Through this Criminal Jail Appeal, Appellant has impugned the judgment dated 6-8-2009 passed by the learned III, Additional Sessions Judge, Malir, Karachi, in Sessions Case No, 366 of 2003, culminating from FIR No, 121/2003, registered at PS Sukhan, Karachi, whereby Appellant has been convicted under Section 302, PPC to suffer RI for twenty-five (25) years and pay fine of Rs, 100,000/- and in lieu of payment of fine to suffer SI for three (03) months more. However, benefit of Section 382-B, Cr.P.C. was extended to him.
2. Facts giving rise to this Appeal are that on 5-10-2003 at 12. 00 p.m. first informant Muhammad Iqbal permanently residing in District Vehari, Punjab, lodged report at PS Sukhan that his son Manzoor Ahmed was working in the cattle-pond of Abdul Rafiq as a clerk (munshi) where one Shahbaz, was also working. About a month back said Shahbaz left the cattle-pond of Rasheed Gujjar which annoyed Jameel son of Hashta, who was also working there and they have unnatural terms. Jameel used to keep a knife (churri) with him and visited Shahbaz at the cattle pond of Abdul Rafiq. He showed knife (churri) to Manzoor Ahmed, issued threats of dire consequence and warned him to send Shahbaz back, which at times yielded in exchange of hot words between them. Last night Manzoor son of complainant with other milkers were asleep in the cattle-pond and at 5.00 a.m. in the morning Zafar, one of the milkers, informed the complainant that someone has murdered his son Manzoor Ahmed by cutting his throat with some sharp weapon.
3. On the suspicion of the complainant police on 7.12.2003 arrested the appellant and after usual investigation sent up the appellant to face trial where a formal charge was framed against the appellant to which he pleaded not guilty and claimed trial.
4. In order to substantiate its case, the prosecution has examined PW-1 complainant Muhammad, Exhibit 6, who produced FIR as exhibit 6/A, PW-2 Muhammad Mansha, Exhibit 7, who produced memo. of arrest and personal search of Appellant as Exhibit 7/A, PW-3 Muhammad Sarwar, Exhibit 8, who produced memo. of recovery of Churri as Exhibit 8/A, PW-4 Abdul Rafique, Exhibit, 9, who produced memo. of inspettion of place of occurrence and dead body as Exhibit 9/A and death report of deceased as Exhibit 9/B, PW-5 Doctor H. Zeeshan Haider, MLO of JPMC, Exhibit 10, PW-6 Fareed Anwar Qazi, Judicial Magistrate, Exhibit 11, who produced letter for recording 164, Cr.P.C. statement of Appellant as Exhibit 11/A, notice for engagement of lawyer as Exhibit 11/B, application of I.O. as Exhibit 11/C, 164, Cr.P.C. statements of PWs Liaquat Ali and Muhammad Mansha as Exhibits 11/D and 11/E respectively, PW-7 SI Muhammad Yar as Exhibit 13 and PW-8 Inspector Zulfiqar Ali, I.O. as Exhibit 14 who produced sketch of place of incident as Exhibit 14/A, chemical examiner report as Exhibit 14/B and photocopy of FIR No, 62/79 registered at PS Vehari, District Vehari. Thereafter the prosecution closed its side. Statement of Appellant under Section 342, Cr.P.C. was recorded in which he has denied the prosecution story. However, neither he has examined himself on oath nor produced any witness in his defense.
5. After hearing the learned Counsel, the learned trial Judge has convicted and sentenced the Appellant as mentioned hereinabove.
6. Learned Counsel for the Appellant has contended that Appellant is innocent and was implicated falsely due to old blood feud between the parties as father of the Appellant was murdered at the hands of complainant party and some of the accused belonging to complainant party were awarded death penalty. He has further contended that the instant incident was an un-witnessed incident as none amongst the PWs has claimed to be the eye-witness of it. According to him, entire prosecution case hinges on circumstantial evidence which does not carry any weight. As far as recovery of crime weapon is concerned, the learned counsel has contended that the same was foisted upon the Appellant just to fortify the prosecution case. He further submitted that in their evidence the prosecution witnesses have made certain improvements in order to fill up the lacuna in the prosecution case and on that score alone their evidence was liable to be brushed aside.
7. Conversely, the learned APG has fully supported the impugned Judgment, which was passed after taking into consideration the evidence adduced before the trial Court. He further contended that the incident took place on 5-10-2003, the Appellant was arrested on 7.10.2003 and on 11-1-2003 the crime weapon was recovered on the pointation of the Appellant. According to the learned APG in view of the evidence adduced before the trial Court, recovery of blood stained knife (churri) from the Appellant and positive Chemical Examiner report, the instant Appeal challenging the conviction and sentence awarded to the Appellant be dismissed.
