' Appellant abovenamed, being aggrieved by judgment dated 26th April, 1982 of the learned 1st Additional Sessions Judge, Dadu, in Sessions Cases Nos. 225 and 300 of 1980, by which appellant has been convicted under section 302, P. P. C. And sentenced to imprisonment for life and to pay fine of Rs, 3,000 or in default to suffer further R. I. For one year, has preferred the above appeal, on the following facts and grounds :- ' The prosecution story in nutshell is, that on 18th July, 1980 at 12-00 noon, the complainant Chibhur lodged his F. I. R. At P. S. Rukkan, in which he stated in brief, that he was working as Malhi at Sugar Mill Piyaro Goth. That about 8/10 years age he had given his daughter Mst. Sharman in marriage to the appellant Mustoo and in exchange he had taken Mustoo's sister Mst. Alim Khatoon for marriage with his brother Murid. That Mustoo's mother quarrelled with his daughter Mst. Sharman with the result be detained his daughter Mst. Sharman in his house and Mustoo and other detained Mst.
Alim Khatoon in their house. That Mustoo wanted to divorce his wife Mst. Sharman and demanded that Murid should divorce Mst. Alim Khatoon. That after some time Rais Illahi Bux settled their matter privately and according to his faisla, the complainant should give his daughter Mst. Sharman to Mustoo and that Murid also should go and live in the village of Mustoo at Patt. He has also stated in his F. I. R. That on the day of the lodging F. I. R. In the morning time, as it was Friday, he went to his daughter Mst. Sharman for meeting purpose at Patt. That he was sitting in the house of his brother Murid, where his daughter Mst. Sharman came and met him and thereafter she went back to her house, where Mst. Pathani and Mst. Sharman exchanged harsh words and Mst. Pathani abused Mst.
Sharman. That in the meantime, the appellant Mustoo came to his house with his camels. That Mst.
Pathani complained to Mustoo, that his wife had insulted her and on this Mustoo told his wife, that she was always insulting his mother and that he would not spare her and he gave Muhri blow to Mst. Sharman which hit her on the right side of her face. Then the appellant took up a Rambo and grave 3/4 blows to her from iron side of the Rambo on her head and hands. That he and Murid raised cries. That in the meantime the P. Ws. Saffar and Qaisar also came there and the appellant on seeing them coming ran away. He has further stated in his F. I. R. That the appellant Mustoo, without reasonable cause, at the instance of his mother Mst. Pathani had caused blows to his daughter Mst. Sharman, who was lying unconscious. That he had left the P. Ws. At the vardat and had come to lodge report.
' The S. H.
0. Allah Bilx of P. S. Rukkan recorded his F. I. R. Exh. 14 and accompanied to the vat dat. He had visited vardat in presence of the mashirs Muhammad Ramzan and Nazar Muhammad, shown to them by the complainant Chibhur, situated in the house of the appellant Mustoo in village Patt. He saw the dead body of the deceased Mst. Sharman. Lying on a cot on the vardat and also saw blood lying on the vardat. He also saw a blood-stained Muhri lying on the vardat. He secured the bloodstained earth and the blood-stained Muhri from the vardat, sealed them in separate parcels and prepared such mashirnama of vardat Exh.
20. He prepared the inquest report Exh. 21, in respect to the dead body of the deceased Mst.
Sharman and despatched the dead body, through P. C. Abdul Aziz, to the civil hospital Dadu, for post-mortem examination and report. He recorded 161, Cr. P. C. Statements of the P. Ws.
Muhammad Murid, Saffar and Qaisar. On the same day at 5-00 p. m. He arrested the appellant Mustoo from an abandoned house in village Patt, in presence of the same mash irs. He saw blood stains on the shirt and loin-cloth of the appellant. He secured the blood-stained shirt and the blood-stained loin cloth from the person of the appellant sealed them and prepared such mash irnama Exh.
22. During the course of interrogation, the appellant Mustoo volunteered to produce a Rambo before him and voluntarily led him and the mash irs to his house took out a blood-stained Rambo from the northern side hedge of his house and produced before him. He secured the blood-stained Rambo and sealed it and prepared such mashirnama Exh.
23. On 19th July, 1980 he recorded 161, Cr. P. C. Statement of (he P. W. Illahi Bux. On the same day he challaned the appellant in the Court of Civil Judge and F. C. M., Dadu.
