1997 P Cr (PLP)

MUHAMMAD ASLAM ARAIN, J.

Appellants Muhammad and Allan, father and son respectively were charged for having committed the murder of one Majnoo on 31-7-1988 at 8-00 a.m. in the land of the deceased, situated in Deh Damberlo, Taluka Umer Kot. The trial of the appellants was conducted by the learned Sessions Judge, Tharparkar at Mirpur Khas and by judgment, dated 10-11-1992, both appellants are convicted and awarded death sentence. Appellant Allan is also directed to pay Rs.5,000 as fine or in default to suffer R.I. for one year. Both appellants are further ordered to pay compensation Rs.50,000 each to the heirs of the deceased Majnoo, recoverable as arrears of land revenue and in default to suffer imprisonment for six months. The appellants have challenged the conviction and sentence through this appeal, which we propose to dispose of alongwith the reference for confirmation made by the learned trial Court. ' The facts in brief, as disclosed in the F.I.R. lodged by complainant Wahiyon are, that on 31-7-1988, while he was present in his house, one Fakir Lal came and informed that complainant's maternal-uncle Majnoo was given hatchet blows by appellant Muhammad and was murdered. On getting such information, complainant went to the house of deceased Majnoo and learnt that Majnoo was murdered and his dead body was lying in the land under lease. The complainant then came to the place of incident and found Majnoo lying dead with hatchet injuries on his head, eye, ears and others parts of body. At the Wardat, he also saw P. Ws. Nangar and Muhammad Bux and some others whose names are not mentioned. Both Nangar and Muhammad Bux informed complainant that deceased Majnoo was going towards Nabi Sir Road, and while he was passing through his land under lease, appellant Muhammad was seen cutting Babool tree. Deceased Majnoo restrained appellant from cutting the trees, on which, as alleged, appellant Majnoo got annoyed and caused hatchet blows to Majnoo, which resulted in his death. Complainant further stated that he was also informed by P. Ws. Nangar and Muhammad Bux that they had rescued the deceased from appellant Muhammad who thereafter fled alongwith the hatchet used by him. It was also stated by the complainant that because of some rain on that date, he could not arrange any other conveyance but carried the dead body of Majnoo in a bullock cart and lodged report. It may be mentioned that the report was lodged at Police Post Nabi Sir Road which was incorporated in Roznamcha book against entry No.3 and copy sent to the main Police Station Kunri for its incorporation in 154, Cr.P.C. Book and for compliance of provisions of section 157 of Cr.P.C. Report at Police Station Nabisar Road was lodged at 3-00 p.m. when the incident occurred at 8-9 a.m. and the place of Wardat being at 2 miles distance from Police Post Nabisar Road. The entry in the Roznamcha was made by H.C. Nabi Bux, who after sending its copy to the main Police Station Kunri for registering F.I.R., proceeded to the place of incident, prepared Mashirnama of Wardat (Exh.16-A), Mashirnama of recovery of dead body (Exh.16-B), inquest report (Exh.16-C) and arrested appellant Muhammad from his house and recovered a blood-stained hatchet concealed in the hedge of his house under Mashirnama (Exh.16-D). He also recorded statement of P.Ws. Nangar Khan, Ghulam Muhammad and Muhammad Bux and on the same evening he handed over the police papers to the S.H.O., Police Station Kunri for further investigation. Appellant Allan was arrested on 2-9?1988 in presence of Mashirs Allah Dino and Constable Abdul Rehman of Police Station Kunri. The blood-stained clothes of the deceased, hatchet recovered from appellant Muhammad and the blood-stained earth etc. were despatched for chemical analysis. On completion of the investigation, challan was submitted against the appellants and charge against both the appellants was framed by the learned Sessions Judge, Tharparkar at Mirpur Khas under section 302/34 of P.P.C. on 13-2-1989, to which both appellants pleaded not guilty and claimed trial. . The prosecution examined P.W.1 complainant Wahiyon (Exh.13) who produced carbon copy of the Roznamcha Entry (Exh.13-A), P.W.. Nangar (Exh.14) who produced his statement under section 164 of Cr.P.C. (Exh.14-A), P. W.3 Muhammad Bux (Exh.15) who produced his statement under section 164 of Cr.P.C. (Exh.15-A), P.W. Allah Dino (Exh.16) who had acted as Mashir and produced Mashirnama of Wardat, the inquest report, arrest of accused, recovery of blood-stained hatchet, blood-stained clothes of deceased, Mashirnama of arrest of appellant Allan (Exhs.16-B to 16-F). Prosecution also examined P.W.5 Dr. Omparkash (Exh.18) who produced post-mortem report (Exh.18-A), P.W.6 Ramzan (Exh.19), P.W.7 Muhammad Yousif (Exh.20), P.W. Nabi Bux H.C. P.P. Nabisar Road who had registered the F.I.R. in Roznamcha (Exh.21) P.W.9 Sangram Tapedar (Exh.25) who produced sketch of Wardat (Exh.25-A) and P.W.10 Atta Muhammad, A.S.