The appellant Mahboob was tried alongwith co-accused Islam for the murder of his wife, Mst. Iqbal Khatun by Sessions Judge, Larkana (Mr. Dhani Bux) under section *364/320, P. P. C. And convicted accordingly. He was sentenced to R. I. For five years' on first count and imprisonment for life and fine of Rs, 2,000 or in default R. I. For two years' on second count. The sentences on both the counts were ordered to run concurrently. It was further directed by the learned Sessions Judge that fine if realized would be paid as compensation to the heirs of the deceased.
2. The prosecution case as disclosed in the F. I. R. Which was lodged by Mst. Rabul. Mother of the deceased, on 13th December, 1976 at 11-45 a. m. At P. S. Naudero is to the follow ing effect. About 9/10 years prior to her murder, Mst. Iqbal Khatoon was married with the accused/ appellant in exchange of the latter's sister dist. HUSSalla whose marriage was solemnized with the deceased's brother Muhammad Ibrahim. A day before the occurrence which took place on 13th December, 1976 the complainant went to fetch her daughter for temporary visa to her house. She however stayed for the night in the accused/appellant's house on the latter's request. At about mid-night, she woke-up on challenges being sounded by the accused/appellant who on complainant's inquiry informed her that he had seen Iqbal Khatun in sexual embrace of Imam Bux Narejo and on his challenges both of them had filed away. On hearing this, the complainant started search for her daughter who was ultimately found hiding in the street outside the house. Thereafter both the mother and the daughter took refuge in the house of Allah Bux Narejo and passed night there. In the next morning at prayer time the two ladies accompanied by Allah Bux who provided escort to them set out for the complainant's village. While they were going by Shahi Road between Naudero and Larkana they were overtaken by the accused/appellant and his cousin Islam at the culvert of Bharchoonda watercourse. Both the culprits had cart-pegs in their hands. They declared their intention to take away Mst. Iqbal Khatun as she was Karl and warned Allah Bux to keep off as he had no concern. The accused/appellant and his companion ultimately took away the deceased Mst. Iqbal Khatun. After their departure the complainant and her witness Allah Bux dashed to village. Hassan Wahan where the complainant, appraised, Moula Bux Khan Mangenjo, nekmard of the village, of the occurrence. On his advice the complainant came to village Phulpotas and made enquiries about her daughter's whereabouts. She, however did not obtain any clue. Finding no other alternative, she went to Police Station Naudero and lodged F. I. R.
3. A. S.-I. Fazal Ellahi who was incharge of the Police Station took down the F. I. R. And started investigations. He first inspected the place from where Mst. Lqbal Khatun was abducted and prepared mashirnama in presence of mashir Khair Muhammad and Moula Bux (Exh. 18). He then recorded statements of Khair Muhammad, Moula Bux and Allah Bux. The A. S.-I. Searched the houses of both the accused in presence of Dost Muhammad, father of co-accused Islam and secured one peg which was not blood-stained. On the same day he arrested the accused in presence of mashirs, Hashim and Bachal and prepared mashirnama (Exh. 23). Accused/appellant Mahboob in course of interrogation by the Police volunteered to point out the deads body of Mst.
Iqbal Khatun. He led the A. S.-I. And the niashirs to sugarcane crop in the land of Ghulam Ali Shahan from where the dead body of the deceased was recovered. The A. S.-I. Prepared mashirnama (Exh.
24) and inquest report (Exh. 25) in presence of same mashirs. He then forwarded the dead body to Civil Hospital, Larkana through P. C. Ghaibullah for postmortem examination. The accused/appellant was also said to have produced loin cloth which did not bear blood stains. It was taken into possession by the A. S.-I. Under mashirnama (Exh. 25). On 14th December, 1976 the A.
S. -I recorded the statement of Gulshan Ali. The accused/appellant is said to have made extra- judicial confession to this witness. The A. S.-I. Then handed over the case papers to the S.H.O., who sent up both the accused to take their trial in Court of law.
4. Dr. Muhammad Sharif who was medical officer incharge of medico-legal cases in the C. M. C.
Hospital, Larkana: conducted the postmortem examination of the dead body of Mst. Iqbal Khatun.
On external examination he found the following injuries :-
(1) Incised wound 3"5( *"" part of left cut,
(2) Lacerted wound 1" x in on the right ear.
(3) Incised wound 1" x x tip of the nose cut.
(4) Incised wound 4" x 2" left cheek cut and also lower lip with portion of upper lip cut.
