' Appellant Abdul Karim, (2) Laloo alias Lal Bux, (3) Haji Allah Bux and (4) Moula Bux were tried by the learned 111rd Additional Sessions Judge, Shikarpur for offences under sections 302/324/34, P.P.C.
In Sessions Case No, 212 of 1991 and were found guilty to have committed murder of Hazar Khan on 30-6-1991 in his house and causing hurt/injuries by pistol shot to Mst. Hamida wife of Hazar Khan.
As per judgment, dated 30-5-2001 all the four appellants were awarded imprisonment for life and to pay compensation amounting to Rs,30,000 each to the legal heirs of the deceased Hazar Khan under section 544-A, Cr.P.C. They Were also found guilty under section 324, P.P.C. And of them was awarded R.I. For six years and to pay fine of Rs,10,000 each or in default of fine to undergo S.I. For five months more. Both the sentences were ordered to run concurrently and benefit of section 382-B, Cr.P.C. Was also extended.
2. It is the case of the prosecution that on 30-6-1991 at about 03-45 hours the appellants being armed with guns, pistols and hatchets did commit murder of Hazar Khan by causing. Him gunshot injuries and causing hurt to Mst. Hamida. F.I.R. Was lodged by complainant Imam Bux elder brother of deceased Hazar Khan on 30-6-1991 at 03-45 hours at Police Station. New Foujdari, Shikarpur naming the accused and role assigned to each of them.
3. During the trial, complainant Imam Bux in his examination-in-chief reiterated the facts stated in the F.I.R. In his cross-examination he denied the suggestion that he had not witnessed the incident and he was deposing falsely. He admitted that deceased Nazar Khan was facing a charge for murder of one Master Fateh Muhammad prior to this incident apart from another case under section 457,.P.P.C. Lodged at the instance of one Qadir Bux Sanjrani. He denied the suggestion that Hazar Khan was murdered by legal heirs of deceased Master Fateh Muhammad. He stated that he did not remember the name of the donkey cart owner on whose cart Mst. Hamida was taken to the Police Station. He produced his F.I.R. As Exh.9/A. Next witness examined is P.W.2 Ghulam Hyder who in his examination-in-chief has stated that at the time of incident he and his brother P.W. Ali Hyder were sleeping in their house which is situated near the house of Hazar Khan. At about 2-45 a.m.
Mst. Niamat mother of Hazar Khan came running to his house and informed that Hazar Khan was murdered by thieves. The said witness and his brother Ali Hyder went to the house of Hazar Khan and that they had seen three culprits while running away after commission of the offence. Mst.
Niamat also did not disclose the names of the assailants. He stated to have narrated the same facts to the police and further stated that his L.T.I. Was taken before Mukhtiarkar and F.C.M. Without reading over the contents thereof. He further stated that he could not say whether the accused/appellants are the culprits as he had not been able to identify them and had seen the culprits while running from their back side. He was declared hostile and in cross-examination to the learned D.D.A. For the State, he denied that he had identified the accused and his statement under section 164, Cr.P.C. Was read out to him. In reply to a question from defence counsel he stated that the accused were having muffled faces. He produced his alleged 164, Cr.P.C. Statement as Exh.10/A.
The third witness P.W.3 Ali Nyder also narrated the same facts as stated by his brother Ghulam Hyder (P.W.2). He denied to have got recorded his 164, Cr.P.C. Statement before the Magistrate and stated that his. L.T.I. Was obtained without reading-over the contents of his alleged statement. He was also declared hostile and he was cross-examined by the learned D.D.A. He denied that he was won over by the accused. In cross-examination by the learned defence counsel he stated that the complainant or the widow or mother of Hazar Khan had not disclosed the name of culprits to him.
Injured Mst. Fahmida alias Hamida who can be said to be star witness of the case being an injured witness was also examined. Her alleged statement under section 164, Cr.P.C. Has been produced by her as Exh.11/A. The said witness of this case Mst. Hamida w/o Hazar Khan has also said a complete go-bye to the prosecution's case while stating in her examination-in-chief that at the time of incident complainant Imam Bux who is brother of Hazar Khan was not available in the house as he had gone to village Mureed with some work. She further stated that she was unable to identify the culprits as it was night time though she had have received injuries at their hands. She resiled from her 164, Cr.P.C. Statement and stated that she was called in the office of Mukhtiarkar, Shikarpur about 27/28 days after the incident and her R.T.I. Was obtained on some papers, but the contents thereof were not read over to her. She was also declared hostile. She denied that her statement under section 164, Cr.P.C. Was read over to her. She also denied that she has patched up with the accused, hence she was not deposing against them: Her statement allegedly recorded under section 164, Cr.P.C. Was also produced as Exh.
13. P.W.5 Muhammad Usman who is Mashir of various events has denied that police had visited the place of incident and stated that he had gone to police station where his signatures were obtained on various papers. He denied if accused Abdul Karim was arrested in his presence. He also denied regarding the arrest of Laloo alias Lal Bux having been made in his presence and recovery of a single-barrel gun and two cartridges. He also denied if accused Allah Bux was arrested in his presence and pistol was recovered from him. He also denied that memo. Of arrest of said accused was prepared in his presence and he had signed the same. The learned trial Court has noted that there were no signatures of the said witness on the memo. Of the arrest. He was also declared hostile and cross-examined. He stated that Hazar Khan and Mst. Hamida are his relatives. His house is situated at one furlong away from house of Hazar Khan. He denied that accused Abdul Karim, Laloo alias Lal Bux and Allah Bux were arrested in his presence. The relevant Mashirnamas were produced as Exhs.16, 17, 18, 19 and 20.
