just by causing simple injuries on his person. Ali Khan P.W. had murdered their relative Fateh Khan. In. this view of the matter, I find that the prosecution story is improbable. Ali Khan P.W. has not item supported by any other eye‑witness. Mst. Sail Bano P.W.6 is his mother‑in‑‑law and not an eye‑witness. Similarly, Muhammad Yar Mochi P.W.7 is not an eye‑witness. The recoveries of Kurta P.1 and Chappal P.2 have been supported by Mohabbat Khan P.W.3 and Ajmal Khan P.W.4. They are admittedly enemies of Muhammad Khan appellant. They were from Imral Khel Tribe. The appellant Muhammad Khan had abducted a woman of their tribe and married her. There was murders enmity also between these witnesses and the accused‑appellant. Thus, one tainted and hostile evidence cannot corroborate the other tainted evidence. In this view of the matter I find that the case pertaining to F.I.R. No. 32, dated 21‑8‑196,1 against Muhammad Khan appellant is not free from doubt. Ali Khan could have reported the matter to the police himself but he did not do that.

6. The result is that this appeal is accepted and the conviction and sentence under sections 307 and 342, P.P.C. is set aside. The appellant be informed about the result of this appeal in jail.

S. G. D. Appeal allowed.

Find a Lawyer Near You

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