Akhtar Zaman Malghani, J.--The judgment dated 31.8.2001 rendered by Sessions Judge, Lasbella at Hub in Case No, 4/1999 has been assailed in the instant, appeal, whereby; the appellant Ali Asghar was found guilty under Section 302(b) P.P.C. and sentenced to imprisonment for life. He was also directed to pay Rs, 1,00,000/- as compensation to the legal heirs of deceased Imdad Ali as provided under Section 544-A Cr.P.C. In case of non-payment of compensation he was directed to further suffer S.I. for 2 years.
2. Briefly stated, facts of the case are that on 13.10.1998 a case under Section 302 P.P.C. was registered in police station. Hub vide FIR No, 130/98 on the report of Lutaf Ali son of Ranja Khan wherein it was stated that, his brother namely Imdad Ali, who was employee in LIEDA, went on his duty on 11.10.1998 at about 4.00 p.m. At about Maghrab time his son Khalid Hussain went to place of his duty and enquired from Muhammad Ayub Pump Operator about his father, who told him that at about 5.00 p.m. he went away. On the next day Khalid Hussain informed him that his father had not returned home and was also missing from his duty whereupon he informed the police and also made search for his brother. He further stated that on 13.10.1998 Palya Khan Mari informed him that dead body of his brother Imdad Ali had been recovered from the water pond of LIEDA, whereupon, he went there and saw deed body of his brother, who had injury marks on his face and body. The complainant further apprehended that the dead body of his brother was thrown into water after murdering him. However, he did not raise suspicion over any person. After registration of case the investigation was carried out by Lal Muhammad SI/SHO. It appears form the record that on or about 18.10.1998 the appellant was arrested in the aforesaid case and after usual investigation the challan was submitted before the Court.
3. At the commencement of trial charge was read over to the appellant to which he pleaded not guilty. In order to substantiate the accusation the prosecution in all produced 16 witnesses. During examination under Section 342 Cr.P.C. the appellant denied all the incriminating pieces of evidence appearing against him in prosecution evidence and claimed innocence. He also got recorded his statement on oath and produced two witnesses in his defence. It is the defence plea that on the day of incident the appellant was not present in the area and was participating in a marriage ceremony of his relative in Jam Shoro.
4. The learned Sessions Judge after evaluating the evidence on record and hearing the parties found the appellant guilty under Section 302(b) P.P.C. and sentenced him as mentioned above.
5. We have heard the learned counsel for the appellant and learned Assistant Advocate General.
We have also gone through the impugned judgment. The learned counsel for the appellant raised following contentions:--
(i) The prosecution case mainly rests on the statements of PW-3 Gul Muhammad who is not a confidence inspiring witness because admittedly the incident took place on 11.10.1998 but he remained silent till 21.10.1998, when his statement under Section 161 Cr.P.C. was recorded and there is no explanation for such long delay, as such his statement is liable to be ruled out of consideration.
(ii) According to PW-3 Gul Muhammad, he had gone to collect fire woods from the nearby forest, therefore, there was no occasion for him to be present at the place of incident and saw the occurrence as admittedly the water pond was surrounded by four wall and it was not possible for a person' to have seen the occurrence from the forest. He has also failed to give plausible explanation about his presence near the pond. Being a chance witness his statement is liable to be considered cautiously and it would be dangerous to base conviction on his statement without independent corroboration.
(iii)According to Muhammad Ayub, who was Pump Operator and on the fateful day remained on his duty from 4.00 p.m. onward, deceased Imdad Ali left the place at about 5:00 p.m. and never returned. This assertion on the part of PW Muhammad Ayub negates the story put forth by PW-3 Gul Muhammad.
(iv) Similarly PW Shakar Khan has made improvements in his statement by saying that altercation took place between the appellant and the deceased Imdad Ali which is a material improvement and has been introduced through PW Shakar Khan in order to strengthen prosecution case, as such, his statement is liable to be ruled out from consideration.
