1. ' Appellants have called in question the impugned Judgment dated 31-10-1989, passed by learned Ilnd Additional Sessions Judge Hyderabad, in Sessions Case No,258 of 1979, whereby they have been convicted and sentenced under section 302, P.P.C. To undergo life imprisonment and to pay fine of Rs,5,000 each or in default to undergo further R.I. For one year each. The amount of time, if recovered, be paid to the heirs of the deceased. The appellants were also convicted under section 324, P.P.C. And were sentenced to undergo R.I. For two years and to pay fine of Rs,500 each or in default to undergo R.I. For 3 months more. Appellants were also convicted under section 504, P.P.C.
2. And were sentenced to undergo R.I. For one year and to pay fine of Rs,500 each or in default to undergo R.I. For 3 months more. Both sentences to run concurrently. Benefit of section 382-B, Cr.P.C.
3. Was also accorded to the appellants, hence this appeal.
4. ' The brief facts of the case are that complainant lodged report on 3-12-1979 at 7-00 p.m. That he used to put up in his own village situated in Deh Arain. At about 3-00 p.m. When he was in his house, his son Rasool Bux informed him that after weight of his Phutties (sic) to his land, where he heard some noise, as such he went running over there. Haji Wazir also came there, both of them had seen lqbal, Abbas and Sajjad sons of Ghulam Muhammad and eldest son of Lai Punjabi whose name was not known, abusing Meeral the nephew of complainant and so also Meeral's son, namely, Aslam. They were asking Meeral as to why he and his son had excavated watercourse adjoining to their land, lqbal and Sajjad were armed with hachets whereas the others were having Soties. Aslam in reply stated that they had excavated watercourse in the land belonging to Govermnent, as such, they should not abuse them. On hearing so, the appellants became annoyed and within their sight Rasool Bux. And Haji Wazir gave hatchet and Soti blows to Meeral and Aslam who after being injured fell down. On cries of Meeral and Haji Wazir, the appellants left Meeral and Aslam and after 'abusing them, they went away. Thereafter, both injured informed them that after excavating the watercourse they had sent their bullocks to their village and were going to their Zamindar for setting the accounts, when the appellants suddenly emerged. He also informed that appellants after abusing them had given them hatchet and Soti blows due to which they were injured. Rasool Bux after leaving Haji Wazir over the injured came to inform the complainant. The complainant on such information came at the place of wardat alongwith his son Rasoot Bux. On reaching there he was also informed about happening by Haji Wazir and the injured. Threafter the complainant and his son Rasool Bux took both the injured with the help of the villagers to Pukka Road, from where they shifted the injured in a taxi to Police Station. On reaching at Police Station the complainant lodged F.1.R. Stating therein that on account of excavation of watercourse the appellants became annoyed and had caused hatchet and Soti blows to his nephew Meeral and also to Meeral's son Aslam. Such F.I.R. Was lodged vide Crime No, 71 of 1979. The injured were referred to hospital, where injured Meeral succumbed to injuries, due to which section 302 was applied in addition to sections 307, 323, 324 and 504.
5. ' S.H.O. After completing the formalities submitted challan against the present appellant.
6. ' In the instant case charge was read over to the appellants thrice; in the first instance, charge Exh.4 was read over to appellants on 4-11-1981 to which they did not plead guilty and thereafter the case proceeded. On application Exh.47, moved by A.P.P. Incharge of the case, the learned II Additional Sessions Judge ordered for amending the charge vide Order, dated 27-4-1983 and charge Exh.48 was read over to the appellants to which they did not plead guilty. After that, an application for holding separate trial of co-accused Sajjad Haider was moved on the ground of his minority at the time of alleged occurrence, the said application was allowed and the case of co-accused Sajjad Haider was bifurcated and fresh charge was framed against appellants Iqbal, Abbas and Manzoor and so also against accused Sajjad Haider on 12-2-1984, I J which they did not plead guilty. Atter that, complainant filed revision before this Court being Criminal Revision Application No,9 of 1984 against the order passed by the trial Court where too the said order was maintained vide judgment, dated 14-11-1984; as a result of the said order, the case against accused Sajjad Haider was proceeded separately from that of the present appellants, namely, Iqbal, Abbas and Manzoor.
