' This is an appeal under section 410, Cr.P.C. Filed by appellants Ashraf Masih and Fazal Masih against the judgment, dated 15-1-1984 passed by the learned IX Additional Sessions Judge, Karachi, in Sessions Case No, 57 of 1981. Both the appellants have been convicted under section 302, P.P.C. For the murder of Mst. Bismillah Begum and sentenced to imprisonment for life and also ordered to pay a fine of Rs, 2,000 each and in default to undergo rigorous imprisonment for one year more. Both the appellants have also been convicted under section 392, P.P.C. Read with section 397, P.P.C. Read with section 24 of the Offences against Property Enforcement of Hudood (Ordinance), 1979 and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs,1,000 each or in default to undergo R.I. For six months more. I have heard Mr. Rashid A. Rizvi, learned counsel for the appellants and Mr. Agha Ghulamally, learned counsel who has appeared for the State.
2. The prosecution case against the appellants was that both of them resided in one room on the first floor of a house belonging to deceased Mst. Bismillah Begum, an old lady of 75 or 80 years of age and the deceased also resided in another room on the first floor of the premises and that early in the morning between 3 and 4 a.m. On 17-8-1980, the two appellants murdered the landlady by throttling her and robbed her jewellery, which she was wearing including golden 'bangles and golden tops. According to the prosecution, F.I.R in this case was lodged by complainant P.W. Muhammad Shafquat Baig, Production Manager of Messrs Sun Pak Industries of Korangi Industrial Area, Karachi, at Liaquatabad Police Station at 12-30 p.m. On 17-8-1980. The F.I.R. Is reproduced hereinbelow:- "I live at the above address and am employed as Production Manager with Messrs Sun Pak Industrial on Plot No, 13, Sector No, 24, Korangi Industrial Area. A person named Wilson is employed with me as Machine Operator, since over one year who lives in Liaquatabad. Today on 17-8-1980 when I reached the Factory 8.30, Line Incharge, Muhammad Hashim came to me and said that Wilson wanted leave. I asked him to send Wilson to me. After a shortwhile Wilson came to me, who was a bit nervous. I enquired from him as to what was the matter and why was he nervous. He said that he is living on the top floor of House No, 21/14, C.I. Area Liaquatabad and his elder brother Fazal, alongwith his family and his paternal cousin Ashraf Masih, live with him. Last night in between 3-00 a.m. And 4-00 a.m. He woke up on hearing the cries and weeping of his sister- in-law Mst. Naseem and enquired from Mst. Naseem as to what was the matter, whereupon Mst. Naseem said that Fazal and Ashraf have jointly murdered by way of throttling landlady Mst. Bismillah Begum who lives in the room next to their room and her dead body was lying in her room and thereafter Fazal after putting lock in the room of the landlady and taking his family with him has proceeded to his native place Sahiwal. Upon knowing these facts from Wilson I left him at the factory, under the guard and have come to police station for report.
Enquiries may be conducted."
3. The F.I.R. Makes a specific reference to Muhammad Hashim, Wilson and Mst. Naseem. These three witnesses had not been examined by the prosecution. At page 41 of the paper book it is found that a statement was made on behalf of the prosecution before the trial Court that the aforesaid three witnesses (mentioned specifically in the F.I.R.) arid Abdur Rehman and Rahim Bux were being given up by the prosecution. No reason has been mentioned why these persons were given up.
