1. ' Appellants above-named, being aggrieved by judgment, dated 17th March, 1983 of the learned Second Additional Sessions Judge, Sukkur, in Sessions Case No, 137/81, whereby appellants have been convicted under section 302/34, P. P. C. And sentenced to suffer imprisonment for life and to pay fine of Rs, 3,000 each or in default to suffer further R. I. For one year, have preferred the above appeal, on the following facts and grounds :- ' The case of prosecution briefly stated is, that on 19th April, 1981 at about 13-00 hours, the complainant Nasir Ahmed Panhwar lodged his F. I. R. With the Police Station, Ghotki, stating therein that on the day of incident, he alongwith the deceased Ghulam Hyder, Muhammad Nawaz and Ali Nawaz were going to village Panhwar. They reached at the land of Syed Talib Hussain Shah at about 10-00 hours, the appellant Sijawal son of K hair Muhammad and A. Latif son of Abdul Hakim met them, who were armed with hatchets and the appellants challenged the deceased Ghulam Hyder and declared that he has enjoyed much and that today he would not be spared. The appellant Sijawal caused hatchet injury to the deceased Ghulam Hyder on his face and head (i. e.
2. Nirul). The appellant Latif gave hatchet blow on the right arm of the deceased Ghulam Hyder. The complainant party started raising cries, at which, the appellants declared, that they should not come near them. Thereafter, the appellants ran away towards their houses raising slogans. Due to fear, the complainant party did not follow the appellants. The complainant found the deceased injured and bleeding. The deceased Ghulam Hyder died in presence of the complainant there and then. The complainant leaving the above witnesses over the dead body of the deceased Ghulam Hyder went to the Police Station Ghotki and lodged such report as already stated hereinabove.
3. Motive as set up by the complainant was, that about one and half months before the present incident the brother of the Ghulam Hyder namely Shamas Din had married with Mst. Azizan, a cousin of the appellant Latif and Morot of the appellant Sijawal, without consent of the present appellants and that annoyance resulted in the present incident.
4. ' A. S. I. P. Koura Khan recorded the F. I. R. Of the present incident. After recording the F. I. R. He went to the place of occurrence and visited the same at the pointation of the complainant. It was situated in the land of Talib Shah. There was the dead body of the deceased Ghulam Hyder. He prepared such mashirnama in presence of the mashir Nehar and Abdul Qadir. He secured the blood-stained earth from the Vardat and sealed the same in presence of the same set of mashirs. He prepared the inquest report in presence of the same set of mashirs. He sent the dead body to the Hospital for post-mortem examination. He arrested the appellants Sijawal and Latif and prepared such mashirnamas. On the same day, the appellants Latif and Sijawal voluntarily produced the blood- stained hatchet from bushes near Makhan Pir. He prepared such mashirnama and read over the contents to the mashirs. The appellant Latif also produced hatchet from "Dhoro". He examined the witnesses Ali Nawaz, Muhammad Nawaz. He received clothes of the deceased after post-mortem examination. On 23rd March, 1981 the statements under section 164, Cr. P. C. Of the witnesses were recorded by the Mukhtiarkar and F. C. M. Ghotki. Thereafter, he handed over the case papers to Sub-Inspector Muhammad Siddiq Abbasi, who after usual investigation challaned the appellants in the Court of learned Additional City Magistrate Ghotki, who sent up the case to the Court of Session, Sukkur. The learned Sessions Judge, Sukkur sent up the case to the Court of Second Additional Sessions Judge, Sukkur.
5. ' A formal charge for an offence punishable under section 302 read with section 34, P. P. C. Was framed against the appellants to which they pleaded not guilty; and claimed to be tried. Therefore, the trial of the present case started.
6. ' The posecution in support of its case had examined P. W. I, Nasir Ahmed (Complainant) Exh. 8, P.
7. W. 2 Muhammad Nawaz (Exh. 12), P. W. 3 Ali Nawaz (Exh. 13), P. W. 4 Hussain Dino (Exh. 14), P. W. 5 Badaruddin (Exh. 15), P. W. 6 Abdul Kadir (Exh. 17), Dr. Bashir Ahmed (Exh. 22), P. W. 8 Koura Khan (Exh.
8. 24) and thereafter the learned A. P. P. By his statement Exh. 26 closed the side of prosecution.
9. ' The appellants in their statements recorded before the lower Court denied all the prosecution allegations. They had further stated, that the witnesses are interested, inimical and hostile. They had further stated that the complainant Nasir and his brother Abdul Kadir, who is mashir in this case has implica ed them falsely in many affairs. The deceased Ghulam Hyder had committed the murder of Bahadur, he bad also enmity with Soomar on land affairs and they have no grievance against the deceased, but the complainant party has enmity with them, who in order to save themselves implicated the appellants. In their defence, they examined Mr. Ghulam Muhammad Moughal Exh. C. M.
10. 0., Sessions Court, Sukkur.
11. ' The learned trial Court taking into consideration the evidence adduced before it, convicted and sentenced the appellants above-named as herein-before mentioned and consequently the appellants have filed the above appeal, on the grounds mentioned in the memo. Of appeal.