(v) So far recovery of three stones from the water pond is concerned, the learned counsel was of the view that the same could not be used against the appellant, firstly; these stones were neither blood stained nor sent to the chemical expert for analysation, secondly, the story about the recovery of such stones at the instance of the appellant is contradictory as according to some of the witness the same were recovered at the instance of a child aged about 6/7 years old whereas, according to some prosecution witnesses the appellant has pointed out the place from where these stones were recovered.
(vi) The learned trial Court was wrong in considering the alleged pointation of place of occurrence by the appellant as corroborative evidence because the place of occurrence was already known to the police as well as to the prosecution witnesses, as such, same could not be considered as a discovery of new fact on the disclosure of the appellant within the meaning of Article-40 of the Qanun-e-Shahadat Order, 1984.
(vii) The case of the prosecution was full of doubts and benefit of such doubts ought to have been extended in favour of the appellant.
The learned counsel in support of his contentions referred to the judgments reported in 1995 S.C.M.R Page 826, 1995 S.C.M.R. Page 1345, P.L.D. Supreme Court Page 1 and P.L.J. 1996 (Criminal Cases) Page 1637.
6. On the other hand, the learned Assistant Advocate General supported the judgment and urged that the statement of PW-3 Gul Muhammad was sufficient to sustain conviction of the appellant which was further corroborated by the recovery of stones at his instance as well as by the medical evidence. According to the learned Assistant Advocate General. PW Shakar Khan has also corroborated the statement of PW-3 Gul Muhammad to the extent of presence of the appellant and Imdad Ali at the scene of occurrence as well as with regard to the altercation taken place between them. The learned Assistant Advocate General in support of his contentions referred to the judgment reported in P.L.J. 2000 Supreme Court Page 309.
7. Before dealing with the respective contentions of the learned counsel for the parties, we; find it expedient to give brief resume of the evidence produced during trial:- PW-1 Lutaf Ali lodged the report Ex. P/1-A. He reiterated the contents of FIR in his statement and deposed that on 11.10.1998 his brother went on his duty did not return. On 12.10.1998 he was informed by his nephew Khalid Hussain about missing of his father. He further deposed that despite search he and other family members could not find the deceased Imdad Ali and on 13.10.1998 at about 9.30 a.m. Palya Khan Marri came and informed him that dead body of his brother was found near the water pond of LIEDA: PW-2 Munawar Ahmed Judicial Magistrate recorded statement of PW-3 Gut Muhammad under Section 164 Cr.P.C. which he produced in the Court as Ex. P/2-D.
PW-3 Gul Muhammad deposed that on the day of incident he went near water pond of LIEDA for collecting fire woods where he saw Chowkidar of water pond restraining the appellant whereupon the appellant abused him, in retaliation whereof Chowkidar threw a small stone on the appellant.
He further deposed that thereafter the appellant pushed Chowkidar into water pond and pelted three stones upon him. According to the witness Chowkidar drowned in the water. He further stated that the appellant chased and threatened them and thereafter ran away. In cross-examination he stated that no one else was present with him at the time of alleged incident.
PW-4 Palya Khan Marri deposed . that on 24.10.1998 accused/appellant in his presence pointed out the place near the pond and disclosed that he had committed the murder of the deceased Imdad Ali by stoning him. He also produced the disclosure memo as Ex. P/4-A.
PW-5 Abdul Majeed deposed that on 29.10.1998 he accompanied the police to the water pond of LIEDA where a fisher after diving into the water took out two stones which were shown to the appellant, who disclosed that by means of those stones he had attacked and committed the murder of the deceased. He further deposed that the stones were taken into possession vide seizure memo Ex. P-5/-A.
PW-6 Bangui deposed that on 13.10.1998 he went to the water pond of LIEDA in order to clear the area from bushes shrubs when at about 10.00 a.m. he saw some unusual thing lying in the water whereupon he called his companions and they found a human body in the water pond which was taken out. In the meantime PW-4 Palya- Khan Marri came there and told them that the said dead body was of deceased Imdad Ali, who was missing for the last three days. Thereafter the brother of the deceased, officials of LIEDA and police came there.
