1986 P Cr (PLP)

1971 S C M R 432 ref. (m) Penal Code (XLV of 1860) ‑‑‑S. 302‑‑Motive not established‑‑Recovery not found to be reliable‑ Dying declaration discarded‑‑Ocular testimony consisting of statements of interested witnesses‑‑Incident taking place in broad‑daylight‑‑Though independent witnesses were available but no attempt made to examine such witnesses‑‑Inherent defects found in testimony of eye‑witnesses and their presence at Vardat also found to be doubtful‑‑No corroboration from any independent witness forthcoming‑‑Conviction set aside in circumstances. Rasool Bux and another v. The State 1980 S C M R 225 ref. Muhammad Hayat Junejo for Appellant. Agha Ghulam Ali for the State. G.R. Warsi for the Complainant. Dates of hearing: 11th and 12th August, 1985. By short order, dated 12‑8‑1985, the appeal was accepted. The reasons in support of such order are hereby recorded. The appellant has filed this appeal against the conviction and sentence recorded by the learned Additional Sessions Judge III, Karachi, by means of which he convicted the appellant under section 302, P.P.C., and sentenced him to life imprisonment and to pay fine of Rs.5,000 in default, thereof, to undergo R.I. for two years more. It was further ordered that the accused to pay Rs.20,000 as compensation to the heirs of the deceased or in default to suffer further 6 months' R.I.

2. The facts in brief are that, P.W. Imam Bux lodged the report at Police Station, Pak Colony, Karachi on 21‑1‑1982, stating therein, that his younger brother Muhammad Ibrahim had quarrelled with Haji Lal Noor on cock fighting as such there was enmity between them. At about 1‑30 p.m. he came to know that dispute had taken place with his brother Muhammad Ibrahim and that his brother was lying in pool of blood in front of Pak Youth Club. Baig Muhammad and Abdul Majeed were present and they had witnessed the incident. Muhammad Ibrahim told the complainant that Rashid and Muhammad Sharif had fired with their pistols at him, and thereafter, he went unconscious. The injured was brought to the Hospital. This information was recorded by A.S.I. Abdul Aleem who received a telephone call from the Doctor of Civil Hospital that injured Muhammad Ibrahim had been brought by Dilmurad in injured condition to the Hospital. The A.S.I. went to the Hospital and recorded the statement of Imam Bux which forms the First Information Report. The A.S.I. inspected the site and found no blood at the place of incident. The place of incident was pointed out by complainant Imam Bux. He prepared the Mashirnama of Vardat Exh.

19. Ibrahim died in the Hospital and the investigation was carried out by S.H.O. Abdul Shakoor. He recovered a country‑made revolver from the fold of Shalwar of accused Muhammad Sharif and registered a separate case under section 13‑D of the Arms Ordinance.

3. After usual investigation, the appellant was sent up for trial before the Sessions Court. The co‑accused Rashid is being tried separately.

4. At the trial prosecution examined P.W.1 Imam Bux, P.W.2 Dilmurad, P.W.3 Muhammad Umer, P.W.4 Doctor Nisar, P.W.5 Muhammad Aleem, A.S.I., P.W. 6 Abdul Majeed, P.W.7 Abdul Shakoor Investigating Officer and P.W.8 Baig Muhammad. The accused when examined under section 342, Cr.P.C. denied the allegation. The defence examined two witnesses namely Muzaffar Hussain and Muhammad Yakoob.

5. To bring home the charge against the appellant, the prosecution relied on the testimony of P.Ws. Abdul Majeed, Baig Muhammad, Muhammad Umer, Imam Bux and Dilmurad; the motive as alleged by the complainant and recovery of pistol from the accused.

6. The trial Court after evaluating the evidence discarded the motive but accepted the ocular testimony of 3 eye‑witnesses coupled with the statements of Imam Bux and Dilmurad. It also accepted the recovery of weapon.

