1990 PLP 1110 (MLD)

"They are interested and closely related‑to each other. I have acted as witness against Mitho, the real brother of complainant in the murder case of Mst. Sharifan wife of Umar (complainant). I produce true copy of statement made before Additional Sessions Judge, Quetta as (Exh. 15/A). I also produce the statement of the accused Mitho in case, State v. Sono and others (Exh. 15/B). I also produce a judgment of S.C. No. 61 of 1979, State v. Sono and others under section 302, P. P. C. as (Exh. 15/C), in which Mst. Haleema wife of deceased Nawab was murdered by the relatives of deceased Nawab."

5. The appellant did not examine himself on oath. He, however, produced Hazoor Bux (D. W.1), and Kando Khan (D. W.2) in his defence.

6. On the assessment of evidence available on record, the learned Additional Sessions Judge found the appellant guilty and convicted him accordingly.

7. I have heard Mr. Muhammad Daud Balouch, learned counsel for the appellant and Mr. Zawar Hussain Jafferi, learned A. A. G. for State. I have also gone through the record of the case carefully.

8. The case of the prosecution mainly hinges upon the following items of evidence:‑‑ (i) Direct evidence consisting of Jalal (P. W.2), and Dhani Bux (P. W.3). (ii) Corroborative evidence of Basheer Ahmed (P. W.7), who saw the appellant running away immediately after the incident. (iii) Recovery of lathi from the place of occurrence which was left by the appellant while running away. (iv) Motive.

9. The place of occurrence is situated in the courtyard of the house of complainant Jalal in Deh Gaba. Admittedly complainant Jalal (P. W.2) is nephew of deceased Nawab and Haibat, while Dhani Bux (P. W.3) is son of deceased Haibat. Both of them were sleeping together in the courtyard of the house of complainant Jalal (P. W.2) when they claim to have seen the incident and had identified the present appellant on the fight of lantern which was burning there. The source of light is thus a lantern which is considered to be the weakest source to identify a person under stress and emotion. There is, however, nothing on record to show as to where the lantern was lying. According to complainant Jalal (P. W.2) the lantern was in the house of deceased Haibat and Nawab. Muhammad Bachal Tapedar (P. W.1) has taken care to show all the relevant points, but strangely the place where the lantern was lying at the relevant time was not shown by him. There is, therefore, no satisfactory material on record to establish that a both the above witnesses were able to identify the present appellant. The evidence of identification of an accused must be sufficient to exclude with reasonable certainty the possibility of mistake or exaggeration. The assessment of such evidence is perhaps one of the most difficult problems which confronts a Judge, specially when the offences are committed during the course of darkness. In such a situation the source of light is a matter of crucial importance. The exact location of the lantern at the relevant time, therefore, enables a Court to arrive to a just and proper conclusion. The presence of lantern at the place of incident is disclosed in F. I. R. (Exh. 19). There is also mashirnama of recovery of lantern (Exh. 10‑D). Complainant Jalal (P. W.2), is however, silent in his evidence about the production of lantern before the Police Officer. There is also no indication on record to suggest that this lantern was ever shown to complainant Jalal in Court.

10. No doubt both Jalal (P. W.2) and Dhani Bux (P. W.3) are natural witnesses, being the inmates of the same house, but both of them are interested I7 witnesses having previous hostility with appellant. Relationship of witnesses with deceased persons is not necessarily a ground for rejection of their evidence but the approach of the Court in this behalf must be cautious: Justice cannot be E divorced from truth and the primary duty of a Judge is to do his best to reach the truth. However, a Judge cannot act like a computer. In assessing the value to be attached to oral evidence he is bound to call into aid his experience of life to find out the truth. The weight of evidence, however, depends upon rules of common sense. It, therefore, follows that a person or persons who select dark hours of night would take all possible precautions to conceal their identity and where a murder is committed in such circumstances suspicion also falls on a person who had a reason to do so. This is how the name of appellant finds place in F. I. R. as one of the culprits.

