1. ' Mrs. YASMIN ABBASEY, J.---This appeal has been directed against the judgment, dated 24-11-2003, whereby on the charge of murder, appellant was sentenced to suffer life imprisonment and fine of Rs,50,000. On failure of payment of fine, he has to go for S.I. Of two years.
2. ' Facts leading to this case are that on the basis of 154, Cr.P.C. Statement of complainant Muhammad Iftikhar that in between the night of 20th and 21st of June, 1999 at about 1-00 a.m. His brother-in-law Muhammad Aslam along with one of his relative Muhammad Ramzan came at his house in a police mobile of Police Station Zaman Town and informed him about the murder of his cousin namely Mehboob Qalb son of 'Abdul Haque by one Ehsan Ali son of Said Ali in the house of Ramzan at Liaquatabad, Karachi on 18-6-1999 at 9-00 p.m. As per information received by the complainant, appellant after murdering deceased Mehboob Qalb cut his body in pieces and after putting them in a plastic bag had thrown three bags out of them in Lyari River, while he was trying in through the fourth bag in the area of Zaman Town Police Station near a mosque, police apprehended him on the spot. On enquiry appellant disclosed about the murder before police officials of Police Station Zaman Town. Police of Police Station Zaman Town recovered churry from the house of Ramzan at Liaquatabad on the pointation of appellant.
3. ' According to complainant, after receiving all these information from Muhammad Aslam, Muhammad Ramzan and Muhammad Azhar that some pieces of dead body recovered by police officials of Police Station Zaman Town are lying at Police Station, he went there, appellant was present, he also confessed his guilt before the complainant that on account of grudge and enmity he had committed the murder of Mehboob Qalb.
4. ' From the police proceedings noted at the end of this F.I.R. It is found that as the murder was committed within the jurisdiction of Police Station Super Market, Karachi, therefore, the Duty Officer of Police Station Zaman Town, who had arrested the appellant/accused and recovered pieces of dead body and the crime weapon had referred the matter to Police Station Super Market, Karachi along with appellant/ accused and articles for further proceedings. After investigation matter was challaned in the Court.
5. ' Charge was framed on 1-5-2000 under section 302, P.P.C., Prosecution examined in all 10 prosecution witnesses viz., Muhammad Iqbal, Muhammad Iftikhar, Muhammad Aslam, Jawaid Tariq, A.S.-I. Abdul Jabbar, Habib-ur-Rehman, S.-I., Asif Munawwar, SDM Shariq Ahmed, Dr. Abdul Hameed Shaikh and S.-I. Muzaffar Ahmed. Appellant examined himself under section 342, Cr.P.C., as well as on oath and has produced D.W. Muhammad Ramzan as defence witness.
6. ' Prosecution case starts from the statement of P.W.6 Habib-urRehman, a resident of Korangi, Karachi. According to him about 5/6 years back on Sunday when he was cleaning his water tank on the roof of his house, at about 5-00 or 6-00 p.m. He saw one person keeping a bag near the wall of Jama Masjid Bahar-e-Madina. As soon after throwing the bag he was going back, he intimated this fact to one of his neighbour Iqbal Khan. Thereafter all mohallah people jointly apprehended that person and called the police of Police Station Zaman Town. Police came there, opened the bag and found some pieces of human body. According to P.W.6 on securing of pieces of human body, police took that person in his custody and had secured the bag, prepared mashirnama at the spot, P.W.6 signed on its as mashir.
7. ' To support his statement of P.W.5 A.S.-I. Abdul Jabbar of Police Station Zaman Town was examined. He supported the statement of P.W.6 about the recovery of pieces of human body in the bag said to be recovered from the possession of appellant. According to him after recovery, appellant/accused led the police party within the jurisdiction of Police Station Super Market, District Central, Karachi at House No,2J9-A in the area of Super Market. According to him appellant/accused disclosed about the commission of murder in this house and had produced one churry from there before the police officials. As per statement of P.W.5 A.S.-I. Abdul Jabbar appellant disclosed before him that before committing murder of deceased Mehboob Qalb he has given intoxicating injection to him. Then appellant/accused led the police party to Naddi near bridge and disclosed that he had thrown some pieces of human body in the water of Naddi.