12. ' The learned Advocate for the appellants in support of the above appeal submitted as under
(a) That all the eye-witnesses of the alleged incident are closely related and in view of the matrimonial disputes between the parties their statements required independent corroboration, which if his opinion was not at all available in the present case.
(b) That the alleged recovery of the blood-stained hatchet at the potation of appellant Sijawal cannot be used as a corroborative piece of evidence, as P. W. 6 Abdul Qadir the mashir of the alleged recovery is closely related to the deceased and the Police could have secured the independent mashir for said recovery, but it was not done and consequently their recovery cannot be used as a corroborative piece of evidence even against the appellant Sijawal.
(c) That P. W. 3 Ali Nawaz is the brother of the deceased and his presence is doubtful as he is a chance witness, as he normally resides in Karachi. In addition to this the statements of prosecution witnesses under section 161, Cr. P. C. Were not recorded immediately and consequently no reliance can be placed on their statements specially in view of material contradictions infer se.
(d) That Exh. 11, the affidavit of the complainant, which was brought on record and on which the complainant has admitted his signatures, clearly shows that this was an unwitnessed crime and consequently the statements P. Ws. 1, 2 and 3 alleged eye witnesses, cannot be relied upon on this ground alone, as this affidavit of the complainant at least has created a reasonable doubt in veracity of the prosecution case.
13. ' In support of his above contentions the learned Advocate for the appellants relied upon cases reported in PLD 1976 Kar. 710 and 1983 P Cr. L J 823, in respect of the statements of P. Ws. Under section 161, Cr. P. C. And on 1979 SCM R 557, in respect of P. W. 3 Ali Nawaz's statement and on 1980 SCM R 225 and 1983 SCMR 1, in respect of evidence of P. W. 6 Abdul Qadir, the alleged mashir of the recovery of blood-stained hatchet at the pointation of appellant Sijawal. The learned Advocate in view of above submissions and the cases cited by him submitted, that the prosecution has failed to establish its case beyond reasonable doubt against both the appellants.
14. ' The learned Advocate appearing for the State on the other hand submitted, that he fully supports the impugned judgment as the prosecution witnesses are natural and the enmity suggested by the prosecution was such, that it gave motive only to the appellants. The learned counsel further submitted, that prosecution witnesses were not put any question on material points in their cross- examination and since the complainant has stated on oath, that he was not read over and explained &h. 11 alleged affidavit, the learned trial Court was fully justified in ignoring the said affidavit of the complainant.
15. ' In support of the above contentions, the learned Advocate for the State relied upon cases reported in PLD 1967 Kar. 233, PLD 1971 SC 751 and PLD 1980 Pesh.
16. 193.
17. ' 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 as well as the impugned judgment and the cases cited by the learned Advocates before me.
18. It is an admitted position, that all the alleged eye-witnesses of th incident are closely related to the deceased and on account of admitted matrimonial disputes between the parties, it would be unsafe to rely on their statements without independent corroboration. For such corroboration the prosecution relied upon the statement of P. W. 6 Abdul Qadi mashir of the alleged recovery of blood-stained hatchet at the pointation of appellant Sijawal. However, this P. W. Is also closely related to the deceased and Investigating Officer has given no reasons, why he did not choose an independent mashir for the alleged recovery. I find great force in the contentions of the learned Advocate for the appellants that P. W. 3 Ali Nawaz who is a real brother of the deceased, and normally resides at Karachi his presence on the day of the incident at vardat is not free from doubt.
19. In addition to this the statements of the prosecution witnesses under section 161, Cr. P. C. Were not recorded forthwith. Keeping in view all these facts the affidavit of the complainant Exh. 11, which is brought on record, on which the complainant did not deny his signatures, creates reasonable doubt in the prosecution case as well as regarding presence of P. Ws. I, 2 and 3 as eye-witnesses.
20. The complainant no doubt in his statement before the learned trial Court stated, that this affidavit was not read over to him and its contents ar not correct, but appellants examined D. W. 1 Ghulam Muhammad nib Commissioner, who categorically stated before the learned trial Court, that he had read over and explained the contents of the affidavit in question to the complainant, who was duly identified by one Mr. Nazir Ahmed, Advocate. In the face of the statement of D. W. I Ghulam Muhammad, in my opinion Exh. 11 has created a reasonable doubt about the presence of P. Ws. 1, 2 and 3 at the time of the incident. The cases cited by the, learned Advocate for the appellants regarding delay in recording of statements of P. Ws. Under section 161, Cr P. C., about P. W. 3 Ali Nawaz being a chance witness and P. W. 6 Abdul Qadi the alleged mashir of recovery are fully applicable to the facts of the present case, whereas the cases cited by the learned Advocate for the State are based on completely different facts and as such not at all applicable to the present case. I find no merits in the contentions urge by the learned Advocate for the State, in view of my above conclusions. In my opinion prosecution has failed to establish its case beyond reason able doubt against both the appellants.
21. ' Therefore, I allow the above appeal and set aside convictions of the appellants and sentences awarded to them by impugned judgment and acquit them by giving them benefit of doubt and direct that both the appellants be released forthwith, if they are not required in any other case.