1. MUHAMMAD AFZAL ZULLAH, J.--Leave to appeal has been sought from judgment dated 16-11-1982 of the Sind High Court; whereby a State appeal against acquittal in a case under section 302/34, P.P.C., was dismissed.
2. The prosecution case as contained in the deposition of Hashmat Iqbal P.W. Who is real brother of Shaukat Iqbal deceased in this case and is also the complainant is as follows: "I know accused Hamid Baig, Maqbool and Gulab Baig present in Court for the last 20 years as they reside opposite my house. Deceased Khurshid Ahmed alias Shoukat Iqbal was my younger brother.
3. On 1-4-1976, 1 returned from my office and was going to my house when Javed Iqbal told me that the above three accused persons had beaten Mst. Gulshan Ara wife of Arif Qureshi, my maternal- uncle at about 5 p.m. On the said date. A day prior to the incident a quarrel had taken place between my uncle's children and the accused persons. Many persons including Haji Khursheed Alam, Mehboob, Saghir and Abdul Hakim had collected there and suggested that I should go to the accused persons and ask them as to why they had behaved in this manner and to patch-up the matter. My younger brother was also present there and I asked him to go and call accused Gulab Baig. My brother went to the Bakery of the accused persons, at a distance of about 10-12 yards. As soon as my brother went to the Bakery, accused Hamid Baig caught him and shouted that one of their persons has come. Accused Gulab Baig attacked my brother with a hatchet and also shouted that they should kill him. Accused Maqbool alias Makoo then inflicted several knife injuries to my younger brother. The accused persons after inflicting the injuries ran away towards the road. I, Khurshid Alam and Mehboob went to the Bakery and took my younger brother in a Taxi to Civil Hospital, but he died in the way. I left Mehboob and Khurshid Alam in the Civil Hospital with the dead body of my younger brother and went to the Golimar Police Station for lodging the F.I.R. I produce the F.I.R. As Exh.
10. It is same, correct and bears my signature. My signature was obtained after the contents of the F.I.R. Was read over to me and admitted correct. The Chhuri shown to me in the Court is the same which was in the hand of Maqbool alias Makoo and with which he inflicted injuries to my deceased brother."
4. It may be mentioned that while some persons by name were mentioned in the F.I.R. As eye- witnesses several others were mentioned without specifying their names as also having witnessed the occurrence. It is in pursuance thereof that in addition to the named eye-witnesses, the other eye-witnesses mentioned in the F.I.R. Were also examined by the police under section 161, Cr.P.C.
5. Not only this all. The eye-witnesses in both the groups totalling 9 were examined at the trial as eye- witnesses. From amongst them Abdul Aziz, Muhammad Sidiq, Naney Khan and Wahid Ali who admittedly are independent witnesses not only did not support the prosecution case as shown in the testimony of Hashmat lqbal but gave a totally different version of the occurrence which is projected in the deposition of Muhammad Sidiq one of the aforementioned second group of witnesses. It reads as follows: "I have my sweetmeat shop in Wahidabad. I go to my shop at about 10.30 in the morning and remain there till about 10.30 in the night. I know all the three accused present in Court, prior to the incident as they had their bakery at a distance of about 8 or 10 yards from my shop. The deceased was known .To me by face. On 1st of April or May in the year 1976, I was in my shop at about 8 p.m.
6. When I heard noises from the Gall at the back of my shop: I alongwith Nann , Abdul Wahid, Haji Panwala and Master Dudhwala went to the Gali and at a distance of about 15paces from my shop towards the back we saw that a by was lying unconscious. Other persons of the locality were also present there and the by was taken to the hospital in a taxi. I then returned to my shop and continued my business. (At this stage the A . P. P. States that he had declared the witness hostile as he had not supported the prosecution case and has resiled fromhis statement before the police, and requests for permission to X-examine the witness. Permission to cross-examination is granted).
