1988 P Cr (PLP)

Mashir Ali Khan P.W.4 has deposed that he was made mashir of Wardat and has produced the Mashirnama as Exh.16. The Police had also prepared the Mashirnama of injuries on the person of deceased, and he has produced the Mashirnama as Exh.17. That the Police had prepared inquest of the dead body and the same has been produced by him as Exh.18.In cross-examination he had deposed that he resides 4/5 miles away from the Wardat. He was in Hala town when he came to know about the above incident, and therefore, he went to the Wardat. Several persons were present when he reached the Wardat. Police had arrived at the Wardat before his arrival there. A Ginning Factory was about 200/250 paces away from the Wardat. There were Government godowns at the distance of 200 paces from the Wardat. He denied that he had signed the Mashirnama at the P.S. in the evening. Mashir, Ahmed P.W.5 has deposed that all the accused were arrested in his presence from village Jamal Khan Nizamani at about 2-30 p.m. The other Mashir was Mohammad Ali who is dead. The clothes of all the accused were blood-stained which were secured and sealed by police under Mashirnama, which has been produced as Exh.21. After about 15/20 minutes of the arrest of the accused, accused Bhai Khan had produced blood-stained hatchet from under the heap of straws lying in his house. The police secured the same under Mashirnama which has been produced as Exh.22. Accused Mohammad Khan had produced blood-stained hatchet lying under the Rili on the cot from his house. The police had secured and sealed the same under Mashirnama which he has produced as Exh.23. Accused Muhram had produced blood-stained hatchet lying under the mat from a room of his house. The police had secured and sealed the same under Mashirnama which has been produced as Exh.24. In cross -examination he has deposed that village Maroo Bhambhra will be about 6/7 miles away from Bus Stand Hats. He reached Hala at about 12-00 noon or 2-00 p.m. in order to visit Hala. He was called by the police while he was passing on the path. He signed the Mashirnama at P.S. Hala and at village Jamal Nizamani. He could not say as to how many houses were in the village of Jamal Nizamani. He did not know from where the police had brought all the four accused. He had signed the Mashirnma of arrest of the accused under a tree in village Jamal Nizamani. He had seen the clothes of accused in village Jamal Nizamani. The police had shown him those clothes at P.S. Hats. He was with the police for about 2/3 days. He admitted that all the Mashirnamas Exhs.21 to 24 were signed at P.S. Hats. Several persons from village Jamal Nizamani had assembled there. He did not know as to who were living together in the village Jamal Nizamani. The evidence of P.W. Khameesoo Khan A.S.I. and that of Allah Bux has been mentioned in the earlier part of this judgment. P.W. Allah Bux has deposed in his cross-examination that A.S.I.P. Khameesoo Khan alongwith his subordinates, accused and the Mashirs was present in the village under a tree outside the village Jamal Nizamani. About 40/50 persons were also present there. Village Maroo Bhambhra will be 2/2J miles away from village Jamal Nizamani. Exh.22 was prepared at 2-30 p.m. He had shown under Mashirnama Exhs.22 and 24 that some stains were found on the hatchet. He could not say what was the material of which the stains were there. He had not mentioned in Exh.23 to which place the blood was found by him. S.P. had issued directions for the arrest of the accused. After verifying the police papers he found a letter of S.P. Hyderabad, dated 21-11-1981 on special report of SDPO that the accused be arrested. This letter has been produced by him as Exh.29. He has denied that the date of arrest of the accused and recovery of hatchet and clothes has been changed. He has also denied that a line regarding recovery Exhs.22 and 24 was written with different ink. ASIP Khameesoo Khan P.W.6 who conducted the initial investigation has deposed in his cross-examination that he reached at the Wardat at 2.00 p.m. Several persons of the vicinity were present at the Wardat, when he reached there. He did not record statement of any of those persons. He had not seen any bottle of honey, bottle of Ghee or any cloth bag at the Wardat. He had recorded the statements of P.Ws. after sending the dead body to the hospital. The complainant had stated in the F.I.R that when he reached Bus Stand his relations were with him. The complainant had not stated in his F.I.R that they had taken tea in a hotel. The complainant had also not stated in his