7. I have heard Mr. Muhammad Hayat Jonejo for the appellant, Mr. Agha Ghulam Ali for the State and Mr. Warisi for the complainant. After going through the record with the assistance of the learned counsel for the parties, I have come to the conclusion that the first person who reached the place where Ibrahim had fallen on the ground was P.W.2 Dilmurad. It has been stated by all the witnesses including the alleged eye‑witnesses that Dilmurad was present where the deceased was lying. The report of the arrival of the deceased at the Hospital was made by Doctor to the police wherein it has been stated that Dilmurad had brought the injured to the Hospital. It is also on record that Dilmurad was one of those persons who accompanied the deceased to the Hospital. In view of these facts it is necessary to refer to the statement of P.W. Dilmurad, who has stated that he heard commotion from outside and went outside and found Ibrahim lying in the lane in injured condition. He found many women present near the injured No male was present near the injured. Thus according to this witness no male was present when he reached the place where Ibrahim was lying injured. This witness has further stated that he alongwith Imam Bux and Majeed took Ibrahim to the Hospital. He has not mentioned arrival of any other witness, stated to be eye‑witnesses at that time. In ordinary course of human nature if P.Ws. Majeed, Baig Muhammad and Muhammad Umer had come just after the incident to the place where Ibrahim was lying injured then they would, have narrated the incident to the persons present there. Though Imam Bux in his First Information Report has given the names of Majeed and Baig Muhammad who had witnessed the incident, but, Dilmurad, who was first person to arrive there has not mentioned that any of these witnesses had arrived there and given the names of the culprits to him. In such circumstance it is, therefore, necessary to examine the statement of 3 alleged eye‑witnesses. P.Ws. Majeed and Baig Muhammad have deposed that they had seen the accused firing at the deceased while taking tea in the Hotel. They have admitted the presence of some customers in the Hotel but they have not given their names. The site plan of the place of occurrence has not been prepared in this case and, therefore, there is no evidence that these witnesses were in a position to see the incident while sitting in the Hotel. They are closely related to the deceased and are interested witnesses. Their interestedness can be seen from the fact that they stood Mashirs of recovery of weapon and no person from the locality was cited as Mashir. P.W. Majeed stated that people had collected at the place where Ibrahim was lying but he has not mentioned the names of these persons. He has also stated that few other persons also witnessed the incident but he could not give the names of these persons except P.W. Muhammad Umer. P.W. Baig Muhammad has stated that Muhammad Umer, Abdul Majeed and other persons had witnessed the incident and few persons collected on the fire of revolver but he could not give the names of these persons except the name of Abdul Majeed. He has admitted that few ladies were present at the place where Ibrahim fell down. P.W. Muhammad Umer has stated that deceased had sustained injury on right arm and left buttock. But according to Doctor Nisar there was no injury on the right arm. This P.W. has stated that Imam Bux and Dilmurad were present when deceased fell down and both of them removed him to the Hospital. He further stated that many people including females had witnessed the incident but he did not particularly notice by name who had witnessed the incident. He has stated that except Imam Bux he did not know any other person collected at that place. Therefore, according to P.W. Muhammad Umer; P.Ws. Abdul Majeed and Baig Muhammad did not go to the place where Ibrahim was lying. Dilmurad has stated that he, Imam Bux and Majeed took Ibrahim to the Hospital and he has not mentioned the presence of Muhammad Umer and Baig Muhammad at that place P.W. Imam Bux has stated that he found P.W. Dilmurad, Baig Muhammad present at the place of incident but P.W. Dilmurad .who according to me was the first person to visit that place has hot stated that Baig Muhammad and Abdul Majeed v were also present there. P.Ws. Umer, Abdul Majeed and Baig Muhammad have not mentioned that the deceased had given any statement either to Imam Bux or to Dilmurad. If really they had gone there, they would not halve omitted this important fact.

8. The learned trial Judge has made reliance on the statements of 3 eye‑witnesses Muhammad Umer, Abdul Majeed and Baig Muhammad. They were examined on the next day of incident i.e. 22nd January, 1982. They met the Police on the day of incident but they did not make any statement on that day to the Police giving the names of the culprits. P.W. Majeed has stated that Police came to Civil Hospital and, he‑was examined but again said he was not examined in the Hospital. Inquiry Officer has deposed that P.Ws. Umer, Baig Majeed and Imam Bux met him at place of Vardat on 21/1 but he examined these witnesses next day at the place of their residence and did not call, them to the Police Station. According to P.W.1 he produced witnesses next day at Police Station. P.Ws.3 and 8 have deposed that on the next day Police called them to Police Station and they were examined. P.W. Majeed has stated he went to Police Station all alone and he was examined by the Police. No reason has been given as to why P.Ws. were not examined on 21/1. It is possible that there statements were recorded after consultation. The admitted position is that the place of incident was a thickly populated area but the Police did not care to examine any independent witness the Police examined only these witnesses who are related to the complainant. According to P.W.1; P.W. Muhammad Umer is his Khaloo, P.W. Baig Muhammad is son of maternal‑uncle, P.W. Dilmurad is son of maternal‑grandfather and P.W. Abdul Majeed is maternal‑cousin. Though P.W. Abdul Majeed has denied the relationship but the other witnesses in their statements have admitted the relationship with the complainant and the deceased. As the witnesses were closely related to the complainant party it was necessary for the prosecution to have examined some independent witnesses from the locality, particularly when it has been admitted by‑the P.Ws. that some other persons had also seen the occurrence.