8. Heard learned counsel for the parties and minutely assessed the evidence available on record.
Adm ttedly, it was an unseen incident as according to FIR one Zafar has informed the complainant that someone has murdered his son by cutting his neck. PW-1 Muhammad Iqbal in his examination-in-chief has stated that prior to the incident, appellant came and showed churri and told him that Shahbaz who was working with him should be handed over to him else he would kill his son Manzoor with churri. However, in the cross-examination the PW-1 admitted that prior to the incident he had not informed either the police or any other person about the threats extended by the Appellant to him. He also deposed in the cross-examination that it is a fact that his relative has committed murder of father of the appellant and his said relative was sentenced to death but the matter was compromised between the parties. He had also deposed that at the time of incident 7/8 persons were sleeping in the cattle pond of Rafique, however, none of them was examined or cited as a prosecution witness.
9. PW-2 Muhammad Mansha working as milkman in the cattle pond adjacent to cattle pond of Rafique, has deposed that on 5.10.2003 at about 2 a.m. while he was returning to his cattle pond after watching VCR in a hotel, he saw that appellant had a churri in his hand and was coming from the cattle pond of Rafique. However, in the cross-examination he stated that "I have not seen the accused Jamil committing the murder (sic) of deceased Manzoor.
10.PW-3 Muhammad Sarwar, one of the mashirs of seizure memo. 10 of crime weapon, has stated in his deposition that on 11.10.2003 at 4.00 p.m. the Appellant took the police party to cattle pond of Yamin and produced the crime weapon PW-4, Abdul Rafique, owner of cattle pond, deposed in his examination-in-chief that on 5-10-2003 at about 7.30 a.m. ASI Muhammad Yar took him to his cattle pond where dead-body of Manzoor was lying. He in cross-examination has stated that on night of incident eight other employees were with the deceased. He was mashir of memo. regarding inspection of place of occurrence and examination of dead body, Exhibit 9-A, death report, Exhibit 9-B and mashirnama of recovery of crime weapon, churri.
11.PW-5 Dr. H. Zeeshan Haider, MLO, JPMC, Karachi, who conducted post-mortem of the deceased Manzoor Ahmed on 5-10-2003 at 11.15 a.m., has stated that death of Manzoor Ahmed accrued due to acute injury resulting from sharp edged weapon leads to cardio aspiratory arrest. He produced post-mortem report, Exhibit 5-A and Death Certificate Exhibit 5-B.
12.The prosecution also examined Fareed Anwar Kazi, Judicial Magistrate, PW-6, who also recorded 164, Cr.P.C. statements of Liaquat Ali and Muhammad Mansha. SI Muhammad Yar was examined as PW-7 while Inspector Zulfiqar Ali, SIO, was examined as PW-8, who produced sketch of place of occurrence, Exhibit 14/A, report of Chemical Examiner, Exhibit 14-B and copy of FIR No, 62/1979 under Section 302, PPC, Exhibit 14-C. After closure of prosecution side statement of Appellant under section 342, Cr.P.C. was recorded in which he professed innocence and stated that all the PWs were involved in the murder case of his father.
13.Perusal of evidence adduced at the trial would manifestly reveals that this is a blind case as none amongst the PWs has claimed to be the eye-witness of the alleged incident and entire prosecution case is based upon circumstantial evidence. Deposition of PW-1 Muhammad Iqbal reveals that neither he was witness of the occurrence nor had knowledge about the entire episode.
In fact it was Zafar, milker, who informed him that his son was murdered by someone else.
Therefore his evidence at the most can be treated as hearsay evidence. It is pertinent to mention here that Zafar who had informed the complainant with regard to murder of his son was neither cited as prosecution witness nor produced in Court and the prosecution did not furnish any explanation in this regard. Moreover, he also deposed that there were 7/8 persons in the cattle- pond, however, none of them was examined in Court by the prosecution in order to bring home the guilt of the Appellant. Additionally, in the FIR the complainant stated that appellant Jameel issued threats to his son, however, in his deposition in Court, he stated that prior to this incident, Jameel came and shown him churri and declared that Shahbaz should be handed over to him else he would kill his son Manzoor with churri. In the given circumstances, non-examination of Zafar, milker and 7/8 persons, who were sleeping alongwith the deceased in the cattle pond and improvement made by the PW-1 in his deposition in Court has made the prosecution story doubtful.
14.PW-2 Muhammad Mansha's evidence also creates doubt in a prudent mind as his conduct appeared to be against the normal human conduct. On the one hand he deposed that on the night of incident at 2 a.m. he saw appellant with a churn in his hand while he was coming from the cattle pond of Rafique and on the other hand he neither inquired Appellant Jameel nor even informed or disclosed to his fellow milkmen or anyone else that he saw Appellant Jameel in odd hours of the night in a suspicious condition. However, in his cross-examination while replying to a suggestion he categorically admitted that he did not see murder of the deceased at the hands of Appellant Jameel. PW-3 Muhammad Sarwar has deposed that on 11-10-2003 at 4 p.m. Appellant led the police party to the cattle-pond of Yamin and produced the crime weapon i,e, churri. He did not state that it was blood stained. In cross-examination he admitted that he as well as complainant and deceased are co-villagers. In his cross-examination he has stated that police had recovered the crime weapon at 4 p.m. He denied the suggestion that memo. of recovery was prepared at the Police Station whereas perusal of memo. of recovery reveals that same was prepared at 10 p.m. However, the prosecution had failed to explain whether from 4 p.m. to 10 p.m. the recovered incriminating article was in safe custody or not.