-I., Police Station Kunri (Exh.26) who produced F.I.R. (Exh.26-A) and Report of Chemical Analyser (Exh.26-C). In their statements under section 342.Cr.P.C. the appellants denied the allegation of having committed the murder of Majnoo and further stated that they were falsely implicated. The appellants did not examine themselves on oath under section 340(2), Cr.P.C. nor they lead any defence. At the conclusion of trial the learned trial Court convicted appellants as stated above. We have heard the learned counsel for the parties and have perused the entire record. Mr. Hemraj Karmani, learned Advocate for the appellant Muhammad has contended before us that the incident allegedly took place at 8-9 a.m., report regarding which was lodged at Police Post Nabisar Road at 3-00 p.m. the distance between the Wardat and the Police Post being only 2 miles and the report as such is inordinately delayed for which no explanation is furnished; that the trial Court has wrongly treated evidence of P.W. No.6 Ramzan and P.W. No.7 Muhammad Yousif as ocular testimony because these witnesses were not named by complainant in the F.I.R.; that P.Ws. Nangar and Muhammad Bux are maternal-uncle and cousin respectively of the complainant, and thus being interested and partisan witnesses, no reliance could tie placed on their evidence; although many persons are said to have gathered at Wardat, but no witness other than the relatives of complainant are examined; that medical evidence is not in conformity with ocular evidence; that Fakir ' Lal who went and conveyed information to complainant is withheld and not examined by the prosecution; that the evidence of recovery as also motive is discrepant and not confidence inspiring and lastly that the case against appellant Muhammad was not free from doubt and the approach of the learned trial Court is resolving such doubts in favour of the prosecution has resulted into miscarriage of justice. It is also argued that the conduct of the eye-witnesses Muhammad Bux and Aangar was unnatural inasmuch as having seen their own relation Majnoo being dealt blows they did not try to overpower the culprits. In support of all these contentions the learned Advocate referred to the following cases:-- (i)???????? Anil Phukan v. State of Assam 1993 SCMR 2236, (ii)??????? Dooso alias Dost Muhammad v. The State 1993 PCr.LJ 394, (iii)?????? Khalil v. The State PLD 1956 (W.P.) Lah. 840, (iv)?????? Mamoon and another v. The State PLD 1962 (W.P.) Kar. 800, (v)??????? Din Muhammad v. The State PLD 1959 SC 491, (vi)?????? Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550, (vii) ???? Ashiq Hussain v. The State 1993 SCMR 417, (viii) ???? Ch. Muhammad Yaqoob and others v. The State 1992 SCMR.1983, (ix)?????? Abdul Hameed v. The State 1994 PCr.LJ 281 Before proceeding further we would like to refer to the rule laid down in the cited authorities and the observations made therein. In the case of Anil Phukan 1993 SCMR 2236 it was observed that the sole eye-witness of the occurrence who was close relative of the deceased had not attempted to save deceased though alleged to be present at the time and place of occurrence and the testimony of such witness about time of occurrence being also contradictory to medical evidence, such statement could not be relied upon without some independent corroboration, direct or circumstantial. It was held that the accused in such circumstances was entitled to benefit of doubt. In the case of Dooso 1993 PCr.LJ 394 a D.B. of this Court held that the eye-witnesses interested, inimical and chance witnesses and their evidence having been contradicted by medical evidence and the motive having not been proved, the prosecution held had failed to prove case against the accused beyond reasonable doubt and the accused was acquitted in the circumstance. In the case of Abdul Majeed 1994 PCr.LJ 281 a learned Judge of the Lahore High Court observed that the statement of eye-witnesses closely related to the deceased cannot be relied unless corroborated by independent and strong evidence. In the case of Ch. Muhammad Yaqoob 1990 SCMR 1983 it was observed that the burden of proof in a criminal case throughout the trial of the case remains on the prosecution and this burden is not shifted on the defence. It was also observed that any contradiction or improvement or any other factor which may adversely reflect on the credibility of the witness could not by itself be sufficient to reject the testimony of such witness as a whole and the Court can rely upon a portion of the testimony of such witness; if it is corroborated by other reliable evidence or circumstance. In the case of Ashiq Hussain 1993 SCMR 417, it was a case where the ocular version was not consistent with medical evidence, the eye-witnesses were not reliable and their presence at the spot was doubtful, recovery of gun from accused was effected after 13 days of his arrest, the evidence of motive was not satisfactory, and it was observed that the defence plea even if not proved was sufficient to cast