PW-7 Abdul Hakeem deposed that after receiving information about the recovery of dead body, he alongwith Lal Muhammad SI/SHO went to the water pond where Investigating Officer took into possession the dead body and also inspected the site and prepared inspection memo Ex. P/7 B, which was signed by him.
PW-8 Muhammad Younus deposed that on 13.10.1998 he was going towards the water pond when Palia and Bangui informed him about recovery of dead body from the water pond which, according to the Lutaf was of Imdad Ali.
PW-9 Muhammad Ayub deposed that he was serving as Pump Operator in LIEDA Hub. He usually performed his duty at office but. on Sunday he had to perform duty at Pump. He further deposed that on 11.10.1998 at about 4.00 p.m. he went to Pump in order to perform his duty, where Chowkidar Imdad Ali and Pump Operator Atar Khan were already present. He took the charge from Atar Khan who went away. After that he remained present at the pump whereas Chowkidar at the gate. He further stated that at about 5.00 p.m. Chowkidar went out of the gate and did not return. Next day he came to know about the missing of Imdad Ali. According to him on 13.10.1998 the dead body of Imdad All was recovered from water pond. He was called by Investigating Officer on 17.10.1998 in police station and recorded his statement. He further deposed that Atar Khan told him about the altercation, which took place between the appellant and his companion and Atar Khan. Suleman and Ali Ahmed at water pond. According to him the day on which alteration took place, was Friday.
In cross-examination he stated that in order to reach water pond one has to pass through the gate and thereafter through a broken wall. He re-affirmed in cross-examination that at about 5.00 p.m. he saw Imdad Ali going out of the gate.
PW-10 Shakar Khan deposed that 11.10.1998 at about 4.00 p.m. he went to the water pond for fishing where appellant also came and thereafter two boys also came there. He further deposed that they all four started fishing when at about 5.00 p.m. Imdad Ali came there and prevented them from fishing and directed for leaving the water pond whereupon, he went away whereas, appellant Ali Asghar and two other persons remained there.
PW-11 Taj Muhammad deposed that on 24.10.1998, Gul Muhammad pointed out the place of occurrence whereupon Investigating Officer prepared memo Ex. P/4-A, which was signed by him.
According to him at that time appellant Ali Asghar was also present with them.
PW-12 Dhani Bakhsh deposed that on 29.10.1998 he alongwith Gul Muhammad, Lal Muhammad and other police officials went to the water pond of LIEDA, where he was told that he has to recover some thing from the water pond whereupon he threw the net in the water twice but could not find anything. Thereafter he and his companion Towakal dived into the water pond and recovered three stones which were shown by SHO to the appellant, who affirmed that the said stones were the same.
PW-13 Muhammad Ishaq deposed that on 29.10.1998 the divers recovered three stones on the pointation of the appellant from the water pond which were weighed in his presence and total weight of those stones was 1170 grams. Thereafter stones were sealed into parcel and seizure memo Ex. P-13-A was prepared which was signed by him. He also produced three stones as Article P/2 in the Court.
PW-14 Towakal deposed that on 29.10.1998 police took him to water pond and asked him to recover stones from the water pond as a person had been murdered by means of those stones. He further deposed that on his asking the appellant pointed out 2/3 places but no stone was recovered from such places whereupon a child was brought who pointed out the place and Dhani Bakhsh after diving at the pointed place recovered three stones.
PW-15 Dr. S. Dulthani examined the dead body of the deceased and observed the following injuries:--
1. Lacerated wound 4cm into 3cm into bone deep with oozing of brain matter on right temporal region of skult.
2. Lacerated wound 3cm into 2cm into muscle deep on right Zygomatic area of with bone is exposed.
According to him cause of death was cardio respiratory failure due to head injuries resulting from hard and blunt substances.
PW-16 Lal Muhammad S.I. deposed that on 13.10.1998 he was serving as Investigating Officer in Police Station, Hub. On receiving information about the recovery of dead body, on the direction of SHO he proceeded to the place of occurrence where a dead body was lying near the LIEDA pond, which was taken into possession by him. He recorded the statement of PW Lutaf Ali which was sent to the police station for registration of case. Tie further deposed that afterward he was entrusted with the investigation, during course of which, he prepared inquest report Ex. P/16-A, site-plan Ex.