15.PW-4 Abdul Rafique was mashir of memo. of vardat and recovery of churri. In his deposition he also did not state that the churri was blood stained. In cross-examination he admitted that he had informed the police about the occurrence at about 6.30 A.M. However, police did not record his statement in terms of Section 154, Cr.P.C. Neither he has disclosed the name of said Zafar, who informed the complainant about the murder of his son, nor unveiled that he was working in his cattle-pond or anywhere else. In his cross-examination while replying to a suggestion he stated that "it is a fact that on the night of incident about eight other employees were with the deceased."
He further admitted that a number of people were available between his and Yamin cattle-ponds.
16.From the perusal of memo. of examination of dead body it appears that on 5.10.2003 at about 7.30 hours police came at the place of occurrence and prepared the memo. However, deposition of PW Muhammad Iqbal reveals that after receiving information from Zafar he went to place of occurrence where PW Rafiq was also present and they removed the dead-body to the Police Station Sukhan and lodged FIR, which prima facie suggests that either memo. of examination of dead body was prepared at Police Station or even the dead body was not examined by the I.O.
17. It is settled principle of law that it is not necessary for prosecution to set-up motive in every case but where prosecution has set-up a motive and has failed to establish it then it would be prosecution which must necessarily suffer on that account and not the defense. In the instant case, PW Muhammad Iqbal, complainant/father of the deceased, has deposed that as the appellant wanted Shahbaz to rejoin the previous cattle-pond of Yamin instead of Rafiq, where the deceased was working as clerk, therefore, on that grudge he has murdered his son Manzoor Ahmed. On the other hand I.O. Inspector Zulfiqar Ali, PW-8, has deposed that the Appellant has confessed his guilt before him and stated that he has committed murder of deceased in order to take revenge of murder of his father committed, by elders of the deceased way back in 1979. Consequently, the prosecution has set-up two motives but none amongst the prosecution witnesses has supported either motive. As far as confession before police is concerned, the same is inadmissible piece of evidence. Moreover, the prosecution has also failed to bring on record any other material to prove the motive.
18.There is yet another aspect of the case, which shakes the very root of the prosecution case i,e, none amongst the PWs has stated that the crime weapon, i,e, churri was stained with human blood nor the accused in his statement under Section 342, Cr.P.C. was confronted with the incriminating material/crime weapon allegedly recovered at his instance. Furthermore, memo. of recovery of churri Exhibit 8/A, is also silent on this account Though report of the Chemical Examiner was positive, the same was also not put to the accused during his examination under Section 342, Cr.P.C. while it was the duty of the trial Court to call the attention of the accused to the point and to ask for an explanation. Consequently, evidence of recovery of crime weapon used in the commission of offence and report of the Chemical Examiner, which was positive, was to be discarded by the trial Court as Appellant was not given an opportunity to explain his position viz-a- viz the charge and incriminating article recovered at his instance 19.The object of examination of accused under Section 342, Cr.P.C. is to give him an opportunity for explaining the circumstances likely to draw inference in the mind of the trial Court in arriving at a conclusion adverse to him. It is not mere a formality but a mandate to enable the accused to dilate the adverse circumstances appearing against him in the prosecution evidence. Omission on the part of the trial Court to question the appellant on material/incriminating piece of evidence may result in miscarriage of justice and prejudice his case, therefore, sentence awarded to the appellant by the trial Court on this score alone cannot sustain. Reliance is placed on the cases as Muhammad Zia v. State (2007 PCr.LJ 369, Muhammad Chuttal vs. State (1991 MLA 392) and Manjoo v. State (1984 PCr.LJ 2069).
20. In view of above discussion, I am of the opinion that investigation of the instant case was not upto the mark as the Investigating Officer did not take pains to examine the other material witnesses/employees working at the cattle-pond of Rafiq, who, according to the prosecution witnesses, were sleeping with the deceased on the fateful night. Moreover, the prosecution witnesses made certain improvements in their depositions when they were examined in Court while the whole case hinges upon circumstantial evidence brought on record by the prosecution, which did not lead to the conclusion that each chain of incident was linked with the other in order to prove the guilt of accused. It was an admitted fact that complainant was informed by Zafar, milker, about the incident but he was not examined by the prosecution to corroborate the version of complainant, which creates doubt in a prudent mind about the truthfulness of prosecution story.
Accordingly, the impugned judgment dated 8.8.2009 passed by the learned III Additional Sessions Judge, Malir, Karachi, in Sessions case No, 368 of 2003, culminating from FIR No, 121/2003, registered at PS Sukhan, Karachi, is set-aside and appeal is allowed. Appellant shall be released forthwith if not required in any other case. Office is directed to immediately issue the release writ.