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---S. 302--Evidence, appreciation of--Eye witnesses giving inconsistent statements and had either disowned or materially improved on their previous statements--Such witnesses not confidence inspiring and no implicit reliance could be placed on their testimony--Ocular account also not corroborated--Hatchet blow to deceased attributed to accused whereas Dang without blood stains was recovered from him--No motive alleged against accused--Accused given benefit of doubt and acquitted in circumstances.

Malik Sharif Ahmad for Appellant.

Nasim Rashid for the State.

Dates of hearing: 13th June and 14th June, 1983.

This criminal appeal arises from the judgment of learned Additional Sessions Judge, Vehari, whereby he on 26-11-1980 while acquitting Ashiq and Amir co-accused, convicted, Sultan appellant under section 302/449, P.P.C. for having caused the death of Abdul Karim after having committed house trespass and sentenced him under section 302, P. P. C. to imprisonment for life and under section 449, P.P.C. to 5 years' R.I. and a fine of Rs.500, to be paid to the legal heirs of the deceased. In default thereof to further S. I. for 2 months. Both the sentences were to run concurrently.

2. The occurrence took place on 14-10-1977 at about mid-night in the house of Abdul Karim deceased situated in Basti Maqsood Abad of P.S. Luddan. The F.I.R. Exh.P.D./1 is the statement of Muhammad Ali P.W.7, the father-in-law of the deceased which was recorded by Ghias-ud-Din, S.H.O. P.W. 13 at Ratta Tibba on the same day. The distance between the place of occurrence and Ratta Tibba is 7 miles. The formal F.I.R. Exh.P.D. was registered at P.S. Luddan on the same day at 9.30 a.m. by Sher Muhammad, Head Constable P.W.5.

3. The motive as alleged by the prosecution is that one year prior to the occurrence, the deceased divorced his wife Mst. Ameeran, the sister of co-accused namely Ashiq and Amira (since acquitted) and that sometimes before the occurrence, he contracted Nikah with the daughter of Muhammad Ali P.W.7. For all this, the co-accused were very much annoyed with the deceased.

4. The prosecution case as given in the F.I.R. was that at the time of occurrence, Abdul Karim deceased, Muhammad Ali P.W.7. Mst. Ehsana Mai P.W.6 and Sikandar (not produced) were sleeping in the courtyard of the house of the deceased when at about mid-night Muhammad Ali P.W.7 woke up on the alarm raised by the deceased and saw that Sultan appellant armed with Dang and the acquitted co-accused namely A mir and A s hiq with hatchets were present near the deceased. Amir and Ashiq were inflicting injuries and Sultan was raising Lalkaras threatening the witnesses not to come near the deceased. The occurrence was also witnessed by Mst. Ehsana P.W.6, the mother of the deceased and Sikandar (not produced because of his death). It has also been alleged that Karim Bakhsh Chaukidar had identified the culprits in the light of the lantern.

5. On 14-10-1977 at 3-00 p.m. Dr. Moosa Khan, Medical Officer, Civil Hospital, Vehari, conducted post-mortem examination on the dead body of Abdul Karim and found 5 incised wounds on the person of the deceased. All the injuries were anti-mortem and caused by sharp-edged weapon. In the opinion of the doctor, the death was due to shock and haemorrhage caused by injury No. 1 which was sufficient to cause death in the ordinary course of nature. The death was immediate. The duration between the death and post-mortem was between 12 and 16 hours.

6. On 16-10-1977, the appellant was arrested by Ghias-ud-Din, S. H . O . P. W .13. On the same day he got recovered Dan g Exh. P. 7 from his residential Kotha which was taken into possession, vide memo. Exh.P.K. attested by Sikandar P.W. 9 and Jalal Muhammad (not produced). He also got recovered blood-stained shirt Exh.P.3 and Shalwar Exh.P.4 from the same Kotha which were taken into possession, vide memo. Exh.P.C. attested by the same witnesses. It may be noted that the clothes and Dang were not sent to the Chemical Examiner.

7. In order to prove its case, the prosecution 'examined 13 witnesses in all, out of whom Mst. Ehsana Mai P.W.6, mother of the deceased and Muhammad Ali P.W.7, the father-in-law of the deceased have given the ocular account of the occurrence. They deposed about the motive as well as the main occurrence. Quite contrary to the F. I. R., they stated that at the time of occurrence Sultan was armed with hatchet and he alone gave all the injuries to the deceased. Muhammad Ali P.W.7 was declared hostile and cross-examined by the prosecutor. Sikandar P.W.9 (not eye-witnesses) has stated that the hatchet Exh.P.6 was recovered from the appellant. He also supported the alleged recovery of blood-stained clothes from the appellant. The rest of the evidence is more or less of formal nature.