7. ' Prosecution examined complainant Haji Fazal Ext.53, who has produced F.I.R. As Exh.54; P.W. Rasool, Bux Exh.55, who has produced his 164, Cr.P.C. Statement as Exh.56; mashirnama of dead body as Exh.57, and Inquest Report at Exh.58; P.W. Aslam Exh.59, who has produced his 164, Cr.P.C. Statement as Exh.60; Mashir Sabab Ali Exh.61, who has produced mashirnama of arrest of appellants Iqbal and Manzoor as Exh.62, mashirnama of recovery from appellant Manzoor as Exh.63; mashirnama of recovery of hatchet from appellant Iqbal as Exh.64, mashirnama of recovery of lathi from appellant Ghulam Abbas Exh. 65 and mashirnama of wardat Exh.66; S.H.O. Teepu Sultan Exh.76, who has produced mashirnama of watercourse as Exh.68, mashirnama of arrest of appellants Sajjad Haider and Ghulam Abbas as Exh.69, Chemical Examiner's Report as Exh.70, mashirnama Sadik Ali Exh.72, A.S.I. Khushhal Khan Exh.73, Dr. Amanullah Exh.74, Dr. Muhammad Sidik Mughal Exh.75, S.H.O. Ghulam Rasool Jatoi Exh.76, Tapedar Abbas Ali Exh.84, who has produced sketch of wardat in triplicate as Exh.85, mashir Mohram Exh.87, who has produced mashirnama of injuries as Exh.87/A, whereas P.W.
8. Iqbal Mian ACM was given up by A.P.P. Incharge of the case vide statement Exh.
9. 71.
10. ' The appellants in their statements under section 342, Cr.P.C. Exhs.77 to 79 have denied the allegations and have taken plea of false implication, Accused Iqbal Exh.77 in his statement has denied to have lodged the report which was taken down in station diary vide, entry No,9 and has stated that his signature was obtained on white papers after his arrest. All the appellants have stated that they have falsely been implicated due to enmity. They did not lead any defence.
11. However, they examined themselves on oath in disproof of charge Exh.80 to Exh.82, in which they have also taken the same plea. They have stated that the enmity existed between them and the complainant party but when the matter was referred to one Hadi Bux Rind, he got the matter compromised between them. They have stated that the complainant party thereafter backed out of the compromise decision. The trial Court has formulated the following points for determination.
(1) Whether the deceased Meeral died unnatural death but to hatchet and Soti injuries and that P.W. Aslam sustained injuries by means of hatchet and Soti?
(2) Whether the accused in furtherance of their common intention had abused Meeral and Aslam and thereafter caused murder of deceased Meeral and had given hatchet and lathi blows to P.W.
12. Aslam with an intention to commit his murder?
13. ' The learned trial Judge after hearing learned counsel for the parties and going through the evidence and other material passed the judgment in terms as stated above.
14. ' I have heard Mr. Noor Nabi G. Memon, learned counsel for the appellants, Mr. Muhammad Azeem Panhwar, learned counsel for A.A.-G. For State and Mr. Muhammad Ibrahim A. Soomro, learned counsel for the complainant and with their assistance have gone through the evidence of witnesses examined by the prosecution and other material available on record.
15. ' At the very outset, Mr. Noor Nabi G. Memon, learned counsel for the appellant has submitted that co-accused Sajjad Haidar being minor has been acquitted by this Court. He has contended that the enmity is admitted between the parties and there was a dispute over land of deceased. He has further submitted that ocular testimony being furnished by Rasool Bux and Aslam is not inspiring confidence and is not being supported by an independent quarter. He has further submitted that the evidence of injured witness is being belied by medical evidence, as it is the claim of the prosecution that Aslam sustained injury by sharp-cutting weapon but nowhere medical evidence has supported the case of the prosecution of this factum. He further submits that motive setup by the prosecution has been abandoned by the prosecution. Mr. Noor Nabi G. Memon, learned counsel for the appellant has further submitted that the recovery is not proved and the same is not reliable; the relationship between the witnesses is admitted, other witnesses were attracted but they have not been examined by the prosecution; P.W. Haji Fazal was a witness; neither post-mortem report has been (sic) nor exhibited before the trial Court; the complainant is not an eyewitness. He has further bitterly criticized that P.W. Haji Wazir, who is an eye witness has not been examined by the prosecution and there is no proper justification from the side of the prosecution in this regard. He has further drawn my attention on the statement of the appellant recorded under section 342, Cr.P.C. And contended that the statement is in violation of section 364(2), Cr.P.C. Learned counsel for the appellant has placed reliance on 1996 SCM R 308-313; PLD 1988 Kar. 521; PLD 1972 SC 286; 1976 SCM R 525; 1989 PCr.LJ 1202; 1985 PCr.LJ 2132; 1993 SCM R 550; PLD 1963 SC 17 and 1981 SCM R 795.
