1984 P Cr (PLP)

S. 302-Report of Chemical Examiner, evaluation of-No reliable evidence with regard to recoveries, report of Chemical Examiner, held, of no help to prosecution, in circumstances. -- S. 302-Benefit of doubt-Defence, held, under no obligation to affirmatively prove any theory suggesting innocence of accused but to cast some doubt, benefit of which to go to accused. (Benefit of doubt]. -- S. 302-Murder-Benefit of doubt--F. I. R. lodged with obvious delay of 10/11 hours for no cogent or proper reasons-Murder committed during a dark night and witnessed by solitary alleged eye witness on torch light-No corroborative evidence available to such ocular testimony-Judicial confession also retracted by accused at first opportunity-Possibility that accused done to death by some other persons interested in killing deceased, not ruled out-Accused given benefit of doubt and acquitted, in circumstances. [Benefit of doubt]. S. Murtaza Hussain, A. A. G. for the State. Appellants Khamiso and Ghulam Hussain sons of Bakhshal Machhl who were tried for murder of Ibrahim Machhi by the Additional Sessions Judge, Nawabshah and convicted under section 302 read with section 34, P. P. C. and sentenced each to suffer imprisonment for life and to pay a fine amounting to Rs. 1,000 each or in default to suffer R. I. for further six months, have filed separate appeals from the jail against their conviction and sentence. The case of the prosecution briefly stated is as under: First informant Muhammad Umer and his two brothers Hakim and deceased Ibrahim resided in separate houses in the same enclosure in village Haji Ghulamali Solangi Deh Keti Abubakar No. 1, taluka Naushahro Feroze. About two years before the incident Ramzan son of Wali Muhammad Machhi suspected deceased Ibrahim of having illicit intimacy with his wife Mst. Imamzadi. The matter was brought before the Elders of the community and deceased Ibrahim had taken oath on the Holy Quran that he had no such relations with Imamzadi. However, Ramzan, husband of Mst. Imamzadi and accused Khamiso and Ghulam Hussain were not satisfied with the aforesaid oath still suspected Ibrahim of carrying on illicit affair with Imamzadi. Within the same enclosure there are also residence of P. Ws. Dost Muhammad, Ghulam Haider and Ahmed. The two accused also reside in the same village near the aforesaid enclosure or courtyard. On 15th December, 1976, after mid-night, Muhammad Umar, who was sleeping in his house, heard the name of his brother Ibrahim called out. He woke up, took his torch and went outside his house. It is his case, as stated in the F. I. R. that on coming out of his house he flashed the torch and found the two accused, who were armed with hatchets, giving hatchet blows to his brother Ibrahim who had come out on hearing the call. Ibrahim fell down and he then raised cries, on bearing which P. Ws. Ahmed and Dost Muhammad came running out of their houses. On seeing them coming, the two appellants ran away towards their house which is in the same street. Thereafter, people of the village, namely, Haji Jumo Khan Solangi and others came. According to the version of the informant, as given in the F. I. R., Haji Jumo Khan had also told them that he had seen the two appellants armed with hatchets going towards their house. On going up to Ibrahim, they found him dead. He bad hatchet injuries on his head and side of the neck. During the night the witnesses remained near the dead body and at the time of day break the informant, leaving the other witnesses with the dead body had gone and lodged F. I. R. at 11-30 a. m. that very day at Police Station Naushahro Feroze. A. S. I. Shoukatali, who was in charge of the Police Station at the time, recorded the F. I. R. of Muhammad Umar and pro ceeded to the scene of offence which was shown to him by the first infor mant. The scene of offence was in the courtyard of the house of the first informant where they found the dead body of Muhammad Ibrahim with injuries on the head and neck lying on the ground. The A. S. I. in the presence of mashirs Ghulam Haider and Muhammad Umar prepared mashirnama of the scene of offence, secured blood-stained earth, made it into a packet which he sealed. He then prepared the inquest report in the presence of the same mashirs. The dead body of Ibrahim was sent to the Medical Officer, Tharusimah through Police Constable Abdullah for post -mortem examination and report. The A. S. I. next recorded the statement's of P. Ws. Ahmed, Dost Muhammad and Haji Jumo. The complainant produced a torch before him which be secured after preparing such mashirnama in