9. The place of incident is also shrouded in mystery. P.W. Imam Bux has stated that he found the deceased lying in front of Pak Youth Club and he denied that the deceased was lying in the narrow lane. P.W.2 Dilmurad stated that Ibrahim was lying in lane. P.W. Majeed has said that place of incident is in front of the shop of photographer which was a main road and thoroughfare. This witness has, also stated that Ibrahim fell in the Gall. P.W. Baig Muhammad has also stated that injured Ibrahim fell down in the street. P.Ws. 1 and 2 have admitted that fight had taken place at some other place and the deceased had E fallen down at another place. A.S.I Alim has admitted that he did not mention the Club in Mashirnama as no Club exists near the place of incident. According to P.Ws. Majeed and Baig there was no Club near the place where Ibrahim had fallen. It is stated by P.W.1 that the deceased was lying in the pool of blood but no blood was found or secured from that place, even none of the other witnesses could notice any blood.

10. There is contradiction between the witnesses about the injuries received by the deceased which is not inconformity with the evidence of the Doctor. According to the doctor's evidence the deceased received the following injuries:‑ (1) Punctured wound on the chest. (2) Punctured wound on the lower abdomen. (3) Punctured wound on the upper part of the left arm. On the other hand P.Ws. Baig Muhammad and Umer in their police statements stated that the deceased received injuries on right arm and left buttock. The inquest report Exh. 21 shows the following marks of injuries:‑ (1) Blood‑stained, bullet shot injury on right hand. (2) Bullet shot injury on the chest right side. (3) Bullet shot injury on left buttock.

11. The trial Court sought confirmation of ocular testimony through the statements of P.Ws. Imam Bux and Dilmurad. According to Imam Bux the deceased told him that R hid and present accused Sharif had injured him. On the other hind P.W. Dilmurad has stated that the deceased told him that there arose a quarrel with Sharif and others, and there is no mention of any injury caused to the deceased by Sharif. As I have already observed that P.W. Dilmurad was the first person who reached at the place where the deceased was lying injured, therefore, the first statement allegedly given by the deceased to P.W. Dilmurad does not disclose that he had received the injuries at the hand of the appellant Sharif. This witness is also silent if any statement was given by the deceased to complainant Imam Bux. A statement of a deceased which may be termed as a dying declaration must inspire confidence. Such statement must be accurate, clear and true. The statements alleged to have been made by the deceased to the two P.Ws. are inconsistent and contradictory. The statements does not describe the parentage etc. of the appellant to saddle him with the criminal liability. In the First Information Report the names of two H persons have been mentioned as the assailants but there is on record that some other Sharif is also resident of that locality. Doctor Nisar Ahmad in his statement has deposed that after receiving injuries an injured after taking a walk of 100 yards could have gone under shock. The learned trial Judge discarded the statement of Doctor in view of the statements of P.Ws. Imam Bux and Dilmurad. In fact the deceased I did not utter a word upto his death except the alleged statements to these P.Ws. Their statements having been discarded; the statement of the Doctor has to be accepted that the injured had become unconscious. In view of contradictory statements of these two witnesses the opinion of the Doctor could not be ruled out lightly. In these circumstances the statement of deceased given to these P.Ws. cannot be considered as corroborative piece of evidence.

12. The motive has been discarded by the trial Court. Though it is not necessary to prove motive in each criminal case as sometimes it is hidden in the mind of the culprit but once motive is alleged by the prosecution then it is its duty to prove it. In Hakim Ali and 4 others v. The State and another 1971 S C M R 432 it has been held that it is not necessary for the prosecution to set up a motive in every case but where the prosecution has set up‑ a motive and failed to establish it then it is the prosecution which must necessarily suffer on that account and not the defence. In Muhammad Sadiq v. Muhammad Sarwar and 2 others 1979 S C M R 214 it has been held, the fact that the prosecution has failed to prove the motive it would only mean that the ocular evidence required to be scrutinized with great caution. Similar view has been taken in Nazir Muhammad alias Nazir Ahmad v . The State PLD 1974 Kar. 274.

