GHULAM NABI Versus STATE

Appellant abovenamed, being aggrieved by Judgment, dated 7th July, 1979, of the learned Sessions Judge, Sukkur, in Sessions Case No.51 of 1978, whereby he has been convicted under section 302, P.P.C. and sentenced to imprisonment for life and to pay fine of Rs.3,000 or 1n default to suffer further R.I. for one year, has preferred the above appeal on the following facts and grounds.

2. The prosecution story in brief is, that deceased Mst. Ameeran was cousin of the complainant, who resided in separate house, at village Langho. Appellant Ghulam Nabi and Umar are the son-in-taws of the deceased who used to live with the deceased in her house, as "Ghar damad". The appellants were on cross-terms with each other, therefore, the deceased at the instance of the appellant, drove out Umar from her house, about a month prior to the lodging of the report, but about 4/5 days prior to the incident, due to the intervention of the brotherhood people, the deceased and Umar compromised, and then again Umar started living with the deceased in her house. The appellant did not like this harmony between the deceased and Umar and as such he declared to the complainant, that either he or said Umar, could reside in the house with her, whereupon this question, there had been exchange of hot words between deceased and the appellant. The appellant got offended and left the house of complainant.

3. On the day of incident i.e. on 17-2-1978 in the evening, complainant Hussain Bux alongwith P.Ws. Rahim Bux and Sajjan were standing at Tonga stand, when they heard gun-shot reports, coming from the "Mutter" cultivation, of one Ghulam Muhammad Malik. They moved towards the scene, from where they heard gun reports. After covering about 50/60 paces, they heard another gun report. It is alleged in the F.I.R. that the complainant and the P.Ws. had seen the appellant firing the second shot at the deceased, who fell down. The appellant seeing the complainant and others approaching, made his escape good from the Wardat, alongwith the gun. The complainant's party did not follow the appellant out of fear. They saw that Mst. Ameeran, had breathed her last, and her dead body was lying in the pool of blood. Mst. Shabiran, the daughter of the deceased, was also standing near the deceased and was weeping. On enquiry, she disclosed, that she and her mother deceased Ameeran had come to the land for cutting grass, when the appellant arrived there and killed Mst. Ameeran by gun-shots. Thereafter the complainant, leaving Mst. Shabiran, Sajjan and Hussain Bux, near the dead body of the deceased, himself went to P.S. Ubauro and lodged his report (Exh.12), which he admitted before trial Court, to have been read over to him.

4. Mr. Noor Hussain Awan, was the S.H.O., P.S. Ubauro on 17-2-1978. He was examined as (P.W.8) in trial Court and he affirmed, that on the said date complainant Hussain Bux had reached the police station at 7-15 p.m. for lodging the report of the incident, which he recorded ad verbatim, read it over to him and then obtained the signature of the complainant over (Exh.12), which also bears his signature and the same is correct. That after recording the F.I.R., he accompanied the complainant to the Wardat, alongwith his subordinate staff, but as it was night time, there fore, he arranged for guard, over the dead body of the deceased, and himself returned to the P.S. where he examined Sajjan and Kaim Bux witnesses. On the following morning on 18-2-1978 again alongwith the Mashirs Raza Muhammad and Muhano he proceeded to the Wardat, and prepared Mashirnama of Wardat (Exh.18) in presence of same Mashirs. Vide this Mashirnama, two empties, blood-stained earth, grass and a piece of cloth in which cut. grass were kept, were secured and sealed then and there. The S.H.O. then prepared the inquest report, (Exh. 19) in presence of the same Mashirs and despatched the dead body through P.C. Arz Muhammad to Medical Officer Daharki for post-mortem examination. He then recorded statement of Mst. Shabiran, the daughter of the deceased and Umar, the other son-in-law of the deceased. The appellant was not available, at the village, but the I.O. received spy information, that the appellant is available at Reti Road. Accordingly he alongwith the Mashirs, went there and arrested the appellant, vide Mashirnama (Exh.20). On 19-2-1978 the appellant volunteered to produce the weapon of offence and led the police and Mashir to village Jhangal Malik, and therefrom the fence of his house, he took out a gun, and produced the same before the I.O., which was secured and sealed in presence of same Mashirs. The Mashirnama is Exh.21. The gun was licensed and the licence of the gun was also secured vide Mashirnama (Exh.22). Thereafter, the S.H.O. got recorded 164, Cr.P.C. statements of P.Ws. Mst. Shabiran, Sajjan and Dhani Bux, through Mukhtiarkar and F.C.M. Ubauro. On 21-2-1979 the I.O. examined Ghulam Muhammad, husband of the deceased. After completing the investigation, the appellant was challaned on 27-2-1978. The blood-stained articles, and firearm were sent to Chemical Analyser and Ballistic expert and their reports are produced as Exhs.24 and 25, which are positive.