the presence of same mashirs. On the same day he arrested accused Khamiso and Ghulam Hussain, again in the presence of same mashirs and prepared mashirnama of the arrest. On interrogation the accused volunteered to produce hatchets used in the crime. Both the accused also volunteered to produce their blood stained clothes which they had been wearing at the time of the crime. First accused Khamiso took the A. S. I. P. and mashirs Ghulam Haider and Khokar to his house and produce a hatchet with broken handle and one loin-cloth and both the articles were stained with blood. Next accused Ghulam Hussain also produced from the same corn bin one hatchet and shirt and loin-cloth. All the three articles produced by Ghulam Hussain bad blood-stains. The same were sealed in presence of the mashirs and later sent to the Chemical Analyser. On 16th December, 1976 A. S. I. Shoukatali produced accused Khamiso before Additional City Magistrate Mr. Abdul Jabbar Uquaili for recording judicial confession which was recorded on the very day. On 17th December, 1976 the A. S. I. got the 164, Cr. P. C. statements of witnesses Dost Muhammad, Ahmed and Haji Jumo recorded. He then handed over papers of the case to A. S. I. Ghulam Haider who completed the investigation and sent up accused appellants with a challan to stand their trial before the Court. Both the accused appellants in their statements before the trial Court pleaded not guilty and stated that they were being implicated due to enmity. Appellant Khamiso retracted from the judicial confession made by him. He stated that his uncle Samano had enticed away Mst. Saira, wife of Faiz Muhammad, who was uncle of first informant Muhammad Umar and therefore, due to the aforesaid enmity, the appellants had been falsely involved in this case. He had further stated that deceased Ibrahim was on terms of illicit intimacy with the wife of Saleh Bhurt, and deceased Ibrahim and complainant Muhammad Umar had committed murder of Umed Ali Bhurt, brother of wife of Saleh Bhurt. It was the case of the appellant that Ibrahim deceased had many enemies any one of whom may have killed him. Appellant Khamiso also made reference to application made by him to the Sessions Judge from Sub-Jail Naushahro Feroze which was brought on record as Exh. 32-A wherein he had alleged that he had been mercilessly beaten by the police and his aged father and other youngsters were called to the Police Station and he was told either to make the confession or his family members would be made naked and insulted. He had alleged that after he bad been put in fear and had been harassed by the police the so-called confession had been recorded by the Additional City Magistrate, Naushahro Feroze. Appellant Ghulam Hussain also totally denied his complicity in the murder. It may here be stated that he had co-appellant Khamiso both had denied the production of blood-stained hatchets and clothes before the police. Appellant Ghulam Hussain had adopted the statement made by his brother appellant Khamiso. In their defence the appellants had examined defence witnesses Lutf ali, Bakshan, Muhammad Umar, Maloo and Imamali. The two appellants are not represented by any counsel. However, the record of the case has been perused with the assistance of Mr. Murtaza Hussain, learned A. A. G. who appeared on behalf of the State. As against the two appellants, firstly there was ocular evidence of informant Muhammad Umar and P. Ws. Dost Muhammad and Ahmed. Muhammad Umar admittedly is brother of deceased Ibrahim, P. W. Ahmed is the maternal-cousin of deceased Ibrahim, P. W. Dost Muhammad in his cross-examination admitted that deceased Ibrahim was the son of his cousin. The aforesaid prosecution witnesses, therefore, could well be considered as interested witnesses. P. W. Ghulam Haider admitted in his cross-examination that complainant Umar and deceased Ibrahim had enmity over the murder of Umedali of which complainant Umar had been accused and challaned but had been acquitted. He has further admitted that Rakhial Macbhi was murdered two or three months prior to the murder of Ibrahim and the heirs of Rakbial had suspected Umar and Ibrahim to have committed the murder of Rakhial. He had also stated that one Mst. Saran, who was wife of complainant's uncle, was enticed away by Samano who is uncle of the accused and therefore, too there was enmity between the parties which continues to this day. In view of the enmity between the parties, the ocular evidence of the witnesses, who are interested persons, has to be considered with great caution. Firstly, there was obvious delay in the lodging of