' The appellants abovenamed, being aggrieved by judgment, date 28th February, 1979 of the learned Additional Sessions Judge, Sangha in Sessions Case No,29/77, by which appellants have been convicted under section 302/34, P.P.C. And sentenced to suffer imprisonment for life and to pay fine of Rs,1,000 each or in default to suffer further R.I. For one year, have preferred the above appeal on the following facts and grounds:-
2. The complainant Punhoon lodged F.I.R. At Phullahdyoon P.S. On 12-2-1977 at 8-15 a.m. Alleging, that offence took place at mid-night time in his house and the distance between Vardat and P.S. Is shown to be about 5 miles. According to the complainant he resided in Deh Potho, Taluka, Khipro in the house constructed over his own land, where his brother Sajjan was also residing in the adjoining house at the distance of two Acres. He has added, that he had two wives viz. Mst.
Sharifan, who was mother of his two sons and two daughters and Mst. Sami, who was also mother of two sons. He has added that about 3 years prior to the incident, his father-in-law Jamal and his nephew Seendhal took away his both wives and the children and thereafter whereabouts of members of his family were not known. According to him, his family members were restored to him through efforts of Haji Hashim Mari, about 11 years prior to the incident. It is further case of the complainant in the F.I.R. That he shifted from his present place and settled in another village, where appellants Sono, who is his brother-in-law came there alongwith other three appellants, who are also related to him and asked the complainant as to why he is keeping and maintaining his wives, who are Karis. The appellants also asked the complainant to kill the ladies due to "Ghairat". But he refused. However, the complainant again returned to the old abode. According to him on the night of incident, when he was sleeping in the house alongwith his two wives and children and a Lantern was burning, all of a sudden all the four appellants came there viz, Sono, Attur, Ali Hassan and Ami, who were identified on the lantern light. All the appellants were armed with hatchets and appellant Attur and Ali Hassan dragged Mst. Sharifan towards the street and murdered her there through sharp side of hatchet. Mst. Sami was killed by appellant Sono and Ami outside the room through hatchet injuries when she was trying to run outside. According to the complainant, he and his elder son Dhani Bux raised cries on which P.Ws. Sajjan and Nooroo came running and also saw the appellants while they were going out of the house. The appellants even threatened witnesses not to come near and then went away from the Vardat. The complainant and the witnesses when reached near, found the ladies dead, with injuries. According to the complainant, the appellant party killed his wives, as they were considering them to be Karis. The complainant lodged the F.I.R.
At P.S. Phullahdyoon, as referred above.
' The F.I.R. Was recorded by Sardar Ahmed S.H.O. He then proceeded to Vardat alongwith the complainant, where the dead bodies were lying. He secured the blood-stained earth from both the places. He also secured hair of the ladies (i,e, Choti or Gutt) in addition to Ajrak and a Potro which were alleged to be of the appellant party. The S.H.O. Also secured ' Lantern. He then prepared two separate Inquest Reports of the dead body and sent to M.O. For post-mortem examination through P.C. Ghulam Hussain. He examined P.Ws., Nooro, Sajan and Dhani Bux. On 14-2-1977 the A.S.!. Amir Ali was deputed by S.D.I.P. To arrest appellant Attur and Ali Hassan, while S.H.O. Himself went to arrest remaining two appellants. Ami was arrested, whose shirt was secured as it contained washed marks of the blood. Appellant Ami voluntarily produced a hatchet from Pathi grass. The same was secured and sealed as there were blood marks on it. On 15-2-1977 appellant Sono was also arrested and his shirt was also secured, as there were washed marks of the blood. The appellant ono also produced a hatchet from his house, which was secured and ealed as there were blood marks on it. The A.S.I. Amir Ali arrested ppellant Attur and Ali Hassan on 15-2-1977. He secured shirt of appellant Attur, which had washed marks of the blood on some spots. Shirt of appellant Ali Hassan was also secured as there were blood marks on it. Both the appellants viz. Attur and Ali Hassan produced the hatchets voluntarily, which were secured and sealed. On 22-2-1977 the Police got 164, Cr.P.C. Statements recorded of P.Ws., Nooroo, Dhani Bux and Sajjan from the Court of Mukhtiarkar and F.C.M. Finally appellants were challaned to stand trial.