7. XXX to Mr. Shakir Ali A.P.P.
8. "It is correct that the bakery of the accused persons is visible from my shop. It is not correct that on 1-4-1976 at about 8.00 p.m. Deceased Shaukat Iqbal had gone to the bakery of accused persons. It is also not correct that accused Hamid Baig caught hold of Shaukat Iqbal and accused Haji Gulab Baig attacked Shaukat Iqbal with a hatchet. It is also not correct that accused Haji Gulab Baig had exploited accused Maqbool to kill deceased Shaukat Iqbal. It is not correct that accused Maqbool Ahmed thereafter attacked deceased Shaukat Iqbal with a Chhuri. It is not correct that I had seen deceased Shaukat Iqbal running away from the bakery after receiving the hatchet and Chhuri injuries in the Gali at the back of my shop. It is not correct that I had witnessed the incident. It is also not correct that I have given obliging statement in favour of the accused on account of previous friendship with them.
9. XXX to Mr. M.H. Shah Advocate for accused.
10. "The place where the by was found lying unconscious was in dark and there were no lights in the Gali. I know Hashmat Alam, Abdul Aziz, Haji Khursheed Alam, Muhammad Maboob Khan and Saghir Ahmed. All the above-named persons had reached the place where deceased Shaukat Iqbal was lying injured after about 15 minutes of the the when I reached there. It is correct that there are houses around the place where deceased Shaukat Iqbal was lying."
11. Both the learned Courts below did not consider the prosecution d evidence enough to record finding of guilty against the respondent--/accused persons. The complainant has now sought leave to appeal---presumably because the State has not come forward up to this Court.
12. It is admitted by the learned counsel that the case of the prosecution rests on the ocular testimony of the witnesses. If that is excluded the remaining material is not enough to connect the accused with the crime. Regarding the oral testimony of the eye-witnesses learned counsel has read, amongst others, the depositions of Mehboob Khan P.W. Who is named as an eye-witness in the F.I.R. And is an independent person and has also supported Hashmat lqbal P.W. The argument advanced by the learned counsel in this behalf is that although the eye-witnesses deposing against the prosecution are independent, nevertheless there are other witnesses including Habib Khan who are also independent and have supported the presecution case.
13. On face the contention appears attractive but on deeper scrutiny of the testimony of Muhammad Sidiq reproduced above and the depositions of other witnesses who support him in the parallel version given by him makes it amply clear that they have demolished the case made out by Hashmat lqbal and the set of witnesses supporting him in that, it has been stated on oath that it was an unwitnessed occurrence and further that the reason for its being unwitnessed was darkness of night. It is not the usual case of a witness having been won over so as to make one statement in the examination-in-chief and another in their cross-examination or one who states that he knews nothing about the case. In that eventuality it might be possible in a given case to exclude the statements of such witnesses and to accept the statement of the witness who claims to have seen the occurrence. In the present case the eye-witnesses who have deposed against the prosecution have done so in entire depositions taken independently as a whole. Their stands in examination-in-chief and in cross-examination was consistent and it was not their case that they were either not able to witness the occurrence as alleged by the prosecution or they did not witness the same. On the contrary as it appears from the testimony of Muhammad Sidiq it is clear that he was in a position not only to see the occurrence but also could have identified the culprits if the occurrence had taken place as stated by the complainant and further that in reality it could have been possible only if there was enough light. And that there was no such occurrence at or around the spot asserted from the complainant side and further that there was darkness at the place where dead body was found. The parallel suggestion was that the deceased was done to death at the other place where the dead body was found and where it was darkness. Accordingly none could have seen the occurrence or identified the culprits. Thus, the effect of the statements of all the witnesses who supported the prosecution case has been diluted by these prosecution witnesses who are independent and have not supported A the prosecution case. It is also not possible from the statements of this set of witnesses to come to a conclusion that they were either won over or dishonest witnesses.
14. That being so no useful purpose would be served by grant of leave to appeal for re-appraisal of the evidence sought by the learned counsel for the petitioner. Leave to appeal accordingly, is refused.