IDREES Versus THE STATE
1. Appellant Idrees alongwith Babudding Sodagar and Farid was tried for the offences punishable under section 307,326, 342 and 504 P.P.C. read with section 34 P.P.C. by Additional Sessions Judges, Tharparkar, Appellant Idrees has been convicted while co-accused were acquitted by judgment dated 30 th August, 1982. Idrees has been sentenced to suffer R.I. for two years and to pay a fine of Rs. 1,000 and also compensation of Rs. 1,000 to injured Umerduddin. In default of payment of fine and compensation he is directed to undergo R.I. for six months more on each account.
2. Hafeez s/o Alahuddin is complainant. He lodged his report on 6-8-1979 at 20/30 hours at Police Station Mirpur Khas, District Tharparkar in which he stated that in the evening he closed his shop and alongwith his nephew Umeruddin went to his house After awhile he came out from his house and reached at the round‑about of Hirabad, near the Building of Jamil Clerk there came his nephew Umaruddin. They saw Idrees, Babu, Sodagar, Farid and other persons standing there. Idrees and others called Umaruddin. He went and he was told that his women‑folk quarrelled with their women‑folk. To which Umeruddin told them that he would ask their women to behave properly. On this accused abused him and Idrees picked out knife and gave him injuries on the right side of rib while co‑accused caught hold of him. On commotion he, Ibrahim, Jamil and Basruddin rushed to rescue Umeruddin, but accused ran away and Umeruddin fell down on the ground and was bleeding. Umeruddin was taken to Police Station where he (Hafeez) lodged report under sections 307, 326, 342, 504 r/w section 34, P.P.C: After investigation all the four accused were sent up for trial. On 2‑6‑1980 charge Ex. 2 was framed to which they pleaded not guilty and case proceeded.
2. Prosecution examined complainant Hafeez, Ex. 6, Basiruddin alias Basrue Ex. 7, Umeruddin injured Ex. 8 as eye‑witnesses. Dr. Shah Bux Ex. 5 mashir Ahmad Ex. 11, Investigating Officer Gulistan Khan Ex. 12 and Babuddin Ex. 16.
3. Accused did not examine any witness in their defence.
4. Complainant Hafeez in his evidence has stated that it was 12th of Ramzan at 8.00 evening when incident took place. He was in his Otak which is 7‑8 places from the place of incident. He saw Umeruddin coming towards them from the house. While he was on the way accused Idrees, Babuddin, Sodagar, and Farid gave him call Umaruddin. When he went to the building of Jamil the accused told Umeruddin that his wife had quarrelled with him women folk on which Umeruddin told him that he would ask them not to quarrel. Idrees instigated others on which Babuddin, Sodagar and Farid caught him from his right arm and others caught Umeruddin from his hair and neck while Idrees picked his knife from the nepha of his Shalwar and stabbed Umeruddin on his right side. I, (Hafeez) Basruddin, Jamil and Ibrahim went towards them they threatened. P.W. 3 Basruddin has stated that incident took place in the month of Ramzan at 8.00 hours in the evening. He stated that after breaking‑fast, he went to Hirabad Chowk. As he reached near the building of Jamil Clerk, he saw injured Umeruddin coming from his house while accused Idrees, Babuddin, Sodagar and Farid were sitting on the Thalla. On seeing Umeruddin they called him and Idrees told him that his women‑folk had quarrelled with their women folk. On this Umeruddin told them that he would ask his women‑folk to behave properly. Accused abused Umeruddin. Thereafter, Babuddin, Farid, Sodagar caught him while Idrees picked out knife from his nepha and stabbed Umeruddin on his right side. Jamil, Hafiz and Ibrahim saw the incident. Umeruddin fell down and he was taken in Tonga by Hafeez to the police station. Injured Umaruddin Ex. 8 stated that the incident took place on 6th August, 1979 at 8.00 O'clock in the evening. He closed the shop and went home and after breaking fast he came to Hirabad Chowk, near Jamil Clerk building where accused Babuddin, Sodagar, Farid and Idrees were standing. When he passed near Idress he called him and told that his woman folk had quarrelled with their women‑folk on which I told him that he would ask our women‑folk to behave properly. Appellant Idrees instigated on which three accused caught hold of him while Idrees picked out a knife from the fold of his Shalwar and stabbed him on the right side of chest. He fell down and accused ran away. In the meanwhile Basru, Ibrahim, Jamil and Hafeez came who witnessed the incident. His uncle Hafeez put him in Tonga. He went unconscious and he has stated that his statement was recorded by the FCM & Mukhtiarkar, Mirpurkhas in the Operation Theatre the same night. Dr. Shah Bux OEx. 5 has stated that on 6‑8‑1979 he was Medical Officer at Mirpurkhas. He received injured Umeruddin from Police Station Mirpurkhas. He examined him and found the following injury:
3. "An incised wound 1.5 x .25 x lung deep on the respiratory air was coming out of this wound. A rib was also fractured".