8. ' The third witness P.W.3. Muhammad Aslam, disclosed that in between the night of 20th and 21st of June, 1999 appellant came at his house along with Muhammad Ramzan, brother of appellant and took him to Police Station Zaman Town. There he was informed that his brother Mehboob Qalb has been murdered by appellant/accused Ehsan Ali. Appellant Muhammad Ehsan confessed his guilt of commission of murder of deceased on 18-6-1999. As per P.W.3. Statement, thereafter police officials of Police Station Zaman Town sent him, his brother Iftikhar, Muhammad Ramzan, brother of accused and appellant Ehsan Ali to Police Station Super Market along with pieces of human body lying in the bag. He further deposed that those pieces of dead body were sent by police of Police Station Super Market to Civil Hospital for postmortem and after examination those pieces were handed over to Edhi Foundation. Police had also shown him the churry, which was recovered from the possession of appellant.
9. ' Statement of P.W.2. Muhammad Ifitkhar, who is complainant in the matter is based on the information provided to him by P.W.3. And police officials of Police Station Zaman Town.
10. ' P.W.7 Asif Munawar, who was also in the company of A.S.-I. Abdul Jabbar has supported the statement of P.W.S. But with little change. According to P.W.S. A.S.-I. Abdul Jabbar, appellant/accused was arrested by S.H.O. Asif Munawar when appellant was carrying pieces of dead body. Whereas according to P.W.6. Habib-ur-Rehman, the first informer, deposed that he along with mohallah persons apprehended appellant/accused and thereafter called police of Police Station Zaman Town. Whereas according to P.W.7 S.-I. Asif Munawwar, one person namely Iqbal came at Police Station and informed him that he and other mohallah people had apprehended one person near Masjid Bahar-e-Madina, Silver Town while he was throwing some pieces of human body. According to him, it is thereafter on the information received from one Iqbal, he called his mobile, which was on patrolling duty in the area through wireless and then proceeded to the place of incident within 15 to 20 minutes. On reaching at the spot he found that some people had apprehended a person. On enquiry that person disclosed his name as Ehsan and one blue sky colour bag was lying near that person. On opening 3/4 pieces of human body were found therein.
11. ' P.W.8 SDM Liaquatabad, Shariq Ahmed has recorded 164, Cr.P.C. Statement of the appellant/accused, while P.W.9 Dr. Abdul Hameed Shaikh conducted post-mortem on the pieces of body said to be recovered from the possession of appellant/accused and has produced certain documents with reference to the post-mortem conducted by him and the chemical examiner's report.
12. ' Lastly P.W.10 SIP Muzaffar Ahmed was examined as Investigating Officer, who conducted the whole investigation and had submitted challan in the Court.
13. ' According to learned counsel for the State after producing satisfactory evidence on record coupled with the documentary and circumstantial evidence they have been able to prove the case against the appellant/accused but from the perusal of record I find that the case of prosecution somehow appears to be doubtful as there is no direct A evidence on the record with reference to the commission of offence.
14. Statement of first three prosecution witnesses i,e, P.W.6., who had seen the appellant keeping the bag near the wall of Masjid and those of A.S.-1. Abdul Jabbar and S.-I. Asif Munawwar with reference to the reaching at the place of arrest and apprehension of appellant/accused are different from person to person.
15. ' According to P.W.6. Habib-ur-Rehman he saw appellant/ accused that after keeping a bag near the wall of mosque he was going back. According to him, he first informed this fact to one of his neighbor Irbil Khan and then with the help of mohallah , persons apprehended him at the spot and called the police of Police Station Zaman Town, whereas according to P.W. A.S.-I. Abdul Jabbar, who was one of the member, who apprehended appellant/accused has deposed that while they were on patrolling duty along with S.H.O. Asif Munawwar accused was arrested by S.H.O. Asif Munawwar while he was carrying away pieces of dead body. This witness is silent about the place from where appellant was arrested nor that whether by chance they reached at the place of incident or they were called by some other persons.
16. ' Whereas P.W.7 S.-I. Asif Munawar had made a different story, to what has been deposed by P.W.6 Habib-ur-Rehman. According to S.-I. Asif Munawwar on 20-6-1999 when he was present at Police Station one person namely Iqbal came there and informed that he had other mohailah persons had apprehended one person from near Masjid of Silver Town, Sector 48/A while he was throwing some pieces of human body and it is on this information S.-I. Asif Munawwar called his mobile on wireless and apprehended the appellant along with bag, which 'according to him, contained three to four pieces of human body. Here it will not be out of place to mention that Iqbal, who has been named by P.W.6. As the person with whom he first share about his seeing of putting bag by appellant near the Masjid and first informed, to P.W.7 at police station about the incident has neither been cited as witness nor at any subsequent stage was called by prosecution to give evidence to make out a chain of information of presence of police party at Police Station Zaman Town at the place of arrest of appellant/accused.