F.I.R that Lakhano had stood surety in a murder case of Khan. The complainant had not stated in his F.I.R that the accused had threatened them not to come near them otherwise they would be killed. P.W.. Shah Mohammad had stated in his statement recorded by him that he left his village at 9.00 a.m. He had not stated that they had purchased 'Biri' and they had taken tea at Bus Stand and then proceeded to Hala town. P.W. Umer had given time of leaving his village as 9.00 a.m. in his police statement. P.W. Umer has not stated in his police statement that he met deceased, complainant and Gul Hassan at Bhambhra Bus Stand. P.W. Umer had not stated in his police statement that he had seen deceased, complainant Kamal and P.W. Gul Hassan sitting in Suzuki van. There were 15/16 houses in the village of Jamal Nizamani. Mashirs, Ahmed and Mohammad Ali had met them in village Jamal Nizamani. police constable had brought both the Mashirs before him. Same police constable had produced all the accused before him under a tree in village Jamal Nizamani where he arrested them. He could not say from. where the police constable had brought them. After arresting the accused he had not searched the house of the accused. He had mentioned the place of blood stains on the cloths of accused. He had not received orders from time to time from the S.P. or SDPO that the accused be arrested. It is not a fact that till 21-11-1981 no arrest of the accused was made. It was denied that he had prepared false Mashirnamas of the arrest of the accused and recovery of clothes. Tapedar Mohammad Afzal P.W.8 has produced the sketch of Wardat as Exh.33. According to him, he had visited the place of Wardat shown by complainant Kamal, and has given the points and distances concerning the place of Wardat and the place where the witnesses were standing. In cross-examination he has deposed that from the National Highway there was one path leading towards town which was being used by the people going by foot. Point 'A' was situated inside and on the boundary of that path. It is correct that said path remains in use of the people whole of the day. Around the point 'A' agricultural lands were situated. Mohammad Ismail HC PW.9 has deposed that he was given corpse of deceased for being taken to Civil Hospital, Hala for post-mortem which he handed over to medical officer in the same condition. After the post-mortem was over, he handed over the dead body to relations of the deceased, and deposited the clothes at P.S. He has produced the Mashirnama of recovery of clothes Exh.35. After the close of prosecution case statements of the accused appellants were recorded under section 342, Cr.P.C. in which they denied the allegations and have further stated that the witnesses were interested and that they had dispute with the complainant party over land, and thereforem they have been implicated in this case falsely. The learned trial Judge while relying upon the evidence of complainant, PWs Shah Mohammad, Umer and Gul Hassan (not examined), motive and recoveries of blood-stained hatchets and clothes convicted the above appellants as described above. The present appeal is directed against the above judgment of conviction. I have heard Mr. Mohammad Hayat Junejo learned counsel for the appellants, Mr. Rasheed Akhund learned counsel for the State, Mr. A.Q. Halepota Advocate for the complainant, and have also gone through the R&P of the case. It was contended by Mr. Mohammad Hayat Junejo Advocate that there was no motive to kill deceased Jam and that the motive given at the trial was different than the one given in the F.I.R. and before the Police. That the ocular evidence was interested, contradictory and unreliable. Moreover, the witnesses were chance witnesses and although the incident had taken place in the town of Hala but not a single independent witness of the locality has been examined by the prosecution. He has further contended that recoveries of clothes and hatchet were absurd, unnatural and unreliable inasmuch as the incident took place on 15-11-1981 while the accused were arrested on 20-11-1981 and it was impossible for them to continue wearing blood-stained clothes till they were arrested. That they had ample opportunity to wash the clothes and hatchets in order to destroy evidence against them. The Mashirnamas Exhs. 22 and 24 regarding recoveries of hatchets from Bhai Khan and Muhram clearly show that words"(which shows some spots) appear in different ink and clearly indicate that these were written later on. That the investigation was dishonest and therefore even on this score the