P/16-B and recorded the statements of the witnesses. He further deposed that he recovered three stones from the water pond on the pointation of the appellant.
The appellant in his statement on oath deposed that on 11.10.1998 he was not present in Hub and had gone to his village in order to attend marriage ceremony of his relative where he remained from 9th to 16th December.
DW-1 Haji Imam Din deposed that on 9.10.1998 he alongwith Ali Asghar and Suleman went to attend marriage ceremony of heir relative, where they remained till 11.10.1998, on which date they returned to Jam Shoro in evening time. He further stated that till 15th the appellant remained in his house.
DW-2 Muhammad Suleman also gave statement on the same line as deposed by DW-1.
8. We have anxiously considered the contentions put forth by the parties learned counsel in the light of above discussed evidence and the impugned judgment. So far homicidal death of the deceased Imdad Ali is concerned, there is no dispute about it.. The defence has not denied that the deceased Imdad Ali met to unnatural death, which is even otherwise proved through the evidence of PW-15 Dr. S. Dulthan, who confirmed that the deceased received lacerated wounds on his temporal; region and that the cause of death was cardio respiratory failure due to head injuries.
9. However, the question arises, who had caused the death of the deceased. According to the prosecution allegations it was the appellant who had pushed the deceased into water pond and thereafter injured him by throwing stones upon him, due to which he was drowned in the water. In order to substantiate the accusation the prosecution mainly relies upon the statement of PW-3 Gul Muhammad, according to whom, at the time of incident he was present near the water pond, where an alteration took place between the appellant and the deceased Imdad Ali and thereafter the deceased was pushed into water by the appellant and he also injured him by throwing three stones upon him, due to which he was drowned in the water. It may be seen that this witness is a chance witness because his presence at the place of occurrence was not natural one, however, he explained that he had gone there in order to collect fire woods. It is an admitted position that a forest is situated near the water pond, however, it is not understandable why this witness was present at the water pond instead of collecting fire woods from nearby forest for which purpose he had gone. He has also failed to explain his presence at the water pond; therefore, his statement is required to be considered cautiously and carefully. It is notable that this witness after the alleged incident did not disclose about it to any body and kept mum. According to the investigating Officer he recorded his statement on 20.10.1998 after the recovery of dead body and arrest of the appellant. The prosecution failed to bring on record any explanation about such unreasonable delay. The Superior Courts have invariably discarded the statement of a witness, whose statement under Section 161 Cr.P.C. has been recorded with unexplained delay. In this regard, we; may refer to the judgment reported in 1993 S.C.M.R. Page 550, wherein it was held has under: "In the absence of satisfactory nature of explanation normally rule is that statements recorded by police after delay and without explanation are to be ruled out of consideration."
10.Moreover, his statement is contradictory to that of PW-9 Muhammad Ayub, who deposed that at about 4.00 p.m. when he joined his duty, deceased Imdad Ali was present at the gate and remained there till 5.00 p.m. where after he went out of the premises. Had any such incident taken place before 5.00 p.m. as alleged by PW-3 Gul Muhammad in his statement under Section 164 Cr.P.C. and before the Court then it could not have been possible for PW Ayub to have seen deceased at the gate or leaving the premises at about 5.00 p.m., which shows that this witness is made up witness and no implicit reliance could be placed on his statement for sustaining conviction on a capital charge, particularly when he failed to promptly inform about the incident to his family or to that of deceased family. The statement of PW-9 Muhammad Ayub could not be lightly ignored as admittedly he was present on his duty at the place of incident on the fateful day and his presence could not be doubted. In presence of his statement the story introduced by the prosecution through PW-3 Gul Muhammad is neither plausible nor natural.
Another factor which has persuaded us not to believe his statement is the fact that according to his statement recorded under Section 164 Cr.P.C. and brought on record as Ex. P/2-D, he had gone near the place of occurrence alongwith his brother Noor Hassan and PW-10 Shakar Khan, but PW- 10 Shakar Khan has deposed that he did not know the names of two boys who were present at the time of altercation between deceased and the appellant. He also denied that he had gone to collect fire woods, according to him he had gone to water pond for the purpose of fishing.
