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Criminal Revision Application No.96 of 1985, decided on 3rd December, 1986.

---S.302--Evidentiary value of solitary statement- Conviction, held, could be recorded on solitary statement if same inspired confidence and did not suffer from any infirmity.

--S.302--Revision against acquittal--Copies of statements under S.161, Cr.P.C., not given to accused for which he could not cross-examine witnesses--Prosecution witness deposing that he was informed by complainant that accused gave Danda blows to deceased and not that he had himself seen accused causing Danda blows to deceased- Statement of complainant, implicating accused, discarded by Trial Court--Ocular evidence contradicting medical evidence--Report was lodged after delay and no explanation given for such delay--Mashir of Wardat and recovery of Danda one and same person residing far away from place of occurrence--Police failing to procure any other witness from locality--Held, order of trial Court acquitting accused was neither adverse nor arbitrary in circumstances.

Abdul Hakeem v. The State P L D 1982 Kar. 975; Mangio v. The State 1976 P Cr.L J 243; Sher Muhammad v. Muhammad Hussain and others P L D 1963 Lah. 514 and Mrs.Ann Coleman v. Arif A. Lukmani and another P I. D 1964 Kar. 81 rel.

---S.302--Criminal Procedure Code (V of 1898), S.439 Motive Double-edged weapon--Can be used against complainant--If motive can be used for commission of offence, it can also be said that accused has been falsely implicated by complainant.--[Motive].

Usman Ghani Rashid for Applicant.

A.Q.Halepota for Respondent.

Dates of hearing: 27th November and 3rd December, 1986.

The respondent No.2 was challaned to face his trial under Section 302 P P C in the Court of Sessions Judge, Khairpur. According to the allegation the respondent No.2 on 19th June, 1982 at about 4.30 P.M. at bus stand Ranipur Taluka Gambat committed murder of Gulsher s/o Khuda Bux Shaikh causing him danda blows. According to the prosecution, the complainant Khuda Bux Shaikh along with his son Gulsher were going to Karachi in a bus to purchase cloth for the shop of the applicant. They knew the respondent No.2 Muhammad Waryam who was a student of Science College. The deceased was also student. The accused was rusticated from the University and prior to the incident of this case the son of the complainant and the accused had quarrelled with each other in Superior Science College Khairpur. On the day of incident the complainant along with his son Gulsher deceased boarded a bus for Karachi from Khairpur to purchase cloth and when the bus reached Punjhatti, Faiz Muhammad Gopang and P.W. Ghulam Sarwar Shahwani also boarded the same bus. Both were known the complainant previously. When the bus reached at Ranipur bus stop at about 4.30 P.M. Gulsher deceased got down from the bus in order to drink water. The complainant saw accused Waryam carrying danda in his hand coming out from the hotel and gave danda blow on the head of Gulsher. On seeing this the complainant and the passengers of the bus including 2 witnesses Faiz Muhammad and Ghulam Sarwar got down from the bus and raised cries and challenged the accused, but in the meantime accused Waryam ran away with danda in his hand. It is further alleged that the complainant also saw some other persons along with accused Waryam who were giving blows to Gulsher. These persons were not identified by the complainant. The complainant went to police station Ranipur at a distance of few paces and lodged the report.

During the investigation the statement of PW Faiz Muhammad was recorded under Section 164 Cr.P.C. The injured was referred to the Government Dispensary Ranipur where he was treated and thereafter at the request of the complainant the injured was permitted to be removed from there and he was brought to Civil Hospital, Khairpur. After 6-7 days of the incident Gulsher died in the Civil Hospital, Khairpur. The accused was arrested on 4-7- 982 and a danda was sent to the chemical examiner and the report was in positive.

