ABDUL HAYEE KURESHI, J.---This is an appeal on behalf of Bashir Shah who was tried and convicted by the Sessions Judge, Tharparkar under sec--tion 302, P. P. C and sentenced to transportation for life and also to pay a fine of Rs. 1,000 in default to undergo R. I. For one year more.
Mr. Allah Dino Memon has appeared on behalf of the appellant whereas the State was represented before us by Mr. Murtaza Hussain.
On the conclusion of the hearing of the appeal we had announced a short order acquitting the appellant and 1 now proceed to record reasons for the same.
2. Briefly stated the facts of the prosecution case are that one Abdul labbar son of Chand Khan was carrying on an intrigue with Mst. Mubarakan. It appears that Mst. Mubarakan was working as a Midwife at Civil Hospital, Mirpurkhas whereas the appellant was working as a Plumber in the same Hospital. The prosecution story further is that on 31st July, 1968 three persons, one out of them was the appellant had forcibly dragg--ed out a girt from a compartment of Mehran Express Train at Tando Allahyar Railway Station when the train was proceeding from Mirpurkhas to Karachi. It is however, not clear on the record whether the woman dragged was Mst. Mubarakan. It is then alleged that on 1st August, 1968 deceased Abdul Jabbar was called from his house by the appellant at about 8 p.m. Chand Khan, complainant, who is father of Abdul Jabbar had seen the appellant outside his house. The deceased Abdul Jabbar is said to have left along with the appellant although earlier to this date, Asghar Khan, the father of the appellant had remonstrated with Chand Khan, the father of the deceased for illicit connections existing between Mst.
Mubarakan, the daughter of Asghar Khan and Abdul Jabbar, the deceased. After the deceased left in company of the appellant he was riot seen alive and since he did not return Chand Khan the father of the 4eceased made a search for him at Hyderabad and other places.
It was on 4th August, 1968, viz. Three days after the disappearance of deceased Abdul Jabbar that one Mushtaq Hussain, a retired police constable found that foul smell was coming from a room which he had let out on rent to the appellant and his brother Tufail. He asked Muhammad Zaki (P.
W. 5) another tenant of his about the source of the foul smell and thereafter both of them came to the room which according to Mushtaq Hussain had been rented out to the appellant and his brother and found that the foul smell was emitting from the same room. Mushtaq Hussain thereafter went to the Police Station Mirpurkhas and gave information about this bad smell and Abdul Sattar S. I. P. In company of Mushtaq Hussain came to the room in question which at that time was locked from outside. In the presence of mashir Rasool Bux, the lock of the room was broken and it was found that a dead body in a highly decomposed condition was lying on the floor.
This body was thereafter sent to District Headquarters Hospital at Mirpurkhas for post-mortem examination and Dr. Syed Mansoor Ali performed post-mortem examina--tion on the dead body and found 16 incised injuries on the same. The same Medical Officer also gave an opinion that death had occurred 60-70 hours before the post-mortem examination was performed.
Chand Khan, the father of the deceased came to know that some dead body has been recovered from one of the houses owned by Mushtaq Hussain and he therefore, went to the house of Mushtaq Hussain and learnt that the dead body has been removed to the hospital. He thereafter proceeded to the hospital and identified the dead body to be 'of his son Abdul Jabbar. Chand Khan thereafter lodged the First Information Report on the same day, viz. 4th August, 1968 at 10 a. m., wherein he disclosed the circumstances relating to illicit intimacy between his son and Mst. Mubarakan, the sister of the appellant, and also the circumstances relating to the accompanying of the deceased with the appellant. There--after complainant Chand Khan opened a box of the deceased and found 13 letters written by Mst. Mubarakan to deceased Abdul Jabbar and he produced the photostat copies of those letters before the Police Officer who in the meantime had started investigation.
3. S. I. P. Abdul Sattar carried out the investigation and examined Mst. Mubarakan, Mushtaq Hussain, the owner of the house from where the dead body was recovered, and several other witnesses in the case. The Police Officer also examined Sultan Alam, the Railway Guard who was escorting Mehran Express Train from Mirpurkhas to Karachi on 31st July, 1968 when an incident in regard to forcible dragging at Tando Allahyar Railway Station had taken place. The Police Officer searched for the appellant and his brother Tufail but they were not available and he therefore, submitted a charge-sheet in Court under section 512, Cr. P. C. After some time the Police Officer came to know that Tufail was in Multan Jail, as a consequence of a final order under section 110, Cr. P. C. Having been passed against him. He took steps to secure the presence of Tufail before the Court for the purposes of trial. In that trial, the Sessions Judge, Tharparkar acquitted Tufail. An acquittal appeal was also filed against that judgment (Acquittal Appeal No. 218/1970), but the same was dismissed by a Division Bench of this Court.