Moreover, PW-3 Gul Muhammad in his statement before the Court deposed that he was alone at the time of incident. He also did not mention the presence of PW-10 Shakar Khan, therefore; we find no substance in the arguments of the learned Assistant Advocate General that the statement of PW-3 Gul Muhammad is corroborated by PW-10 Shakar Khan.
11.Prosecution has also relied upon the recovery of three stones allegedly recovered on the pointation of the appellant from the water pond as well as pointation of place of occurrence by him. So far pointation of place of occurrence by the appellant is concerned, in our view, same is not admissible against the appellant as admittedly the place of occurrence was already in the knowledge of the police and no new discovery was made on the disclosure of the appellant within the meaning of Article-4 of the Qanun-e-Shahadat Order, 1984 to make the information given by the appellant admissible in evidence. So far recovery of three stones at the disclosure and pointation of the appellant is concerned, the evidence produced in his behalf by the prosecution is also contradictory and worth of no reliance. According to PW-12 Dhani Bakhsh no disclosure or pointation was made by the appellant prior to the recovery of three stones but after recovery same were shown to the appellant, as such; any statement made by the appellant with regard to the commission of offence after the recovery of the stones was not admissible as it does not fulfill the conditions of the Article-40 of the Qanun-e-Shahadat Order, 1984. Moreover according to PW-14 Towakal the stones were recovered on the pointation of a small child aged about 6/7 years. Thus it could not be said safely that these stones were recovered at the disclosure or pointation of the appellant in order to use the same as corroboratory and circumstantial evidence against the appellant. Furthermore; the stones have not been shown stained with human blood nor were sent to the chemical expert for detecting humble blood, without which as held in number of cases, the same could not be used as corroboratory evidence against the appellant.
So far medical evidence is concerned, it may corroborate the prosecution version as regards to nature and seat of injuries but it could not be used to identify the culprits or the accused who had allegedly committed the crime. In this regard, we are fortified by the judgment reported in 1997 S.C.M.R. 866. Relevant observations are reproduced herein below: "Primary question raised by learned counsel revolves around testimony of eye-witnesses and its effect over medical evidence. It may be seen that medical evidence is normally used for confirmation of ocular testimony as regards injuries caused to deceased or any prosecution witness. Such evidence certainly cannot constitute corroboration qua the accused person for proving his involvement. Therefore, the contention raised by learned counsel for State about ocular testimony being corroborative evidence is without substance".
Likewise in the judgment reported in P.L.D. 1994 S.C. 178 the Honourable Apex Court observed as under: "Medical evidence can provide corroboration of confirmatory nature in appropriate cases where questions involved relate to number of assailants, types of weapons used and nature of injures.
Medical evidence cannot be used as corroboration qua accused to say that such and such accused has committed crime and caused such and such injuries."
12. We also find no substance in the contention of the learned Assistant Advocate General that the statement of PW-3 Gul Muhammad is required to be accepted as it is, without going into deep appreciation as he had no personal grudge or enmity with the appellant to falsely implicate him in the crime. Mere absence of enmity is not sufficient to stamp the statement of a witness with truth.
The Hon'ble Supreme Court in the judgment reported in 1984 S.C.M.R. Page 930 in such like situation observed as under: "Mere absence of enmity against witness--Held, not sufficient to bring home charge of murder if evidence of such witnesses is found to be inherently unreliable."
13. On account of. above diverse factors and infirmities, we are of the considered view that no implicit reliance could be placed on the testimony of sole eye-witness or the circumstantial evidence which is not incompatible with the innocence of the appellant.
Upshot of the above discussions is that the prosecution has miserably failed to prove the guilt of the appellant beyond reasonable doubt, as such; we; are inclined to set aside the judgment dated 31.8.2001 passed by Sessions Judge, Lasbella at Hub and acquit the appellant on the charge. He be set at liberty forthwith if not required in any other case.