1. ' Appellant abovenamed by being aggrieved by judgment, dated 28-11-1978 of the learned Sessions Judge, Tharparkar, at Mirpurkhas, in Sessions Case No,54/77, by which appellant has been convicted under section 302, P.P.C. And sentenced to suffer imprisonment of life and also to pay of compensation of Rs,4,000 to the complainant under section 544-A, Cr.P.0 and in default of payment of such compensation to suffer further R.I for 6 months, has preferred the above appeal, on the following facts and grounds:- ' Briefly stated the prosecution story is, that appellant Shoukat is the real elder brother of complainant Shabrati. They are in all eight brothers. All of them are living in adjacent houses. Their mother Mst. Fatima is also alive and is residing with them. These houses were gifted by Mst. Fatima to them. Complainant Shabrati has a Kiryana shop, which is situated near their houses, in Mohallah Thomasabad, while the appellant is a retired Police Constable. The appellant was in the habit of demanding loans from the complainant. On this account there used to be exchange of harsh words between them off and on. On 6-10-1977 at about 10-30 a.m appellant Shoukat came to the shop of Shabrati and demanded loan from Shabrati as usual and on his refusal abused Shabrati.
2. Shabrati also abused his elder brother appellant Shoukat, on which Shoukat flared up and went away issuing threats. The appellant entered into the house of father-in-law of complainant Shabrati, where Mst. Razia wife of complainant Shabrati and her minor daughter Mst. Mumtaz, who was aged about two years were present. The appellant took Mst. Mumtaz in his lap and brought her out of the house in spite of the protest of Mst. Razia. Mst. Razia also followed him raising cries. After bringing her out of the house, accused Shoukat caught legs of the girl and struck her head against the brick pavement of the road twice. Complainant Shabrati and P.Ws. Muhammad Ibrahim and Rahim Bux witnessed the incident besides Mst. Razia and came running near the appellant. When they approached near the appellant, the appellant left Mst. Mumtaz there and made good his escape by running away towards Gaushala street. Complainant Shabrati and Mst. Razia immediately carried away the girl in a tonga to the Civil Hospital. She was immediately provided medical assistance, but she expired at about 1 p.m. Thereafter complainant went and lodged F.I.R at town police station Mirpurkhas. Before the lodging of the F.I.R. By the complainant, a telephonic information was also given by the doctor to S.H.O town about the arrival of the girl in an unconscious state.
3. ' A.S.I Muhammad Ayub immediately went to the hospital and found that the girl was lying unconscious. There was no visible injury on her person, but it was reported to him by the Medical Officer, that she had an injury on her head. He prepared Mashirnama and then came back to the police station. After taking down the F.I.R. The A.S.I. Again accompanied the complainant to the hospital and held inquest on the dead body of Mst. Mumtaz. He also prepared Mashirnama of the dead body. He then formally handed over the dead body to the Medical Officer for post-mortem examination. He then made enquiries from witnesses and inspected the scene of offence. He searched for the appellant, but could not find him till 16-10-1977. On 16-10-1977 at 7 p.m. He arrested the appellant from the graveyard. He then challaned the case.
4. ' A charge was framed against the appellant under section 302, P.P.C. To which he has pleaded not guilty and had claimed to be tried. In his statement under section 342, Cr.P.C. The appellant has denied all the prosecution allegations. He has denied, that he had disappeared after the commission of the alleged offence. He has alleged, that complainant Shabrati used to do, so their eldest brother Munir Khan had given him beatings and had struck a teakam on his leg, due to which he was limping. Thereafter all the brothers falsely implicated him in this murder case. He has not examined any defence witness.
5. ' The learned trial Court taking into consideration the evidence adduced before it, convicted and sentenced the appellant abovenamed as hereinbefore mentioned and consequently appellant has filed the above appeal, on the grounds mentioned in the memo. Of appeal.
6. ' The learned Advocate for the appellant in support of the above appeal submitted as under:-
(a) That there was a delay in lodging of F.I.R. Which has not been satisfactorily explained. In support of this contention the learned Advocate for the appellant relied upon cases reported in PLD 1979 Kar. 583 and PLD 1966 Lah.
7. 383.
