' G. M. Kourejc, J.-- The appellant Azim Khan s/o Banaras Khan was convicted for an offence under section 302. P.P.C. For having committed murder of deceased Dilawar Khan and was sentenced to death by the learned Ex-Officio Additional Sessions Judge, Karachi. The appellant has filed this appeal against the judgment of conviction and sentence. There is also a reference for confirmation of the death sentence.
2. The facts of the prosecution case briefly stated are that the complainant Sherdad Khan brother of the deceased Dilawar Khan had two shops, one in Banaras Colony and the other in Asif Colony.
His deceased brother Dilawar Khan used to live with him since about four or five years prior to the incident and used to sleep in the shop at Asif Colony at night time. On the night of 17-1-1972 he and his younger brother Dilawar took their night meals together and complainant Sherdad Khan then went to his shop at Banaras Colony. On the following day 18-11-1972 at about 8 or 9 a.m. Ayub came to his shop in Banaras Colony and informed him that his mother was weeping as his younger brother Dilawar Khan had not come back to the house during the night. Sherdad Khan then went to Asif Colony to his house and found his mother weeping. On inquiry she informed him that Dilawar Khan had left the house at about 8 or 9 p.m. On the previous night saying that he was going to Saleemullah with some work and that he had not returned to the house since then. He then made inquiries from the neighbouring shopkeepers who also informed him that Dilawar Khan had left the house at about 8 or 9 p.m. On the preceding night saying that he was going to Saleemullah. He then went to Gatar Baghitha in search of his brother. He found that a large number of men and women had assembled near Gatar Baghicha and when he reached there he found the dead body of his brother Dilawar Khan lying near the wall of Gatar Baghicha in Asif Colony with injuries in the entire body. It was stained with blood. He then told the people present there to look after the dead body and he himself went to lodge the report at Kalakot Police Station.
3. The motive for the offence is stated to be a rivalry between the appellant Azim Khan and deceased Dilawar over friendship of P.W. Saleem-ullah. Saleemullah was alleged to be a friend of deceased Dilawar Khan and often used to visit him which was disliked by appellant Azim Khan as deceased Dilawar had kept Saleemullah as a boy friend for the purpose of committing sodomy. It is alleged that appellant Azim Khan committed murder of deceased Dilawar Khan on account of that rivalry.
4.
4. Abdul Kabir Khan, Additional ASIP, Kalakot Police Station recorded first information report lodged by complainant Sherdad Khan on 18th January, 1972 at 10.00 vide Exh.5. He sent intimation to the S.H.0 and then visited the Vardat and prepared the Mashirnama of dead body and Vardat vide Exh.11. He then held inquest over the dead body of the deceased Dilawar Khan vide Exh.12 and despatched the dead body to the police surgeon for post-mortem examination. On receiving information S.H.0 Anisur Rehman reached the Vardat inspected it and secured the blood- stained earth from there and prepared it into sealed parcel. P.W. Saleem-ullah was present there.He interrogated him and on his pointation arrested the appellant Azim Khan from National Ice Factory, Usmanabad. After his arrest the appellant Azim Khan voluntarily produced blood-stained Shalwar Bundhi and shirt which he secured in presence of the Mashirs Tamash Khan and Muhammad Taj vide Mashirnama Exh.33. He also secured blood-stained Chhura used in the crime on the pointation of appellant under the same Mashirnama and he traced out the sketch of the Chhura on the reverse of the Mashirnama Exh.33. He also secured the blood-stained clothes of P.W.