' The investigation was conducted by the Police and A.S.I. Ali Yar of Liaquatabad Police Station was was deputed by S.H.O. Of the Police Station to go to Sahiwal, native place of the appellant Fazal Masih for his arrest. On 18-8-1980 he proceeded to Sahiwal with a police party alongwith P.W. Anwar son of the deceased and reached there on 19-8-1980 and according to his evidence, he raided the house of Fazal Masih on 20-8- 1980 and arrested Faze] Masih in the presence of P.W. Anwar and one Bhagat Masih, apparently a resident of the locality concerned in Sahiwal. According to A.S.I. Ali Yar after his arrest, the appellant Fazal Masih produced two golden bangles and one pair of golden tops from a suitcase kept inside his residential house. Memo. Of arrest and recovery was prepared by A.S.I. All Yar. As observed earlier, the two Mashirs were P.W. Anwar son of the deceased and Bhagat Masih. Bhagat Masih had not been examined by the prosecution. Fazal Masih was then brought to Karachi. As far as the other appellant is concerned, namely Ashraf Masih, he was arrested on the same day immediately after the complainant had reported the mattter to the Police. On 30-8-1980, according to the prosecution. Ashraf Masih took the police to a graveyard and from the bushes took out from under the mud near the graveyard one golden bangle. The Mashirs of this recovery were M.H. Rizvi and Qamruddin. One of these Mashirs namely Qamruddin had been examined as a witness. Apart from the complainant, the Mashirs of recovery and arrest, the Investigation Officer and the doctor, who performed the post-mortem examination two other witnesses were also examined and they are P.W. Anwar Ahmed and P.W.
Sultan Ahmed, both sons of the deceased. The entire case of the prosecution depends upon the recovery of the jewellery from the two appellants. There is no eye-witness either to the murder or to the' robbery of the jewellery.
The learned trial Court, in the judgment, dated 15-1-1984, on reaching the finding of guilt against the two appellants, has also relied upon reported judgments in the cases of:-- Billmoria alias Muhammad Hussain v. The State PLD 1958 SC 313; Nazra v. State PLD 1960 Lah. 739; Bhamra v. State AIR 1953 Bhopal 1 and Jumania v. State AIR 1936 Nag.
200. According to the learned trial Court, there is sufficient circumstantial evidence on record to prove the guilt of the two appellants as far as the murder of deceased and robbery of her jewellery is concerned. With the assistance of the learned counsel for the appellants and the learned counsel for the State I have gone through the entire evidence on record and in my view, on evidence on record, the prosecution case against the two appellants for the murder of Mst. Bismillah Begum and robbery of her jewellery has not been established beyond reasonable doubt.
The first infirmity in the case of prosecution in the fact that investigation had been started by the police without recording of the F.I.R. No doubt the F.I.R. Shows that it was lodge at 2-30 noon on 17-8-1980 and thereafter investigation was started but the evidence of the complainant Shafquat Baig show that after talking to Wilson, the complainant went to the Police Station Liaquatabad with P.W. Rahim Bux and there he narrated the story to the Incharge of the Police Station, who sent police party with the complainant and Rahim Bux and they returned to the factory with the Police party. Then, according to the complainant, Wilson and Ashraf Masih were arrested by the police and taken to the Police Station and complainant and Rahim Bux also proceeded to the Police Station where they remained for some time and thereafter the police allowed them to go back and accordingly they went back to their houses and this was at about 3 p.m. But at about 9-30 p.m. One Police Officer came to the house of the complainant and informed that he was being called by S.H.O. And then he went to Police Station where the S.H.O. Registered F.I.R. And obtained his signatures. The aforesaid evidence has been given by the complainant in his examination-in-chief. The evidence is very clear. There is no ambiguity in it. It shows that the investigation had been started as soon as the matter was narrated by the complainant to the police but the F.I.R. Was not recorded. It was recorded late at night at about 9-30 p.m. The evidence of the police witnessses about the recording of the F.I.R. At 12-30 p.m. (noon) and the time given in the F.I.R. As 12-30 hours is in conflict with the testimony of the complainant, acccording to whom, the F.I.R. Was lodged at 9-30 p.m. By 9-30 p.m. The post-mortem of the deceased Bismillah Begum had already taken place and which indicated that the landlady had been throttled to death. The post-mortem examination had taken place between 6 p.m. To 6-30 p.m.
The other weakness in the prosecution case is the non examination of the three persons mentioned in the F.I.R.
Namely Mst. Naseem, Wilson and Hashim. Rahim Bux is also mentioned in the evidence of the complainant. He had also not been examined. It has already been observed that on 8-11-1983 a statement was made on behalf of the prosecution before the trial Court giving up these witnesses. No reason whatsoever has been given why these witnesses were being given up. Evidence of P.W. Jalilur-Rehman, S.H.O Liaquatabad Police Station, shows that the statements of four witnesses including Wilson were got recorded under 164, Cr.P.C. But none of these persons was produced in the trial Court to give any evidence. From the F.I.R. And the evidence of theF complainant it is apparent that the evidence of Wilson and Mst. Naseem would have been very important. Mst.