5. Hidayatullah Katpar was Tapedar on 27-9-1978, in whose beat the place of Wardat was situated. He is examined as P.W.3 and he testifies that he had visited the scene of offence on said date, at the pointation of complainant Hussain Bux and P.C. Lai Bux. That he prepared the sketch with hand and taken measurement with a tape. He verified, that the distances, marginal notes, directions, are correctly shown by him in the sketch Exh.9 which bears his signature.

6. Besides, the aforesaid witnesses, the prosecution in support of their case had also examined Dr. Sudhamo P.W.1, P.C. Arz Muhammad P.W.2, Complainant Hussain Bux P.W.4, exe-witnesses Mst. Shabiran and Sajjan as P.Ws. 5 and 6, Mashir Raza Muhammad P.W.7. The remaining witnesses had been given up by the learned D.P.P., vide his statement Exh. 10 and then the side of the prosecution was closed.

7. The statement of the appellant is recorded as Exh.27 by trial Court, which is a bare denial of the allegations of the prosecution. Regarding the P.Ws. he declared that they have deposed owing to the enmity. He further clarified, that Umar Bux, the other son-in-law of the deceased had taken away his wife due to some dispute, and threatened the deceased Mst. Ameeran to be killed, as the deceased had demanded the hand of the girl in exchange of his wife. Mst. Ameeran, then filed a complaint under section 420/506(2), P.P.C. against Umar Bux, Soomar, and others, before the Civil Judge and F.C.M. Mirpurmathelo. He has produced the complaint as Exh.28. That the complaint was referred to the S.H.O., P.S. Mirpurmathelo. The deceased, retained the original complaint with herself, and handed over its photostat copy to the S.H.O. He further added, that on 21-1-1978 said Umar Bux attacked the deceased and snatched away cash of Rs. 4,000 two Tolas gold, and 60 Tolas silver from her. A telegram regarding this incident was given to the higher authorities. The appellant has taken plea, that the deceased was actually murdered by said Umar, who are closely related to complainant's party, and as such the complainant in order to save said Umar have involved him in the present case. He claimed to be innocent, but had not examined any witness in his defence.

8. The learned trial Court taking into consideration the evidence adduced before it, convicted and sentenced the appellant abovenamed, as hereinbefore mentioned, and consequently the appellant has filed the above appeal, on the grounds mentioned in the memo of appeal.

9. The learned Advocate for the appellant in support of the above appeal submitted as under:-

(a) This is an unwitnessed crime and as such all the prosecution witnesses have spoken lies except P.W.6 Sajjan.

(b) The incident in question took place due to quarrel with Umar, but the present appellant is being made scapegoat.

(c) That no reliance can be placed on recoveries, as the Mashir of recovery belonged to the complainant party and there is a contradic tion in these statements of the Mashirs of recovery and I.O. and as such no reliance can be placed on such recoveries, in support of this contention the learned Advocate for the appellant relied upon case reported in 1983 P S C 59.

(d) That medical evidence shows, that more than three shots were fired and consequently this medical evidence falsifies the statements of P.W.4 Hussain Bux (Complainant) and P.W.5 Mst. Shabiran (daughter of the deceased).

(e) That P.W.S Mst. Shabiran is a child witness and as such her statement cannot be relied upon, without independent corroboration. In support of this the learned Advocate for the appellant relied upon cases A I R 1946 (?) 3 and P L D 1965 Kar. 608.

(f) That the empty recovered from Wardat was not immediately sent to the Ballistic Expert and consequently no reliance can be placed on such report of the Ballistic Expert. In support of this contention the learned Advocate for the appellant report in P L D 1968 Lah. 869 (g) That there is a discrepancy in the medical and ocular evidence about the number of shots fired at the deceased and as such no reliance can be placed on the prosecution witnesses.

10. In view of the above submissions the learned Advocate for the appellant stated, the prosecution has failed to establish its case beyond reasonable doubt.

11. The learned Advocate appearing for the State on the other hand submitted that he was supporting the impugned judgment, as 'prosecution has proved its case beyond 'reasonable doubt against the appellant, by the statements of prosecution witnesses Nos. 4 and 5, who corroborate each other. In addition to this Ballistic Expert report is positive and the production of the gun by the appellant has been established by Mashir as well as I.O. and as such the learned trial Court had rightly relied upon the said recovery, as corroborative piece of evidence.

12. I have carefully considered the above submission made by the learned Advocates before me and have gone through the R 8 P of the learned trial Court as well as through the impugned judgment and cases cited by the learned Advocate for the appellant, before me.