Saleemull-ah on the pointation of appellant vide Mashirnama Exh.35. He prepared the blood- stained clothes and Chhura into sealed parcels on the spot. P.W.Saleemullah had injuries on his person. He referred him to the police surgeon for examination, treatment and certificate and also with regard to the examination as to whether the act of sodomy was committed on him or not. He then recorded the statement of Tamash Khan, Taj Muhammad and Saleemullah on 19th January, 1972. The appellant pointed out the shop from where he purchased the Chhurra and prepared Mashirnama vide Exh.27. The appellant pointed out the shop from where he got the wooden handle of the knife. He recorded the statements of both the shopkeepers. On 20th January, 1972 he recorded the statement of Saleemullah under section 164, Cr. P.C. And on 21st January, 1972 he despatched the blood-stained articles to the Chemical Analyser for examination and report who submitted his report vide Exh.53. On 25th April, 1972 he submitted the challan against the accused in Court.
5. Dr. Muhammad Umer, Police Surgeon, Karachi conducted the post- mortem examination on the dead body of Dilawar Khan aged about 26 years and found the following external injuries on his person:-
(1) Incised wound right side forehead and temporal region 3" x muscle deep.
(2) Incised wound right forehead above the eye brow 2" x 3" x muscle deep.
(3) Two incised wounds left side forehead united each other and were 33" x 3" x muscle deep.
(4) Incised wound one inch lateral to left side of injury No,3 it was 3" x 3" x muscle deep.
(5) Incised wound left parietal region 13" x 3" x muscle deep.
(6) Incised wound left occipital region 3" x 3" x muscle deep.
(7) Incised wound on back of skull 1" x 3" x muscle deep.
(8) Incised wound right occipital region 1" x 3" x muscle deep.
(9) Incised wound front of 13" x 3" skin deep.
(10) Incised wound left side neck 1" x 3" x muscle deep and tailing body sides 1" on either side
(11) Three incised wounds on left side chest 2" from mid sternal line and separated by half inch each downwards and laterally at 3rd and 4th intercostal spaces and also cutting the 4th costal cartridge each wound being 11" x x cavity deep.
(12) Incised wound on left side last costal cartilage vertical cutting two ribs 1i" x lateral mid sternal line vertical 2" x I" x cavity deep.
(13) Incised wound left sub-costal region 11" x I" x cavity deep.
(14) Incised wound left side back side of chest at 9th intercostal space 1" x I" x cavity deep.
(15) Incised wound three at left lumber region on back 1" x i" x cavity deep each in an area of 3" x 3".
(16) Two linear scratches on lateral side of left chest each 2" long.
(17) Incised wound left hand wrist on ulner side cutting ulnar bone at distal and 4" x 2" x muscle and bone deep.
(18) Incised wound left thumb distal phalynx 1" x 1" bone deep.
(19) Incised wound left buttock 3/4" x }" x skin deep.
(20) Incised wound left thigh laterally 3/4" ;, i" x skin deep.
(21) Incised wound left aliac crest 1" x k" skin deep.
' All the above injuries were fresh and were caused by a sharp-edged weapon and were ante- mortem. The private parts were clean and had no semen or faecal matter and there was no discharge per urethra.
' On internal examination he found left upper lobe was punctured at three places and was collapsed. These injuries were caused by external injury No,11. Heart was punctured at left ventercle at two places by external injury No,11. The large instestine was found punctured by external injury No,15 and faecal matter was coming out. Liver was found punctured at two places by external injuries Nos. 12 and 13.
' In the opinion of the Medical Officer the cause of death was haemorrhage and shock due to multiple stab wounds. External injuries Nos. 11, 12, 13 and 15 individually and collectively were sufficient to cause death in the ordinary course of nature. Weapon used was sharp-edged like a knife. According to the Medical Officer in case the deceased was stronger than the appellant, it is possible that more than one person might have been involved in stabling the deceased.
6. The appellant has denied all the allegations against him. According to him he neither committed murder nor produced the blood-stained Chhura and the blood-stained clothes. He claims to have been falsely implicated by the police, and that the prosecution witnesses are deposing against him under police pressure.
