ALI AKBA Versus THE STATE

This appeal is directed against the judgment dated 23-12-1993, passed by the then learned IVth Additional Sessions Judge, Sukkur, whereby appellant Ali Akbar was convicted under section 302, P.P.C. and sentenced to suffer imprisonment for life and to pay fine of Rs.10,000 or in default thereof to suffer R.I. for further period of two years. Fine, if recovered, was ordered to be paid to the legal heirs of deceased Muhammad Rafiq.

2. Complainant Habib on 15-1-1983 lodged F.I.R. at P.S. Khanpur Mahar, which was recorded by S.H.O. Rana Riasat Ali under section 302/34, P.P.C. The occurrence took place on said date at about 4-30 p.m. near the house of one Noor Hussain Pitafi, situated in Taluka Mirpur Mathelo.

3. The motive, as set up in the F.I.R., is that a sister of said deceased was engaged to a son of one Allah Bux, who is a cousin of appellant Ali Akbar, and later on said proposed marriage was not solemnised as the deceased declined to give her hand and for this reason he was killed.

4. The case of the prosecution, in brief, is that on the day of occurrence at aforesaid time the complainant was sitting in his house, when he heard gunshot reports. He and his brother Muhammad Yousif rushed towards the scene of offence and saw their two nephews namely, deceased Rafiq, and Shareef running away after throwing their cycle and that they were being chased by appellant Ali Akbar and acquitted accused Abdul Hakeem. The complainant and Muhammad Yousif had challenged them and within their sight acquitted accused Abdul Hakeem had fired with a gun upon Rafiq, who was hit at his stomach and fell down. It is alleged that appellant Ali Akbar had threatened the complainant party not to go near them. After the departure of the appellant and acquitted accused the complainant, and Muhammad Yousif went near Rafiq and found him dead. Shareef had infum ed the wxnplainant and Yousif that he and the deceased weir coming un a cycle after attwiding the "Khairat" of Haji Lal Pitafi, and whet. they reached neap the Scene of offence they. were attacked by the appellant and the acquitted accused, as mentioned earlier. The complainant leaving the P. Ws. at the dead body had gone to said P.S. and lodged the F. I. R,

5. The investigation of this case was conducted by 1.0. Rana Riasat Ali. He at the police station prepared Mashiruarna of dead body in presence of Mashirs Muhammad Younis arid Minhon Khan and sent the dead body to Taluka Hospital, Mirpur Mathelo, through P.C. Dil Murad, for post-mortem examination and certificate. Thereafter, he proceeded to the scene of offence, which was shown to him by tine complainant, and prepared its Mashirnama in presence of Mashirs Muhaad Younis and Noor Hasan. from there he secured two empty cartridges and a cycle in presence of said Mashirs. On the same day, he recorded statements of P.Ws. Muhammad Sharif and Muhammad Yousif. On 17-1-1983, he recorded statements of P.Ws. Mst. Sakina and Mst. Bashiran. On 25-2-1983, he arrested acquitted accused Abdul Hakeem in presence of Mashirs Mohbat and Farid Mahar. It is alleged that acquitted accused voluntarily produced a single barrel .12 bore gun, which was secured in presence of Mashirs. On 8-3-1983, he got recorded 164, Cr.P.C., statements of P.Ws. Muhammad Sharif and Muhammad Yousif by Civil Judge & FCM Ghotki. On completion of investigation, he submitted charge-sheet before the concerned Court.

6 The appellant was arrested on 10-11-1986.

7. At trial, the prosecution examined complainant Habib and P. Ws. Muhammad Yousif, Punhoon, Bahadur Ali, Tapedar, Muhammad Shareef, Dr. Abdul Ghafoor, and 1.0. Riasat Ali. Complainant Habib was examined on 24-4-1986. P.W. Muhammad Yousif was first examined on the aforesaid date and later on 30th August, 1992. The evidence of the complainant was brought on record under Article 47 of Qanun-e-Shahadat, 1984.

8. Necessary charge under section 302/34, P.P.C. was framed against the appellant and co-accused and they did not plead guilty and claimed to be tried.

9. The appellant, in his statement recorded under section 342, Cr.P.C. denied the prosecution's allegations and claimed to be tried. The appellant and co-accused neither examined themselves on oath nor produced any witness, in their defence.

10. Dr. Abdul Ghafoor on 16-1-1983, had conducted the autopsy on the dead body of deceased and found the following injuries:--

(1) Fire-arm wound 3 1/2 X 3 c.m. deep into abdomen with lacerated irregular margins at right side of abdomen at lateral part of right coastal margin with fracture of right 10th rib. There were 2 x 1 c. m. bruise just below and 1 x 1 c. m. bruise just above the main wound.

(2) Lacerated wound 1 x 1/2 c.m. at left side of abdomen 9th space at anterior axillary line-irregular everted margins.

(3) Lacerated wound 1/2 x 1/2 c.m. irregular everted margins at left side of abdomen at 11th i/c space and mid axillary.

(4) Lacerated wound 1 x 1 c.m. irregular everted margins left lower back of body at 10th i/c space at post axillary line.

(5) Lacerated wound 1 x 1/2 c.m. inverted margins irregular muscle deep at middle of lateral surface of right arm.

>(6) Lacerated wound 1 x 1/2 c.m. everted irregular margins at middle of posterior surface of right arm, depth of wound is continuous with the wound No.5.

(7) Lacerated wound 1 x 1/2 c.m. inverted margins at posteriomedial aspect of left foot.

(8) Lacerated wound 3 x 1/2 c.m. linear irregular everted margins parallel to the sole of foot posterior end of the wound where the depth is continuous with wound No.7.

