1. ' MRS. YASMIN ABBASEY, J. --Prosecution's case is that on 4-5-1994 complainant Mst. Flussun Zeba wife of Ghulam Hibib the appellant reported that she along with her family resides at House No,D- 1015, Hijrat Colony, Karachi. About four months prior to the incident her real uncle Bashir son of Abdul Qayyum came to Karachi for job and started residing with her at the request of appellant. It is stated by complainant that as appellant was not doing any job therefore, she felt difficulty to maintain her children and bear house hold expenses therefore, she complaint to her uncle Bashir, Bashir asked Ghulam Habib to do some job otherwise, he warned that he will take his niece' with him to his native village. On the advise of Bashir the deceased there was exchange of hot words in between the deceased and appellant and relations remained strain for about three days. On 3-5- 1995 again there was exchange of hot words because of complaint of complainant to the relatives of the appellant of not doing any job. According to complainant on 4-5-1994 when she was sleeping along with her family members including the appellant and deceased her husband woke up at about 3-30 a.m. And cause injuries to complainant's uncle with toka on his head when complainant's uncle after receiving injury keeping his head tight with hands came in courtyard complainant raised cries which further annoyed the appellant and he again hit the complainant's uncle with the stone and had also beaten the complainant. On hue and cry of the complainant Mohallah people came there appellant escaped from the place of incident throwing toka in the garbage, Bashir died at the spot.
2. ' Prosecution examined in all six witnesses namely P.W Mst. Hussun Zeba. P.W Jehangir Khan, P.W Dr. Akbar Hussain, P.W H.0 Gulzar Ahmed, P.W Zahid Hussain and P.W A.S.-I. Riaz Ahmed Gujjar. Accused examined himself under section 342 Cr.P.C.
3. ' Learned counsel for the appellant while referring to the contradictions appearing in the matter has argued that it was a case of sudden provocation due to complaint of complainant to deceased and relative of appellant against appellant for not doing any job and not maintaining his family members. As admittedly there was no previous enmity in between deceased and appellant because appellant himself had brought deceased Bashir to his house. Mst. Hussun Zeba in her statement under section 154, Cr.P.C. So also on Oath had also made the same statement that because of her complaint about non-maintenance to her and her family members, appellant became annoyed and had murdered deceased Bashir.
4. ' Learned counsel for the appellant has referred AIR 1966 Karachi 258 (Madhavan v. State of Kerala).
5. Doctrine of sudden provocation has been discussed with reference to observation made in different case. The most appropriate which I felt in the present case would be of 1946 AC 588 at P.598 reads as under:- "The whole doctrine relating to provocation depends on the fact that it, causes, or may cause; a sudden and temporary loss of self-control whereby malice, which is the formation of an intention to kill or to inflict grievous bodily harm, is negative. Consequently, where the provocation inspires an actual intention to kill, or to inflict grievous bodily harm, the doctrine that provocation may reduce murder to man-slaughter seldom applies."
6. ' Thus the defence of sudden provocation in the light of evidence produced, is not appearing, Admittedly talk took in between appellant and deceased some days before incident. Even if it is taken that appellant was provoked because of second complaint of complainant to his relative, then also as appears from record B there was a gap in between. So far sudden provocation is an act that arose immediately due to an event which cause loss self control of a person.
7. ' Statement of P.W.-1 Mst. Hussun Zeba to the extent of committing murder is supported by P.W Zahid Hussain and P.W Jehangir. According to Zahid Hussain he was present at the place of incident when police came there and had secured crime weapon as well as other articles from the place of incident. This very person intimated to P.W Jahangir Khan about the murder committed by Ghulam Habib. P.W.-2 Jehangir Khan deposed that after receiving this information he first came at the place of incident for confirmation and then returned back to his house and informed police on telephone about commission of offence. Jehangir Khan is also mashir of recovery of piece of stone, Toka, blood stained earth and other articles recovered in' presence of Zahid Hussain. Though P.W.-1 Zahid Hussain, who was examined prior to the arrest of this appellant had not stated anything about sealing of the property secured from the place of incident. P.W Jehangir Khan who too had acted as mashir of recovery and had also confirmed the contents of memos.. Prepared at the spot and had recognized the articles lying in Court to be the same recovered from the place of incident, has supported P.W.-2 about none sealing of articles at the spot just after their recovery. Statements of P.W Jehangir and Zahid Hussain are contrary to the contents of mashirnamas prepared in the matter stating that properties were sealed at the spot. Statements of P .W . -1 and P.W.-2 find support from the fact that even in Court articles were produced in unsealed conditions, as there is no note of the presiding officer while producing these articles that they were in sealed condition and were opened in Court before the learned counsel for the parties and the parties.