appellants were entitled to benefit of doubt. Mr. Rasheed Akhund, Advocate has contended that ocular evidence was consistent, and no particular relationship of the witnesses inter se and with deceased was shown nor suggested. Even otherwise mere relationship was not enough to dub them as interested witnesses. He has further contended that the ocular evidence was corroborated by motive, and the accused had failed to show any enmity with the witnesses which could prompt them to falsely implicate a accused. Mr A.Q. Halepota, Advocate has contended that the F.I.R was promptly lodged in which names of PWs and accused with specific part played by them was mentioned. He has further contended that in villages sometimes people call their caste fellows also as relations. That in the present case the witnesses have specifically denied the relationship and no specific relationship has been suggested to the witnesses in the cross-examination. The motive has been proved inasmuch as the accused have done away with the Nek Mard of the other side. I have considered the contentions of the learned counsel. The prosecution evidence consists of motive, ocular evidence, and recoveries. I will deal with each piece of evidence separately. So far as the death of deceased Jam is concerned it has been proved through the Medical Officer, Dr. Abdul Rashid and through complainant Kamil, P.Ws. Shah Mohammad and Mohammad Umer. Even it has not been disputed by the accused in the trial Court, nor it has been disputed by the learned counsel appearing for the appellants before this Court. As far as the motive was concerned the F.I.R. shows that one Punooh brother of accused/appellant Mohammad Khan was murdered five months prior to the present incident, and in that case Hala Police had challaned Muhib and other relations of complainant party and the case was pending before the Sessions Court. However, in the trial Court an improvement was made and it was stated that Punnooh Nizamani brother of accused Mohammad Khan was murdered about five months before this incident, Mohib, Darya Khan, Mahorrem, Khan and others by caste Chand were involved in that murder case. Lakhano brother of deceased Jam had stood surety for accused Khan only; due to that enmity the accused had committed murder of the deceased. This was the stand taken by the complainant in his deposition in Court, but P.Ws. Shah Mohammad and Umer did not say a word about the motive in their evidence in Court. Therefore, the motive alleged in the Court by the complainant is different than the one mentioned in the F.I.R. Moreover, it is not supported by P.Ws., Shah Mohammad and Mohammad Umer. Even the learned trial Judge has observed in his judgment at page 15 that the motive is not fully established. No evidence has been produced to show that deceased Jam was either related to the accused of the earlier case or that his brother had actually stood surety for accused Khan in the previous case. In these circumstances I am of the considered view that the motive advanced by the prosecution was not proved. Ocular evidence: As far as the ocular evidence was concerned the prosecution had examined complainant Kamal, P. Ws. Shah Mohammad and Umer. However, P.W. Gut Hassan died before he could be examined; and therefore, an application under section 265-J, Cr.P.C. was moved before the learned trial Judge on 9-10-1984 for bringing his 164, Cr.P.C. statement on record, which was rejected on 13-8-1985. The learned Judge had observed while rejecting the above application that it is for the prosecution to get the said statement proved through the Magistrate who is being called to appear in the Court However, on 18-11-1966 the A.P.P. Incharge of the case gave up Mr. Imtiaz Kazi, F.C.M. who had recorded the statement of P.W, Gul Hassan. The order rejecting application is Exh.31 and the statement giving up Mr. Imtiaz Kazi is Exh.38. In view of this statement the statement of P.W. (deceased) Gul Hassan recorded under section 164, Cr.P.C. could not be produced on record. But it is unfortunate that the learned trial Judge while considering the prosecution evidence has taken into consideration the said statement of P.W. Gul Hassan and has observed as under:- "The fourth paramount witness of the prosecution namely Gut Hassan, whose evidence was ocular, is no doubt dead, but his 164, Cr.P.C. statement is available on record. From the perusal of his 164, Cr.P.C. statement it reveals that he has also fully implicated the above-named accused having intentionally caused murder 'of deceased .Jam by causing him hatchet blows." In view of the fact