4. Doctor Nooruddin had conducted post-mortem and opined that injury No,2 which was caused by fire-arm was caused from distance of 2/3 yards. Nazar Khan expired due to injury by discharge of fire-arm. He had also examined injured Mst. Hamida, noted injuries on her person had issued such certificate. Post-mortem notes in respect of deceased Hazar Khan and the certificate of injuries of Mst. Hamida have been produced and X-Ray reports in respect of Mst. Hamida were also placed on record. The last witness in this case is Inspector Muhammad Rafique of Police Station New Foujdari Shikarpur who stated to have recorded the F.I.R. Lodged by complainant Imam Bux and thereafter visited the place of incident. He sated to have prepared Mashirnama of injuries of Mst. Hamida, inquest report of deceased Hazar Khan and recovered bloodstained earth and three empties of 12 bore gun from the place of incident and sealed the same. He has further stated about the recording of statements of the witnesses under section 161 and arranging for recording various statements 164, Cr.P.C. He also said to have arrested accused Abdul Karim with gun of 12 bore and prepared such memo. He also prepared memo. Of arrest of accused Laloo alias Lal Bux with two live cartridges. The gun was found unlicensed for which a separate F.I.R. Was lodged. He further stated to have arrested accused Allah Bux from his personal search he secured one pistol of 12 bore and two live cartridges. He stated to have sealed the same and a separate report was lodged.
Accused Moula Bux was shown as absconder at that time and he was arrested by another Officer., He was cross-examined in detail. He denied that he has falsely implicated the accused in this case and that he has managed 161 and 164, Cr.P.C. Statements of the witnesses and various Mashirnamas.
5. Mukhtiarkar and F.C.M. Shamasuddin Abbasi was not examined and given up. The prosecution thereafter closed its side. In their statement under section 342. Cr.P.C. Accused denied the allegations against them and claimed to be innocent and stated to have been falsely implicated due to previous enmity with complainant, who has deposed against them in a Sessions Case No, 283 of 1991 (State v. Abdul Karim and others) under section 324, P.P.C. And they were acquitted.
Accused Laloo alias Lal Bux and Allah Bux are stated to have been acquitted for the cases under sections 13-D Arms Ordinance.
6. Messrs Ali Nawaz Ghanghro and Shahbaz Ali Brohi learned counsel for the appellants have argued that the learned trial Court has erred in law while convicting the appellants solely on the basis of uncorroborated statement of P.W.1 complainant Imam Bux was is on inimical terms with the accused side. They have further argued that Mst. Hamida who is injured witness has not implicated the accused/appellants and categorically stated that complainant Imam Bux was not present in the house during the night when the incident took place. They have further argued that P.Ws. Ghulam Hyder and Ali Hyder who reached the place of incident soon after the commission of the offence, have also not implicated the accused/appellants and further stated that Mst. Niamat mother of the deceased Hazar Khan did not disclose the name of the assailants to them. The learned counsel has further pointed out that Mst. Niamat was not examined as she had expired in the meantime. They have further pointed out that Mashir of various events Muhammad Usman has not supported the prosecution case and he too was declared hostile. CoMashir Hazoor Bux was not examined by the prosecution and the presumption shall be that if he would have been examined, he would have not supported the prosecution case. Learned counsel have also pointed out that Mukhtiarkar and F.C.M. Shamasuddin Abbasi was given up by the prosecution as such there is no evidentiary value of the alleged 164, Cr.P.C. Statement of the witnesses, who have denied to have been examined under section 164, Cr.P.C. By the said Magistrate. The learned counsel have, therefore, urged that uncorroborated sole testimony of complainant Imam Bux particularly when his presence at the time of incident is also doubtful, cannot be made a basis for conviction for a capital charge under the circumstances.
7. Mr. Sher Muhammad Shar, learned Assistant Advocate-General has argued that all the private witnesses except complainant Imam Bux have been declared hostile. Co-Mashir, as well as the Mukhtiarkar and F.C.M. Who recorded 164. Cr.P.C. Statement were not examined so also the Tapedar was not examined in this case. The learned Assistant Advocate-General has, therefore, conceded that the case is not free from doubts.
8. I have considered the arguments of the learned counsel for the appellants/accused and the learned Assistant Advocate-General I find that best and most natural witness of this case could be Mst. Hamida wife of Hazar Khan. But she has not supported the prosecution case. The evidentiary value of the statement of complainant Imam Bux has come under shadow when Mst. Hamida states that Imam Bux was not present in the house at the .Ime of the incident and he had gone to some other village. Statements of P.Ws. Ghulam Hyder and All Hyder who reached at the place of incident after receiving information from Mst. Niamat mother of deceased Hazar Khan is also of no avail to the prosecution. Non-examination of second Mashir is also fatal to the prosecution under the circumstances as corroborative evidence in the form of arrest and recovery of the accused/appellants except Moula Bux does not stand proved. So far the medical evidence is concerned, it establishes the fact that Hazar Khan was done to unnatural death at the relevant date and time and Mst. Hamida received injuries, but who were the assailants. Cannot be proved through such evidence.
9. Under these circumstances, I agree with the view expressed by the learned Assistant Advocate- General and the arguments of the learned Advocates for the appellants that prosecution has not been able to establish the guilt .Of the appellants beyond all reasonable doubts, hence their appeal is allowed and the appellants stand acquitted.
' By a short order, dated 27-5-2002, I had allowed this appeal and these are the reasons for the same.