doubt on the credibility of the prosecution case which was even otherwise also doubtful. In the case of Syed Saeed Muhammad Shah 1993 SCMR 550 the statements of witnesses under section 161 of Cr.P.C. recorded by the police after delay and without explanation were ruled out of consideration. It was also observed that an accused is presumed to be innocent until prosecution proves case, against him beyond the shadow of reasonable doubt and if the prosecution fails in its duty which never, shifts to the defence, accused is entitled to the benefit of doubt. In the case of Din Muhammad PLD 1959 SC 417 it was observed by the Honourable Supreme Court that where the eye-witnesses not naming person as accused in F.I.R., it is dangerous to act on evidence of such witness. In the case of Mamoon and others PLD 1962 (W.P.) Kar. 800 the Honourable Supreme Court ruled out of consideration evidence of the eye-witnesses whose names were not mentioned in the report. In the case of Khalil PLD 1956 (W.P.) Lah. 840 it was observed that the Court may be inclined to consider the statement of a witness whose name does not appear in the first information- report as truthful but the safer course is to keep his statement out of consideration. Learned A.A.-G. while supporting the impugned judgment has argued that if the ocular testimony of P.Ws. Muhammad Yousif and Ramzan is not believed, as their names were not disclosed by Fakir Lai. to complainant, the evidence of remaining P.Ws. Nangar and Muhammad Bux can be believed and the conviction on such evidence alone can be sustained. It is also argued that the material contradictions, which were suggested to the witnesses have not been proved through P. W.10 Nabi Bux, H. C. who had recorded such statements. Mr. Rochi Ram, learned Advocate for the complainant argued that non-?mentioning of names of certain accused in the F.I.R. by a person who is not an eye-witness would not be fatal to prosecution. He also contends that no animus was shown against the witnesses so as to have falsely implicated the accused. In support of such contentions learned Advocate referred to the cases of (i) Siraj Din v. Kala and another PLD 1964 SC 26, (ii) Rasool Bux and another v. The State PLD 1964 (W.P.) Quetta 6 and (iii) Fazal alias Faja v. The State 1971 PCr.LJ

602. We have considered the contentions raised by the learned counsel and have also gone through the entire evidence as well as the impugned judgment. At the very outset we may observe that the report lodged at Police Post Nabisar Road is inordinately delayed. Complainant Wahiyoon had stated in his evidence that immediately on his getting information from Fakir Lal about the murder of Majnoo, he went to the place of Wardat and having verified such fact proceeded to the Police Post Nabisar Road. Admittedly, the distance between Wardat and the police post is 1-1/2 miles whereas the distance of complainant's house from place of Wardat is about 5-6 blocks. According to the complainant, he reached Police Post Nabisar at 2-00 p.m. but the report was registered at 3-00 p.m. Why such a long time from 9-00 a.m. to 2-00 p.m. was consumed by the complainant to reach Police Post Nabisar Road has gone unexplained. Complainant also stated that he might have covered the distance within an hour or so. In such circumstances he must have reached the police post in any case by 11-00 a.m. or 12-00 noon but not thereafter. The delay in lodging the F.I.R., therefore, smacks of some deliberations going on to rope in the accused as otherwise there was hardly any occasion for lodging the report with such delay. The motive in this as suggested by the prosecution is, that appellant Muhammad was found cutting branches of Babool trees from the land, which was on lease with the deceased Majnoo, who objected to such act of the appellant Muhammad, whereupon it is stated, that a scuffle ensued resulting into the murder of Majnoo. This motive is not only weak but false as well, for the simple reason, that the Mashirnama of Wardat (Exh.16-A) does not show the branches of Babool trees were cut by appellant Muhammad or were lying at the Wardat. The Mashirnama on the contrary shows that some dry branches of the Babool tree were lying which again would indicate that the same were cut at some time much before the time of occurrence. If it is believed that no Babool trees or its branches were cut by the appellant Muhammad, there was no cause of ,annoyance for deceased Majnoo nor he would have restrained appellant Muhammad from doing so. The evidence of motive is scanty and untrustworthy which cannot be accepted and we discard the same. We now advert to ocular evidence, which according to the learned trial Court has come through complainant Wahiyon, P.Ws. Muhammad Bux, Nangar, Ramzan and Yousif. Neither the complainant Wahiyon is an eye?witness nor the names of P.Ws. Ramzan and Muhammad Yousif are given it, the F.I.R. Complainant Wahiyon was informed about the incident by Fakir Lal who may have either witnessed the incident