the F. I. R. at the Police Station and the reason given by the first informant for the delay is not cogent and proper. The murder is stated to have taken place a little after mid-night, and since there were close neighbours and relatives of the deceased who were present near the dead body there was no excuse for the first informant for not setting out immediately for the Police Station and reporting the matter. He has himself made the statement that he started for the Police Station at day-break. When a murder had been committed it was of the utmost importance that the report should have been made as early as possible, and the police brought on the scene of offence. In any case, the delay of about 10-11 hours could well have been utilized for consultations and the delay has significance due to the admitted enmity between the alleged eye-witnesses and the two appellants. There are inherent weaknesses in the prosecution case which cannot be overlooked. It is admitted case of the prosecution that the murder took place during a dark night and, therefore, emphasis was put on the fact that the first informant had a torch light which was produced before the police. According to evidence of Dr. Sikander Ali these were two incised injuries, one on the head and the other on the neck of the deceased. The inflicting of these injuries could not have taken much time. It was the case of the first informant in the F. I. R. that on the night of the incident he got up from sleep as his brother the deceased Ibrahim was called. In his deposition, however, he stated that he got up on the barking of dogs. Whichever version of the two given by him is accepted he immediately went out with his flash light and the best of the prosecution case, according to his evidence, is that on the light of the torch he had seen the two appellants armed with hatchet giving hatchet blow to his brother, and he had challenged them due to which they had run away. He has himself stated that be raised cries which attracted Dost Muhammad and Ahmed who were asleep in their houses. As already stated, even if his statement about the occurrence is accepted, by the time the two witnesses came, they could not possibly have seen the inflicting of injuries on the deceased, and further, since it was a dark night and only the first informant had the torch, it is difficult to believe that the alleged eye-witnesses could have seen the accused-appellants. It is absurd to believe that the accused appellants would have stayed put all the time till the witnesses came and on the same flash light they could have seen the entire incident of giving just two hatchet blows to the deceased. The version given by Dost Muhammad is that on coming out of his house he saw complainant Umar standing in his house and raising cries. Umar had a torch in his hand. The witness further stated that he enquired from Umar the reason of his raising cries, and it was Umar who told him that accused Khamiso and Ghulam Hussain had killed his brother Ibrahim by causing hatchet blows. The witness admitted that be had not identified the two accused, and although there is nothing wrong with his aforesaid assertion he was declared hostile, but in the resulting cross-examination nothing was brought out which could show that he was making false statement. P. W. Dost Muhammad in his version about the incident states that he got up from sleep on hearing barking of dogs and cries raised by the people. If we accept the prosecution version as given by first informant Umar he was the only person who had raised cries after the appellants were alleged by him to have caused injuries to his brother and killed him. The statement of this witness that complainant flashed the torch and he saw that accused Ghulam Hussain and Khamiso gave sharp side hatchet blows to Ibrahim Machhi and that they had run away on their 'hakals' cannot be accepted as correct. "I came out from my house alongwith flash light. I flashed my torch towards east direction. In the torch light I saw accused Ghulam Hussain and Khamiso both armed with hatchets and both the accused were giving hatchet blows to my brother Ibrahim. I challenged both the accused who ran away to their houses, after giving hatchet blows to Ibrahim. I raised cries which attracted Dost Muhammad and Ahmed. I went to Ibrahim who was lying injured within our courtyard and he was bleeding profusely. Dost Muhammad and Ahmed also came and they saw Ibrahim lying injured. I informed Dost Muhammad and Ahmed that accused Ghulam Hussain and Khamiso had committed injuries to Ibrahim." This version totally rules out the witnessing