' On 23rd August, 1980 the complainant Chibhur filed a direct complaint in the Court of District Magistrate, Dadu, which was forwarded to the Civil Judge and F. C. M., Dadu, who sent up to the same to the Court of Sessions, as contemplated under section 190 (3), Cr. P. C. The complainant Chibhur in his direct complaint had stated in brief that about 8/10 years ago, he had given his daughter Mst. Sharman in marriage to Mustoo and in exchange had taken Mst. Alim Khatoon, sister of Mustoo, for marriage with his brother Murid. That the appellant Mustoo, his father Jumo and his mother Mst. Pathani used to quarrel with his daughter Mst. Sharman and used to abuse her. That he detained his daughter 'Mst. Sharman and subsequently on the faisla of nekmard Illahi Bux, returned his daughter Mst. Sharman to Mustoo and his brother Murid also went and lived with his father-in-laws as Ghur Jato.
' He has also stated in his complaint, that on 18th July, 1980 in the morning time he went to the house of the appellant. Where his brother Murid also was present. He exchanged views with the appellant and told them that he had come to take his daughter Mst. Sharman for meeting purpose and for celebrating Eid of Ramzan Sharif, at his house. But the appellant refused to allow Mst.
Sharman with him. Thereafter he went to Saffar and Qaisar and narrated them the facts and brought them to ahe house of the appellant. That Saffar and Qaisar also advised the appellant to allow Mst. Sharman with the complainant, but they refused dnd on the contrary abused the complainant party. Then he asked his caughter Mst. Sharman to go with him and she in order to go with him tame to him in the courtyard of the house, whereupon Mst. Pathani asked the appellant Mustoo as well as Jumo to murder Mst. Sharman and on her instigation first the appellant Jumo gave blow with Muhri to Mst. Sharman on her face and then the appellant Mustoo took up a Rambo and gave blows to Mst. Sharman on her head, face and other parts of her body. That he and the P.
Ws. Raised cries and tried to rescue Mst. Sharman, but the appellant threatened them not to come near and due to fear the complainant party did not go to the appellant. Mst. Sharman on receiving blows fell down and went unconscious. That thereafter the appellant left their house and ran away.
That on the cries Dadan son of Chhuto and other co-villagers came, whom he narrated the facts.
Then he left the P. Ws. On the vardat and himself came to P. S. Rukkan and lodged his F. I. R. That the S. H. O. After hearing him went to his office where Illahi Bux and his brother-in-law, who were supporting the appellant were already present and talked with the S. H.
0. That thereafter the S. H.
0. Recorded the F. I. R. And obtained his L. T. I. He asked the S. H.
0. To read out the contents of the F. I. R. And supply him a copy, but he refused. That he obtained a copy of his F. I. R. From the Court and came to know that the S. H.
0. Had not recorded his F. I. R. According to his statement and that the S. H.
0. Had not named the co-accused Jumo and Mst. Pathani. He gave applications and telegram to the higher police authorities, but to no effect, hence he filed the direct complaint. His statement Exh.
13 was recorded under section 200, Cr. P. C. And eventually his direct complaint Exh. 12 was brought on the record.
' The learned Civil Judge and F. C. M., Dadu sent up the police challaned case also to the Court of Sessions for trial. The Court had received both the cases by way of transfer.
' Since in both the cases, one police challaned, bearing Sessions Case No, 225/80, and the other direct complaint, bearing Sessions Case No, 330/80 were regarding the same offence and were with common evidence, trial Court, with consent of party Advocates amalgamated both the cases and framed joint charge Exh. 2 against the appellant and two acquitted accused and recorded their formal plea vide Exh. 3, to which they pleaded not guilty and claimed to be tried. The prosecution have examined P.C. Abdul Aziz Exh. 9, complainant Chibhur Exh. 11 and the P. Ws.
Muhammad Saffar Exh. 15, Qaisar Exh. 17, Muhammad Ramzan Exh. 19, Dr. Ghulam Umer Exh. 25, Dadan Exh.
27. S. H.
0. Allah Bux Exh. 29 and Tapedar Gul Muhammad Exh.
31. The Advocate for the complainant and the A. P. P. Had closed the prosecution side vide their statement Exh.
33. The statements of the appellant Mustoo, as well as Jumo and Mst. Pathani had been recorded as Exhs. 34, 35 and 36, respectively, in which they had denied all the allegations and the appellant Mustoo in his statement Exh. 34 and the co-accused Jumo in his statement Exh. 35 have alleged, that they had gone with their work at the time of the incident and subsequently they came and were arrested by the police at the instance of the complainant party, who are inimical to them over matrimonial affairs. The appellant Mst. Pathani in his statement Exh. 36 had alleged, that on the day of the incident, the complainant Chibhur came to take away his daughter Mst. Sharman and on her refusal he brought Qaisar and Saffar, dragged her and on her resistance they caused her blows and murdered her. But the appellant and co-accused led no defence, vide their statement Exh.
37.