7. There is no dispute that the death of the deceased Dilawar Khan was the result of multiple stab wounds caused to him with a Chhura on the night of incident at the Vardat. The only dispute is as to whether the present appellant caused the injuries to him with intention to cause his death and is guilty of his murder. The evidence on which the prosecution case hinges is ocular testimony of the only eye-witness to the incident P.W. Saleemullah implicating the appellant in the crime recovery of blood-stained Chhura and blood-stained clothes of the appellant himself and that of P.W.
Saleemullah from the appellant's possession and that of motive.
8. We have heard Mr. Lftikharali the learned counsel for the appellant and Mr. Murtaza Hussain for the State. The learned counsel for the appellant has mainly contended that P.W. Saleemullah is himself an accomplice in the crime and that his sole testimony cannot be safely relied upon unless corroborated in material particulars. We would, therefore, examine the testimony of the sole eye- witness P.W. Saleemullah and the other evidence on the record in the light of that contention.
9. P.W. Saleemullah has deposed that on the night of the incident he was with deceased Dilawar Khan and when they were passing by the compound of Gatar Baghicha the appellant came there and attacked the deceased Dilawar with a Chhura. He due to fear started running when the appellant also attacked him with the result that he suffered injuries on his right hand as he wanted to save himself from the attack. The appellant caused Chhura injuries on the stomach of deceased Dilawar Khan when he fell down and raised cries. He then went on giving him Chhura injuries one after the other. The appellant caught hold of him and threatened him that in case he disclosed the incident he would kill him also. The appellant then took him to a jungle from where they went to Manghopir Road, from where he took him in a rickshaw to Usmanabad, where the appellant used to work in the National Ice Factory. The appellant left him outside and went inside the factory where he changed his blood-stained clothes and brought a pair of clothes for him also as his clothes were also stained with blood. He also changed his clothes with another shirt and Shalwar given to him by the appellant, whereafter the appellant took away his blood-stained clothes also and kept the same in the Ice Factory. He has further disclosed that after keeping the clothes in the factory he took him to a hotel where they took bath in the Hamam. This is how this P.W. Saleemullah explains the part he played in the incident, otherwise it is admitted that his clothes were stained with blood in the very incident in which the deceased was killed and that he was made to change the blood- stained clothes with the clothes which were given to him by the appellant and that in order to avoid any further possibility of implication he alongwith the appellant had taken bath in a Hamam of a hotel where they reached after the appellant had managed to hide his blood-stained clothes as well as that of P.W. Saleemullah in the Ice Factory where the appellant was working. Not only that but it has been admitted that P.W. Saleemullah was not only detained at the police station but was arrested and put in the lock-up. P.W. Muhammad Ramzan has clearly deposed that on the following day of the incident when Saleemullah was sitting with them police came there and arrested him. He has further deposed that when police took away Saleemullah to the police station he also went with the police and Saleemullah was put in the police lock-up. He has further admitted that the deceased Dilawar Khan was strong and stout person and was stronger than the appellant and P.W. Saleemullah individually. It is further admitted in the evidence that P.W.
Saleemullah had received injuries in the incident. P.W. Sher Ahmad has deposed that on the following day of the incident when the appellant and Saleemullah went to their room Saleemullah had injuries on his right hand above the thumb. Muhammad Ramzan Medical Officer examined Saleemullah about his injuries on 18-1-1972 at 8-00 p.m. And found 1" x 1/8" wound on his right hand and that the injury was simple and fresh and caused by sharp-edged object. The Medical Officer Muhammad Ramzan has admitted that this injury could be caused to P.W. Saleemullah if a knife was being snatched from him and that it could have been caused during the struggle and resistence from the other side. P.W. Tamash Khan Mashir of recovery of incriminating knife and blood-stained clothes has admitted in his statement recorded in the committing Court that one other person in handcuffs was also with the appellant when he was brought to the Ice Factory at the time of recovery. It would, therefore, be very clear from the evidence on the record that P.W.