At the trial the prosecution examined Khuda Bux complainant, PW Faiz Muhammad alleged eye-witness., Mashir Nizamuddin, Dr. Hassan Shah, Dr. Khudadad, Badshah Dino, Jamaluddin, Muhammad Bakhah, Muhammad Saleem, Mrs. Rahim, Muhammad Afsar Investigating Officer and Ali Mardan. Apart from the complainant Dr. Hassan Shah performed the post-mortem and found the following injuries on the person of the deceased:-

(1) One lacerated wound 8 x 1 x scalp deep and right parietal region of skull.

(2) One lacerated wound 6 x 1 c.m. x scalp deep x right side of occipital region of skull.

(1) Fracture of right parietal bone of skull

(2) Brain matter teared, brain membrane teared, Brain matter congested and blood clote seen by Pussi material seen at right parietal region.

(3) Stomach healthy and contained milky fluic.

(4) Large intestine healthy and contained faecal matter.

(5) All other organs were normal and healthy.

From external and internal examination of the dead body of deceased Gulsher s/o Khuda Bux Shaikh, I am of the opinion that death occurred due to shock and haemorrhage consequent upon injury mentioned above caused by hard and blunt substance. All these injuries were ante-mortem. Though I have not mentioned in the post-mortem notes, but I say that injury No.1 was sufficient to cause death in the ordinary course of nature."

The case against the respondent No.2 rests on the ocular testimony of complainant and P.W. Faiz Muhammad coupled with the recovery of blood-stained danda and the motive. The learned trial Judge disbelieved all the three pieces of evidence and acquitted the appellant. The State did not file any appeal against the acquittal. The complainant has filed this Criminal Revision Application.

I have heard the learned counsel for the applicant, counsel for the respondent No.2 and Mr.M.I.Qarni for the State.

It is contended by the learned counsel for the applicant that it is not universal principle that conviction of the accused could not be based without independent corroboration. He has referred to the cases of Allah Bakhsh v. Shammi and others P L D 1980 S C 225 and Mali v. The State 1969 S C M R 76. He has also contended that the relationship of the deceased with the complainant cannot be considered in disbelieving the complainant. On this point he has referred to the cases of Muhammad Aslam v. The State 1973 S C M R 569 and Sher and 4 others v. The State and Shera and 3 others 1972 S C M R 460.

There is no cavil with the proposition that on the solitary statement if it inspires confidence conviction can be recorded. Where only one witness had witnessed the incident and the statement of such witness does not suffer from any infirmity conviction can be passed on his solitary statement. The learned counsel for the applicant has read the statement of the complainant and stated that the complainant has fully implicated the present respondent. He further submitted that PW Faiz Muhammad was examined under section 164 Cr.P.C. and he had implicated the accused in his statement. Faiz Muhammad has been examined at the trial and he has not supported the prosecution case. A statement under Section 164 Cr.P.C. is a corroborative piece of evidence as contemplated under Section 265-J Cr. P. C .

The learned counsel for the respondent No.2 has stated that the statement of Faiz Muhammad under section 164 Cr.P.C. cannot be considered against the accused as sufficient time was not given to the accused to prepare the defence. He has placed reliance on she case of Abdul Hakeem v. The State P L D 1982 Kar. 975 where it is stated that sufficient opportunity must be given to the accused before the statement under section 164 Cr.P.C. is recorded. In the instant case the date of occurrence is 19th June. The accused was arrested on 4-7-1982 and the witness was examined on the next day. The accused did not cross-examine the witnesses and stated that his advocate would cross-examine the witnesses in the court of sessions. Copies of 161 Cr.P.C. statements were not given to the accused, therefore he was not in a position to cross-examine the witnesses. His 164 Cr. P. C. statement does not show that he had seen the accused inflicting danda blow on the head of the deceased. He has stated that the complainant informed him that accused gave danda blow to the deceased but complainant in hiss deposition has not stated that he had given the name of culprit to the witnesses, therefore this part of statement of Faiz Muhammad under section 164 Cr.P.C. is inadmissible in evidence. His statement at the most shows that an incident had occurred. Faiz Muhammad had not seen the accused causing any blow to the deceased. Therefore his statement is immaterial. Though the complainant has implicated the accused but the learned Sessions Judge has discarded this statement. According to the complainant only one danda blow was given to the deceased whereas according to the doctor the deceased had received two blows one on occipital region and other on parietal region of the skull. The location of the injuries is not on the same part. Therefore ocular evidence is contradicted by the medical evidence. Additionally it has been observed by the learned Sessions Judge that the report was lodged after delay. The time of incident is 4.30 p. m. and the report was lodged about 7.00 p.m. The police station is situated at a distance of few paces and no explanation has been given for such delay. This finding cannot be said fanciful and arbitrary. This fact is further established from the statement of Dr. Khudadad who has stated in his deposition that Khuda Bux father of the injured came to the hospital after about 2-3 hours of the incident. The deceased was taken by the police to the hospital. It is therefore possible that the complainant did not accompany the injured when he was sent to the hospital by the police. The report was lodged after the injured was removed to the hospital at about 5.15 p. m. The prosecution has not placed any documents showing that any report had been recorded by the police about the occurrence.