4. The injured had developed subcutaneous emphysema. In his opinion injury was caused by sharp cutting weapon such as knife. He produced certificate as Ex. 5‑A. The injured was admitted in the hospital as an indoor patient. The X‑Ray of the injured was taken and according to the report of radiologist there was fracture of the right VII rib with oblitration of Costrophrenic angle. The injury was dangerous. He produced final report as Ex. 5‑B. P.W‑5 Ahmad has stated that he was Bashir of injury of Umeruddin. He has produced Mashirnama Ex. 11‑A. He also acted mashir of wardat and stated that wardat was in vegetable market in Hirabad. It was shown by complainant Hafeez and such mashirnama was prepared by police which he produced as Ex. 11‑B. He stated that police had seen blood on the road in front of Jamil's house. He was also made Mashir of blood stained clothes of injured Umeruddin and produced Mashirnama Ex. 11‑C. P.W. 6 Gulistan Khan is Investigating Officer. He has staled that on 6‑8‑1979 he was incharge ASI of Police Station Mirpurkhas Town. He recorded the FIR Ex. 6‑A lodged by Hafeez at 8‑30 P.M. He has stated that injured was brought at the police station and he prepared Mashirnama of injury as Ex. 11‑A. The injured was not in a position to give statement at that time. Subsequently he took Mukhtarkar and FCM to Hospital and got recorded his dying declaration, at 10.00 P.M. on 7‑8‑1979 he visited the wardat and prepared Mashirnama Ex. 11.‑B. Thereafter, he recorded the statements of prosecution witnesses, Ibrahim, Jamil and R!isru. I lu proceeded to Civil Hospital and secured the blood‑stained clothes of injured Umcruddin and prepared Mashirnama Ex. 11‑C. On 8‑8‑1979 he arrested accused Sodagar and Bahuddin and prepared Mashirnama as Ex. 12‑A. Tim" \\itnc~s was again called and examined. His evidence is Ex.
13. He has produced 164, Cr. P C' statement of injured Umeruddin Ex. 13‑A recorded by Mukhtiarkar 8c FCM.
5. Appellant in his statement under section 342, Cr. P C Ex. 18 has denied the allegation and stated that he has been involved due to old enmity with complainant party. He has stated that P. W. Ibrahim made report of theft against him which was found to be false and Ibrahim was challaned under section 211, P.P.C. and finally he was convicted. He has stated that copy of the judgment has been produced by Babuddin as Ex. 15‑A. He. has stated that P.W. Ibrahim also filed complaint in which he was acquitted. He has produced certiffed copy of the judgment Ex. 13‑A.
6. Mr. A. Q. Halepota appearing for the appellant submitted that on the same evidence three accused were acquitted and their evidence have not been believed by the learned Additional Sessions Judge. It is argued that there is enmity between the parties due to which the case has been filed. It. is contended by the learned counsel that appellant Idrees was not an absconder and there is no such evidence against him. He has referred to the cases 1980 P Cr. L J 1051, P L D 1980 SC 225 andPLD1970SC13.
7. Mr. Azizullah K. Shaikh appearing for the complainant submitted that first information report of this incident was lodged immediately in which it is specifically stated that appellant casued injureies to Umeruddin. He has submitted that learned Addittional Sessions Judge has cited three authorities in his judgment and rightly convicted the appellant.