8. Sultan appellant when examined under section 342, Cr.P.C. denied all the incriminating circumstances of the case and took Lip the plea of false implication due to enmity. Muhammad Afzal and Ch. Muhammad Akram Waqar, Advocate were produced in defence. Muhammad Afzal D.W.1 stated that he had written affidavit Exh.D.E. of Sikandar, E.jN.9-and Exh. D. G. of Walayat Khan P.W.4, whereas 'Ch. Muhammad Akram Waqar, Advocate roved the complaint Exh. D. H. written by him on the dictation of Mst. Ehsana Mai, P.W.6.

9. Learned counsel for the appellant has submitted that the prosecution has failed to prove its case beyond reasonable doubts inasmuch the story given by the eye-witnesses at trial is altogether different from the version given by them in the F.I.R. and the statements recorded under section 161, Cr.P.C. Furthermore, the appellant had no motive to kill the deceased.

As against this, the learned counsel for the State has half-heartedly supported the judgment of the trial Court. He submitted that since the appellant and the co-accused were previously known to the eye-witnesses, therefore, the questions of mistaken identity and, false implication do not arise.

10. After hearing the learned counsel and going through the record I am inclined to agree with the learned counsel for the appellant. I find that Muhammad Ali in his statement Exh.P D./1, i.e. the F.I.R. stated that at the time of occurrence when he woke up on the cries of the deceased, he found Ameer and Ashiq co-accused armed with hatchets and Sultan armed with Dang giving injuries to the deceased. He further stated that Sultan had also been raising Lalkaras at the time of occurrence. When examined at the trial he disowned the entire version of the occurrence given by him in the F.I.R. and gave an altogether different picture of the occurrence. He stated that:

"At about mid night Sultan accused scaled the wall and entered the house. Abdul Karim deceased woke up and challenged Sultan accused. Sultan accused disclosed his identity. Sultan accused had covered his body with a cloth. Sultan accused asked the deceased that he was to purchase some articles from the shop of the deceased. The deceased awakened his mother. Sikandar and myself also woke up. The lamp has dim light. Mother of the deceased handed over the key of the lock to him and asked him to drive Sultan accused out of the house by opening the gate. At the time when Abdul Karim was unlocking the door Sultan accused gave him hatchet blows on his neck and killed him. His neck was removed, again said neck was seriously injured. On the alarm of the deceased we three persons rushed to him. Sultan gave him more blows".

Mst. Ehsana P.W.6 the mother of the deceased came forward with a new story. She stated that:

"It was about mid-night when I heard a shriek of my son Abdul Karim. Muhammad Ali and Sikandar P.Ws. also rushed towards him. I saw Amir accused was catching the legs of my son. Ashiq accused was sitting on his chest. Sultan accused was giving hatchet blows to my son. I raised alarm. Sultan accused threatened me not to come near."

It may be noted that this version has not given by her in her statement recorded under section 161, Cr. P. C., copy Exh. D. A, I further find that although in the F.I.R. it has been stated that Sultan appellant was armed with a Sota and had inflicted Sota blows to the deceased yet no injury caused by blunt weapon was found on the person of the deceased. It is also remarkable that no sharp-edged weapon has been recovered from the appellant. The prosecution case is that he got recovered, Dang Exh.P.7 from his house. Since the eye-witnesses have give entirely inconsistent statements and have either disowned or- have materially improved on their previous statements, therefore, to my mind, they are not confidence-inspiring witnesses and as such no implicit reliance can be placed on their testimony. The prosecution has also failed to corroborate the ocular account given by the two witnesses by some confirmatory circumstance tending to show that the appellant did take part in the occurrence. The case at the trial is that the appellant gave hatchet blows to the deceased whereas Dang Exh.P.7 has been recovered from him. That too, not blood-stained. This rather contradicts the statement of the eye-witnesses made at the trial. No motive whatsoever, has been alleged or proved against the appellant.

11. The upshot of the discussion is that there being no satisfactory basis to uphold the conviction, while giving him the benefit of doubt, the appellant is, hereby, acquitted of the charges. He shall be released forthwith, if not required in any other case.

S.A. Appeal accepted

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