11. The F. I. R. in this case is said to have been registered at 3‑30 A.M., after four hours of the incident which has been considered as a strong circumstance against the appellant. The record, however, shows that F. I. R. was recorded during day time and the time of its registration was falsely shown at 3‑30 A.M. The F. I. R. itself recites that Dur Muhammad Talpur met the complainant at morning prayer time and after narrating him the incident the complainant went to Mirwah P.S. where his F. I. R. was registered. Jalal (P. W.2) further admits in cross‑examination that he lodged F. I. R. at 6‑00 a.m. or 7‑00 a.m. Dhani Bux (P. W.3), however, gives time of lodging F. I. R. at 9‑00 a.m. It is a sad commentary on the existing conditions that even the most glaring behaviour of the Investigating Officer has gone unnoticed by the learned Additional Sessions Judge. I have never been able to regard the delay or promptness in lodging the F. I. R. as a conclusive factor in the appraisal of the evidence of the complainant or in the consideration of the question whether the prosecution case in general is true. It cannot by any means be laid down as a mechanical formula that wherever the F. I. R. is delayed the case is necessarily false or at least exaggerated nor can the reverse be accepted that merely because there is prompt F. I. R. the case is necessarily true one. The circumstances of promptness or delay of course a relevant circumstance to be considered, but it must be considered in context of all other circumstances of the case. In the present case the Police Officer had deliberately shown the time of F. I. R. at 3‑30 a.m. only to lend support to an impression that promptness in lodging F. I. R. is a strong factor going against the accused.

12. The role attributed to the present appellant by Jalal (P. W.2) and Dhani Bux (P. W.3) is that at the relevant time he was armed with a lathi and had caused injuries to deceased Haibat by means of it. The other injuries to Haibat are attributed to absconding accused Mitho, brother of present appellant who is said to have used blunt side of hatchet. Jalal (P. W.2) states in clear terms that the culprits after causing injuries to both deceased Nawab and Haibat went away with their respective weapons. Basheer Ahmad (P. W.7) who claims to have identified the culprits while running away admits in his 164, Cr.P.C. statement (Exh. 13‑A) that the appellant was armed with a lathi while he was running away. He, however, improved this statement in Court by stating that the appellant was empty handed at that time. It appears that the recovery of a lathi from the WARDAT prompted the prosecution witnesses to change the entire story in this behalf. It may he noted that the F. I. R. is silent about the lathi left by the appellant at the place of occurrence.

13. The record also shows that there was previous hostility between the parties. Besides the affair of Mst. Haleema, wife of deceased Nawab, the present appellant had appeared as prosecution witness against Mitho, brother of Jalal (P. W.2) who according to defence witnesses is known as Umar. Jalal (P. W.2) has denied his relationship with Mitho. The post‑mortem reports (Exhs. 12‑A and 12‑B), however, make it clear that dead bodies were identified by Mitho son of Moula Bux. Jalal (P. W.2) has also given his father's name as Moula Bux. The copy of judgment against Mitho (Exh. 15‑A), statement of Mitho (Exh. 15‑B) and judgment in Sessions Case No. 61 of 1979 (Exh. 15‑C), which are placed on record fully establish enmity between the parties and, therefore, in the given circumstances the evidence of Jalal (P. W.2) and Dhalni Bux (P. W.3) needed independent corroboration. Admittedly the women folk were present at the relevant time, but none of them was cited or examined as witness against the appellant.

14. Basheer Ahmad (P. W.7), a nephew of deceased persons claims to have seen the culprits running away and on torch light he is said' to have identified the present appellant. On the face of the record he appears to be a set‑up witness. I The F. I. R. which was lodged after due deliberation makes no mention of this aspect of case.

15. A witness may be found unreliable in the following circumstances:‑‑ (i) Where the statement of such a witness is inherently improbable or contrary to the course of nature. (ii) Where the deposition of a witness contains mutually contradictory or inconsistent evidence. (iii) Where the witness is found to be a bitter enemy of the accused and, therefore, had a reason for wishing him harm.

16. When examined the evidence of Jalal (P. W.2), Dhani Bux (P. W.3) and Basheer Ahmad (P. W.7) in the light of the above guiding tests of the appreciation of evidence, I am of the view that it would be wholly unsafe to base conviction of the appellant on the charge of murder on such evidence.

17. The motive is the emotion which is supposed to have led to an act. The F. I. R. shows that Mst. Haleema wife of Nazar Muhammad had eloped with deceased Nawab who had subsequently married her. Admittedly the present appellant is brother of Mst. Haleema and he was compensated on account of the affair of KARO KARI and he used to visit deceased Nawab prior to this incident. Therefore, there was no compelling cause for the appellant to again declare deceased Nawab as KARO and make a demand for FAISLA. At any rate the h motive is always a double‑edged weapon and is not sufficient in itself to prove a charge against the accused.

18. Having regard to the above circumstances, I am of the view that the case against the appellant is not free from doubt. The benefit of doubt is, therefore, extended to him and he is acquitted from the charge. The appellant who is in custody be released forthwith, if not required in any other case.

19. In the result the judgment of the learned 1st Additional Sessions Judge, Khairpur is set aside and the appeal is accepted. N.H.Q./G‑167/K Appeal accepted.