ABDUL HALEEM Versus STATE
Appellant above named, being aggrieved by judgment dated 31st January, 1981 of the learned Additional Sessions Judge, Kandhkot, in Sessions Cases Nos. 4 and 5/75, whereby appellant has been convicted under section 302, P.P.C. and 13-D, Arms Ordinance and sentenced to suffer imprisonment for life and to pay compensation of Rs.3,000 or in default to suffer further R.I. for 6 months under section 302 P.P.C. and has been sentenced to suffer R.I. for one year under section 13-D Arms Ordinance, both sentences to run concurrently, has preferred the above appeal, on the following facts and grounds:-
2. F.I.R. in this case was lodged by Rasool Bux son of Muhammad Hashim Dangar, at Police Station Kashmore about 12 miles from Vardat on 5th August, 1971 at 8 p.m. According to the F.I.R., Mst. Aisha sister of the complainant was married to the appellant about 4-5 years before her murder. After marriage he resided in his village near Shahdadkote District Larkana, alongwith his wife. About 20-25 days before the incident Abdul Haleem brought Mst. Aisha to the village of complainant, namely Ghulam Nabi Dangar for her delivery. 8-10 days before the incident, she had delivered a male child. At about breakfast time on the day of incident, the complainant his brother Atta Muhammad and appellant Abdul Haleem were in the house. Sister of the complainant was applying some medicine to the ulcers of her son Muhammad, due to which he was weeping. Abdul Haleem abused the deceased and asked her as to why she was causing his son weep. Mst. Aisha returned the abuse and asked him if the boy was not her son as well. She asked him if he was not ashamed of abusing her in presence of her brothers. Abdul Haleem lost temper. He had a country-made12 bore pistol in the fold which he took out and fired at her which hit her and she fell to the ground. He then picked up an axe ordinarily used for cutting wood lying in the courtyard of the house and started giving injuries to Mst. Aisha. She died on the spot. The complainant and his brother Atta Muhammad tried to catch hold of him, but he ran away with the pistol and the hatchet. The complainant and Atta Muhammad chased the appellant for about a mile, but could not catch him thereafter Atta Muhammad advised the complainant to continue the search and himself returned to see his sister. The complainant continued the search of appellant Abdul Haleem. On the way he met P.W. Muhammad Moosa Dangar, to whom he related the incident. Both of them searched for the appellant upto Dakhan Station, but could not get him. The complainant and Muhammad Moosa therefore returned to their houses. Atta Muhammad then directed the complainant to go and lodged F. I. R. at police station, Kashmore. Accordingly he went to the police station and lodged F.I.R.
3. F. I. R. in this case was taken down by WHC Sahibdino in presence of A.SJ. Khurshid Hussain Shah at 8 p.m. and the A.S.I. signed it, as incharge of the police station. He has identified the signature of the A.S.I. on (Exh.14). The A.S.I. has not been examined in the Court, as he is an absconder in a martial law case. In this respect P.C. Hamzo Khan P.S. Kashmore has been examined as (Exh.16). He has also proved Mashirnama of Vardat (Exh.8), inquest report (Exh.9). He has also proved Mashirnama of arrest of the appellant (Exh.10), Mashirnama of recovery of pistol, crime empty and an axe from the appellant (Exh.11 ). He has further stated, that statements of P.Ws. Atta Muhammad and Muhammad Moosa were recorded by A.S.I. Khurshid Hussain Shah on 6th August, 1971. Those statements also bear his signatures. He has produced and proved F.I.R. under section 13-D of the Arms Act case (Exh.26). It was taken down by him on 12-8-1971 from the dictation of A.S.I. Khurshid Hussain Shah. This F.I.R. was registered at the police station in presence of appellant. The A.S.I. had brought a country-made pistol and crime empty to the police station in separate sealed covers and had directed him to keep them in the police Malkhana and send the same to the Ballistic Expert for examination. He has produced the pistol as article C and crime empty in sealed cover as article D. The A.S.I. had also delivered him the clothes of the deceased.
4. A.S.I. Muhammad Aslam, who had done some of the investigation had retired from service and has left for Karachi without leaving address. He was untraceable for want of his address. In this respect P.C. Hamzo Khan (Exh.16) has been examined. His evidence was therefore dispensed with.
5. In the end of trial the prosecution had produced two statements of A.S.I. Khurshid Hussain Shah recorded during the committal proceedings as (Exh.30 and Exh.31) under section 33 of the Evidence Act. In the statement recorded in the committal proceedings, in respect of the murder case the A.S.I. deposed, that on 5th August 1971 he was A.SJ. incharge police station, Kashmore. On that day complainant Rasool Bux lodged his F.I.R. at 8 p.m. He read it over to him and obtained his L.T.I. thereon. On the same day he proceeded to the Vardat and posted guard over the dead body of Mst. Aisha during night. On 6th August, 1971 he held inquest over the dead body and drew report in presence of Mashirs Qadir Bux and Jamaluddin. He also inspected Vardat by a memo. (Exh.8). The Vardat was shown to him by complainant Rasool Bux. He secured blood-stained Relhi from the Vardat by the same memo. He then called Medical Officer, Kashmore at the Vardat to conduct post-mortem examina?tion. On the same day, h2 examined P.Ws. Atta Muhammad and Muhammad Moosa. He arrested the appellant by a memo. (Exh.10). By the same memo he secured blood-stained shirt and loin-cloth of the appellant. After his arrest the appellant voluntarily led him and the Mashirs to Gandher forest, from where he produced a .12 bore country made pistol and blood-stained axe. One empty cartridge of .12 bore was secured from the chamber of the pistol. He secured both by memo. (Exh.11). On 7th August, 1971 he got statements of P.Ws. Atta Muhammad and Muhammad Moosa recorded before Mukhtiarkar and F.C.M. Kashmore under section 164, Cr.P.C. Thereafter he handed over the case papers to S.H.O. Fazal Muhammad Ruk, who challaned the appellant to the Court of S.D.M., Kandhkot.