17. ' According to P.W.7. S.-I. Asif Munawwar after arrest and securing bag containing pieces of human body prepared mashirnama at the spot had obtained signatures of two witnesses namely Muhammad Iqbal and Habib-ur-Rehman. Out of these two, one, Muhammad Iqbal, as discussed above, has not been produced, whereas Habib-ur-Rehman through in his examination-in-chief has deposed about the recovery or bag near from the wall of mosque and had deposed that police came there, opened the bag, it was containing pieces of human body and thereafter had prepared mashirnama in his presence and he put his signature on it, But in cross-examination it is admitted by him that:-- "It is fact that I have not opened the bag at the place of recovery what was lying in it but when we came at police station after 30 minutes where we saw that pieces of human body was lying in the bag. Police had checked the bag near the Masjid in front of my house and not sealed it."
18. ' In view of the evidence produced by prosecution with reference to the recovery of pieces of human body, learned counsel for the, appellant had referred the case of Mst. Shamim and 2 others v. The State and another (2003 SCM R 1466), wherein it has been observed that:-- "Testimony of the complainant had been rendered unreliable by the unrealistic and improbable nature of the prosecution story besides her testimony was inconsistent with the ocular evidence of prosecution witness. Ocular evidence was also not confidence inspiring because both the prosecution witnesses were not natural and probable witnesses and their presence at the spot was highly doubtful as they had not explained their presence at the place of occurrence satisfactorily."
19. ' Evidence produced by prosecution holds the position on which edifice of prosecution case is raised, but the case as 'pleaded by prosecution is improbable and irrational, because it does not have any direct evidence, Statement of most of witnesses is based on information received from each other, that too without any satisfactory evidence. In such circumstances it is not safe to believe evidence which does not inspire any confidence.
20. ' Next the motive behind the murder in the first information report made on 21-6-1999 on the basis of statement of Muhammad Iftikhar is that on account of grudge and enmity appellant had murdered deceased Mehboob' Qalb. No explanation of that enmity or grudge has been explained by the complainant. Even the statement of complainant, which is a hearsay evidence on the information provided to him by Muhammad Aslam, his brother-in-law and one of his relative Muhammad Ramzan, the appellant's brother, who came at his house in a police mobile of Police Station Zaman Town, which they gathered from the police officials of Police Station Zaman Town that appellant/accused had 'committed murder of deceased Mehboob Qalb.
21. ' In such like situation, it is observed in the case of Asghar Ali alias, Sabah and another v. The State and others (1992 SCM R 2088) that:- "whole prosecution case which considered with the other defects already pointed out, cannot be taken to be sufficient to make out a case of the prosecution reasonably beyond doubt so as to ensure the safe administration of criminal justice. The recoveries effected allegedly cannot, in the case in hand, play any decisive role- where the ocular evidence is disbelieved and the investigation is suspect."
22. ' P.W.3. Muhammad Aslam, who also gathered information from police when in between night of 20th and 21st June 1999; police came at his house along with one Ramzan, brother of accused and from appellant, who confessed his guilt when he went at the polibe station. It is thereafter coming to his house, he called Iftikhar, the complainant at his house and then they both went to Police Statioh Zaman Town. P.W.7. S.-I. Asif Munawwar has supported the arrival of P.W. Iftikhar at police station through his subordinate staff and recording of his 154, Cr.P.C. Statement but as discussed above, no reason of murder neither was disclosed by the complainant nor any of the prosecution witness at the early stage of investigation. Even the Investigating Officer, who was led by appellant at different places during investigation of case was also not able to bring anything from the mouth of appellant/accused as to the motive behind this murder.
23. ' However, during trial of case prosecution had tried to develop the motive by putting different question from the prosecution witnesses as to the illicit terms in between the deceased Mehboob Qalb and sister of complainant and sister-in-law of P.W.3. What relation appellant has with Mst.
24. Nasreen is not on record. Then again it is unacceptable piece of evidence that the person, who has some relation with Mst. Nasreen will remain calm and quiet for such act and distant relation will retaliate for the so called offence. Not only this two different ladies had been tried to be involved in such inimical crime. While examining P. Ws. Name of some other lady viz. Mst. Nasreen has been taken while in cross of appellant one Mst. Shahida Parveen had been tried to be involved.
25. ' Investigating Officer S.-I. Asif Munawwar has deposed that during investigation appellant/accused has, confessed that before murdering the deceased he had given intoxicated injection to him due to which he became unconscious and thereafter he murdered-him and cut his body in different pieces with a thin churry, which according to learned counsel for the appellant is not possible except by a big slaughtering churry normally used for the purpose of slaughtering.