Saleemullah who is the only eye-witness to the incident, as the circumstances disclose was himself involved in the incident. He is very clearly an eye-witness who is himself a suspect in the crime. In our opinion the evidence of such a witness is to be equated with that of an approver, an accomplice or an interested witness, specially when the witness, as in the present case, does not admit complicity in the crime and there are clear suspicions that he may have committed the crime. It is, therefore, clear that the mere statement of this witness of his having witnessed the occurrence with his own eyes would not be sufficient for the conviction of the appellant. Although, he is not related to either of the parties, yet it can be said that he had motive for substituting the appellant to be the culprit for what he might have done himself, and therefore, as a rule of abundant caution, his testimony should be accepted only when it is corroborated by any other independent evidence. Even otherwise, no implicit faith can possibly be placed on his sole testimony for the simple reason that he is a bad character. He has clearly admitted that the deceased had committed 'sodomy on him for a number of times. He has further admitted in his evidence that he resisted on the first occasion but could not do it subsequently though he had not relished it. His version is very clear to the effect that he had an opportunity to complain to others as many of his village people were available in his locality but he failed to do so. He admitted that he failed to complain even to police. According to him the appellant used to treat him like his brother and that since he had informed him about the incidents of sodomy committed on him, the appellant took his revenge. The type of witness he is, a suspect in the crime and a bad character, we will agree with the learned counsel appearing on behalf of the appellant that his ocular testimony cannot be safely relied upon, unless it is supported by corroboratory and confirmatory circumstances in material particulars.
10. We would now look for such corroboratory and confirmatory circumstances in the evidence that is available on the record. In the first place there is the evidence of recovery of blood-stained Chhura and blood-stained clothes of P.W. Saleemullah as well as that of the appellant himself from the possession of the appellant from the Ice Factory in Usmanabad where he was working. Of the Mashirs of recovery only Tamash Khan has been examined by the prosecution. The other Mashir Taj Muhammad has been given up on the plea that he has been won over and therefore, presumption would arise under section 114 of the Evidence Act that in case he had been examined he would not have supported the prosecution case. We would, therefore, confine ourselves to the consideration of the evidence of recovery of Mashir Tamash Khan in support of that of the Investigating Officer S.H.O. Anisur Rehman. Tamash Khan Mashir is a Chowkidar in the National Ice Factory at Usmanabad from where the recovery of the incriminating articles was effected. He has admitted that the police had also come to the Ice Factory in the morning on the same day and woke up the appellant who was sleeping. The police revealed that he had committed murder of the deceased Dilawar Khan. According to him it was 8-00 a.m. At that time but the alleged recovery was made at about 4-30 p.m. To 5-00 p.m. In the circusmtances there appears little force in the explanation offered by the Investigating Officer Anisur Rehman that no better person that this Chowkidar Tamash Khan was available in the factory to act as Mashir of recovery and even the manager and clerk were absent. Even this Mashir Tamash Khan has not supported the case of the prosecution with regard to the recovery of the Chhura. When he sees it in Court, he says that he has doubt about its handle. About the recovery of the shirt and Shalwar of P.W. Saleemullah he 'deposes that they were recovery duly folded from the place from where the knife was recovered but the police did not unfold the same in his presence. He further states that he did not see any blood-stains on the clothes as they were not unfolded in his presence but Chhura was however stained with blood.
He further deposes that police did not obtain signature of the co-Mashir on the Mashirnama of recovery of the Chhura and the clothes abovementioned in his presence. He does not say that the clothes and Chhura were prepared into sealed parcels in his presence. With regard to the recovery of the blood-stained clothes of the appellant, he deposes, that the appellant took them to the machine room from where he produced a wooden box covered with plastic. The box was opened by the appellant at the instance of the police with the key which was in the possession of the appellant. According to him they did not inspect the contents of the box and that the police put the articles paint, shirt and muffler in the box but these clothes were not seen by him in the box.