Naseem might have witnessed the incident and the evidence of Wilson, a witness corroborating the evidence of Mst. Naseem, also would have been very important. The record does not indicate any reason why these witnesses were not examined. Apparently the presumption would be that if their evidence had been recorded they would not have supported the prosecution.
' As regards the recoveries, it may be observed that the arrest of and recovery of golden bangles and tops from appellant Fazal Masih took place at Sahiwal. There were two Mashirs of the recovery namely P.W. Anwar son of the deceased and one Bhagat Masih, apparently resident of the area where the arrest and recovery took place.
P.W. Anwar being the son of the deceased was definitely an interested person.
' The other Mashir Bhagat Masih was independent and perhaps resident of the locality from where the recovery was made but he had not been examined. No reason is apparent on record to indicate why Bhagat Masih was not examined. There being no eye-witnesses, the recovery of jewellery was very important and in these circumstances more care should have been taken and instead of P.W. Anwar, who is the son of the deceased, some other independent person should have been taken as a Mashir or in any case Bhagat Masih should have been examined. The recovery of one golden bangle from the graveyard of Liaquatabad by appellant Ashraf Masih had taken place ater about 13 days of his arrest and then this golden bangle, which is Article (E) had not been identified by one of the sons of the deceased. In fact P.W. 2, Anwar Ahmed, after seeing Article (E) the (golden bangle) produced by appellant Ashraf Masih), stated that this bangle did not belong to his mother. He further stated that this bangle was not in use of his mother. P.W. Sultan Ahmed, the other son of the deceased, however, stated that Article (E) also belonged to the deceased. As regards the Article E, the golden bangle produced ty appellant Ashraf Masih, there is conflict in the testimony of the two brothers. Apparently Anwar Ahmad was more close to his mother. He had stated that he used to visit his mother every second or third day and sometimes every day and he had also visited the deceased a day before she was murdered. In his evidence the other son Sultan Ahmed had stated that he used to see his mother about 2 or 3 times it a month.
In view of the conflict in the evidence of the two sons of the deceased about the identification of Article (E) and the fact that according to the prosecution this Article (E) was produced by appellant Ashraf Masih after about 13 days of his arrest, in the absence of other independent evidence it was unsafe to rely upon the evidence of recovery.
4. As regards the four judgments referred to above, which have been relied upon by the learned trial Court, it may first be observed that the facts in all these four judgments are clearly distinguishable and the evidence against the accused in those four cases was much stronger and clearly implicated the accused in the offences for which they were tried. In PLD 1958 SC 313, apart from several articles of the deceased recovered at the pointation of the accused, an axe was also recovered at his pointation and the evidence indicated that injuries to the deceased which resulted in his death were caused by an axe and one witness gave evidence about the purchase of the said axe by the accused and another witness gave evidence about the sharpening of the axe by the accused. The relevant pieces of evidence in the case of PLD 1960 Lah. 739 have been referred to in paragraph 14 of the judgment of the trial Court. These pieces of evidence were considered sufficient for conviction of the accused in that case for rape and murder. In AIR 1953 Bhopal 1, the conduct of the accused soon after the incident was taken as an important factor in determining the guilt of the accused and as a corroborative piece of evidence. In AIR 1-936 Nag.200, the deceased girl was last seen in the company of the accused at a place which was not very far from the place where the body of the deceased girl was found. This evidence together with other evidence of recovery in the facts and circumstances of that case were found sufficient to convict the accused. An examination of these four cases would show that in all these four cases the evidence was much stronger and there were more pieces of evidence than in theinstant case. In the instant case the only evidence against the appellant is the recovery of golden bangles. The recovery from both the appellants is also doubtful and benefit has to go to the two appellants. I consider it unsafe to base the conviction of the appellants on the basis of such recovery. This appeal has to be allowed.
5. Criminal Appeal No, 21 of 1984 is allowed and the judgment, dated 15-1-1984 passed by the learned IX Aditional Sessions Judge, Karachi, is set aside. Both the appellants are in custody. They are ordered to be released forthwith if not required in any other case.