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2001 Y L R 1442
2001 Y L R 1442
[Karachi]
Before Faiz Muhammad Qureshi, J
MUHAMMAD ---Appellant
versus
THE STATE---Respondent
Criminal Appeal No.34 of 1998, heard on 9th March, 2001.
Penal Code (XLV of 1860)---
----S. 302---Criminal Procedure Code (V of 1898), Ss.342, 364(2) & 367---Appreciation of evidence---According to contents of FI.R. the deceased was found in the company of the accused---Incident was unwitnessed whereas the Trial Court had collected the evidence of witnesses in the shape of ocular testimony of one who had materially improved the prosecution case and who had stated before the Trial Court completely against the contents of the FI.R.---Complainant was not an eye-witness---Entire evidence of prosecution witnesses appeared to be improbable---Recovery of the hatchet from the accused was doubtful---Judgment of the Trial Court was also in violation of S.367, Cr. P. C. ---Charge against the accused was defective as the statement of the accused had not been recorded in accordance with S.364(2), Cr.P.C.---Co-accused had been acquitted by the Trial Court on same set of evidence---Case against the accused was full of doubt and material contradictions and even the ocular testimony was not supported by the medical evidence---Prosecution having failed to prove its case beyond reasonable doubt, conviction and sentence recorded by the Trial Court against the accused, were set aside giving him benefit of doubt.
1996 SCMR 317 ref.
Muhammad Azeem Panhwar for Appellant.
Anwar Ansari, A.A.-G. for the State.
Date of hearing: 9th March, 2001
JUDGMENT
Present appellant has called in question judgment, dated 26-3-1998, passed by learned Additional Sessions Judge, Kotri, whereby he has been found guilty for the offence under section 302, P.P.C. and has been convicted under the same section and sentenced to suffer life imprisonment with fine of Rs.50,000 and the same if realized be given to the legal heirs of deceased. In default of payment of fine, he has to undergo further R.I. for six months. He has been accorded benefit of section 382-B, Cr.P.C. The trial Judge has acquitted the rest of the accused namely Mir Muhammad, Khair Muhammad and Wallan by giving them benefit under section 265-H(i), Cr.P.C. Hence this appeal.
Brief facts of the case are that on 8-6-1992 at about 7-00 p.m. the accused persons duly armed with hatchets and guns murdered intentionally deceased Sher Muhammad Khoso in uncultivated land of Punjhoon Khoso and in this regard the F.I.R. was registered vide Crime No.40 of 1992. The learned trial Judge formulated the points for determination and after hearing the learned counsel of the parties, passed judgment in terms as stated above.
3. Mr. Muhammad Azeem Panhwar learned counsel for the appellant at the very outset has bitterly attacked on the impugned judgment, which is in violation of section 367, Cr.P.C. and has further submitted that the learned trial Judge has not taken into consideration all the circumstances and facts and it is an unwitnessed incident. According to the contents of F.I.R. the deceased Sher Muhammad was found in company of appellant and co-accused. Mr. Muhammad Azeem Panhwar learned counsel 'for the appellant has further submitted that the present appellant was arrested on 11-6-1992 and recovery has been effected from his possession of hatchet, which has not been supported by the Investigating Officer. He has further submitted that the ocular testimony is being furnished by the P.W. Qasim, who has made material improvements in the trial Court and has stated in conflict with the contents of F.I.R. He has not submitted before the trial Court the correct picture of the episode. He has further submitted that the complainant is not an eye?witness and according to him the evidence against the present appellant is last seen evidence which is a weakest type of evidence. He has further stated that under section 342, Cr.P.C. no specific question with regard to recovery has been put to the present appellant and other co-accused. He has further stated that there is no certificate over the statements of the accused, on the contrary it has been stamped by the trial Judge, which is in violation of section 364(2), Cr.P.C. He has further submitted that according to the statement under section 342, Cr.P.C. the entire trial is vitiated and has finally submitted that it is doubtful case against the present accused/appellant and the co-accused have been set at liberty on the same set of evidence. He has further submitted that the appellant has been falsely implicated on the issue of matrimonial affairs. He has further submitted that the ocular evidence is not being supported by the medical evidence and has further argued that the appellant is liable to be acquitted.
4. Mr. Anwar Ansar learned A.A.-G. for the State has not supported the impugned judgment and has not controverted the submissions of the learned counsel .for the appellant Mr. Muhammad Azeem Panwhar.
5. I have heard the arguments of both the learned counsel and with their assistance I have gone through the entire evidence and material available on record.
6. Admittedly, the contents of the F.I.R. reveal that the deceased was found in company of the appellant and co-accused and the incident, appears to be unwitnessed, whereas the trial Court has collected the evidence of witnesses in the shape of ocular testimony of P.W. Qasim, who has materially improved the prosecution case and he has stated before the trial Court completely against the contents of the F.I.R. Admittedly the complainant is not an eye-witness and he has been furnished information by P.W. Qasim with regard to incident. The entire evidence of P.W. Qasim, which has been examined by me, appears to be improbable and with lot of improvements and he is not narrating the correct picture of the episode as per contents of the F.I.R. The recovery of the hatchet from the appellant is doubtful and no specific question with regard to recovery of the hatchet has been put to the appellant under section 342, Cr.P.C. as this is adverse evidence existing against the appellant, but such question was not put by the trial Court. The judgment is also in violation of section 367, Cr.P.C. I have also gone through the impugned judgment and it appears that the trial Judge has not taken into consideration the entire facts and circumstances of the incident. The charge on the face of it appears to be defective. The statement of the appellant has not been recorded as per settled law as envisaged under section 364(2), Cr.P.C. I have also taken into consideration the fact that the co-accused have been acquitted by the learned trial Court on the same set of evidence and in this regard the reliance is being placed on 1996 SCMR 317. I am of the considered view that the case is riddled with doubts and material contradictions and even the ocular testimony is not being supported by the medical evidence. Moreover, Mr. Anwar Ansar learned counsel for the State, has very frankly recorded his no objection for the acquittal of the appellant in this case.
7. The upshot of the above discussion is that the prosecution has miserably failed to prove its case beyond reasonable doubt against the appellant and I give him benefit of doubt, accordingly. I set aside the conviction and sentence of the appellant. In result this appeal is allowed. The appellant is on bail, his bail bond and surety stand discharged.
H.B.T./M-229/K ???????????????????????????????????????????????????????????????????????????????? Appeal allowed.