1. Appellant above-named being aggrieved by Judgment dated 27th November, 1978, of the learned Sessions Judge, Tharparkar, at Mirpurkhas, in Sessions Case No. 116/76, whereby appellant has been convicted under section 302, P. P. C. And sentenced to imprisonment for life, has preferred the above appeal on the following facts and grounds The parties are Punjabi settlers and closely related inter se. Deceased Ismail was real, brother of Ibrahim, who was father of appellant Aslam and Akram, Complainant Mubarak Ali is son of Ismail, Ibrahim, Ismail and their third brother Hanif had lands and houses adjacent to each other. On 26-10-1976 Ismail and Hanif fought with each other on turn of water, at about 2-30 p.m. Ibrahim and Liaquat separated them. Complainant Mubarak Ali on coming to know of this asked from co-accused Akram, who was sitting on the Kuttar Machine, as to why that fight had taken place. On this Akram started abusing Mubarak Ali and assaulted him with a danda. Mubarak Ali saved the attack on a Dibba of milk, which he was carrying and gave a blow with that Dibba on the head of Akram. On this Akram called Aslam to his help. Aslam came there from his house, carrying a hatchet in his hand. Ismail tried to separate Mubarak and Akrdm, on which Aslam gave two hatchet blows on the head of Ismail. Akram also gave a lathi blow on the head of Ismail, Ibrahim, Liaqat and, Mst. Bashiran also came there and witnessed the incident. The appellant and co-accused went away to their houses. Ismail became unconscious. He was carried in a jeep to the police station, where the complainant lodged the F. I. R.
2. He was referred to the hospital, but he expired before he could reach there.
3. A. S. I. Dastar Ali Shah after taking down the F. I. R. Held inquest on the dead body of Ismail and sent the same for post-mortem examination. He also made enquiries from Mst. Bashiran, Abdul Majeed and Nazir, who had come to the police station, alongwith the complainant. He then went to the scene of offence and inspected the same. He scratched and secured the blood from the ground.
4. He then secured the blood-stained clothes of the deceased produced by P. W. Arbab Ali. On spy information, he surrounded the sugar-cane cultivation of Ibrahim and arrested co-accused Akram and appellant Aslam, who were concealing inside that cultivation. The shirt which Aslam was wearing at that time had blood stains on it. The A. S. I. Secured and sealed the same. On interrogation Aslam volunteered to produce the crime hatchet and led the A. S. I. In presence of Mashirs to a heap of cotton sticks and therefrom took out and produced a blood-stained hatchet.
5. The A. S. I. Secured the same under a Mashirnama. Co-accused Akram then wade discovery of a lathi. He then made enquiries from Liaquat and Ibrahim. The blood-stained articles were sent to the Chemical Analyser, whose report is in the affirmative.
6. A charge was framed against the appellants under section 302 read with section 34, P. P. C., to which they had pleaded not guilty and have claimed to be tried. The defence of the appellant was complete denial of the prosecution allegations. He had denied to have caused injuries to the deceased. He had also denied he recovery of blood-stained shirt, hatchet from him. He had also disputed the truth of the Chemical Analyser's report. He bad alleged that the P. Ws. Are interested inter se and are on hostile terms with them and have, therefore, falsely deposed against them. The appellant and co-accused had not examined any defence witness.
7. The learned Advocate for the appellant in support of the above appeal submitted as under :-
(a) That there is discrepancy in Medical and ocular evidence on record and as such the presence of the prosecution, witnesses, who have supported the prosecution is doubtful.
(b) That two independent P. Ws. Namely P. W. 6 Ibrahim and P. W. 7 Liaquat did not support the prosecution case and were declared hostile.
(c) That the injury on the person of acquitted person Akram was not taken into consideration by the learned trial Court, in order to determine which party was the aggressor.
(d) That the recovery Mashirs Abdul Razzak and Ismail help to Complainant's side and in the face of admitted enmity between the parties over the distribution of water, such recoveries could not be relied upon merely on the basis of I.O.
(e) That P. W. 4 Mubarak Ali, son of the deceased in his statement before the learned trial Court categorically stated, that even P. W. 5 Mst. Bushra his mother reached after the incident, when the accused had left or leaving the wardat, so also P. Ws. 6 and 7 were not present at the time of the incident.
(f) That statement of P. W. Mubarak Ali requires independent co-corroboration on account of admitted enmity between the parties, who are closely related but such independent corroboration is not at all available in the present case.
(g) That it was admittedly a sudden quarrel between the parties and as such conviction of the appellant at any rate under the provisions of section 302, P. P. C. Is not at all justified.
(h) That this is a case of un-witnessed crime and consequently the appellant has been falsely implicated due to admitted enmity.
8. The learned Advocate appearing for the State on the other hand submitted, that he was fully supporting the impugned judgment on the ground, that the name of the appellant is mentioned in the F. I. R. And the recoveries from the appellant have been established by the statement of I.O. It seems that prosecution witnesses have patched up their differences with the appellant side and consequently some of them turned hostile and even P. W. 1 Mubarak Ali, the son of the deceased has given an obliging statement in favour of the appellant. In view of this the statements of the prosecution witnesses, given under section 164, Cr. P. C. Be taken into consideration, as the appellant was given full opportunity to cross-examine the said witnesses, specially as the said statements were recorded forthwith.
9. I have taken into consideration the above submissions made by the learned Advocates before me and have gone through the Record and Proceedings of the learned trial Court as well as the impugned judgment.
10. It is admitted position, that there existed admitted enmity between complainant side and appellant's side. P. W. 4 Mubarak Ali in his statement before the learned trial Court has categorically stated, that P. Ws. 5, 6 and 7 reached wardat, after incident was over. P. Ws. 6 and 7 did not at all support prosecution case and were declared hostile. No reliance can be placed on the statement of P. W. 5, in view of the statement of her own son P. W. 4, as her presence at the time of actual incident is doubtful. Recoveries Mashirs are also related. P. W. S Ismail as well as P. W. 10 Abdul Razak ,4 Mashirs of arrest and alleged recoveries did not support prosecution case at all, but still were not declared hostile by prosecution. In view of this no reliance can be placed on such recoveries on the basis of I.O., against whom P. Ws. Have alleged compulsion for their statements under section 164, Cr. P. C. It would not be safe to rely on 164, Cr. P. C. Statements of P. Ws. 6 and 7, as substantial piece of evidence, as these witnesses have alleged arrest etc. Against I.O. P. W. 4 Mubarak Ali talks of Lathi injury by acquitted accused according to medical evidence brought on record.
11. In view of above facts on record, in my opinion prosecution has failed to establish its case beyond reasonable doubt against the appellants.
12. Therefore, I allow the above appeal and set aside conviction of the appellant and sentences awarded to him and acquit him by giving him benefit of doubt and discharge the bail bonds executed by the appellant in above appeal.