' The prosecution in support of its case examined in trial Court (1) Complainant Punhoon Exh.8, who produced F.I.R. Exh.9, (2) P.W. Dhani Bux Exh.10, (3) P.W. Sajjan Exh.11 (4) P.W. Noor Muhammad Exh.12,
(5) Mashir Haji Wasan as Exh.13 who produced Mashirnama of arrest of two appellant viz. Attur and Ali Hassan Exh.14 Mashirnama of production of hatchet by appellant Attur Exh.15, Mashirnama of production of hatchet by appellant Ali Hassan as Exh.16, Mashirnama of Vardat Exh.17, two Inquest Reports Exh.18 and Exh.19 (6) Tapedar Haji Muhammad Exh.20, who produced sketch of Vardat Exh.21, (7) A.S.I. Amir Ali Exh.22, (8) S.H.O. Sardar Ahmad Exh.23 who produced Mashirnama of arrest of appellant Ami Exh.24, and production of hatchet at his instance Exh.25. Mashirnama of arrest of appellant Sono Exh.26 and Mashirnama of securing of hatchet Exh.27 Chemical Analyser Report Exh.28, (9) Mashir Hassan Exh.29, (10) Second Waloo Exh.30. The learned A.P.P. Moved application for calling second Mashir, which was granted. The prosecution also examined Doctor Arif Khan Exh.32 who produced two post-mortem Notes Exh.33 and Exh.34. The learned A.P.P. Vide his statement Exh.35 gave up P.W. Noor Muhammad and also closed his side.
' All the four appellants in their statements Exh.36 to Exh.39 denied the allegations against them to be false. According to them they have been involved due to enmity. Appellant Sono in his statement has added, that in exchange of his sister deceased Mst. Sami he was promised hand of Mst. Loun, but she was married with some one else although demanded by him. According to him his sister Mst. Sami, alongwith Mst. Sharifan came and stayed in the house of Jamal, who is his stepfather. On this complainant's brothers viz. P.Ws. Noor Muhammad Sajjan and Mehrab were annoyed and were threatening that they will kill the ladies as "Karis". He has added that ladies were returned to the complainant on Oath, that he will protect them. But ultimately the brothers of the complainant killed the ladies and falsely involved the appellants. He has admitted that co- appellants are his relatives. The appellant did not examine any witness in defence.
6. The learned trial Court taking into consideration the evidence adduced before it, convicted and sentenced the appellants as hereinbefore mentioned and consequently appellants have filed the above appeal, on the grounds mentioned in the memo. Of appeal.
7. The learned Advocate for the appellant in support of the above appeal submitted as under:-
(a) That prosecution failed to prove alleged motive and as such great doubt is created in prosecution case.
(b) That there are material discrepancies in ocular and medical evidence on record regarding injury actually received by two deceased persons and as such presence of P.Ws. Becomes doubtful. In support of this contention the learned Advocate for the appellants relied upon case reported in PLD 1973 SC 23.
(c) That there was delay in lodging of F.I.R. Of about 8 hours which has not been satisfactorily explained and as such false implication after consultations etc. Cannot be ruled out. In support of this contention the learned Advocate for the appellants relied upon case reported in PLD 1966 Lah.
383.
(d) Recovery Mashirs of appellant Amin Muhammad and Sono did not support prosecution case and were declared hostile. However, P.W.5 Haji Wassan recovery Mashir in respect of appellants Attur and Ali Hassan supported prosecution case, but admittedly he is not resident of the village of appellants in question, which is about 10 miles away from his residence. In view of this mandatory provisions of section 103, Cr.P.C. Were violated by 1.0. And as such no reliance can be placed on statement of such witness and recoveries alleged to have been made in his presence. In support of this contention the Advocate for the appellants relied upon case reported in 1974 P Cr. L J 137.
(e) That no reliance can be placed on Chemical Examiner's reports as articles received on 14/15-2- 1977 were sent to Chemical Examiner on 13-7-1977 and 1.0. Failed to explain this inordinate delay, though he was asked questions in this connection. In view of this recoveries cannot be used as corroborative piece of evidence against the appellants. In support of this contention the learned Advocate for the appellants also relied upon cases reported in 1968 P Cr. L J 538, PLD 1981 Kar. 1 and 1982 P Cr. L .1 1133.