that the statement of P.W. Gul Hassan recorded under section 164, Cr.P.C. was not brought on record as required by law, therefore, the same could not be taken into consideration. As far as remaining three witnesses are concerned they are admittedly residents of village Haji Lal Bux Chand which was situated about five miles away from the place of incident. The complainant and the P.Ws. Shah Mohammad and Umer have not given any specific reason for their presence at the place of incident. There are some omissions and contradictions in their evidence with regard to the time, they reached at Bhambhra Bus Stand, and the time when they reached at Hala. In F.I.R. and police statements the prosecution case was that the complainant, P.Ws. and the deceased had left for Hala at 9-00 a.m. and reached there at 12.00 noon while the incident took place at 12-30 p.m. In the Court the evidence of complainant shows that they left from village at 10-00 a.m., the evidence of Shah Mohammad shows that they came to Bhambra Bus Stand at 11-45 a.m. while the evidence of P.W. Umer shows that he left his village at 10-45 a.m. It has also been admitted by the P.Ws. that they had not pre-planned the programme and all of them met at Bhambra Bus Stand from where they left for Hala in a van. The accused are residents of different village namely Jamal Nizamani. There is no evidence to show that the accused knew that deceased Jam was going to Hala and, therefore, they should have followed him. It has been admitted by the complainant and P.Ws., Shah Mohammad, and Umer that several persons had come at the Wardat on cries, and it is admitted by the complainant that he did not disclose the facts of the incident to them. None of them has been cited or examined as a witness. In Mohammad Sharif v. Tahirur Rahman and 3 others 1972 S C M R 144 it was observed by their Lordships that:- "It is the prosecution case that a large number of persons had collected at the place of occurrence and they were kept at bay by the accused persons- firing at them indiscriminately. The failure on the part of prosecution to produce a single disinterested witness is a point that goes against the prosecution." Moreover, it was stated in F.I.R. and 161, Cr.P.C. statements that P.Ws. were related to the complainant but this fact has been denied in Court. However, P.W. Umer has admitted that they were haris of deceased Jam. Moreover, the motive as alleged by the complainant having failed the evidence had to be scrutinized carefully as held in the case of Habibullah and others v. The State P L D 1969 SC

127. As far as the lodging of F.I.R. was concerned no doubt the F.I.R. was lodged promptly but it will not prove that whatever was alleged in the F.I.R was nothing but truth. Reliance is placed on Gahano and 4 others v. The State P L D 1964 (W.P.) Kar. 437 in which it was observed by a Division Bench of this Court that:- "We cannot accept view of the learned Sessions Judge that the mere mention of the name in the First Information Report which was promptly made, constitutes corroboration such as is required by law." In view of the above discussion I am of the considered view that the ocular evidence produced by the prosecution required independent corroboration. Now coming to the last piece of evidence namely recoveries of blood-stained hatchet and clothes from appellants. The evidence shows that the appellants were arrested on 20-11-1981 at 2-00 p.m. and blood-stained clothes were recovered from their persons. This Mashirnama of arrest and recovery has been produced as Exh.21. It is the case of prosecution that accused Bhai Khan, Mohammad Khan, and Moharrem produced blood-stained hatchets in presence of Mashirs, Ahmed and Mohammad Ali. The same were sent to the Chemical Analyser for examination and report. The chemical report has been produced as Exh.28 which shows that the articles were received by the chemical examiner on 2-6-1982 and the report is in positive. It has been contended by Mr. Mohammad Hayat Junejo learned counsel appearing for the appellant that the Mashir, Ahmed belonged to a different place and there was a violation of mandatory provisions of section 103, Cr.P.C. That village Jamal Nizamani was big village and many persons had collected at the Wardat as admitted by Mashir but none of them was made as Mashir. Moreover, the Mashir had admitted, that he was shown the clothes at the police station and Mashirnama were prepared at the police station. There were interpolations in two Mashirnama of recovery Exh.22 and Exh.24 and, therefore, no reliance could be placed on these recoveries. It