1991 PLP 1699 (MLD)

5. The appellant has examined himself on oath under section 340(2), Cr.P.C. He, however, did not examine any other witness in his defence.

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

7. I have heard Mr. Muhammad Saleh Memon, learned counsel for the appellant and Mr. Aziz-ur-Rehman Shaikh, learned counsel for the State. The latter has not supported the impugned judgment.

8. The evidence against the appellant was three-fold. Firstly, there were the statements of eye-witnesses, namely, Muhammad Rafique (P.W.2), Javed (P.W.4), and Muhammad Nadeem (P.W.5). Secondly, there was evidence of recovery of crime weapon, which on examination by the Ballistic Expert was found to have been used in this murder. Thirdly, there was the evidence of motive, which has come on record through Mst. Rukhsana (P.W.3), wife of deceased Muhammad Shafique.

9. Admittedly all the three, witnesses, namely, Muhammad Rafique (P.W.2), Javed (P.W.4), and Muhammad Nadeem (P.W.5), who claimed to have witnessed the incident are chance witnesses. Muhammad Rafique (P.W.2), who is brother of deceased Muhammad Shafique resided in Shah Faisal Colony at a distance of about 12 miles from the place of Wardat. Javed (P.W.4), a relative of deceased Muhammad Shafique is a resident of Hyderabad (Sindh) and he happened to be present at Karachi during the days when this incident took place. Muhammad Nadeem (P.W.5) is a friend of complainant Muhammad Rafique (P.W.2), and Javed (P.W.4) and had taken them to the house of deceased Muhammad Shafique in his pick-up when he claimed to have witnessed the incident. Out of these witnesses Javed (P.W.4) has not supported the case of the prosecution and has testified as follows:

"On 15-1-1988, I was at the house of my sister-in-law in Block No.5 of Shah Faisal Colony. At about 3 p.m. of that date my sister came and informed me that Shafique was injured by a bullet in Mehmoodabad. Accordingly, I alongwith my sister and others came to Mehmoodabad. When I reached at the house of Shafique in Mehmoodabad, I saw lot of police persons present there. Police inquired about me and I informed that I am maternal-uncle of Shafique. I inquired from police about the whereabouts of Shafique but I was informed that he was in the hospital..."

10. No doubt this witness was declared as hostile witness, but he cannot be treated as hostile merely because his evidence is favourable to the accused. The correct position of law is that either party may rely upon the evidence of such a witness and the Court can come to its own conclusion after consideration of the whole of the evidence for what it is worth. It may be noted that Javed (P.W.4) is closely related to deceased Muhammad Shafique and he had no reason to oblige the appellant who was in no way connected to him.

11. The presence of Muhammad Rafique (P.W.2), Javed (P.W.4), and Muhammad Nadeem (P.W.5) at the time of incident is rendered doubtful by the evidence of Muhammad Ali (P.W.6), who is the only independent witness in this case and he had in fact taken deceased Muhammad Shafique to Jinnah Post-?Graduate Medical Centre, Karachi, after he sustained injuries. The evidence of Muhammad Ali (P.W.6) is self-explanatory and it will be useful to reproduce it in extenso:-- "About the year back at about 1-30 p.m. I was in my house when I heard voice of cries, and came out of the house, I saw that a man was lying injured with fire-arm injury on chest. I did not see anybody running away. Many people had assembled there when we removed the injured in Suzuki pick-up to the hospital. The injured succumbed to his injuries on the way to hospital. I intimated the police at P.P. in Jinnah Hospital. Police had examined me. I know the accused present in Court. He is milk-seller, but I do not remember his name by now. He lives in our Mohalla. I had not seen him on the Wardat. I do not know Muhammad Rafique. The complainant was not previously known to me."

12. This version of Muhammad Ali (P.W.6) gets support from Dr. Manzoor 1lussain Jalbani (P.W.7), who has testified in clear terms that Muhammad Ali had brought deceased Muhammad Shafique to the hospital and he had intimated about this fact to Mehmoodabad police. Shah Muhammad S.I.P. (P.W.1) has confirmed this position. He has produced the relevant entry of station diary (Exh.7) which reads as follows:

"At this time Dr. Maznoor Jalbani, M.L.O. has got recorded on telephone from Jinnah Hospital that: A person, namely, Muhammad Shafique is brought to the Jinnah Hospital in dead condition, from Feroz Cold Drink, Mehmoodabad No.1 by Muhammad Ali son of Abdul Shamim, resident of House No.B-120, Lane No.14, Mehmoodabad No.1. ... "

13. The evidence of Muhammad Ali (P.W.6), which is supported by the Medical Officer and the police officer, therefore, destroys the entire case as set up by complainant Muhammad Rafique (P.W.2) in his 154, Cr.P.C. statement (Exh.11).