himself or may have been informed by P. Ws. Muhammad Bux and Nangar, said to be present according to Fakir Lal, who conveyed the fact of murder of Majnoo to complainant. For what reason the prosecution has withheld the important witness Fakir Lai and has not examined him, is something, which the learned counsel appearing for the State as also for the complainant could not explain. Whatever complainant Wahiyon either reported to police or stated before the trial Court becomes hearsay unless Fakir Lai was examined. We are very clear in our mind that P. Ws. Ramzan and Yousif have subsequently been introduced as eye-witnesses when they were in fact not present at the scene of offence, as otherwise, their names must have been given by Fakir Lai to complainant: We are, therefore, left with the evidence of P.W. Muhammad Bux and Nangar, the former being the maternal?uncle and latter being brother of the deceased. P.W. Muhammad Bux was involved in some criminal cast, and, his presence at the Wardat as narrated becomes highly doubtful. In his-evidence P. W. Nangar stated, ' on that day morning my brother Majnoo: proceeded to Nabisar Road Town. I alongwith Muhammad Bux, Ramzan and Yousif were at out Otaq. We all then proceeded towards Nabisar Road Town-with interval of about 15 to 20 minutes". This clearly shows that Majnoo had left P.Ws. Nangar, Muhammad Bux, Ramzan and Yousif at the Otaq and had himself gone ahead of these witnesses towards the Wardat by some 15-20 minutes. The witnesses had not gone together with deceased Majnoo but as they state, they followed Majnoo and they heard altercation and saw appellant Muhammad as well as his son Allan causing hatchet blows to Majnoo. It may also be pointed out that complainant Wahiyon admitted that deceased Majnoo was facing some criminal cases although a suggestion to him that deceased Majnoo was a history-sheeter is denied. We may further observe that P.W. Muhammad Yousif is the father-in-law of deceased and P.W. Ramzan resided at a distance of 3/4 miles from the village of Majnoo. As pointed out earlier these two witnesses could possibly not have been at the scene of offence. Statements of P.Ws: Nangar and Muhammad Bux under section 164, Cr.P.C. (Exhs.14-A and 15-A) were recorded 10 days after the incident and such statements are recorded in absence of appellant Allan, whereas appellant Muhammad was shown to be present before the Magistrate but had declined to put any question in cross-examination. From the evidence of P.W. Muhammad Yousif we find that police statement of said witness as also of P.Ws. Nangar and Muhammad Ramzan were' recorded 10/11 days of the incident. No 'reason for delay in recording4he statements of these witnesses by police is given and this by itself would cause serious doubt on the trustworthiness of the witnesses. The circumstantial evidence taken as a corroboration to ocular testimony is in the nature of recovery of blood-stained hatchet from appellant Muhammad and the blood-stained clothes of the deceased. The former may be a corroboration but the latter cannot be taken as such. The hatchet allegedly used in the commission of murder was recovered from appellant Muhammad on 31-7-1988 but, despatched for chemical analysis on 16-8-1988: Although the report of Chemical Analyser regarding the hatchet is that .it had stains of human blood; yet such evidence by itself would be no corroboration unless, we accept the evidence of recovery of hatchet from appellant Muhammad. The recovery is effected in 'presence of Mashir Allahdino (Exh.16) who- in his evidence stated that he resided at a distance of 1 mile from the village of appellant Muhammad. It has come in evidence that appellant Muhammad Was arrested from village Damberlo which consists of about 200 to 250 houses: No effort was made to join an independent witness of the locality- during arrest of Muhammad and recovery of hatchet at his pointing. The Mashir Allahdino also stated that his L.T.I. appeared, only on Exh.16-F, which is the Mashirnama of arrest of Allan and he has disowned his L.T.I. on other Mashirnama. In the circumstances it was incumbent on the prosecution to have examined co-Mashir Khairoo but such has not been done. No corroboration thus has been provided to the ocular testimony of the witnesses. Referring now to the evidence of the Medical Officer P.W.5 Dr. Omperkash (Exh.18), such evidence had either to be believed or rejected in toto but not that such portion as favoured the prosecution is to be accepted and that which favoured the accused is to be rejected. The M.O. in his evidence stated that he received the dead body of deceased through Police of Police Station Umer Kot. Police Station Umer Kot is said to beat a distance of more than 15 miles from Police Station Kunri of which Nabisar Road is a P.P. In no case the dead body had to be sent either to Police Station Kunri or to Police Station Umer Kot, for, post-mortem examination is conducted by Medical Officer at Rural Health Centre, Nabisar Road. From the post-mortem examination report (Exh.18-A) it is evident that such examination was started at 4-00 p.m. which could possibly not have been done as the report at Police Post Nabisar Road was lodged at 3-00 p.m. If the dead body is taken first to Police Station Umer Kot, which from Nabisar Road would be about 18 miles or more and then brought back to the Rural Health Centre Nabisar Road, the post?