' The appellant has called in question the judgment dated 27-7-2001 passed by Additional Sessions Judge, Tando Muhammad Khan (Mr. Saghir Ahmed Shaikh) in Sessions Case No.11 of 1994, whereby the appellant was convicted under section 302, P.P.C. And sentenced to suffer imprisonment for life.
2. Precisely, the facts narrated in the F.I.R. Crime No.125 of 1993, registered at Police Station, Tando Muhammad Khan by complainant Muhammad Usman on 17-9-1993, are that about four days prior to lodging the F.I.R. His son, namely, Yar Muhammad aged about 15/16 years accompanied the appellant /accused Yar Muhammad to Fauji Sugar Mills, Tando Muhammad Khan for seeking a job in the said Mills. Subsequently, the appellant returned home but without the deceased. On inquiry, the complainant was informed by the appellant that the deceased has refused to do the job in the Mills. The complainant started searching for his son. Subsequently a dead body was found lying in the Molasses Tank of Fauji Sugar Mills, Tando Muhammad Khan. The complainant was also asked to see the dead body. It was found to be that of his son, namely, Yar Muhammad. The dead body had an injury under the neck. The complainant accordingly registered the F.I.R. Stating therein that he did not suspect anybody for causing the murder of his son.
3. After registration of the F.I.R. The matter was taken up for investigation. On completion of the investigation the appellant was challaned in the case and tried. Accordingly the appellant was charged for causing the murder of deceased Yar Muhammad, who was lastly seen with him.
Appellant, however, pleaded "not guilty", whereafter prosecution examined complainant Muhammad Usman, P. Ws. Mst. Mithan, Ghulam Rasool, Muhammad Yaqoob, Gul Muhammad, Hadi Bux, Abdul Razzaque and Dr. Jai Ramdas in support of it's case.
4. On conclusion of the trial accused/appellant examined himself under section 342, Cr.P.C. He also examined D.W. Allah Bachayo in defence and recorded his own statement on oath.
5. On the basis of evidence produced before the learned trial Court the appellant was convicted in the terms as stated hereinabove.
6. Mr. Allah Bachayo Soomro, Advocate, advanced arguments on behalf of the pauper appellant, while Mr. Anwarul Hassan Ansari appeared for the State.
7. It was contended on behalf of the appellant that it was a case of no evidence and that the judgment of the learned trial Court was based on surmises and conjectures.
8. Learned State counsel at the outset frankly conceded that he was snot able to support the conviction of the appellant, as there was absolutely no evidence against the present appellant.
9. Arguments rendered by the learned counsel have been carefully considered, the evidence available on the record, and the impugned judgment have been examined.
10. At the outset it may be observed that there is no eye-witness of the incident. The F.I.R. In this case was recorded after the dead body of deceased Yar Muhammad was recovered from the Molasses Tank of Fauji Sugar Mills, Tando Muhammad Khan, Learned trial Court based the conviction on the 164, Cr.P.C. Statement of P.W. Mst. Mithan, mother of deceased, which is the only piece of evidence to state that the deceased was lastly seen with appellant. Apart from last seen evidence, there is also recovery of crime weapon viz., iron rod.
11. So far as the last seen evidence is concerned, it surfacc4 after 164, Cr.P.C. B statement of P.W.
Mithan was recorded on 14-12-1993. In her statement, she alleged that her son Yar Muhammad was taken away by appellant to Fauji Sugar Mills on the pretext of getting employment but he did not return. However, P.W. Mithan did not substantiate the contents of her 164, Cr.P.C. Statement while deposing in the Court. In such circumstances, 164, Cr.P.C. Statement shall have a little evidentiary value. Even if, the same is taken into consideration, it required corroboration by other evidence. It may be observed that P.W., Mithan is mother of the deceased. In the case of Nazo v. The State 1977 SCM R 20 it was held that "the evidence of a witness, who had some connection with the deceased, about having last seen the deceased and the accused requires corroboration".
12. In the case of Karamat Hussain v. The State 1972 SCM R 15, it was held that "in a case of circumstantial evidence, the rule is that no link in the chain should be broken and that the circumstances should be such as cannot be explained away on any hypothesis other than the guilt of the accused".
13. In the case in hand the other piece of evidence, which was heavily relied upon by the learned trial Court was that of recovery of crime weapon viz., iron rod. The iron rod, according to the Mashirnama of recovery, was recovered in presence of Mashir, Gul Muhammad. This Mashirnama of recovery was produced through Investigating Officer, P.W., Muhammad Yaqoob, who deposed that the recovery was made in presence of P.W., Gul Muhammad and Abduld Razzaque. However, P.W., Gul Muhammad, who was Mashir of recovery of iron rod, in his evidence, did not utter a single word about the recovery of crime weapon in his presence. In his cross-examination he stated that the police obtained his LTI on blank papers. In these circumstances, recovery of crime weapon could not be believed.
14. The arrest of the accused is also shrouded in mystery. According to the memo. Of arrest, produced through P.W., Muhammad Yactoob, appellant was arrested from Bahtoro Road Tando Muhammad Khan near Fauji Sugar Mills in presence of Mashirs Abdul Razzaque and Islam-lid-Din; however, Mashir, Abdul Razzaque in his examination-in-chief deposed that the accused was arrested from Bahrani Mohalla Tando Muhammad Khan. In his cross-examination, too, he stated categorically that the accused was arrested from Bahrani Mohalla Tando Muhammad Khan and that also on the indication of private Mashir, Gul Muhammad, whereas Gul Muhammad admittedly' was not made the mashir of arrest. This fact was admitted at a subsequent stage of his cross- examination by P.W., Abdul Razzaque. Another aspect of case, which appears adversely affecting the prosecution case and reduces the validity of impugned judgment is that learned trial Court failed to frame point of determination with regard to the factum as to whether cause of death of the deceased was natural or unnatural.
15. In the case of Rehmat v. The State PLD 1977 SC 515 a rule was laid down that the circumstances of the deceased having been last seen in the company of the accused is not by itself sufficient to sustain the charge of murder. It was ruled that further evidence was required to link the accused with murder of his companion, such as, incriminating recoveries at the instance of the accused, a strong motive or the proximity of the time when they were last seen together and the time when the deceased was killed. Only then the accused would be called upon to give an explanation of the demise of the person who was last seen alive in his company. The above cited case law was further endorsed by the Honourable Supreme Court in Ghulam Mustafa v. The State reported in PLD 1991 SC 718.
16. Tested on the touchstone of the above cited case law and marred with the lack of evidence and obvious infirmities, the impugned judgment was absolutely incapable of being sustained as on the face of it the conviction was recorded in utter disregard of the settled principles of law. Learned State counsel was, therefore, justified in not supporting the impugned judgment.
17. For the foregoing reasons the appeal was allowed, the impugned judgment was set aside and the appellant was acquitted vide short order dated 30-12-2002.
18. Before parting with the judgment, it seems proper to observe that apart from being perverse, the impugned judgment is poorly drafted and the language used therein is incorrect. It is below the minimum required standard. It appears that the learned Judge, besides being unaware of the case law, was also not conversant with the applicability of the procedural law in session trial cases. He badly needs counselling, and strict watch.
19. Learned Registrar be sent a copy of this judgment along with a photostat copy of the impugned judgment to request the learned Director General, Sindh Judicial Academy to take appropriate measures.