As regards the recovery of danda, admittedly the accused was arrested on 4-7-1982 and on the same day the danda was recovered by the police. It cannot be accepted that the accused will keep danda for a long time. Badshahdino mashir of the danda is the same He was also mashir of wardat. He was residing at about 28 miles away from the place of occurrence. The police did not procure any other witness of the locality. Therefore the evidence of mashir cannot be accepted. The learned counsel for the respondent No.2 has referred to the case of Mangio v. The State 1976 P Cr. L J 243 on this point.

The enmity is also admitted. The motive is double-edged weapon, therefore it can be used against the complainant. If it can be used as a motive for commission of offence, it can also be said that the accused has been falsely implicated by the complainant. The principles for interference u/s 439 Cr.P. C. are well known. In case of Sher Muhammad v. Muhammad Hussain and others P L D 1963 Lah.514 it has been observed as under:-

"If the trial on the previous occasion was neither illegal nor conducted with material irregularity, there would be no occasion and there would be no justification for holding a fresh trial on the same charges. Of course, if the re-trial is to be for offences that were never put into the charge, the case would be different. If, therefore, the High Court on examining the record of a case under section 439, is of the opinion that the trial was not defective in any manner, but that upon the trial as held, a finding of acquittal was wrongly given, and that if it had the power, it would convert that finding, on the basis of that very record, into one of conviction, but not having the power to convert a finding of on the basis of that very record, into one of conviction, but not having the power to convert a finding of acquittal into one of conviction, it would set aside the acquittal and either direct a re-trial, or leave it to the prosecuting agency to prosecute again, a question arises which needs to be examined carefully. Is it right to order or to permit a re-trial when there was nothing-with the previous trial Is not the object of the re-trial in such a case only to enable the court to correct what it regards as an error of judgment in. respect of a matter in which the law forbids the court from correcting errors of judgment Does it then not amount to an attempt to achieve indirectly, as a requirement of justice, what, for reasons of public policy, is forbidden as a requirement of law "

In P L D 1964 Kar.31 (Mrs.Ann Coleman v. Arif A. Lukmani and another) it has been observed that:-

"The revisional jurisdiction conferred on the High Court under Section 439 is not to be lightly exercised, when it is invoked by a private complainant against an order of acquittal, against which the Government has a right of appeal under Section 417. It could be exercised only in exceptional cases where the interests of public justice require interference for the correction of a manifest illegality, or the prevention of a gross miscarriage of justice. This jurisdiction is not ordinarily invoked or used merely because the lower court has taken a wrong view of the law or mis-appreciated the evidence on record. An order in revision directing the retrial of a man for a third time for offences which could not be said to have been made out even prima facie, cannot be upheld."

For the aforesaid reasons I do not consider it sound to accept this Revision Application. The order is neither adverse nor arbitrary. The Criminal Revision application is dismissed.

M.Y.H./K-25/K Petition dismissed.

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