-mortem could not have been started at 4-00 p. m. The Medical officer in his evidence stated, "Probable time between injury and death was about 3 hours whereas time between death and post-mortem was about 2 hours; The doctor also stated, "Deceased Majnoo might, have died 2 hours before I started conducting post-mortem examination of dead body and have been mentioned by me in the last line of my said report". The learned trial Court in the impugned judgment has observed that the doctor had obliged the accused. But we cannot agree with such observations of the trial Court for, if there was any circumstance indicating partisan character of the doctor, some question either by the prosecutor or by the Court itself could have been put to the doctor to clear such glaring ambiguity. The evidence of Medical Officer completely belies the prosecution case and we have hardly any reason to reject such evidence. The investigation was almost carried out by P.W. 8 H.C. Nabi Bux. He admitted in his evidence that the complainant had not given the name of appellant Allan in the F.I.R. He also stated that he reached by a Jeep at the Wardat at 11-00 a.m. when P.Ws. Nangar and Muhammad Bux were sitting by the side of dead body. According to the complainant Wahiyon, the dead body was carried by him to Police Post Nabisar Road when he went to lodge the report and the presence of dead body at Wardat at the time H.C. Nabi Bux reached was improbable. F.I.R. was registered at Police Post Nabisar Road at 3-00 p. m. and how on earth could H. C. Nabi Bux reach Wardat at 11 a. in. Even in respect of presence of dead body of Majnoo at Wardat whatever H.C. Nabi Bux has stated is a total falsehood. He has wrongly given the time of F.I.R. his arrival at Wardat and despatch of dead body for post-mortem examination. This witness is disbelieved even by the-trial Court. All doubts arising in the case either in the evidence of eye-witnesses or H.C. Nabi Bux and the Medical Officer have been resolved in favour of the prosecution though benefit of such doubts should have been given to the accused. Such approach of the learned trial Court which, is based on presumptions, conjectures and surmises, was not in accordance with law. We agree that such portion of the evidence of a witness which favours the prosecution can be admitted as true provided it is corroborated by other reliable or tangible evidence. We may like to reproduce some portions of the impugned judgments. In paragraph 33 of the judgment it has been observed: "Although he (Investigating Officer) has made certain omissions and also made obliging statement as discussed above, yet Court can rely upon a portion of the testimony of such witness." Likewise, while discussing the evidence of the doctor and Investigating Officer Nabi Bux, the learned trial Court observed in para. 14 of the judgment as under:-- "This all goes to show that these material omissions and contradictions were introduced by both of them in order to give fatal blow to a murder case for the reason best known to them. Under such situation, I place reliance upon ocular evidence and hold that the incident took place at 8-00 a.m. and not at 2-00 p.m. as per report of Medical Officer." The approach of the learned trial Court, therefore, in resolving doubtful circumstances in favour of the prosecution in our view, is not warranted by law. There is addition of name of appellant Allan during investigation when he is not named in the F.I.R., the names of P.Ws. Yousif and Ramzan as being eye-witnesses are not mentioned in the F.I.R. but these are subsequently introduced, the time of occurrence and the time of arrival of police at the Wardat do not conform to the contents of F: I. R. or the evidence of Medical Officer, the trustworthiness of the only 2 eye-witnesses Muhammad Bux and Nangar is not E above doubt and the approach of the learned trial Court in resolving benefit in favour of prosecution, the discrepant and shaky evidence of witnesses, addition of name of appellant subsequently are such circumstances as cannot be countenanced on mere assumption that the same are inconsequential. The upshot of above discussion is that the case against appellants in our view was not proved beyond reasonable doubt, and the conviction and sentence awarded to the appellants in these circumstances cannot be sustained. We, therefore, accept this appeal, set aside the conviction and sentence and acquit the appellants. The reference for confirmation of death sentence is declined. N.H.Q./M-2110/K ???????????????????????????????????????????????????????????????????????????? Appeal accepted.