(5) Contusion I" x V' on the lower part of left side of face.
(6) Contusion 1 "x i" on the left side of neck.
(7) Contusion 4 "x f" on the front and left side of neck.
(8) Contusion "x 1" on the middle of right forearm.
(9) Contusion 1 "x on the lower 1/ 3rd of forearm.
(10) Two abrasions 4" x 1/3" on the lower part of left leg.
5. In the opinion of the doctor excepting injuries Nos. 1, 3 and 4, the rest were ante-mortem and the injuries Nos. 6, 7 individually and all injuries collectively were sufficient in ordinary course of nature to cause death. He further opined that injuries Nos. 1, 3 and 4 appeared to have been caused by sharp cutting weapon like knife and injuries 6 and 7 were the result of pressure applied by hands.
As for the remaining injuries, his opinion was that they were caused by hard and blunt substance.
On internal examination the doctor found both pleurae and lungs congested and trahea and the latter contained blood. Right side of the heart contained some amount of the blood while its left side was empty. Mouth oesophagus and pharynx contained some blood and stomach was empty.
All other organs were normal. From external and internal examination of the deceased the medical officer came to the conclusion that death was the result of asphyxia caused by throttling resulting in injuries on the neck. In his opinion the death was instantaneous and the interval between the death and post-mortem was from :12 to 15 hours.
6. It is thus established from the medical evidence that death of Mst. Iqbal Khatun had resulted from the injuries found on her person. This is not disputed even by the accused/appellant. The crucial point to be determined, however, is if the accused/appellant first abducted the deceased and then inflicted fatal injuries to her. To prove this point the evidence relied upon by the prosecution consists of ocular evidence of complainant Mst. Rabul (P. W. 3) and Allah Bux (P. W. 4), corroborative evidence of Moula Bux (P. W. 5), witra-judicial confession deposed to by Gulshan Ali (P. W. 6) and evidence of recoveries given by A. S.-I. Fazal Illahi (P. W. 9) and Mashir Bachal (P. W.
10).
7. On perusal of the evidence of Mst. Rabul, it would appear that the story put forth by her in Court is totally different from her earlier version contained in the F.
1. R. Her statement in Court however, tallies with the F. I. R. Inasmuch as that on the previous day of incident she had gone to the house of accused/appellant to bring deceased Mst. Iqbal Khatun for temporary visit to her house and that the accused appellant had given that premission and that on the request of the accused/appellant she passed the intervening night in the latter's house.
What happened on the said night, has been described by the complainant differently in Court and in F. I. R. According to her version in the F. I. R. She woke up at about mid-night on challenges being given by the accused/appellant and on her inquiry from the latter she learnt that the deceased Mst. Iqbal Khatun was surprised by him right at the time when she was engaged in sexual intercourse with Imam Bux. The accused/appellant further told her that both the deceased and her paramour had escaped. Her version in F. I. R. Further shows that she searched for her daughter and ultimately found her in the lane outside the house. However she has given different story in Court. In her Court statement she has stated that she overheard the accused/appellant conspiring with co- accused Islam to murder Mst. Iqal Khatun, whereupon she woke the deceased and apprised her of the plot hatched by the accused against her life. She has further stated in Court that in order to save Mst. Iqbal Khatun she took her to the house of Allah Bux Narejo and they passed remainder of the night there. Even according to F. I. R. The complainant and her daughter had taken refuge in Allah Bux's house on the said night but, as stated above, they had gone there in different circumstances. The statement of the complainant in Court as well as in F. I. R. Show that in the following morning she and her daughter were escorted by Allah Bux and as they left his house at Fajir prayer time (7-00 a. m.) and reached the road leading to Larkana opposite the village of Bharchoonda, accused/ appellant Mehboob and co-accused Islam each having cart peg overtook them Although there is nothing to show in F. I. R. That the accused/ appellant and his companion gave blows either to the two women or to Allah Bux but in her statement in Court the complainant has stated that both the culprits gave blows with pegs first to Mst. Iqbal Khatun and then to her, and both of them had gone unconcious. She has further stated in Court that when she regained consciousness she found both the accused still present and Mst. Iqbal Khatun lying senseless with Allah Bux standing silently. She has further stated that accused ultimately took away Mst. Iqbal Khatun. She was, however, unable to say if they took her away by dragging or she walked away with them. In the Court statement the complainant has said that after the incident of her daughter's abduction she and Allah Bux went to her house and she related the incident to Moula Bux and gave him the names of the accused. As Moula Bux had advised her to lodge report with police, she went to Police Station Naudero and lodged F. I. R. In the F. I. R. However, her statement is that Moula Bux had advised her to first make further inquiries and then lodge F. I. R. And accordingly she had made further inquiries before going to Police Station for report.
