1. ' Appellant above-named, being aggrieved by judgment, dated 1st October, 1979 of the learned Sessions Judge, Sanghar, in Sessions Case No, 1 of 1979, by which appellant has been convicted under section 302, P. P. C. And sentenced to suffer imprisonment for life and to pay fine of Rs, 5,000 as compensation, has preferred the above appeal on the following facts and grounds.
2. ' The case of the prosecution, briefly stated, is that Mst. Tasneem Kauser was married with deceased Iqbal. It is alleged that she developed illicit connections with appellant Arif and, therefore, Iqbal divorced her about 11 years before this incident. Mst. Tasneem Kauser took her three children to the house of appellant Arif and started living there. One day before this incident appellant went to the shop of complainant in the evening and in presence of complainant he demanded Jahez of Mst. Tasneem Kauser from his son Iqbal, who stated that Jahez had already been returned to Tasneem Kauser, but the appellant started quarrelling with Iqbal. Complainant then intervened and then appellant went away holding out threats. On 13th December, 1977 complainant Sadat Ali and son Iqbal closed their shop and then deceased Iqbal took the cycle and the complainant went towards chowk. Mahmood Ali and Abdullah met him there and there at a fruit shop they started talking. Within a few moments they heard cries and when they looked towards there, they saw that about 35 paces from them appellant Arif was inflicting knife blows on Iqbal. They went running there, but appellant threatened them also and then he inflicted further blows on deceased. Appellant then mounted a cycle and took his cycle and went away.
3. Complainant and P. Ws. Mahmood Ali and Abdullah went to lqbal and found that he had died.
4. Complainant then went to Sanghar Police Station and lodged report. P. W. Allahdad A. S.-I. Sanghar Police Station registered the F. I. R. And thereafter he went to wardat and there he found blood and blood-stained chadar, which he secured and sealed. He also found blood-stained cycle, which he also secured. He also found the dead body of Iqbal lying there. He prepared such mash irnarna and inquest report of dead body. He then sent the dead body for post-mortem examination to Civil Hospital, Sanghar through constable Raflque. He then examined P. Ws. Mahmood Ali and Shaikh Abdullah. He then went in search of the appellant and found him alongwith a cycle in a street in Housing Society Sanghar. Mashirs Sulleman and Hassan were with him. He found appellant wearing blood-stained shirt and shalwar which he secured and sealed. He had also recovered blood-stained knife from the side pocket of the shirt of appellant, which he secured and sealed. He also secured the cycle and prepared such mashirnama. Appellant had also injuries on his person.
5. He prepared such mashirnama. On 14th December, 1977 appellant was sent to Civil Hospital Sanghar for examination, treatment and certificate. He then examined Abdul Razaq cycle Shopkeeper, from whose shop appellant is said to have hired cycle on the preceding day, which was seized by police. Register was also secured from the shop of Abdul Razaq and photostat copy of the entry showing the name of appellant Arif was obtained. He then examined Tasneem Kauser and All Muhammad. On 17th December, 1977 he got recorded 164, Cr. P. C. Statement of Mahmood Ali, Shaikh Abdullah, Tasneem, Ali Muhammad and Razaq before Mukhtiarkar and F. C. M. Thereafter he handed over the case papers to S. H.
0. Sanghar, who challaned the appellant before the Court. Blood-stained articles were sent to chemical examiner, who found the same stained with human blood.
6. ' Appellant had denied the allegations in his statement. 14e had stated, that he had no illicit connections with Tasneem Kauser. He stated that she is his sister. He alleged that Iqbal had divorced Tasneem Kauser, because she had refused to give him permission for second marriage.
7. He stated further, that Tasneem Kauser had already received her Jahez and, therefore, there was no reason for making demand for the Jahez. He stated further, that he has got a Clinic in village Kurkuli about 13 miles away from Sanghar. He used to return from that village at 3-00 p. m. On the day of the incident he returned on Motor Cycle at about 8-00 p. m. And that he was taking tea in his house with his mother and sister Tasneem Kauser, when police constables came there and took him to Police Station, Sanghar. Nazeer son of Hassan was already confined in the lock-up where he was also confined and was then involved in this case. Police had beaten him in order to obtain confession. Farooqa Begum mother of Tasneem Kauser calls him as her son, while Tasneem Kauser treats him as brother. Deceased used to ask Farooqa Begum-to dispose of her lands in Punjab so that he may usurp that amount Appellant stated that the insisted Farooqa Begum not to sell her lands, as she was poor and had no other source of income. For all these reasons Iqbal divorced his wife, lqbal and his father became his enemy. He has been involved falsely in this case.