13. Prosecution had relied upon the statements of three eye-witnesses namely P.W.4 Hussain Bux (complainant P.W.5), Mst. Shabiran (daughter of the deceased), both of whom have corroborated each other, however P.W.6 Sajjan the alleged eye-witness did not support the prosecution and consequently was declared hostile. The appellant has alleged enmity and false implication and as such the prudence requires, that the statements of P.Ws. Nos. 4 and 5 should be corroborated by independent evidence.

In this connection the prosecution has relied upon the statement of P.W. Raza Muhammad the Mashir of the alleged recoveries, who no doubt is the cousin of the complainant, but no enmity has been alleged against him by the appellant. The gun in question was sent to the Ballistic Expert whose opinion is positive. However, this opinion of the Ballistic Expert is being attacked by the learned Advocate for the appellant on the ground, that the empties recovered from the Wardat were not immediately sent to the Ballistic Expert and consequently no reliance can be placed on such report. In support of this the learned Advocate for the appellant has relied upon the case P L D 1968 Lah. 869. I have carefully gone through this case cited by the learned Advocate for the appellant and in my opinion this case does support the contention of the learned Advocate for the appellant, as on account of delay in sending the empties forthwith to the Ballistic Expert, the chances of concocting the empties after recovery of firearm, alleged to have been used in the commission of the crime cannot be ruled out. In view of this it would be unsafe to place reliance on the Ballistic Expert report and further the recovery Mashir is related to the complainant side and there are contradiction in his statement and that of the I.O. in respect of said recovery. In addition to this the I.O. is given no explanation,. why independent Mashirs were not picked by him, though such independent Mashirs were available and, therefore, in my opinion no reliance can be placed on such recovery, for purposes of corroboration.

14. The deceased had on his person 22 injuries and. according to the, statement of Doctor, who performed the post-mortem examination on the deceased body, the said injuries were as a result of more than three shots, which is alleged to have been fired by the appellant and consequently the presence of prosecution eye-witnesses namely P.Ws. 4 and 5 becomes doubtful. In addition to this P.W.5 is no doubt a child witness and as such her statement requires careful scrutiny. P.W.6 Sajjan in his statement before the learned trial Court stated, that they had 4 or 5 shots from the Bus stand, but Court unable to see the assailant. This witness has further stated in his examination-in-chief that they did not see P.W.5 Mst. Shabiran at the scene of offence. No doubt this witness was declared hostile by the prosecution. This witness is a independent witness and his statement seems to be straightforward.

15. P.W.1 Doctor Sudhamo, who performed the post-mortem on the body of the deceased, in his examination-in-chief has mentioned, that the number of injuries on the body of the deceased suggested 4 or 5 gun-shots fired at her. This statement of the Doctor in his examination-in-chief creats doubt about the presence of P.W.4 Hussain who heard the gun-shots from distance of at least 70 paces and he is very categorically in his statement, that only three shots were fired. His statement does not inspire confidence at all. In his cross-examination this witness admitted, that the deceased had dispute with Umar, her other son-in-law, who was otherwise also related to the deceased and against whom the deceased had sent Telegram to D.I.-G. Police regarding the alleged robbery.

16. P.W.5 Mst. Shabiran, when examined before the learned trial Court was about 7 to 8 years old and consequently on the day of incident she will be still younger. This witness is no doubt a child witness and her statement under section 161 , Cr.P.C. was recorded after three days. In cross-examination she replied to question that nothing will happen, if one speaks-lies on oath. This shows the immaturity of the witness and the possibility of being tutored and consequently her statement requires independent corroboration, which is in my opinion is not at all available.

17. According to P.W.7 Raza Muhammad the Mashir of the production of gun by the appellant, the appellant did not go inside his house but put his hand in the fence and took out the gun. This witness in his cross-examination admitted, that the complainant is his maternal-uncle and further stated, that independent persons were present at that time. It may be noted that P.W.8 Noor Hussain S.H.O., in his deposition before the learned trial Court stated, that the appellant took them inside his house and then produced the gun from inner fence of his house. This is a material contradiction between the I.O. and the Mashir and since the Mashir is related to the complainant and the provision of section 103, Cr.P.C. were violated by the S.H.O., by not picking independent Mashirs for said recovery, it would be unsafe to rely on such recovery. It may further be noted, that according to I.O. Mashirs remained continuously with him till the gun was produced by the appellant, which means right from 17-2-1978 to 19-2-1978.

17. Keeping in view the statement of the appellant under section 342, Cr.P.C. and the above discussions and observations made by me, in my in opinion prosecution has failed to establish its case beyond reasonable doubt.

18. Therefore, I allow the above appeal and set aside the conviction of the appellant and sentences awarded to him and acquit him by giving benefit of doubt and discharge the bail bonds executed by the appellant.

M.Y.H. Appeal accepted.