' The learned trial Court taking into consideration the evidence adduced before it while acquitting two accused convicted and sentenced the appellant abovenamed as hereinbefore mentioned and consequently the appellant has filed the above appeal, on the grounds mentioned in the memo. Of appeal. The learned Advocate for the appellant in support of the above appeal submitted as under :-
(a) That the version of the incident given in the F. I. R. Defers from the version of the incident given in the private complaint and as such the statement of the complainant requires independent corroboration.
(b) That no independent prosecution witnesses were examined and consequently reliance on P.
Ws. 2, 3 and 4, who are inter-related, cannot be placed, without independent corroboration, which is not at all available in the present case.
(c) That P. W. 5 Ramzan the mashir of the allege recovery is closely related to the complainant side and the other mashir Nazir was not examined and since the village in question consists of 3,000 houses, the independent and respectable mashir could have been available, but the I.
0. Has given no plausible explanation for not picking up independent and respectable mashirs from the village and as such violated the mandatory provisions of section 103, Cr. P. C. And consequently no reliance can be placed on such recoveries.
(d) That ocular and medical evidence defers and the prosecution case against the present appellant rest on the same evidence as against the two acquitted accused persons and as such the appellants are entitled to benefit of doubt, ' In support of the above contentions, the learned Advocate for the appellant relied upon case reported in 1980 SCM R 225 and 1976 P Cr. L J 52.
' The learned Advocate appearing for the State, at the outset submitted, that he was not supporting the impugned judgment, as the alleged recoveries from the appellants are doubtful, in view of the law laid down by cases reported in PLD 1960 Kar. 674 and PLD 1972 Kar. 292 and as such cannot be relied upon.
' I have carefully considered the above submissions made by the learned Advocates before me and have gone through the R. And P. Of the learned trial Court as well as impugned judgment and the cases cited by the learned Advocates before me.
Prosecution case rests upon the statement of P. W. 2 Chahar (complainant), P. W. 3 Muhammad Saffar (cousin of complainant), P. W. 4 Qaiser (cousin of complainant) and P. W. 5 Muhammad Ramzan. (mashir of recovery), brother of P. Ws. 3 and 4. Appellants has alleged matrimonial affairs enmity with complainants side, which is also confirmed by complainant in F. I. R. And as such statements of these witnesses in my opinion required independent corroboration, in view of law laid down by Hon'ble Supreme Court in 1973 SCM R 231 and PLD 1981 Kar. 1 and specially as the version of the incident given in F. I. R. And private complaint filed by P. W. 2 Chibhur materially differ.
' It is admitted position, that prosecution did not examine independen P. Ws. Even for purposes of corroboration. The learned trial Court fo purposes of corroboration relied upon the alleged recoveries made from the appellant on the basis of statement of P. W. 5 Muhammad Ramzan, who admittedly is not independent mashir, but closely related to complainant party, in view of the statement of P. W. 8 Allah Bux S. H.
0. I have carefully gone through the statements of P. W.
8. According t P. W. 5 Rambo was produced from the common hedge of appellants house and as such question whether the said Rambo/Chisel was in exclusion possession of the appellant is also not free from doubt. P. W. 5 has admitted close relationship with P. W. 2 Chibhur (complainant). P.
W. 8 Allah Bux (S. H.
0.) in his cross-examination admitted, that common hedge from which appellant took out Rambo, was common hedge for houses of Jumo, Murid and Ghulam Mustafa. P. W. 8 Allah Bux has given no explanation at all why he did not pick independent and respectable mashir from the village, which had 300/400 houses and many peopl had come to vardat after incident according to P. Ws. When he went t arrest appellant, in utter disregard of the mandatory provisions of section 103, Cr. P. C.
Keeping in view these facts, in view of the law laid down by cases reported in 1980 SCM R 225 and 1976 P Cr. L J 52 a well as cases reported in PLD 1960 Kar. 674 and PLD 1972 Kar. 292, no reliance can be placed on such recoveries. Appellant in his statement under section 342, Cr. P. C. Has given different version of th incident, which cannot be overlooked, in view of the contradictions in the statements of P. W. 3 Muhammad Saffar and P. W. Qaisar as given befor the learned trial Court and their 161, Cr. P. C. Statements, regarding the manner in which they reached vardat. It is obvious that these two P. Ws. Changed their statements before the learned trial Court, in order to corroborate complainants statement, on this point, and as such on this ground also no reliance can be placed on their statements. Similarly no reliance can be placed on the statements of P. W. 7 Dadan, as complainant hadi not mentioned his name in F. I. R. Nor he was examined by police under/ section 161, Cr. P. C.
' In view of my above conclusions and appraisal of evidence of prosecution witnesses, in my opinion, prosecution has failed to establish its c case against the appellant, beyond reasonable doubt.
' Therefore, I allow the above appeal and set aside conviction of the appellant and sentences awarded to him, and acquit him by giving benefit D of doubt and direct, that he be released forthwith, if not required in any other case.