8. In view of above inconsistencies, the question would arises which of her two versions is genuine F.
I. R. Which is her earliest version and appears to be nearer the truth cannot be acted upon as substantive piece of evidence. But her Court statement is clearly afterthought and an improvement on her earlier statemeig viz. F. I. R. Unlike F. I. R. In her statement in Court the complainant has completely exonerated her deceased daughter Mst. Iqbal Khatun of.The blame of being immoral. Her claim that she overheard the accused/appellant plotting with his cousin co- accused Islam to exterminate the deceased is beyond comprehension. The learned Sessions Judge, has for good reasons discarded her statement in this regard. Even otherwise it cannot be believed that accused/appellant would hatch a conspiracy of the deceased's murder within hearing of the complainant. If it was true the accused/appellant would see that deceased was not removed from his house without his knowledge or permission. Therefore, the complainant's statement that after hearing of the conspiracy against the life of her daughter she took her away and passed c night in the house of Allah Bux is not free from doubt. But if her statement is believed then accused/appellant would not know the whereabouts of the deceased and her mother and their future programme. Consequently it is difficult to believe that accused/appellant together with his cousin Islam overtook them when they were going in the Company of Allah Bux.
9. The other suspicious circumstance which creates doubt is that if the accused and his companion had really come determined to finish the deceased there was no reason whey they did not accomplish their aim right in presence of the complainant and Allah Bux particularly when they were said to have succeeded in abducting the deceased from their custody. Again if they came for committing the murder, they would be adequately armed with deadly weapons. But according to the evidence of the complainant and Allah Bux, they had only cartpeggs in their hands when they came to lift the deceased. Thus at least from the weapons that the accused and his companion carried no inference could be drawn that they intended to end the life of the deceased. It is also incredible that they successfully removed the deceased from custody of complainant and Allah Bux without meeting any resistence. Admittedly the role of Allah Bux who had accompanied the two ladies was that of an escort. If the deceased was abducted in the manner alleged by the prosecution, this witness was not expected to have stood aside and watched her removal as silent spectator. He would have surely offered a reasonable amount of resistence. He had no cause of undue apprehension because he knew that accused were armed with only cartpegs. In this way there would have been some scuffle between the parties even on limited scale in course of which they might have received some injuries. But there is no medical evidence to this effect. It cannot be believed that despite the strength of the parties being 3 to 2 in favour of the complainant's party, the accused armed with only cart pegs would successfully abduct the deceased.
10. There is no evidence to show that after abducting the deceased she was taken away by the accused in some vehicle. It is said that she .Went with them walking. Had it been so the complainant and Allah Bux Would not have let them go as if they had no concern but would have surely enlisted timely assistance from the nearby habitations particularly When it is admitted that sugar-cane factory was near at hand and number of trucks were parked outside the factory. Thus they could have easily rescued the deceased from the clutches of the accused.
11. The next circumstance which merits consideration is that co-accused Islam who was said to have assisted the accused/appellant in abducting the deceased has been acquitted by the learned trial Court. His acquittal raised a presumption that he too was not with the accused/ appellant at the time of the said incident and as if the latter did the job all alone. This would further weaken whatever little evidence the prosecution has brought on record to prove the abduCtiOn of the deceased. It can not be believed that accused/appellant carrying only a cart peg would successfully take away the deceased from the custody of complainant and her witness Allah Bux and that too by foot.
12. It may also be noted that the incident of abduction took place on the busy highway running between Naudero and Larkana. Normally there would be constant movement of traffic of the road and the incident could not haVe gone unwitnessed by independent persons. As stated above some independent persons were likely to be attracted on the commotion even from the nearby sugar factory. Despite this no independent witness has been produced to corroborate the evidence of the complainant and her witness Allah Bux,
13. In view of the flaws pointed out above the evidence of complainant and her witness Allah Bux does not inspire confidence. Before E conviction is based on such evidence it requires corroboration by independent evidence. But no such corroboration is forthcoming. The learned counsel for the appellant/accused has relied on some authorities which 1 would review presently.
14. In the case of Thoba and another v. The State the Supreme Court while commenting upon the ocular evidence uncorroborated by other physical circumstances observed "In that situation, ocular evidence, to carry conviction on a capital charge must come from an unimpeachable source, or, if such a source be not available be supported by some strong circumstances, such as might serve to overcome the inherent doubt by which such evidence is necessarily affected."
