AGHA ALI HYDER, J.-The Appellant was convicted by the learned Additional Sessions Judge, Karachi for an offence under section 302, P. P. C. And sentenced to undergo life imprisonment. (The learned Judge was careless enough even to mention at the same time the sentence of transportation for life). He was also convicted for an offence under section 394, P. P. C. And awarded a sentence of 5 years' R. I. And a fine of Rs. 1,000 in default to suffer R. I. For 6 months more.
He has come in appeal.
2. The prosecution story in brief is that a Greek ship m.v. RODANIA was anchoring on berth No..14, East Wharf, Karachi on the night between the 2nd and 3rd January, 1973. On the morning of 3rd January at about 7-20 a.m., word was brought to Javed Ali Khan, the Chief Officer of the ship, that the Captain of the ship by, the name of Antonia Malandris was lying murdered in his cabin and the drawers appeared to have been ransacked. Even the watch of the Captain was found missing Javed Ali Khan bad proceeded to the Dock Police Station and lodged the F. I. R. At about 8-15 a.m. S. H. O. Mirza Altaf Baig, after recording the report, had proceeded to the ship and a piece of steel pipe which had been used for the commission of the offence was duly secured. He also prepared the inquest report. There was blood on the bedding and the pillow. The blood-stained articles were duly secured. Thereafter, inquiries were made from Javed Ali Khan and some other members of the staff of the ship. (Apart from Javed Ali Khan, none of them has been examined). The appellant came to be arrested from Havelian on the 7th of January and was brought to Karachi on the 14th January. On the 17th, the appellant is alleged to have led the Sub---Inspector and produced some blood-stained clothes from a short distance from the Police Station. After due investigation, the case came to be challaned in the Court.
3. The Appellant in his statement at the trial as well as at the Court of inquiry denied the commission of the offence or the production of the incriminating articles.
4. There is no eye-witness account in the case. All that we know is that the murder of the Captain came to light at about 7-20 a.m. When a member of the crew had entered his cabin and reported the same to Javed Ali Khan.
5. The pieces of circumstantial evidence are the attempted exchange of some Dollars into local currency by the appellant from P. W. Abdul Sattar and purchase of some clothes, gold ornaments and a transistor thereafter. He is also alleged to have hired a cycle and there are witnesses in that connection. Then there is the recovery of a wrist watch from him which is stated to have belonged to the deceased Captain and the produc--tion of the blood-stained clothes by the Appellant on the 17th of January, 1973.
6. Muhammad Dawood, the Goldsmith, states that he had sold two nasal pins and a gold ring, but neither the date nor the value has been specified. Nor was there any cash memo issued therefor.
At the time of the purchase, there were four persons alongwith the appellant, but he has not named them.
7. Similarly, there is the evidence of P. W. Bashir Khan in regard to the purchase of cloth from his shop in January, 1973, but neither there is any specific date nor the value. P. W. Allah Bux, the tailor, on his own showing, states to have received some cloth from the Appellant for stitch--ing two weeks earlier, which he had taken back on the 3rd of January as he wanted to go to his native place.
8. The cycle-dealer examined is Ishaque and according to him, the appellant had hired a cycle from his shop on the 2nd of January and returned it the next morning. There is no signature of the appellant, but the fact is not disputed by the appellant. This particular piece of evidence and the others, as referred to earlier, by themselves do not in any way advance the case of the prosecution at all.
9. In regard to the attempted conversion of dollars, there are two witnesses, name, Abdul "Shakoor and his nephew Abdul Sattar. Abdul Shakoor states to' have been with his nephew when the transaction was negotiated. He states to have asked the appellant as to from where he had brought the same, whereupon the appellant had replied that he had brought it from a ship. He stopped there and was cross-examined by the learned Public Prosecutor. Certain passages were brought on the record which are capable of two interpretations firstly that he had murdered a white man and the other that he had wangled from him. In reply to the learned Counsel for the defence, he gave the second one. Abdul Sattar, however, mentions that the appellant had told him that he had got it after killing a white man. Admittedly, the dollars were not sold. Patently, they are got up witnesses and it is surprising that the appellant should have made a clean breast of this sordid affair for next to no reason. There appears to be no special terms between the parties and it is, therefore, intriguing in the extreme that the appellant should have chosen to open his mouth in such a careless fashion.
10. The last piece of evidence against the appellant is the production of the blood-stained clothes.
On the showing of the Sub-Inspector, the appellant was arrested from Havelian on the 7th of January and is stated to have been brought to Karachi on the 14th January. It is any body's guess as to why he was not brought to Karachi earlier. Anyway, there no explanation as to why the alleged production was further delayed by period of three days. The clothes are alleged to have been produced from inside a debris at a distance of about two hundred paces from the Police Station. It is not necessary to dilate on this aspect any more, beyond saying that the clothes were never sent to the Chemical Examiner at all. The watch secured from the appellant is stated to have belonged to the deceased Captain, but there is no evidence of any identification test and the only witness in that context is Javed Ali Khan. There is n mention of any identification test of the said watch by him. What is more, even the make of the watch was not mentioned by him in the F. I. R.
And there are no further particulars or details whatsoever forthcoming later on.
11. Mr. Manzoor Hussain appearing on behalf of the Stat very fairly conceded that the various pieces of evidence against the appellant were far from leading to any inference, not to say, conclusive, E that the appellant was the author of the crime. There is nothing to show that he bad been on board the ship and the evidence of the Watchman of the dock, namely, Mahmood Ghaznavi, is absolutely vague. The appel--lant is said to be a purchaser of empty bottles only and there is nothing to show that he entered the ship at all. The conviction of the appellant is absolutely insupportable and this is conceded by Mr. Manzoor Hussain very fairly.
12. In the result, the conviction and the sentences awarded to the appellant are set aside and the Appeal is allowed. The notice for enhancement of sentence is vacated. He will be released forthwith unless wanted in connection with some other case. The appellant has claimed the watch. The same shall be returned to him if it was not handed over to the heirs of the deceased as ordered by the trial Court.