(f) All P.Ws. Namely P.W. Punoo, P.W. Crhani Bux, P.W. Sajan Khan and P.W. Noorul Muhammad are closely related to each other and there is alleged dispute between complainant's side and appellants over family lands. Beside this P.W. Noor Muhammad is not resident of Vardat and as such a chance witness.
8. In view of above submissions the learend Advocate for the appellants submitted that prosecution has failed to establish its case beyond reasonable doubt.
9. The learned Advocate appearing for the State on the other hand submitted, that he fully supports the impugned judgment as all P.Ws. Are natural witnesses and no question was put to 1.0.
For delay in sending articles to Chemical Examiner and alleged enmity has not even prima facie been established. In support of his contentions the learned Advocate for the State relied upon cases reported in PLD 1975 SC 607 and PLD 1967 Kar. 233 and 322.
10. I have carefully considered the above submissions made by the learned Advocates before me and have gone through the Record and proceedings of the learned trial Court and the impugned judgment and cases cited by the learned Advocate before me.
11. Prosecution case rests upon the statements of eye-witnesses P.W. Punoo (complainant) and P.W. Dhani Bux (son of the complainant) and corroborative statements of P.Ws. Sajan Khan (brother of complainant) and Noor Muhammad (brother of complainant). Appellants are closely related to complainant, but have alleged enmity over lands. Prosecution for purposes of recoveries relied upon Mashirs P.Ws. Waloo, Muhammad Hassan who did not support the prosecution case, whereas P.W. Haji Wassan, has supported prosecution case in respect of recoveries alleged to have been made from appellants Attur and Ali Hassan. Although P.W. Haji Wassan, the Mashir of recoveries from Attur and Ali Hassan is not resident of locality.
12. In view of the enmity alleged by the appellants and keeping in view the facts of present case brought on record, in my opinion the statements of P.Ws. Punoo, Dhani Bux, Sajan and Noor Muhammad cannot be relied upon, without independent corroboration, in this case.
13. Prosecution for such corroboration has relied upon alleged recoveries from the appellants.
However, in case of appellants Ami and Sono, recovery Mashirs P.W. Waloo Sher and Muhammad Hassan have not supported prosecution case. As far as appellants Attur and Ali Hassan are concerned, recovery Mashir P.W. Haji Wassan has fully supported prosecution case but he is not the resident of locality, from where the two appellants were arrested and recoveries made and as such mandatory provisions of section 103, Cr.P.C. Were violated by 1.0. In selecting this P.W. As C mashir of recoveries of these two appellants. In view of this no reliance can be placed on such recoveries.
14. Presence of P.W. Punoo at the time of incident has become doubtful, in view of the statement of P.W. Haji Wassan, who has clearly in his cross-examination admitted, that when he was called to act as Mashir of Vardat, he had not seen P.W. Punoon and Dhani Bux at the scene of offence, but in fact, both these P.Ws. Met them, when he and police were returning back from Vardat after preparation of Exhs.17, 18 and 19, in a bullock cart about I mile from Vardat, from where complainant went with police to P.S. And then F.I.R. Was written.
15. P.W. Noor Muhammad admittedly is chance witness. Keeping in view the statement of P.W. Haji Wassan, about non-presence of complainant at the time of police visit to Vardat and preparation of inquest report etc. Statements of P.Ws. Sajan and Noor Muhammad, who are the brothers of the complainant, do not inspire confidence and as such no reliance can be placed on their statements without independent corroboration, which is not at all available in present case. In view of this, we are left with the sole statement of P.W. Dhani Bux, as alleged eye-witness of the incident. This witness was only about 9/10 years old at the time of incident and there are material contradictions in his statement as recorded in the learned trial Court and his statement under section 161, Cr.P.C., which contradictions have been brought on record through 1.0. In my opinion, it would be unsafe to rely on his sole testimony in present case, in view of discrepencies in Medical and ocular evidence on record and because of his tender age, he would have been easily tutored by his father, the complainant. It is also surprising, that no independent eyewitnesses came on scene, on the alleged cries raised by the complainant, except his two real brother.
16. In view of my above discussions, in my opinion, prosecution has failed to establish its case against the appellants beyond reasonable doubt and as such I allow the above appeal and acquit them by giving them benefit of doubt and discharge the bail bonds executed by the appellants in the above appeal.