8. ' Appellant pleaded not guilty to the charge. He examined no witness in his defence.
9. ' The learned trial Court taking into consideration the evidence adduced before it, convicted and sentenced the appellant above-named as herein-before mentioned and consequently appellant has filed the above appeal, on the grounds mentioned in memo, of appeal.
10. ' Appellant's counsel died pending the above appeal and consequently notice was issued to appellant as well as his surety but according to process server's report, present whereabouts of appellant are not known and even surety has failed to trace him and consequently appellant has become fugitive' and therefore, I decided to hear the above appeal on merits, with the help of the learned Advocate for State as the same has been pending since 1979, in view of law laid down by Hon'ble Supreme Court in PLD 1981 SC 265.
11. ' Learned Advocate for the State in support of the impugned judgment submitted as under :- ' That prosecution by statement of P. Ws, who had witnessed the incident and by recovery of blood- stained clothes and knife from the possession of the appellant has established its case beyond reasonable doubt and as such he fully supports the impugned judgment, for the cogent reasons given by the learned trial Court in its impugned judgment.
12. ' I have carefully considered the above submissions of the learned State counsel and have gone through grounds of appeal mentioned in memo. Of appeal, as well as R and P of the learned trial Court and impugned judgment.
13. ' Appellant in his statement under section 342, Cr. P. C. Had alleged enmity with deceased Iqbal and his father Sadatali (complainant) over dirvorce of Mst. Tasneem Kauser, ex-wife of deceased and had stated, that due to this complainant has falsely involved him in this case, on false motive, with the help of other alleged eye-witnesses namely P. Ws. Shah Abdullah and Mahmood Ali, who are his close friends, with the assistance of police. He further denied recovery of blood-stained clothes and knife from his possession as well as recovery of cycle and submitted that mashirs of alleged recovery are also closely connected with complainant. Appellant in grounds of appeal submitted, that statements of P. Ws. Of recovery were contrary to alleged mashirnama of recovery. In addition to this appellant has submitted, that incident is alleged to have taken place in chowk, where lot of persons were present, but still no independent P. Ws. Came forward to support the prosecution case. Prosecution even admitted motive at the trial, by not examining Mst. Tasneem Kauser and as such no reliance can be placed on prosecution evidence at all and appellant is entitled to benefit of doubt.
14. ' I have carefully gone through the statements of P. Ws. Sadatali (complainant) father of deceased, Mahmood Ali and Shah Abdullah. Appellant has alleged enmity against P. W. Sadat Ali the complainant and as such in my opinion his statement requires independent corroboration. For such corroboration prosecution has relied upon statements of P. Ws. Mahmood Ali and Shah Abdullah and alleged recoveries from appellants I find from the statements of P. Ws. Mahmood Ali.
15. Shah Abdullah alleged eye-witnesses and statement of P. W. Muhammad Suleman mashirs of alleged recoveries that all these three P. Ws. Are closely connected, as friends to complainant Sadat Ali. Presence of P. W. Mahmood Ali and Shah Abdullah at the time of incident is by chance.
16. Their statements also do not inspire confidence otherwise also, P. W. Muhammad Suleman, mashir is father of P. W. Mahmood Ali, the alleged eye-witness and was witness to divorce dead of deceased. In view of these. Facts, in my opinion, it would be unsafe to rely on the statements of these P. Ws. Without independent corroboration. Learned Advocate for State for such corroboration relied upon alleged recoveries. As already stated by me, P. W. Muhammad Suleman mashir is interested person, beside this according to mashirnama Exh. 18 of alleged recoveries, knife was secured from pocket of appellant's shirt, but in fact, the shirt produced in Court had no such pocket. In addition to this, it is improbable that appellant would be wearing blood-stained clothes and standing in street, waiting for police to come and arrest him. Even statement of L-G. P. W. 10 Allahdad does not inspire confidence, as he tried to twist his statement in Court to cover up absence of pocket in the shirt of appellant. Appellant has alleged beating against him, after arrest.
17. Which is prima facie supported by all these conclusions of mine, in my opinion prosecution has failed to establish its case beyond reasonable doubt.
18. ' Therefore, I allow the above appeal and set aside conviction of the appellant and sentences awarded to him by impugned judgment and acquit him by giving benefit of doubt and discharge the bail bonds executed by the appellant.
19. ' Notice issued to surety is also discharged. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.