26. Even otherwise few pieces of human body in spite of their examination through Medical Officer as well as Chemical Examiner have not been able to prove the case of prosecution against the appellant because the post-mortem report submitted by P.W.9. Dr. Abdul Hameed Shaikh shows that there was no head, face, neck and rest pieces of body are fully decomposed. So also the medical Officer was not certain that whether these pieces belong to which particular sex as in the column No,2 of external examination with reference to 'sex, apparent age, race' etc., word "reserved" has been used, which even later on has not been clarified by any other evidence or document, which again gives benefit of doubt to appellant as again it is a settled principle that for safe administration of criminal justice even a single dent accused in prosecution evidence is sufficient to create doubt in favour of accused, whereas in the present case at each and every occasion uncertainty is appearing in the prosecution case.
27. ' So far as, the plea of prosecution that before murdering deceased was poisoned by appellant/accused, Medico Legal Officer of Civil Hospital, Karachi has reported that as per Chemical Examiner report, dated 21-9-1999 no any toxic or poisons substance was found and as per P.M. Report, the body of deceased found in pieces and fully decomposed.
28. ' Chemical Examiner in his report, dated 21-9-1999 no doubt has reported the articles sent to him from Sr. Nos. 1 to 5 sustained with human blood, but such report cannot be said to be a sufficient and satisfactory evidence in a blind murder case like the present one, wherein there is neither any eye-witness of the incident nor motive to commit the offence is appearing nor the dead body of deceased in full is before the Investigating Officer or the Medical Officer to say with definite statement that these pieces recovered are of deceased Mehboob Qalb. None of the prosecution witness, who claimed themselves to be the closed relative of deceased, had also deposed with definite force of statement that these pieces are of deceased Mehboob Qalb.
29. ' Even the recovery of churry, which is said to be recovered on the pointation of appellant/accused from a house bearing No,219, 2nd Floor where murder is said to had been committed also appears to be doubtful. As per contents of memo. Of recovery of crime weapon it was sealed at the spot under the memo. Of Police Station Zaman Town, whereas according to P.W.S. A.S.-I. Abdul Jabbar, who is one of the mashir of recovery of crime weapon, in his cross-examination has stated that: "It is correct that churry of this case recovered from accused was not sealed in my presence at the spot."
30. ' He has further deposed that:-- "at the time of recovery of churry stains cleaned and there was no any mark of any blood."
31. ' In the light of this statement the report of Chemical Examiner particularly with respect to the churry having sustained with human blood again creates a doubt as to the investigation of the case that whether the churry recovered from the place of incident was sent to the Chemical Examiner or some other was sent to him as admittedly as per statement of P.W,5. A.S.-I. Abdul Jabbar neither at the time of its recovery it has sustained with blood and was also not sealed at the spot and thus in such circumstances in absence of any report of the Chemical Examiner that whether the blood stains found on the churry was the same and matched with the blood found in pieces of the human body sent to him vide Sr. Nos.1 to 4.
32. ' Reliance has been placed on the case of Waqar Nazir and others v. The State (2007 SCM R 661), Muhammad Khan and another v. The State (1999 SCM R 1220), Ali Khan v. The State (1999 SCM R 955) and Ali Muhammad v. Bashir Ahmed and others (2003 SCM R 868).
33. ' So far as the confessional statement of appellant, P.W.8 SDM Liaquatabad, Shariq Ahmed has deposed that the appellant/accused in his presence has confessed the guilt of murder of deceased Mehboob Qalb in order to take the revenge of his niece Shahida Parveen and had put his thumb impression on his 164, Cr.P.C. Statement, but while in cross-examination P.W.8 was asked that in spite of knowing that appellant/ accused is a Homeopathic doctor and is a literate person why he had not obtained his signature on confessional statement and limited himself to the extent of obtaining thumb impression, he has deposed that:-- "I had also obtained the signature of accused and so also his L.T.I."
34. ' But 164, Cr.P.C. Statement of the appellant as placed on record as Exh.14-A does not mark his signature and in such circumstances, the defence pleaded by appellant and his brother Ramzan has to be given due consideration, where they had deposed that police had obtained thumb impression of the appellant on his 164, Cr.P.C. Statement forcibly, have weight therein when confessional statement of appellant was recorded after 10 days of his arrest. Any reference is required (2006 SCM R 1432) be looked into.
35. ' In view of the foregoing reasons, I do not find any sufficient ground for conviction of appellant, hence impugned judgment is set aside. Appellant is acouitted from the charge. He be released forthwith, if not required in any other custody matter.