of the incident by Dost Muhammad and Ahmed who, therefore, cannot be considered to be eye-witnesses. Thus, one is left with the evidence of Muhammad Umar only with regard to his witnessing the incident on torch light, but his evidence even with regard to his waking up and coming out is not consistent in that, although in the F. I. R. he had stated that he got up on hearing the name of his brother being called out from outside. In his deposition he stated that be got up on the barking of dogs. Having discussed the ocular evidence which obviously, for the reasons given, is not so convincing as to sustain a conviction, there is no corrobo rative evidence even with regard to the aforesaid ocular evidence which connects the accused-appellants with the crime. No doubt it is the case of the prosecution that each of the two accused-appellants took the police and mashirs to a corn bin from which each one of them separately took out a blood-stained hatchet, and further that accused brought out the blood-stained clothes and produced the same. The only witness examined, namely, Ghulam Haider has not at all supported the prosecution. A perusal of his deposition would show that at the very outset he made the statement that there was no other mashir alongwith him. He stated that the dead body of Ibrahim was lying on the ground in the courtyard of a `barren' house of Budho. This he had stated as he was also mashir of the scene of offence. With regard to the recoveries already referred to, this witness stated that accused Khamiso had not produced blood-stained hatchet and clothes nor had accused Ghulam Hussain produced any such articles with blood-stains or otherwise before the police. He has simply stated that his signature was obtained on the papers by the police. In the instant case, in view of the fact that at a very initial stage in the proceed ings accused Khamiso had made an application to the Sessions Judge from the jail alleging police beating for putting pressure on him to make a confession, and the further fact that .the judicial confession made by him retracted, no reliance can be placed only on the testimony of the A. S. I. with regard to the recoveries There being no reliable evidence with regard to the recoveries from the two appellants, the report of the Chemical Examiner is of no help to the prosecution. It is significant to note that even in the so-called confession made by appellant Khamiso before the Additional City Magistrate, there was no mention at all about the complicity or otherwise of his brother-appellant Ghulam Hussain who had taken the plea in his defence that he was, at the time of the incident, no where near the place of occurrence. There was evidence about alibi in that Malook P. W. had stated that accused Ghulam Hussain, who is son-in-law had come to his house at 4 p. m. on the day prior to the incident and had stayed with him during the night. The fact was also known to many other persons, including D. W. Imamali. There is also the statement of D. W. Imamali supporting that of Malook that Ghulam Hussain was in the house of his father-in-law right upto 9 p. m. on the night of the incident. The learned Additional Sessions Judge in his judgment brushed aside the defence theory on the ground that the same had not been put to any of the prosecution witnesses. It is not for the defence to affirmatively prove any theory and it is sufficient if some doubt is cast of which the benefit is to be given to the accused. It may here be remarked that nothing was brought out in the cross-examination of these defence witnesses which could discredit their evidence about the alibi of accused Ghulam Hussain. But in view of the reasons given above, it appears that the prosecution evidence was not such as could lead to a definite conviction about the guilt of the accused-appellants specially in view of the admissions by the prosecution witnesses already referred to that there were other persons interested in killing the deceased due to enmity C and also the further fact that the murder took place during a dark night, and the evidence of the only alleged eye-witness had discrepancies which could not be overlooked. The benefit of the doubt should have been given to the accused. The conviction recorded by the learned Additional Sessions Judge cannot, therefore, be sustained. The appeals of the two appellants are, therefore, accepted and giving them the benefit of the doubt, they are both acquitted of the charge of murder. They may be set at liberty if there is no other case in which they are required to be kept in custody. S. G. D. Appeal allowed.