(b) That 161, Cr.P.C. Statement of the prosecution witnesses on their own admission were recorded after few days of the incident and as such no reliance can be placed on the statements of such prosecution witnesses. In support of this contention the learned Advocate for the appellant relied upon case reported in PLD 1978 Pesh.
8. 30.
(c) That in view of the admitted enmity as mentioned in the F.I.R, the statements of Shabrati cannot be relied upon without independent corroboration, whereas the statement of P.W. Rahim Bux and Muhammad Ibrahim contradict each other in respect of material points and as such no reliance can be placed on the statements of these prosecution witnesses, including P.W Mst. Razia without independent corroboration, which is not at all available in the present case.
(d) That there is discrepancy in the ocular evidence and the medical evidence about the number of injuries found on the person of the deceased and as such presence of the P.Ws. Alleged eyewitnesses, specially P.W. Rahim Bux and Muhammad Ibrahim is doubtful. In support of this contention the learned Advocate for the appellant relied upon case reported in 1979 P Cr.L J 243.
(e) That the motive mentioned in the F.I.R was abandoned before the learned trial Court and a fresh motive was set up and as such no reliance can be placed on the statement of the complainant on this account. In support of this the learned Advocate for the appellant relied upon case reported in P, L, D,1976 SC 293.
(f) That the Mashir of the arrest is rather vague in his statement regarding the time when he was called upon to act as Mashir and as such the statement of the appellant, that he was arrested from his house cannot be overlooked.
9. ' The learned Advocate appearing for the State on the other hand submitted, that he was fully supporting the impugned judgment, as P.W. Rahim Bux and Muhammad Ibrahim are independent witnesses, against whom no specific enmity has been alleged. The learned Advocate further submitted, that the minor contradictions in the statement of P.Ws. Do not make their statements unworthy. The learned Advocate for the State further submitted, that complainant is a real brother of the appellant and as such he would not falsely involve him for a capital offence, on the basis of minor enmity suggested in cross-examination to the said witnesses. In view of this the learned Advocate for the State submitted, that prosecution has established its case beyond reasonable doubt.
10. ' I have carefully considered the above submissions made by the learned Advocates before me and have gone through the R & P of the learned trial Court as well as impugned judgment and the cases cited by the learned Advocates before me.
11. The contentions raised by the learned Advocate for the appellant before me have great force.
12. Delay in lodging of F.I.R has not been satisfactorily explained by the complainant, in my opinion.
13. Ocular evidence of P.Ws. Is in contradiction of the medical evidence, in as much as according to post-mortem report, deceased had only one injury on her head, whereas according to all 3 P.Ws.
14. Appellant is alleged to have hit the head of deceased twice on hard floor, after raising deceased body by legs. Furthermore, according to P.W.8 Dr. Sultan Muhammad, injury received by the deceased could have been caused by fall from height. Statements of P.W. Rahim Bux and P.W.
15. Muhammad Ibrahim under section 161, Cr.P.C., according to them were recorded after at least few days of the incident and there are material contradictions inter se between both these witnesses, and as such no reliance can be A placed on their statements, without independent corroboration, which is not available at all. Appellant has also alleged enmity with P.W. Rahim Bux in his statement under section 342, Cr.P.C. Appellant has also alleged enmity with complainant as well. It is also admitted position, that motive suggested in F.I.R was abandoned by complainant, before trial Court, which creates doubts about his entire statement. Even P.W.9 Munir Khan, the Mashir of arrest of the appellant has not stated about place of arrest of the appellant, so also Mashirnama Exh.20, although statement of P.W.7 Muhammad Ayub only shows that appellant was arrested from graveyard. However appellant has denied this fact and has stated in 342, Cr.P.C. Statement, that he was arrested from his house and had not absconded at all. Statement of P.W. Fatima cannot be considered, as it is based on hearsay. Keeping in view all these facts on record, in my opinion prosecution has failed to establish its case against the appellant beyond reasonable doubt.
16. ' Therefore I allow the above appeal and set aside the conviction of the appellant and sentences awarded to him under impugned judgment and acquit him by giving him bebefit of doubt and dischage the bail bonds executed by the appellant in the above appeal.