is the prosecution case that the appellants were arrested on 20-11-1981 whereas the incident took place on 15-11-1981. Even the hatchets are said to have been produced by the three appellants from their house on 20-11-1981. The prosecution story that the appellants were wearing blood-stained clothes at the time of arrest and the hatchets were also blood-stained appears to be absurd and unnatural inasmuch as the appellants had enough time to at least wash the clothes and the weapons but it was not done in the present case. Mashir of recovery namely Ahmed comes from the village of Maru Bhambro which was situated about six miles away from Hala. He has admitted in cross-examination that he had seen the clothes of accused in village Jamal. The police had shown him those clothes at P.S. Hala. He has further admitted that all the Mashirnarnas Exhs. 21 to 24 were signed by him at P.S. Hala. That he was with the Police for about 2-3 days. He has further admitted that several persons from village Jamal Nizamani had assembled there. From the above statement of Mashir Ahmed it is clear that clothes were not sealed at the place of recovery nor the Mashirnamas of recoveries were prepared at the place of recovery. He also came from a different village and that several persons were present at village Jamal Nizamani where the recoveries were made from the accused. It is, therefore, clear that on one hand there was clear violation of mandatory provisions of section 103, Cr.P.C. and on the other hand the articles were not sealed at the time and place of recovery. In Nazir Ahmed v. The State P L D 1969 Baghdadul Jadid 11) it was observed: - "The recovery evidence can only be used to corroborate the ocular testimony, which in this case has not been found to be reliable. Moreover, according to Akhlaq Ahmed P.W. 5 who had attested the two recoveries, the memos. etc. were actually prepared at the spot although the articles were made into sealed parcels at the police station. This admission that the Tokka Exh.P/1, and the Chaddar Exh.P/2 had not been sealed immediately on recovery, makes their evidentiary value highly suspicious." Moreover, the clothes and hatchets are said to have been recovered on 20-11-1981 but the same were sent to chemical examiner on 2-6-1982, and the prosecution had failed to give any explanation for the delay in sending the articles. In Suleman and two others v. The State 1981 Pakistan Criminal Law Journal 434 it was observed by a Division Bench of this Court that: "In the present case there is a delay of nearly five months and on account of the unusual circumstances of the recoveries and five months' delay we consider it unsafe to rely upon these recoveries as evidence for corroboration purposes." In Dost Mohammad v. The State P L D 1982 Karachi 1000 it was observed by a Division Bench of this Court that:- "Accordingly it has been emphasised on behalf of the accused appellant by his learned counsel that delay of two months and 3 days in sending the incriminating articles to the chemical analyser in the present case would be fatal to the prosecution case as possibility of manipulation of such incriminating articles in the circumstances cannot be ruled out. It has further been emphasised that in any case no effort has been made to ascertain the grouping of the blood on the articles to show that they were stained with the blood of the deceased. For the reasons mentioned above, therefore, no safe reliance can be placed on this piece of evidence of recovery for the incriminating articles." Even otherwise the investigation appears to be dishonest in the present case. It is clear from the Mashirnamas Exhs.22 and 24 regarding recovery of hatchet from accused Mohammad and Bhai Khan which show that words (jinhan ki daag zasan yawakisa)had been added in a different ink later on. In view of the above discussion I am of the considered view that no reliance can be placed on evidence of recovery. In view of the fact that the evidence of recovery has been discarded, and the eye-witnesses being chance witnesses, and are Haris of deceased Jam as admitted by P.W., Umer, and having strained, relations with the accused, could not be considered to be witnesses of unimpeachable character, and as observed in the earlier part of the judgment that their evidence requires strong corroboration which is lacking, in the present case. I, therefore, allow this appeal, set aside the convictions and sentences of the appellants and they are acquitted. The appellants shall be released forthwith if not required in any other case. M.Y.H./B-55/K Appeal allowed.