14. The learned Sessions Judge has given no weight whatsoever to this important piece of evidence and while relying upon the evidence of Muhammad Rafique (P.W.2), and Muhammad Nadeem (P.W.5) he felt himself to be bound by the decisions of the superior Courts on the question of appreciation of evidence. The rule laid down on legal propositions is useful and binding but the variety of circumstances attending to a criminal case cannot be identical with those in another and, therefore, a judgment in a criminal case on the point of credibility of a witness can hardly serve as a binding decision. The fate of a criminal case depends upon its own facts and the intrinsic worth of the evidence adduced in the case, and not with reference to case-law.

15. In Malik's Law relating to Criminal Trials', 1989 Edition, the test of credibility of witnesses was laid down in the following words:-- "In assessing and evaluating the evidence of eye-witnesses, the two important considerations are (1) whether in the circumstances of the case, it was possible for the eye-witnesses to be present at the scene or their explanation for their presence at the scene can be accepted; and (2) whether there is anything inherently improbable or unreliable in their evidence."

16. Applying the above test to the facts of the present case, it appears to me that Muhammad Rafique (P.W.2) and Muhammad Nadeem (P.W.5) had no reason to be present at the place of wardat at the time when the incident took place. The evidence of Muhammad Ali (P.W.6) and the circumstances referred to above eliminate their presence at the relevant time. Dr. Manzoor Hussain Jalbani (P.W.7) had started the post-mortem examination on the dead body of Muhammad Shafique at 5 p.m. and even at that time the dead body was identified by Muhammad Sagheer and Aslam Ali, which means that complainant Muhammad Rafique (P.W.2) and Muhammad Nadeem (P.W.5) had not reached the hospital by that time. The inquest report (Exh.9) and 154, Cr.P.C. statement (Exh.11) which were allegedly prepared and recorded at 3 p.m. and 3-30 p.m., in presence of these witnesses are thus manipulated ones.

17. Besides the above unnatural aspect of the case, the medical evidence appears to be in conflict with the ocular testimony consisting of Muhammad Rafique (P.W.2), and Muhammad Nadeem (P.W.5). According to the case of the prosecution deceased Muhammad Shafique was fired at while the appellant was chasing him. The injury suffered by deceased Muhammad Shafique was, however, caused from front side and the burnt skin around the injury indicates that the shot was fired point blank. No reliance can, therefore, be placed upon such evidence.

18. The 154, Cr.P.C. statement (Exh.11) which was subsequently incorporated in 154, Cr.P.C. book is again silent about the empty cartridge of .12 bore lying at the Wardat. Javed (P.W.4) has not supported the recovery of empty cartridge from the place of incident. He has also not testified about the recovery of crime weapon from the possession of the present appellant. In such a situation the evidence of complainant Muhammad Rafique (P.W.2), who has also acted as Mashir of recoveries is worthy of no credence. It is strange that the police officer was not able to secure any Mashir from the locality.

19. Mst. Rukhsana (P.W.3), who is widow of deceased Muhammad Shafique speaks about the motive of this case. The evidence which has come on record does not show that the wall intervening the rooms of deceased Muhammad Shafique and appellant Imam-ud-Din was being erected. On the contrary the, inquest report (Exh. 9) shows that this murder was committed over a dispute of ownership of the house. Even otherwise the evidence of motive alone is not sufficient to bring home the charge of murder.

20. Having regard the above circumstances, I am clear in my mind that the case against the appellant is not free from doubt. The benefit of doubt is, therefore, extended to appellant and he is acquitted. The impugned judgment is set aside, and the appeal is accepted. The appellant who is in custody be released forthwith, if not required in any other case. N.H.Q./1-163/K????????????????????????????????????????????????????????????????????????????????? Appeal accepted.