15. Viewed in the light of above authority the evidence given by the complainant and her witness Allah Bux cannot be held to have come from an unimpeachable source. It is complainant's own admission that accused/appellant used to maltreat the deceased and the relations between the husband and wife were far from satisfactory.
16. Even if the complainant and her witness Allah Bux were held to have no motive to falsely implicate the accused still the quality of their evidence is such that it cannot be made safe basis for conviction. In this connection reference may be made to the case of Nazir Muhammad alias Nazir Ahmed v. The State where in the Division Bench of this Court observed "It may, however, be observed that there can be no general rule that the testimony of a witness having no apparent reason to falsely implicate an accused person should be accepted at its face value or that, conversely the evidence of a person who is interested should be completely discarded. Indeed such an approach to the question of assessing the oral evidence of witnesses would be rather artificial and has been repeatedly disapproved by the superior Courts."
17. In the above case reference was made to the case of Fir Muhammad Khan v. The State wherein the views expressed as under were taken note of : "with regard to the evidence of these witnesses the learned Addl. Sessions Judge, observed that they had no grouse against the appellants and their evidence was substantially corroborated by circumstances and independent evidence, and therefore they could not be disbelieved. We feel no hesitation in saying that the treatment of the evidence of the witnesses was rather artificial. Simply because the witness has no enmity and appears to be independent, does not necessarily mean that what he states is not untrue. Indeed the absence of malice is a factor which assumes importance in assessing the credit of the witness and places him in a favourable position but by no means it is the sole criterion. The truth of falsity of the statement of the witness largely depends' upon the circumstances which provide the guideline. To accept the evidence without considering the circumstances would be totally inconsistent with the safe dispensation of justice. It is only on the scrutiny of the evidence with the assistance of the circumstances, it is possible to say with certainty that the evidence is immune from all taints and is worthy of belief."
18. Reliance was also placed on Bashir Ahmed v. Muhammad Azam . In this case the view taken was that even if the witnesses are not related to the deceased it does not mean that they are witnesses of truth. It was further observed that ultimately the test of the veracity of a witness is the inherent merit of his own statement.
19. It may also not be out of way to refer to Hakim Ali and 4 others v. The State and another wherein following observations made by the Supreme Court are significant :1 2 3 4 5 "The onus in a criminal case always lies on the prosecution. It never shifts to the accused. It is wrong, therefore, to think that because 'the accused persons did not tell the whole truth' the prosecution must succeed. The prosecution has always to succeed upon the strength of its own case and not the weakness of the defence case. It is not necessary for the defence to establish the innocence of the accused person. It is enough for it if it has succeeded in casting a serious doubt upon the prosecution case. The benefit of that doubt must go to the accused."
20. The evidence of complainant and her witness Allah Bux, is sought to be corroborated by evidence of recovery of the dead body of deceased Mst. Iqbal Khatun. As regards the recovery A.
S.-I. Fazal Illahi has stated as follows : "I interrogated accused Mehboob in presence of mashirs Muhammad Hashiin and Muhammad Bachal. He volunteered to point out the dead body of deceased Mst. Iqbal Khatun. He led me and mashirs to the sugar-cane crop grown in the land of Ghulam All Shahani. The sugar-cane crop was about four feet high. Accused led us inside the sugar-cane crop for about 20-25 paces and then pointed out the dead body of deceased Mst. Iqbal Khatun. The deceased had injuries."