In the meantime the appellant was also arrested and put on trial before the Sessions Judge, Tharparkar who has convicted and sentenced him as stated above.
4. The evidence against the appellant consists of the following particulars
(i) that he had motive to commit the murder of Abdul Jabbar on account of the latter being intimate with the sister of the appellant ;
(ii) the circumstance of the appellant being the last person in whose company the deceased was seen while alive ;
(iii) that the dead body of deceased Abdul Jabbar was found from the house occupied by appellant and his brother Tufail ;
(iv) the abscondence of the appellant after the commission of the crime.
5. The appellant when examined by the trial Court and the commit--ting Magistrate denied all the circumstances of the case. He went on to state that he never lived at Mirpurkhas at the time of incident. He further went on to state that deceased Abdul Jabbar had illicit connections with the daughter of P. W. Mushtaq Hussain who had got him murdered. The appellant additionally relied on the judgment of the Sessions Court whereby his brother Tufail who was charged with the commission of the same offence had been acquitted.
5. Of the four pieces of evidence that are available against the appellant, the one- relating to the dead body of deceased Abdul Jabbar lying in a room alleged to be occupied by tire appellant and his brother Tufail, appears to be the main plank in the prosecution case. I would therefore proceed to evaluate this piece of evidence, in the first instance. In regard to this circumstance the evidence consists of the testimony of Mushtaq Hussain, the owner of the room in question, Muhammad Zaki, a tenant in respect of a room said to be adjacent to the room in question supported by the evidence of Investigating Officer Abdul Sattar who found the dead body lying in the room and the evidence of Rasool Bux, the mashir in whose presence the Police Officer inspected the scene, Initially it must be stated that the prosecution case is that the room in question was in. Joint occupation of the appellant and his brother Tufail. The latter of the two had been earlier tried at a separate trial and acquitted of the same charge. This acquittal was challenged by way of appeal before this Court and was upheld. This circumstance of the acquittal of Tufail however, does not conclude the matter for the simple reason that in the present case there was a separate trial.
However, it is admitted case that this room was being jointly occupied by the present appellant and the acquitted co-accused.
Mushtaq Hussain who is the owner of the room in question has given evidence that both the appellant and Tufail had taken this room from him on rent ; although in latter part of his evidence he varied his stand by saying that the room had been taken on rent by Tufail. As it is, there is no tenancy agreement nor any other documentary evidence conclusively establishing the tenancy.
He had produced a register showing the names of his tenants in the earlier trial in which Tufail was acquitted. That register was not produced in the present case although extract from the same is produced on record. However, he admitted in cross-examination that this register had not been produced by him before the Police at the time of investigation nor during the committal proceedings against Tufail. He had produced the same only at the time of trial of Tufail in the Sessions Court. He had not even referred to such a register at the time he was examined by the Police during the investigation. This register was voluntarily produced by witness Mushtaq Hussain in the Court although he had not been summoned to produce the same. It would therefore, not be safe to rely on this register which after all is a private document and does not carry any guarantee of authenticity. 1n cross--examination he has admitted that there were blank pages in between the written pages of this register and the pages were not numbered.
The prosecution story is that witness Mushtaq Hussain had made a report to the Police with regard to the foul smell coming from the room from where the dead body was found. This entry in the Police Diary was not produced though the witness at the time he was giving evidence. However, the most important circumstance making the evidence of Mushtaq Hussain doubtful is that the mashirnama prepared by the Police at the time of inspection of the room and the dead body does not mention the name of the occupant or occupants of the room in question although the names of the occupants of the two rooms adjacent to this room, on either side have beep mentioned.
Mushtaq Hussain has stated in his evidence that he was present at the time when the Police inspected the room in question and found the dead body lying there. If this is so, the name of the appellant or his brother Tufail should have found a mention in the mashirnama (Exh. 38) and the absence thereof is significant and conspicuous The mashirnama does not even give the number of the tenement although Mushtaq Hussain states that the tenement bore a distinct number being No. 9. It would thus appear that Mushtaq Hussain did not inform the Police at the time of preparation of the mashirnama in regard to the number of the tenement and the names of the occupants. Alternatively it is not possible that the Police did not make any such enquiry in that regard. Be that as it, this omission in the mashirnama clearly goes to establish that at the initial stages of the investigation it was not the case of the prosecution that this room was in occupation of the appellant.