16. ' On the other hand, Mr. Azeem Panhwar, learned State counsel has agreed with the contention of the learned counsel for the appellant with regard to statement under section 342, Cr.P.C. Which is violative of section 364(2), Cr.P.C. And submitted for remand of the case; on merits, he has supported the impugned judgment and submitted that the evidence of Rasool Bux and P.W. Aslam are being corroborated by complainant Fazal.
17. ' Mr. Muhammad Ibrahim A. Soomro learned counsel for the complainant has supported the impugned judgment and adopted the arguments rendered by Mr. Azeem Panhwar, learned State Counsel and placed reliance on the cases reported in 2000 SCM R 1784-1815-2727-919.
18. ' Admittedly the complainant is not an eye-witness and the prosecution is left with ocular testimony being furnished try Rasool Bux and Aslam who is injured in the case. Admittedly, the witnesses are closely related to each other and other people of the locality were attracted but no independent witness has been examined by Police. There is no explanation from the side of prosecution as to why Haji Wazir has not been examined by Police and who is the independent witness. Non-examination of such witness by Police and prosecution cut (sic) the of the prosecution's case; prosecution had plenty of time before the trial Court to move such application for summoning Haji Wazir, who could have been the best witness for the prosecution but nothing has been done in this regard; inference can he drawn against the prosecution in these circumstances. Had Haji Wazir been examined by the prosecution he would have deposed before the trial Court something different and, therefore, neither he Was examined by the Police nor summoned by the prosecution and there is no explanation whatsoever in this regard. Superior Courts have held that "in a case where the capital punishment is in store, interested evidence is to he corroborated by independent quarter." There is delay in lodging F.I.R; Taxi driver has not been examined; there is delay in examination of witnesses under section 161, Cr.P.C. Aslam injured has been examined after 3 days and has admitted that he was examined after three days; there is no explanation from the side of the prosecution as to by Aslant has been examined after such delay. I have very carefully examined the deposition; thrice charge has been amended: the witnesses were examined and thereafter have been examined and there is glaring inconsistency between their statements before the trial Court; their evidence in these circumstances cannot be relied upon and the Hon'ble Supreme Court has held that basic principle before the trial Court is to see whether the witness is honest or dishonest, regardless of the situation that he is interested or disinterested. In the instant case, the witnesses have given somersault for one after another and thus it can be assumed that they had not stated the real facts before the trial Court. P.W. Aslam in cross- examination has admitted that Haji Wazir and Rasool Bux came-just immediately on his cries and P.W. Rasool Bux and Haji Wazir did not reach at the place of wardat after 5/10 minutes but they immediately reached. He has further admitted in his previous statement recorded in the Court that he has not stated about time after about P.W. Rasool Bux and Haji Wazir reached at place of wardat. It has been examined that in his previous statement this witness has stated that N.W. Haji Wazir and Rasool Bux both arrived together on cries; they reached at the place of wardat after about 5/10 minutes; P.W. Rasool Bux has stated before the trial Court that police also examined. He has further admitted in cross-examination that he did not see any other person except Haji Wazir in land and the labour Khan Muhammad Dagar and 2/3 haris were also present at the time of incident. After going through the statements of these two witnesses one can come to the conclusion that they are not honest witnesses and their evidence is not inspiring confidence. I have also examined very carefully the Inquest Report; the names of the appellants did not appear; motive has been abandoned by the prosecution; medical evidence is not supporting the version of the insured witness Aslant Haji Wazir has not been examined; post-mortem report has not been produced before the trial Court; charge has been amended on 4-11-1981 and second charge has been amended on 27-7-1983 and third charge has been amended on 12-2-1984 but no efforts have been made by the prosecution to examine the aforementioned P.Ws. The ocular testimony, as discussed supra, tainted and is not being supported by independent quarter. The law cited by the learned counsel for the complainant is distinguishable from the present case.
19. ' The upshot of the above discussion is that the prosecution has failed to prove its case beyond reasonable doubt against the appellants and I give benefit of doubt to the appellants; their convictions and sentences are set aside; appeal is allowed; appellants are on bail their bail bonds and sureties stand discharged.
20. ' The above are the reasons for any short order, dated 8-3-2001.