1977 P Cr (PLP)

Z. A. CHANNA, J.‑‑Appellant Abdul Qayum, a Rickshaw Diver by profession, has been tried by the learned Ex‑Officer Additional Sessions Judge, Karachi, in respect of an offence punishable ruder Section 302, P. P. C., for allegedly committing the murder of one Abdul Latif with a knife, and the learned Judge by his judgment delivered on 22‑12‑1975, convicted the appellant of the said offence and sentenced him to imprisonment for life. The learned Judge did not impose on the appellant the penalty of death normally imposed for an offence of murder, but bas not given any reasons in his judgment for awarding the lesser penalty.

2. The facts of the case, shortly stated, are that on 3‑12‑1971, which happened to be the fist blackout night at Karachi, on consequence of the war with India, Khalid Hussain and his companion, Abdul Rashid, were sitting in the Akhlaq Hotel, near the garden of Hashim Khan, and were listening to the news on Radio, when at about 10‑00 p.m. they heard a commotion in the nearby "lane No. 2, whereupon they rushed towards that side, and are said to have seen one man with a Danda, whose name is stated to be Muffar Khan, giving Danda blows to the deceased who fell down on the street, whereafter the present appellant is said to have attacked the deceased with a knife and caused fatal injuries to him. It is further alleged that Khalid Hussain and Abdul Rashid overpowered and apprehended the appellant and secured the knife from his possession, which was found to be stained with blood. The incident is also said to have been witnessed by Mohammad Aman, Rahmat Khan and others, who had arrived subsequently. Khalid Hussain and Abdul Rashid took the accused to the garden police station where Khalid Hussain lodged his first information report at 10‑00 p.m. which was recorded by A. S. I. Mohammad Zaman. He also produced before the A. S. I. the blood‑stained knife said to have been secured from the appellant. In the meanwhile the deceased was taken by the other persona, who had arrived at the scene of offence, to the Civil Hospital but he was found to be dead. On the next day of the incident S. H. O. Nazar Mohammad secured the shirt and Shalwar of the appellant, which were found to be blood‑stained. The blood‑stained clothes were sent to the Chemical Examiner to the Government who has reported that the blood on the clothes is of human origin.

4. The autopsy on the deceased was conducted by Dr. M. S. A: Farooqui, officiating Police Surgeon, on 4‑12‑1971, between 1‑30 p.m. and 2‑30 p.m. He found the following 8 external injuries on the person of the deceased:‑ "(1) Incised wound (stab) 1' x ' x cavity deep. Left side back of chest 3' below the scapular margin and 3' from the middle line oblique in direction margin clean cut with acute angles. (2) Incised wound upper part back of left side chest vertical in direction 1' as x muscle deep 2' below behind left collar bone. (3) Incised wound ' as x skin deep back of left elbow. (4) Incised wound left side of head (paritoocoipito junction) 1 to as bone deep. (5) Incised wound right side nose x 1/8 skin deep. (6) Abrasion right knee x . (7) Abrasion loft knee x . (8) Incised wound inner side and back of right elbow 1' x (torn) muscle deep. All the above incised wounds are clean cut with (torn) angles." 5. 1n the opinion of the doctor, the two abrasions on the knees appeared to be the result of friction or fall while the remaining 6 injuries bad been caused by a sharp-edged weapon like a knife. He has further opined that injury No. 1, in consequence of the resulting internal injuries were sufficient in the ordinary course of nature to cause death.

6. The defence of the appellant is that he is a rickshaw driver, and that he heed parked his rickshaw in the garrage which is near the scene of offence, and just because he happened to be near tile scene of offence consequently be was arrested on suspicion. In respect of the clothes which the police had secured from his possession, he has stated that though he cannot be definite, his clothes might have become blood‑stained because he had tried to lift up the deceased when he bad fallen down. He has strongly denied that he killed the deceased or that a knife was secured from his possession.

7. Admittedly no motive for the crime has been alleged. No doubt, it is not necessary in all cases to establish motive for murder for motive may be buried very deep in the mind of the culprit and it is sometimes difficult tea discover the same. This would be socially so when the relationship between the accused and the witnesses is rot previously known, as in the pies‑no case, where the witnesses are not previously acquainted with the culprit. However where no motive is either alleged or established very strong evidence would be required to establish the guilt of the appellant.