8. ' Chapter XXV of Police Rules 1934 provides the method of investigating a matter. Rule 25-10 of Police Rules says that as soon report of a cognizable case is recorded, concerned police officer immediately will proceeds to the place of incident to take all possible steps to preserve the scene of the crime, from disturbance, to record particulars of and secure the presence of potential witnesses and so on. To preserve the evidence found at the place of incident besides other articles as required under Rule 25.58 of Police Rules item No,15 of the list viz sealing wax and candles is material for the purpose of this case if read with Rules 25.41 which makes it obligatory to police officer to pack "Blood stained weapons, cloth and articles" in a sealed parcels and should mark herewith a seal. A police officer is required to fulfill all these formalities of law while securing properties from the place of incident so as not to leave any scope for adverse inference and to avoid manipulation of the same at subsequent stage.
9. ' It is also note worthy that though blood stained earth, clothes of the deceased, Chadar, Toka, stone the crime weapons and wrist watch were recovered from the place of incident but except producing them in Court there is nothing on record that they ever were sent to the Chemical Expert for examination. In absence of any report of Experts no definite opinion can be formed that the blood found on toka and piece of stone was the same C which were found lying at the place of incident and found present on the clothes, of the deceased.
10. ' Dr. Akbar Hussain had given the details of the injuries sustained by deceased and had declared that the cause of death was due to injuries received by sharp edge weapon and according to him injury No,1 was sufficient to cause death individually and collectively in normal course of life, but in absence of any corroboration evidence it would not be helpful.
11. ' Record further shows that after lodging the F.I.R on 4-5-1994 and even after submission of challan in Court appellant could not be arrested as such vide order dated 18-3-1996 he was declared absconder and the case was kept on dormant file till arrest of the appellant. On 29-4-2000 the appellant was arrested by A.S.-I. Riaz Ahmed Gujjar, H.0 Gulzar Ahmed has been produced as mashir of arrest. As per memo. Of arrest and statement of prosecution witnesses P.W.-4 and P.W.-5 he was arrested from main Manghopir Road. Shiren Bakery but according to complainant since one year before his arrest on 29-4-2000, accused remained with her in the very house but she because of threats given by the appellant of murder due to fear had not intimated to the police about his presence. This conduct of the complainant is highly doubtful as on hand she had shown herself courage enough to lodged the report against the appellant whereas on the other hand she kept him in the house for about one year just to defeat the process of trial pending against him and it was because of her conduct matter was kept on dormant file. It is also astonishing that even after lodging report against him. Appellant stayed with the complainant in a very peaceful manner without causing any damage to her, which again is a questionable point.
12. ' The other important aspect of the case is that both the Investigating Officers of the matter namely S.I. Ghulam Shabbir and Inspector Haq Nawaz Siyal were not examined in the matter. First Investigating Officer, Sub-Inspector Ghulam Shabbir is reported to be untraceable vide process server P.C Muhammad Siddique's statement recorded on 21-1-1996 as according to him after his retirement he has shifted to his native place and his present whereabouts are not known to him.
13. Whereas Inspector Haq Nagaz Siyal is reported to be murdered in 1996 and F.I.R to that effect was registered. Under Crime No, 278/1996 on 28-9-1996. Thus in absence of both the Investigating Officers the documents prepared by them during investigation because of the contradictory version in the contents of those documents and the witnesses produced in Court remained unproved and unclarified.
14. ' In contrary to all appellant's defence is that as her wife, the. Complainant is of bad character and he had restrained her many time, because of that there was dispute in between him and the complainant in revenge of at the instance of the complaint he has been falsely implicated in the matter,' but allegation of bad character as alleged by appellant against the complainant has not been proved by him by any satisfactory evidence nor any question to this effect was put to complainant in her cross-examination.
15. ' Above discussion reveals that because of insufficient evidence and improper investigation conducted in the matter the evidence which was collected from the place of incident and ought to had been referred to the Expert for their expert opinion were not referred leaving a space of lacuna in creating doubt to the prosecution story.
16. ' According to the complainant beside her, her two children namely Rasheed and Sohail aged about 14 and 10 years respectively too were present at the time of incident and had seen it with their own eyes but none of them, though they are of understandable age and would had been the independent best witnesses in the matter, were produced by prosecution. Hence, in view of the solitary statement of Mst. Hussun Zeba whose statementalso does not seems to be trust worthy can not be said a sufficient piece of evidence for convicting a person in a murder case.
17. ' In view of forgoing reasons impugned judgment is set-aside and appellant present in custody is released forthwith if not required in any other custody matter.