6. In his statement recorded during committal proceedings in respect of 13-D case the same A.S.I. deposed, that during investigation of this crime he arrested appellant Abdul Haleem Dangar on 6th August, 1971. The appellant voluntarily produced before him one pistol of .12 bore with an empty cartridge in its chamber on 12th August, 1971. He also produced one blood-stained axe. These articles were produced from Gandher forest. The same were lying under bushes. On demand the appellant could not produce licence for the pistol. He secured these articles by a memo. (Exh.11) he brought the appellant to the police station and lodged F.I.R. under section 13-D of the Arms Act. He examined Jamaluddin and Kadir Bux on the same day and the handed over the case papers to S.H.O. Muhammad Aslam, who challaned the appellant.
7. The appellant had pleaded innocence and stated that he has been implicated due to enmity over matrimonial affair. He had examined Abdul Latif Panhwar in his defence.
8. The learned trial Court taking into consideration the evidence adduced before it, convicted and sentenced the appellant above named 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) That the evidence produced by the prosecution before the learned trial Court is not reliable and as such conviction of the appellant cannot be sustained. In support of this contention the learned Advocate for the appellant relied upon case reported in 1983 SCMR 1.
(b) That the appellant by examining the D.W.1 Abdul Latif proved his alibi and as such was entitled to benefit of doubt, but this aspect has not been properly considered by the learned trial Court, who rejected the statement of D.W.1 without cogent reasons.
(c) That P.W. 4 Rasool Bux, P.W. 5 Atta Muhammad are brothers of deceased against whom enmity is alleged, whereas P.W.6 Muhammad Moosa has not supported the prosecution case and similarly P.W.2 Kadir Bux has not only admitted enmity between the parties, but has also not supported the prosecution case and as such no reliance on the statement of the prosecution witnesses can be placed without independent corroboration, which is not at all available in the present case.
(d) That the chemical examiner's report is not definite and as such the allege recoveries cannot be used as a corroborative pieces of evidence.
10. In view of the above submissions the learned Advocate for the appellant submitted, that 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 fully supports the impugned judgment, as no question regarding allege enmity were put to the prosecution witnesses and consequently their statements are straightforward and convincing and therefore the learned trial Court was fully justified on relying on their statements. In support of this contention the learned Advocate for the State relied upon case reported in P L D 1977 S C 14.
12. I have carefully considered the above submissions made by the learned Advocates before me and have gone through -the R 8 P of the learned trial Court and impugned judgment as well as through the case cited by the Advocate for the State.
13. It is admitted position, that P.Ws. Rasool Bux and Ali Muhammad are the brothers of the deceased, whereas P.W.6- Muhammad Moosa is independent witness for purposes of corroboration, but he has not at all supported the prosecution case and has indirectly supported "Alibi" of the appellant but in spite of this, he was not declared hostile by prose?cution. P.W.2 Kadir Bux was Mashir of arrest of appellant and seizure of pistol produced by him. This witness categorically stated before the learned trial Court, that pistol Article "C" was not the same which was produced by the appellant. P.W.4 Rasool Bux in his cross-examination has admitted matrimonial disputes between appellant and complainant's side. It may be noted that P.W.2 Kadir Bux, Mashir of the arrest and recoveries made from the appellant is maternal-uncle of P.W. Rasool Bux (complainant) and P.W. Atta Muhammad and as such not independent Mashir of the locality. It may further be noted, that P.W.6 Shahabdino WPC of Police Station Kashmore who was produced and examined to prove handwriting and signatures of A.S.I. Khurshid Hussain Shah on various Mashirnamas prepared by him, including Mashirnama of the arrest of appellant Exh. 10 and Mashirnama of production of pistol and hatchet by the appellant Exh.11 in his cross-examination has stated, that these two Mashirnamas Exhs.10 6 11 are not in the handwriting of A.S.I. Khurshid Hussain Shah. However A.S.I. Khurshid Hussain Shah in his statement recorded before the learned committal Court, which was brought on record as Exh.30 had stated, that both these Mashirnamas were in his handwriting. It may further be noted, that appellant by the statement of D.W.1 Abdul Latif has corroborated the statement of P.W.6 Muhammad Moosa, that appellant was not present at the time of incident and as such P.W. Rasool Bux who met him on the day of incident at Mirkot Railway Station told him, that he was going to appellant, to inform him about murder of his wife.
14. Keeping in view all the above facts on record, in my opinion, prosecution has failed to establish its case against the appellant beyond reasonable doubt. The contention of the learned Advocate for the State, in view -of above facts, has no force at all and case cited by him, is not applicable to the facts of the present case at all.
15. Therefore I allow the above appeal and set aside conviction of the appellant and sentences awarded to him and acquit him by giving him benefit of doubt and direct that appellant be released forthwith, if not required in any other case.
S. G. D. ?????????????????????????????????????????????????????????????????????????????????????????????? Appeal allowed.