8. The, most important evidence in this case is the testimony of complainant. Khalid Hussain and his companion Abdul Rashid. They have no doubt stated that they had seen the appellant causing knife injuries to the deceased and that they had apprehended him while he, was engaged in this act nevertheless, we entertain reasonable doubt regarding this aspect of their evidence. The version, which the two witnesses have given in the Court is substantially; different from the one given by them in the first information report, which was lodged within hour of the incident. According to the version given in the first information report, the deceased was first attacked by a bearded man with a Danda who gave a couple of Danda blows on the held of the deceased and felled him down and it was only after the deceased had fallen down that the person appellant caused knife injuries to the deceased. In their evidence in Court, however, they have practicality given up the version regarding the presence of the bearded man with a Donda. In any case the version given in the first information report is belied lay the medical evidence to which reference has already bean made. According to the medical evidence all the injuries on the deceased have been caused with a knife except for the two abrasions on the knees, which were the result of a fall. The medical evidence is thus wholly inconsistent with the version of any Danda blows being given to the deceased. It has been held by their Lordships of the Supreme Court in Darya Khan and another v. The Sate (1972 S C M R 578), that where the prosecution story is contradicted by medical examination, ocular evidence, specially if it is interested and inimical cannot be relied upon and the benefit of doubt should be given to the accused.

9. Another circumstance which makes us to view the testimony of the eye‑witnesses with sense doubts is that there is no evidence on record to show what was the distance between the scene of offence and Akhlaque Hotel where the witnesses are aside to have been sitting. Neither the Mashirnama of the scene of offence nor the sketch of the scene prepared by the Tapedar show the location of the hotel, The possibility thus cannot be excluded that the hotel was situated at such a distance from the scene of offence that the circumstance arising cute to the blackout the witnesses could neither have seen from that distance the fatal assault on the deceased nor were their in a position to perceive clearly who were the real culprits and with what weapons they were armed.

10. Apart from the ocular testimony of Khalid Hussain and Abdul Rashid; there is the corroborative testimony of Mohammed Zaman who also was sitting in Akhlaque Hotel, where the aforesaid two witnesses ware sitting, when they were attracted to the scene of offence on the commotions. The witnesses however,, admittedly did not see the appellant causing any injuries to the deceased and merely saw appellant being apprehended by Khalid Hussain and‑ Abdul Rashid.

11. The next incriminating piece of evidence against the appellant is the recovery of a knife from his possession, which knife according to the report of the Chemical Examiner was found stained with human blood. No doubt, the F. I. R. mentions that this knife was snatched away by Khalid Hussain from the appellant and even in one part of his evidence in Court Khalid Hussain hid contended that he had actually done so but subsequently he was forced to concede that the knife had fallen on the ground and he had secured it from tile green night also be mentioned that witness Abdul Rashid Who had simultaneously come to the, sense of offence with Khalid Hussain, makes no mention of the recovery of the knife. In the circumstances, it cannot be said with any degree of reasonable certainty that the criminating knife was secured from the possession of the appellant or that it was ever in his possession. If the appellant did possess the knife, it was unlikely that he would throw away the same until he ‑was able to make a clean get away, which may not have been difficult in the darkness occasioned by the blackout.

12. The last piece of evidence against the appellant is the recovery of blood‑stained clothes, which according to S. H. O. Nazar Mohammad the appellant was wearing when he saw the appellant shortly after his arrest. We are by no means satisfied in regard to this evidence. In the first place neither Khalid Hussain nor Abdul Rashid who had produced the appellant at the police station, have mentioned the presence of any blood on the clothes of that appellant. More important, the Mashirnama of the arrest of the appellant makes no mention of any blood being noticed on his clothes. On the contrary, A. S. I. Mohammad Zaman, who had arrested the applicant, has admitted that the does not recollect having seen any blood stains on the clothes of the appellate at the time of the arrest. If tiers was blood on the clothes of the appellant when ha was produced at rue police station there was no reason for not making mention of this fact in the Mashirnama of his arrest the absence of this important circumstanced in tee Mashirnama of the arrest of the appellant makes tire evidence of the recovery of blood stained cloths from the possession of the appellant highly unreliable. A further circumstance which has persuaded us to this conclusion is brat though according to the Mashirnama of the alleged recovery of the clothes, in lieu of the blood‑stained clothes which were secured, the appellant was made to wear the clothes of S. H. O. Nazar Mohammad, S. H. O. Nazar Mohammad in his evidence has disclaimed knowledge of the fact from where these clothes were procured. Finally though the S, H.O. has admitted that Khalid Hussain and other private witnesses were present when he had secured the clothes of the appellant, neither these witnesses were made Mashies of the recovery nor any questions regarding the recovery were put to them. In any case, where the ocular evidence is considered unreliable, the mere recovery of blood stained clothes is insufficient to support a conviction for murder, for in such cases the possibility of the clothes having become blood‑stained in an innocent manner or in an accident not connected with the case which the appellant is fling cannot be excluded.

13. For the reasons discussed by us above, we are of the opinion that the prosecution have failed to establish the guilt of the appellant beyond any reasonable doubt. We would accordingly give the benefit of doubt to the appellant, accept the appeal and set aside leis accordingly give the benefit of doubt to the appellant s accept the appeal and set aside his conviction and sentence. If the appellant is not required in any other case, be should be forthwith set at liberty. Appeal Allowed.