21. Despite his evidence stated above the A. S.-I. Has made admission in his cross-examination that both accused/appellant Mehboob and his companion Islam had jointly pointed out the dead body which was recovered in consequence of their joint pointation : Mashir Muhammad Bachal has however, not supported the recovery of the dead body. He has given a complete go by to the story of the recovery. According to him neither the accused was arrested in his presence nor any place of offence was pointed out to police by the accused nor he was shown the place where dead body was lying at the Police Station. Because of his having deviated from the original evidence the Law Officer incharge of the case declared the mashir hostile and with permission of the Court cross- examined him. He was however, unable to bring out anything from him indicating that the mashir had any particular reason to resile from his true version. I, therefore, see no justification to discard his evidence as being untrue. If his word is believed, the statement of A. S.-I. With regard to recovery of the dead body is rendered doubtful. Even otherwise his evidence has no value because as has been admitted by him the dead body was recovered in consequence of joint pointation of the place of recovery by accused Mehboob and his companion Islam. It is a settled law that the recovery, made as a result of joint pointation has no evidentiary value. In supportIG of his arguments the learned counsel relied upon Amir Ali v. The State wherein it was held : "It is well-settled that where joint acts of several persons are sought to be proved, in order to ask the Court to draw an inference from such conduct evidence should be led with some degree of particularity so that it may be possible for the Court to draw the necessary inference from the conduct of each one of the persons concerned in the act. This principle applies not only to evidence relevant under section 27 but also to that under section 8 of the Evidence Act. We are supported in this view by the decisions in Faqiria and others v. Emperor (AIR 1929 Lah. 665) and Rafiquddin Ahmad and others v. Emperor (AIR 1935 Cal. 184 F. B.). The pointing out, therefore, by two persons of the place from where the dead body of Mst. Shahbihan was exhumed without there being any evidence to indicate as to who pointed out the said place will have no value against any of persons who have been jointly concerned in pointing out that place. The circumstance of the pointing out, therefore, against the present appellant will have no evidentiaryv alue at all. The discovery of the dead body from that place which is consequently upon the pointing out of that place will, therefore, also have no evidentiary value against the appellant."
22. Agreeing with views expressed in the above reported case, I hold that the evidence as to recovery of the dead body is of no assistance to the prosecution. Even otherwise such a tainted evidence cannot be used to corroborate the eye-evidence which as discussed above is itself discrepant and hence unworthy of any reliance. The rule that one tainted piece of evidence cannot6 corroborate another tainted piece of evidence is laid down in the case reported as Muhammad Hussain and others v. The State .
23. The prosecution have next relied upon the evidence relating to extra-judicial confession.
Gulshan Ali (P. W. 6) has deposed that he is headman of village Phulpotas. According to him accused Mehboob accompanied by Islam had come to his Otak in the morning when he was all alone and accused Mehboob told him that he had killed his wife Mst. Iqbal Khatun as Kari, whereupon he advised him to lodge such report. When cross-examined this witness frankly admitted that the accused Mehboob is not prepared to deliver possession of the land to him which he had purchased from a refugee and that he had even made application against the accused before Mukhtiarkar Ratodero. He also admitted the enmity of his uncle Illahi Bux with father of accused Mehboob as the accused's father had involved Illahi Bux, in a criminal case in which he was ultimately acquitted. In view of these admissions made by the witness, it would not be safe to rely on his evidence. It would appear that even the learned Sessions Judge, did not consider the evidence of this witness as trustworthy. Accordingly his evidence was excluded from consideration.
24. Lastly the prosecution have sought corroboration from the evidence of Moula Bux. He claim to have been apprised by the complainant, of the facts of the incident, adding that he advised her to lodge report with police. Apart from his admission that the complainant's daughter Mst. Hassenan is married with his brother, his statement appears to have contradicted the complainant in respect of material particulars. Even if his evidence is believed, it is not likely to improve the fate of the prosecution case.
25. Before concluding his arguments the learned counsel for appellant referred to the case of Muhammad Ibrahim and 2 others v. The State wherein it was observed : "Upon the same evidence, the trial Court has acquitted at least four of the culprits namely Karimdino, Bago. Tharo and Ghulam Hyder and we do not see how the conviction can be sustained without corroboration against the appellants in the context of the evidence which is discrepant and impeachable. The learned counsel for the State also conceded that the prosecution has failed to establish the guilt of the appellants."
26. On the strength of the above authority the learned counsel argued that since the co-accused Islam has been acquitted and neither the ocular evidence of the complainant and her witness Allah Bux nor the evidence of the recovery of the body has been believed in respect of him, the same evidence cannot be made the basis for conviction of the I accused/appellant Mehboob in absence of independent corroboration coming from an unimpeachable source. As no such corroboration is available the conviction of the accused/appellant Mehboob cannot be sustained.
This argument of the learned counsel is not without force. The learned State counsel was also constrained to concede that the evidence on which this accused/appellant has been convicted is far from satisfactory and as such he did not support his conviction.
27. In view of above discussion, I have come to the conclusion that the evidence relied upon by the learned trial Judge, for convic tion of the accused/appellant is not free from doubt the benefit of j which must go to him. Accordingly the accused/appellant was acquitted by short order dated 13th October, 1982. PLD 1963 SC 40 PLD 1974 Kar. 274 PL D 1970 Kar. 399 PLD 1969 SC 469 1971 SCM R 432 PLD 1960 (W. P.) Kar. 7537 8 1 2 3 4 5 6