Coming to the evidence of Muhammad Zaki, I am of the view that even his evidence did not advapce the case of the prosecution. Muhammad Zaki has stated in his evidence that he was also a tenant of Mushtaq Hussain and was residing in the room adjacent to the room from where the dead body of Abdul Jabbar was recovered. In the same mashirnama to which reference has been made earlier by me the names of the persons occupying the rooms adjacent to the room in question both on the North and South have been mentioned as Zakar Hussain and Nazeer Hussain.
The names of Muhammad Zaki does not appear in this mashirnama. What is more that Mushtaq Hussain when he appeared to give evidence in Court had stated that he could not give the number of -the room in occupation of Muhammad Zaki and went on to admit that he had not told the police that Muhammad Zaki was occupying the adjacent room. The case of the prosecution is that it was Muhammad Zaki who had informed Mushtaq Hussain about the foul smell coming from the room in question but Mushtaq Hussain did not inform the Police about his having received the information from Muhammad Zaki nor had he stated in the Committal Court about having received such information from Muhammad Zaki. What is more that Muhammad Zaki was not even examined by the Police at the time of investigation and for the first time when he appeared in this case was in the Sessions Court when trial against Tufail was proceeding. Even in his evidence at that trial he had admitted that he never informed Mushtaq Hussain about the foul smell coming from the room in question. Muhammad Zaki has not produced any rent receipt and when he was cross-examined he could not even give the time when the appellant or his brother used to go out for their work or come back.
There is still a further circumstance which goes to indicate that the appellant and his brother Tufail were not occupying this room from where the dead body was recovered. It is the case of the prosecution that Chand Khan, the father of deceased Abdul Jabbar had been the appellant calling the deceased outside his house and taking the deceased with himself. Thereafter, the deceased was not seen alive. If this is really true, the least that Chand Khan was expected to do, was to go to the room in question said to be in occupation of the appellant and Tufail and make some enquiries there. Had he done so, it would not have been difficult to find out if the appellant was available in that room but surprisingly Chand Khan never went to the room in question nor made any enquiries with regard to the present appellant or Tufail at the room in question.
All these circumstances have created a serious doubt in my mind in regard to the truth of the allegation that the room from where the dead body of Abdul Jabbar was recovered was in possession of the appellant or his brother.
6. The next circumstance against the appellant is in regard to his being the last person found in company of the deceased before the latter died. The evidence in this regard is provided by Chand Khan the father of the deceased. Chand Khan has stated that three or four days prior to the day when the dead body of the deceased was found, the appellant had come to the house of Chand Khan and called deceased Abdul Jabbar. He goes on to state that Abdul Jabbar went away alongwith the appellant. This piece of evidence is also not reliable. Chand Khan has stated in his evidence that he knew about the illicit intimacy existing as between deceased Abdul Jabbar who was his son and Mst. Mubarakan who was a sister of the appellant. He had come to know about this fact because two months prior to the incident Asghar Shah who was the father of the appellant had complained to him and had told him to reprimand Abdul Jabbar from going to their house. As a consequence of such grievance by Asghar Shah, Chand Khan had even reprimanded his son Abdul Jabbar from going to the house of Asghar Shah and the latter had promised to desist from visiting the house of Asghar Shah. Under these circumstances it would be highly improbable that Abdul Jabbar should have accompanied the appellant. Even if we were to assume that he did leave his house in the company of the appellant, his continual absence from the house should have created suspicion in the mind of Chand Khan who should have at least reported the matter to the Police or gone to the house of Asghar Shah or the appellant to mate enquiry about his son. He went on to state in his evidence that on the day the dead body was found he had gone to the house of Asghar Shah to make enquiries about his son and he did make enquiries from the mother of the appellant who replied that the appellant and Tufail were not residing with her. This appears to be clearly an afterthought because Chand Khan had not stated so in the report which he made to the Police. While giving evidence he has of course stated that he did not give such informa--tion in the report because he was not in full senses. It is easy to invent such excuse but the fact of the matter is that in the First Information Report Chand Khan had not stated that he went to the house of Asghar Shah to make enquiries about his son. In fact there is no independent evidence whatsoever, 'to indicate that Chand Khan had tried to find out his son whose dead body was found after four days after he left in the company of the appellant. This piece of evidence is also not reliable.