11. According to the doctor the cause of death was shock and hemorrhage and the injuries were ante-mortem and were caused by discharge from fire-arm and that injury No. l was sufficient in the ordinary course of nature to cause death. The factum of death is not disputed.

12. Learned trial Judge by the impugned judgment acquitted co-accused ' Abdui HakGCin and convicted the appellant and for this he solely relied upon the ocular account furnished by the complainant and P.Ws. Muhammad Yousif and Muhammad Sharif.

13. Mr. Shamsuddin Kobhar learned counsel for the appellant contended that learned trial Court erred in relying upon the testimony of the complainant as he was examined only when the acquitted accused was facing trial and that when the appellant was tried the complainant had already expired, and it being so his testimony was inadmissible, as such, could not be relied upon. Learned counsel, also argued that even otherwise the evidence of all the eye-witnesses, namely, Habib, Muhammad Shareef, and Muhammad Yousuf, is unrealistic, full of contradictions, and tainted with doubts, and could not be relied upon. Elaborating it, he submitted that P.Ws. Shareef and Muhammad Yousif, in their 164 , Cr. P.C . statements, maintained that acquitted accused Abdul Hakeem had fired upon deceased and killed him, while at the time of trial, they completely changed their earlier version and stated that the appellant had killed the deceased.

14. The first point to be considered is whether or not the evidence of the complainant could be considered by the trial Court, It appears that by consent his evidence was brought on record and subsequently it was relied upon. Section 353, Cr.I-.C., lays down that all evidence taken, under Chapters XX, XXI, XXII and XXII-A of Cr. P.C., shall be taken in presence of accused or when his personal attendance is dispensed with, in presence of his pleader.' Article 47 of the Qanun-e-Shahadat,.1984 prescribes the conditions under which' secondary evidence of the testimony of a witness in the former proceeding, civil or criminal, is admissible in subsequent proceeding or in a later stage of the same proceeding where the question in controversy in both proceedings is identical and where the witness is dead or cannot be found or is incapable of giving evidence. Before such evidence could be made admissible, the following s conditions are necessary to be complied with:

(i) That the earlier evidence was taken in a judicial proceedings.

(ii) That the first proceeding was between the same parties.

(iii) That the party against whom deposition is tendered had a right and full opportunity of cross-examining the deponent when the deposition was taken.

(iv) That the issues involved are the same or substantially the same in both proceedings.

That the witness is incapable of being called at the subsequent proceeding on account of death, or incapability of giving evidence or being kept out of the way by the other side or an unreasonable amount of delay or expenses.

15. It is noted that above are conditions precedent before a previous deposition could be admitted for consideration. Absence of any one of them would not attract said Article nor was there compulsion to straight away believe such deposition if rightly or wrongly brought on record. In other words, said Article only makes the statement of witness admissible in evidence and it is always open to the person against whom said statement is brought to show that it could not be believed for valid reasons given by him. Learned State Counsel submitted that since the statement of complainant was brought on record with consent of the parties, its relevancy and validity could not be challenged. This proposition, however, is not correct for the simple reason that an. inadmissible evidence cannot be made admissible by consent of the parties.

16. As pointed out earlier, the appellant was arrested on 10-11-1986 and the statement of complainant was recorded on 24-4-1986, who only acquitted accused was being tried. It being so, the appellant had no opportunity to cross-examine the complainant. In this connection reliance is placed upon the case reported, as Muhammad Hussain alias Mulla v. State, 1986 PCr.LJ 337 wherein it was observed that strict compliance of the provisions of section 33 of the Evidence Act (Article 47) Qanun-e-Shahadat was essential before evidence could be admitted by trial Court. In the instant case, admittedly the appellant had no opportunity to cross-examine the complainant when his statement was recorded. Therefore, the evidence of the complainant could not be brought on record and used against the appellant.

17. As regards the question of credibility of the eye-witnesses, it is noted that the complainant in the F.LR. stated that it was acquitted accused who had killed the deceased, while in his deposition before the trial Court he held the appellant responsible for paid murder. This is a major contradiction and there is no corroborative evidence ire support of his changed version, which is completely averse iv the earlier one. Even if his evidence is taken as admissible, yet, he cannot be relied upon

18. Evidence of P.W. Muhammad Yousif, was recorded twice. First, he was examined on 24-4-1986 and secondly on 30th August, 1992. It is significant to note that on the first occasion he was declared hostile by the prosecution. According to his 164 Cr.P.C. statement, ii was acquitted accused, who had fired upon the deceased, but in his statement before the trial Court on second occasion he even showed his inability to recognize the acquitted accused. He too, like the complainant, in his send version has given entirely a different story, which is absolutely contrary to the earlier one., P.W- Muhammad Shareef has followed the footsteps of the abovenamed witnesses and like them ensiled from his earlier statement, which admittedly was recorded under section 164, Cr.P.C. He even at one stage in his 1 deposition stated that he could not say as to which one of the two accused had fired upon his deceased brother.

20- Ali these eye-witnesses are closely related with each other and also with the deceased. Being interested and partial witnesses their testimony for the offence carrying capital punishment cannot be relied upon without irrefutable t corroboration, which is missing. In fact, in a case of capital punishment the evidence must be unimpeachable, which is not available in this case, Under these circumstances, the prosecution has failed to prove its case and the appellant is entitled to acquittal.

21. On 12-8-1996, after hearing the arguments the appeal was allowed, the impugned judgment was set aside, and the appellant was acquitted and these are the reasons for the same.

N.H.Q./A-77/K Appeal allowed.