8. Mr. M.I.Karni appearing for the State does not support the conviction and submitted that case is doubtful.
9. According to the FIR five persons namely Hafeez, Basruddin, Jamil Ibrahim and injured umerduddin are the eyewitnesses. Two eye-witnesses Jamil been recovered from the appellant Idrees. It is an admitted position that there are shops houses near the place of incident. The injuries is nephew of complainant Hafeez whereas prosecution witness Basur is their caster fellow. All the witnesses have admitted that there is Pan Cabin, hotel and houses at short distance from the Wardat, Before I deal with the evidence. I like to reproduce the following para from the judgment of learned Session Judge:-
10. However, there is a tendency in our country to falsely implicate the other members of the family of the real assailant. From a perusal of the evidence brought on record it appears to me that this has happened also in this case. It appears that the informant and other P.W. s had not witnessed the incident. Their very presence at the place of incident appears to me to be doubtful for the reasons, firstly , that there is material improvement in the FIR For instance, in his evidence the informant stated that he had seen the incident from his otaq but in the FIR he stated that he had gone out of his house and when he reached near the building or Jamil just then Umeruddin and that holding the knife he had challenged the complainant party not go near him but he had not so state in the FIR. Again in the FIR he had stated that Babu sodagar and Farid abused Umaruddin and caught him saying that they would not spare him but he had not so stated in his statement before this Court. Secondly, it has come in the circumstance of the case, appears to be unnatural, because near relations of the injured like Ibrahim, Ahmed and others should have also accompanied the injured but their going away from the place of incident and not going to the Hospital or police station with the injured displays supreme indifference which is not understandable. Thirdly the FIR 161 statements of the witnesses and the mashirnamas appear to me to have been prepared at the police station after recording the dying declaration of the injured which is almost identical to that of the FIR A.S.I. gulistan in his examination in chief deposed to have recorded the FIR at the police station and prepared the Mashirnamas in presence of the mashirs but in his cross-examination he admitted that he did not know how to write Sindhi and that the said documents were in fact written by H.C.Din Muhammad who has not been examined in the court. Fourthly the witnesses were examined by the police on the next day of the incident. In my opinion, had these witnesses really seen the incident there was no reason for them not to be present with the injured at the police station or the hospital on the day of the incident and make statement before the police then and there.
11. Finally, it is an admitted position that at the time when the dying declaration of the injured was being recorded by the, Mukhtiarkar and FCM Mirpurkhas many relatives of injured Umeruddin were sitting with him in the hospital. There was as such, in view of the previous enmity between Umeruddin's uncle P.W. Ibrahim and accused Idrees, every possibility of implicating the other members of the family of accused Idrees in this case.
12. For the reasons mentioned above it is not safe to place any reliance on the evidence of informant Hafeez, P.W. Basiruddin and mashir Ahmad. The position of injured is a little different one.
13. From the above observation it is clear that the learned Additional Sessions Judge has neither believed the evidence of complainant nor that of eye‑witness Basru. He has also stated that presence of the witnesses at the place of incident is doubtful. He has convicted the appellant on the evidence of injured Umeruddin only. Two eye‑witnesses namely Ibrahim and Jamil have not been examined. The only independent and natural witness in this case could be Jamil as incident took place near his building. In all fairness he should have been examined by the prosecution. P.W. Ibrahim is uncle of injured Umeruddin and it has been admitted that he filed cases against the appellant Idrees which were found to be false and he was convicted under section 211 though it is stated that Ibrahim was acquitted in appeal but fact remains that there exists enmity between the parties.
14. The evidence of Umeruddin which has been believed by the Additional Sessions Judge does not get support from any other circumstances and there is no corroboration to his evidence. He has also implicated as many as four persons out of whom three accused have been acquitted who are related interse to appellant Idrees. Therefore, the evidence of Umeruddin is not free from doubt. His evidence has been partly believed and partly disbelieved. The trial Court has categorically stated in the judgment that there exist enmity between the parties. In these circumstances the State has also not supported the conviction. This is a case where doubt has been created and it is a settled law that conviction cannot be sustained on uncorroborated evidence when there is enmity between the parties.
15. With regard to the abscondsion there is no evidence from the prosecution side that Idrees absconded. The process server has not been examined nor action under sections 87, 88, Cr.P.C. has been taken. The appellant voluntarily appeared before the Court after two months of the incident. The absconsion should be proved through the evidence which is lacking in this case. For the reasons stated above I give benefit of doubt to appellant. This appeal is allowed consequently Idrees is acquitted. He is on bail. His bail bonds stand cancelled.
16. Appeal accepted.