7. The next piece of evidence on which the prosecution has relied is the abscondence of the accused after the murder. The case of the prosecution is that the accused used to reside at Mirpur Khas, the town where this incident took place. Although it is not clear on the record as to when and where was the appellant arrested but the Investigating Officer has stated in his evidence that he had submitted the charge-sheet against the appellant under section 512, Cr. P. C. Showing him as an absconder. The fact of the matter is that the appellant and his brother were named as accused persons in the First Information Report and if the appellant had not committed this murder, his anxiety to leave Mirpur Khas is understandable. There is no evidence that as between the date of actual murder and the date of the report the appellant was available in the city of Mirpur Khas it is possible that the appellant may have left Mirpur Khas after coming to know that he has been falsely implicated in this case. Under such circumstances it cannot be said that the appellant absconded intentionally for biding this crime. This circumstance there--fore, is not of much assistance to the prosecution. Even otherwise by itself the evidence of abscondence does not go to establish the case against the appellant.
8. The last piece of evidence against the appellant is that of motive. According to the prosecution the motive for the crime was that the de--ceased Abdul Jabbar was on terms of illicit intimacy with Mst. Mubarakan, a step-sister of the appellant. The evidence in this regard is primarily that of Chand Khan, the father of the deceased. He has stated in his examination-in-chief that Asghar Shah, the father of the appellant had come to him two months before this murder and complained that the deceased was on terms of the intimacy with his daughter Mst. Mubarakan and he should be prevented from visiting his house. Chand Khan thereafter, reprimanded the deceased and latter promised to have no connections with Mst. Mubarakan. However, in his cross-examination the witness was confronted with the earlier statement that he had made before the Sessions Court at the trial of Tufail. It seems that at that trial he had not given evidence in those terms, such omissions have been brought on record and it would appear that this allegation with regard to Asghar Shah's approaching him is not correct.
Mst. Mubarakan on the other hand has stated in her evidence that she did not know deceased Abdul Jabbar personally and had no connections with him. No doubt she has been treated as a witness hostile to the prosecution but the fact of the matter is that the most important witness on this point has not supported the prosecution. She was confronted with her statement under section 164, Cr. P. C. Wherein she had admitted relations with the deceased, but she has stated that the statement was made on account of the Police pressure.
Mst. Mubarakan was also confronted with the 13 letters which were found from the trunk of deceased Abdul Jabbar six days after the recovery of the dead body. With regard to these letters she has stated that the same were written by her at the instance of the Police and on different days. She further alleged that she had been kept in wrongful confinement by the Police for two months for the purposes of obtaining such letters. Be that as it may, the evidence of Mst.
Mubarakan does not advance the prosecution case in so far as proof of motive is concerned.
The next piece of evidence on the point of motive is furnished by Syed Sultan Alam, the Railway Guard who was escorting Mehran Express Train from Mirpur Khas to Karachi on 31st July, 1968. He states that when the train reached Tando Allahyar Railway Station, a quarrel took place in ladies compartment because two persons were forcibly dragging a lady from the compartment. He identified the present appellant as one of the persons involved in that brawl. He went on to say that the appellant at that time stated that the woman who was being dragged was his sister. However, if this incident had taken place on account of Mst. Mubarakan, it was not difficult for the prosecution to have shown the lady to the witness for the purposes of identification ; so that it is not established on record as to whether the woman who was being dragged from the railway compartment was Mst. Mubarakan. Indeed Syed Sultan Alam had at the earlier trial stated that he could not identify the woman because she was in Burqa. Mst. Mubarakan has of course denied she was the woman in the compartment.
I am therefore, of the view that the evidence on the point of motive is Neither sufficient nor satisfactory.
9. The last point deserving mention is recovery of some blood--stained clothes from the room where the dead body of Abdul Jabbar was found. Among other objects, the Police secured two blood-stained shirts which have been certified by the Chemical Analyser to be stained with human, blood. There is nothing on record to show that these shirts or any of them belongs to the appellant. Admittedly these shirts were not secured from the appellant and I have entertained doubts with regard to the appellant being in occupation of the room from where the dead body of Abdul Jabbar was recovered by the Police. This piece of evidence is also not substantial.
10. For all these reasons I am of the view that the prosecution bas not been able to establish the case against the appellant. In cases based A on circumstantial evidence, the prosecution has not only to establish the circumstances but also to show that the accumulative effect of the circum-- stances points to guilt of the accused. This the prosecution has not been able to establish. As a result, this appeal is allowed and the appellant is acquitted.
Tufail Ali A. Rehman, J.-I agree.