' He further says that they may have been there but he did not see them. He further goes on to say that the police did not take out the clothes from the box in his presence and that it is possible that the police may have taken his thumb-impression on the other Mashirnama of the recovery of these clothes from the box. There is no trace of the box and also the key with which the appellant is alleged to have opened the lock of the box. There is nothing available in the evidence that the clothes taken out from the box were sealed in that very box. According to Mashir Tamash Khan the clothes and a Chhura were in the refuse box lying on the roof of the latrine. He stated in the committing Court that the clothes were lying in the refuse box and the Chhura was lying under the box. He has further deposed that it was possible that Taj Muhammad his co-Mashir was there but he did not see him. According to him further when he was called the police was already sitting in the machine room. According to him further the police had put the lock on the box and sealed it.
He deposes that I do not know what is written in the Mashirnama but he knew, what happened before him. He has further deposed that police had searched the room where the appellant was sleeping when they had come in the morning but nothing was secured from the room at that time.
According to him the clothes and the Chhura were not prepared into sealed parcels separately whereas the report of the Chemical Analyser shows that they were available in separate parcels.
According to his version the clothes secured from the roof of the laterine were sealed and the clothes secured from the box were sealed in the separate packets and then both the packets were sealed in the box. As already stated by us there is no trace of such box lock and key. The material statements of this witness Tamash Khan with regard to the recovery of the bloodstained Chhura and the clothes, therefore, cannot be considered to be true, when they are directly in contradiction to the contents of the Mashirnamas Exhs. 33 and 35 which he signed as a recovery witness. It is admitted by Mashir Tamash Khan that the latrine was being used by all the labourers working in the factory. There is nothing available in the evidence on the record that the place of recovery was either in exclusive possession of the appellant or was to his exclusive knowledge. Accordingly, this piece of evidence of recovery of Chhura and blood-stained clothes, in view of the evidence of recovery Mashir Tamash Khan, which is highly discrepant, as stated above would hardly inspire confidence so as to be considered as reliable corroboratory or confirmatory circumstances in support of the testimony of the sole eye-witness P.W. Saleemullah who is himself a suspect in the crime.
11. As regards the motive, P.W. Saleemullah appears to have been more aggrieved against the deceased Dilawar Khan for the simple reason that admittedly he had committed sodomy on him on a number of occasions against his own wish and that he had not realised it. According to P.W.
Saleemullah the appellant had never committed sodomy on him and had treated him like his brother. In the circumstances, it appears that P.W. Saleemullah had a motive to finish up the deceased as according to him he was not able to tolerate him and he wanted to get rid of him. It would, therefore, be clear that the prosecution has failed to prove beyond reasonable doubt the motive on the part of the appellant to do away with the deceased in the circumstances of the present case.
12. The learned Additional Sessions Judge, has made an effort to find out the confirmatory circumstance in the evidence of P.W. Ramzan, P.W. Sher Ahmed and also in the evidence of Din Muhammad, Muhammad Mukhtiar, Muhammad Yasin to show that the Chhura was purchased from the shop of Muhammad Mukhtiar and wooden handle put on it by Muhammad Din about 4 or 5 years prior to the incident. He has failed to appreciate as to how these witnesses would have been able to identify the Chhura to be the same as used in the offence after such a long time. In our view, there is hardly any substance in the evidence of the abovementioned witnesses, which possibly can show that their version is correct. Accordingly this evidence cannot possibly serve as a corroboratory or confirmatory circumstance to lend support to the version of P.W. Saleemullah an accomplice in the crime to prove the case against the appellant beyond reasonable doubt.
13. The possibility of P.W. Saleemullah to have been himself involved in the crime cannot be ruled out. His version has not been supported by any reliable corroboratory evidence or confirmatory circumstance on the record implicating the appellant in the crime. The prosecution case against the appellant, therefore, is not free from reasonable doubt. Consequently, the judgment of conviction and sentence passed against the appellant is set aside, he is acquitted and his appeal is allowed. The reference for confirmation of death sentence is rejected. The appellant be set at liberty if he is not wanted in any other case.