13. The learned trial Judge also fell in error in relying upon the recovery of revolver and 3 live bullets alongwith two empties. Mashirnama of recovery mentions two parcels, one carrying revolver and the other containing bullets, but according to Investigating Officer and so also the report of the Forensic Expert three parcels were made; one containing the revolver, second parcel containing two empties and third parcel containing one live bullet and 5 extra live bullets. No explanation has been given as to how two parcels were converted into three. It is I contended by the learned counsel for the appellant that this clearly shows that the parcels were reopened at the Police Station and then sent to ballistic expert. In the same context it is to be noted that the recovery was affected on 21‑2‑1982 and the articles were sent to the expert on 6‑4‑1982 i.e. after delay of two mon4rhs and 15 days but it is not clear when the expert had examined these articles as the report Exh. 27 also does not show the date of examination. The report was tendered by the Investigating Officer Abdul Shakoor who was examined by the Court on 12‑4‑1984. The recovery of crime weapon is also doubtful. The accused was arrested from Shershah (Kabari Chowk) whereas according to the Investigating Officer he received the spy information at Golimar and he took the witnesses of recovery from that place. P.W. Majeed has stated that he was called by the police from his house. He has no knowledge from where the police took P.W. Baig Muhammad. According to Baig Muhammad, Majid was with the police when the police came and picked up him from his house. The accused Was present when they reached there and the police made the recovery. The Investigating Officer Abdul Shakoor has stated that he received any information at Golimar about the accused. There were many shops near the place from where he arrested the accused. He has also said that the Mashirs were already with him while he was searching for accused and he picked up Abdul Majeed and Baig Muhammad P.Ws. from the hotel of Golimar; thus the Mashirs and I.O. have contradicted M each other. The two Mashirs are not only related to the complainant but they had appeared as eye‑witnesses. Their evidence has been discussed earlier. The accused had been arrested from a busy centre. No reason has been assigned as to why independent Mashirs of the locality have not been secured by the police. The recovery in such circumstances has become doubtful. In 1979 S C M R 214 referred above it has been observed that recovery of crime weapon in brazen disregard of the mandatory provisions of the law, the recovery is of no evidentiary value whatsoever. It is not, therefore, safe in dispensation of justice to rely upon such tainted piece of evidence. The observation of the learned trial Judge that the recovery has been corroborated by the independent Mashir of locality i.e. P.W. Majeed is incorrect. He is neither an independent witness nor resident of locality. He and the other Mashir Baig Muhammad are residents of Jahanabad where the incident took place, but the place of recovery is Kabari Chowk which is quite a distinct place.

14. Before proceeding further I may refer to some part of the judgment of learned Additional Sessions Judge which are clearly against the accepted principle of justice. It has been observed while discussing the ocular testimony that admittedly the three eye‑witnesses, complainant Imam Bux and so also P.W. Dilmurad are closely related to the deceased but the defence has miserably failed to bring on record any enmity of the aforesaid witnesses with the accused Sharif and so also defence has failed to show as to why the said witnesses have implicated accused without any motive. It is always for the prosecution to prove the case and the burden never shifts on to the defence. In the instant case motive has been alleged by the complainant himself, but that motive has not been established and the trial Court itself discarded this piece of evidence against the accused. As such it is not for the defence to show that there was any motive to implicate them in this case. It has been further observed by the trial Court that the defence has not challenged the presence of P.Ws. Muhammad Umer and Majeed at the place of occurrence. It is the worth of the evidence that is to be considered, and merely because no question was put to the witnesses by the defence on this score, it does not mean that implicit reliance must be placed on such evidence. The evidence of each witness has tot be scrutinised in order to see whether such evidence inspire confidence. The learned trial Jud a has also unnecessarily asked the accused to show as to why they ha not disproved the presence of eye‑witnesses at the spot. It has been o served in 1971 S C M R 432 referred above that onus always lies on the prosecution to prove its case and the prosecution has always to succeed on the strength of its own case and not on the weakness of the d fence. The learned counsel for the appellant has referred to Rasool Bux and another v. The State 1980 S C M R 225 where the interested ocular witness was not corroborated by the independent evidence of reliable nature and the recovery was not witnessed by independent Mashirs although available and the evidence of motive in crime was not accepted, therefore, it was held that the prosecution failed to prove guilt beyond all reasonable doubts. Every conceivable benefit must be given to the accused. In the instant case the motive has not been established. The recovery is not reliable. The alleged dying declaration has to be discarded therefore, we are only left with the ocular testimony of the interested witnesses. The incident took place in broad‑daylight. Independent witnesses were available but no attempt was made to examine such witnesses. There are inherent defects in the testimony of the eye‑witnesses and their presence at the Vardat is also doubtful. No independent witness has come forward to corroborate the evidence of interested witness. It was, therefore, not safe to convict the appellant on such pieces of evidence. In the result the appeal is accepted, the sentence and conviction recorded against him is set aside. H.A.K. Appeal accepted.