' Appellant above-namad, being aggrieved by judgment dated 29th November, 1978, of the learned Ilnd Additional Sessions Judge, Khairpur, in Sessions Case No, 5/78, by which appellant has been convicted under section 335, P. P. C. And sentenced to suffer R. I. For one year and to pay fine of Rs, 1,000 or in default to suffer R. I. For 6 months, has preferred the above appeal, on the following facts and grounds :- The brief facts of the case as depicted in the F. I. R. Are that the complainant Karam Ali Shah on 29th December, 1976 at 9-30 p. m. At P. S. Town Khairpur lodged his F. I. R., in which he stated that on the day of incident he had come to attend a Majlis at a Pir of Mir Khan Muhammad. After hearing Majlis, while he was returning to his village and at about sunset time he reached village Raina, passed by an street and when reached the house of Hussain Bux Shaikh in the street, he saw the appellant Shero son of Hussain Bux and Illahi Bux son of Allah Ditta Shaikh, armed with hatchets, came out of their house. That the appellant Shero abused him and challenged him, that he was karo and that he would be murdered. He has also stated in his F. I. R., that on this he tried to run, but the appellant Shero placed an hatchet blow from sharp side of hatchet on his head and the appellant Illahi Bux also gave him a hatchet blow with sharp side of hatchet. That he raised cries and the appellant persons again caused him hatchet blows. That on his cries, P. Ws. Bachal Shah, Rahim Bux, Muhammad Shah and other persons came running and challenging. That on seeing them coming, the assailants ran away to their houses, taking the hatchets with them. He further added, that the appellant persons had caused him hatchet injuries with intention to murder him, because some time earlier he was on illicit terms with Mst. Hurmat, mother of the appellant Shero, hence they were annoyed with him. He has further added that thereafter he, alongwith his uncle Bachal Shah came to the P. S. For lodging report.
' The S. H.
0. Rasheed Ahmed, of Town Police Station, Khairpur recorded his F. I. R. As crime No, 318/76 and handed it over to the A. S.-I. Nazar Hussain for further investigation. The A. S.-I. Nazar Hussain on 30th December, 1976 on receipt of the case papers repaired to the wardat, shown to him by the P.
W. Bachal Shah, situated in village Ranna in an street outside the door of the house of appellant Shero. He visited wardat in presence of the mash irs Shahmir and Muhammad Paryal, secured the blood-stained earth from the wardat sealed it and prepared such mashirnama Exh. 8-A. On the same day he recorded 161, Cr. P. C. Statements of P. Ws. Muhammad Salih and Rahim Bux and searched the house of the appellant Shero, but found nothing incriminating. He had also searched the house of Illahi Bux Pulpot and found nothing incriminating. He also recorded 161, Cr. P. C.
Statement of P. Ws. Abdul Sattar, Muhammad Ayoob and Muhammad Yousif. On 6th January, 1977 he arrested the appellant Shero from village Shah Ladhani in presence of the mash irs Muhammad Murad and Shah Nawaz. The appellant Shero after arrest produced a hatchet before him in presence of the said mash irs. He prepared such mashirnama of arrest of the appellant and of securing of hatchet Exh. 8-B. On 17th January, 1978 he received the medical certificate of the injuries on the person of Karam Ali Shah. On 8th January, 1977 he recorded 161, Cr. P. C. Statement of Mst.
Hurmat, mother of the appellant Shero. On the same day he got recorded 164, Cr. P. C. Statement of P. Ws. Bachal Shah, Muhammad Saleh, Rahim Bux before S. D. M., Khairpur. He recorded 161, Cr. P. C.
Statements of Illahi Bux Pholpoto. He then handed over the case papers to the S. H.
0. Rasheed Ahmed, who challaned the appellant in the Court of City Magistrate, Khairpur. The learned City Magistrate sent up the case under section 190 (3), Cr. P. C. To the Court of Session for trial. Trial Court had received the case by way of transfer.
' The trial Court has framed the charge against the appellant, vide Exh. 1 and had recorded his plea, vide Exh. 2, to which he had pleaded not guilty and had claimed to be tried. The prosecution had examined the complainant Karam Ali Shah Exh. 3 and the P. W. Rahim Bux Exh. 4, Saleh Exh. 5, Bachal Shah Exh. 6, Amir Bux Exh. 7, A. S.-I. Nazar Hussain Exh. 8, Shahmir Exh. 9 and M.
0. Abdul Sattar Exh.
10. The A. P. P. Had closed the prosecution side, vide his statement Exh.
11. The Court had recorded the statement of the appellant at Exh. 12, in which he has denied all the allegations and has on the contrary alleged, that he has been falsely implicated due to enmity with him of Tapedar Ghulam Nabi, who is friendly to the complainant Karam All Shah, but he has led no defence, vide statement of his Advocate Exh.
13.
' The learned trial Court taking into consideration the evidence adduced before it convicted and sentenced the appellant above-named 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 there was delay of 3 hours in lodging of F. I. R. Which has not been explained.
(b) Admittedly it was a dark night and no light was available at the wardat and as such identification of the appellant on the basis of voice cannot be relied upon. In support of this contention the learned Advocate relied upon case reported in 1977 SCMR 347.
(c)That complainant had implicated 2 more persons, but the police did not challan any one-else and as such no reliance can be placed on the statement of complainant without independent corroboration, on this ground alone.
(d) The hatchet allegedly recovered was not blood-stained and as such there is no corroboration at all.
(e)That the statement of remaining P. Ws. Cannot be relied upon on account of dark night and no light available at the wardat, so as to identify the appellant.
' The learned Advocate appearing for the State at the outset submitted, that he was not supporting the impugned judgment in view of the grounds urged by the learned Advocate for the appellant.
' I have carefully considered the above submissions made by the learned Advocate before me and have gone through the record and proceedings of the learned trial Court as well as the impugned judgment and cases cited by the learned Advocate for the appellant.
Admittedly there was delay of 3 hours in lodging of F. I. R., which has not at all been explained by prosecution. In addition to this, it admitted position, that it was dark night and P. W. 2 Rahim Bux and P. W. 3 Saleh had identified appellant on his voice only. In the face of alleged enmity between P. W. 1 Karam Ali Shah and appellant, it would be unsafe to rely on the uncorroborated statements of P. Ws. 2 and 3 cannot be used against the appellant, as these P. Ws. Alleged to hay identified appellant by voice only. Complainant had involved 3 more persons in F. I. R., but said 2 persons were not challenged by police and as such it would be unsafe to rely on the statement of P. W. I, without any independent corroboration, which is not at all available in present case, as hatchet recovered from appellant was not blood-stained. The case reported in 1977 SCMR 347, on which learned Advocate for appellant has relied is fully applicable to facts of present case. In view of these facts, in my opinion prosecution has failed to establish its case beyond reasonable doubt against appellant.
' 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 him benefit of doubt and discharge the bail bonds executed by appellant in the above appeal.