M.S.H. QURAISHI, J.--In this appeal by leave of the Court, appellant Mujahid Hussain and his co- accused Yousaf had been tried by the Additional Sessions Judge, Sheikhupura, for the murder of Abbas deceased, in the result of which the co-accused was acquitted but the appellant was convicted under section 302, P.P.C. And sentenced to death and a fine of Rs. 2,000. The conviction and the sentence were maintained by the High Court which dismissed the appellant's appeal by the impugned judgment, dated 23-5-1981.
2. The murder took place at about 7-30 p.m. On the 18th of October, 1975 near Gulistan Cinema in Sheikhupura Town. Appellant Mujahid Hussain had taken Abbas deceased from the latter's house and the to were going to see some film at the said Cinema. On reaching near the cinema building, Mujahid Hussain with the help of his co-accused Yousaf attacked the deceased. Yousaf held the victim in his clasp while the appellant inflicted injuries on him with a Chhuri, to which he succumbed at the spot. The occurrence was seen by Muhammad Ismail and Ibrahim P.Ws. Who had been passing that way and attracted by the shrieks. As the assailants were fleeing the scene, they were seen and identified by Saleem P.W. Ismail went and informed Muhammad Ishaq, brother of the deceased, who came first to the spot and then went to the City Police Station Sheikhupura where he lodged report at 9 p.m. However, in the report he gave the names of the accused as Inayat, Ayub and Mujahid and a fourth one who could not be identified. At the end of the report he also added the name of Nazir as one of the accused.
3. The appellant who was arrested, on 22-10-1975, led to the recovery, to days later, of blood- stained Chhuri Exh. P. 5 from the roof of his house and blood-stained Shalwar Exh. P. 6 and blood- stained shirt Exh. P. 7 from his house. Co-accused Yousaf also led to the recovery of blood-stained Cheddar Exh. P. 8.
4. The motive for the crime, as given in the first report was attributed to Inayat who had been on inimical terms with the deceased and notwithstanding the fact that a compromise had been brought about by the intervention of local elders, he had been threatening him with death. Mujahid was stated to be a friend of Inayat. Another motive introduced during the evidence was that the deceased had reprimanded Mujahid on account of the latter having developed illicit intimacy with one Mst. Zaiba of their village, which Mujahid had taken ill.
5. The deceased had suffered as many as seven incised injuries which had been caused by a sharp-edged weapon and to of which had been responsible for the death. Besides the medical evidence, the prosecution produced the to eye-witnesses, namely Muhammad Ismail (P.W. 6) and Ibrahim (P.W. 7) who were corroborated by Saleem (P.W. 8) who had seen the to accused running away from the spot, appellant Mujahid carrying a Chhuri. The recoveries were proved by Muhammad Ishaq (P. W. 4). Both the accused denied the allegations including the story of the motive and the recovery of the blood-stained articles and pleaded innocence.
6. The trial Court disbelieved the second motive but found substance in the first one. It did not disbelieve the recoveries but held that the same "in the present ease are not so material as the story of the prosecution is fully established by the eye-witnesses." The trial Court duly noticed the discrepancy in the names of the accused as given in the F.I.R. And in the evidence but ignored the same with the observation that the complainant "may have been under the impression that his brother had been murdered with the help of the same persons with whom he had confrontations on previous occasions in presence of the complainant." It acquitted Yousaf for the reason that no injury had been attributed to him, that his name did not figure in the F.I.R. And that he was not connected with the motive, but found the case fully established against the appellant.
7. The learned Judges of the High Court also noticed the discrepancy in the names of the accused as given in the F.I.R. And as disclosed by the ocular witnesses but they proceeded with the examination of the case in the light of the other evidence on record with the observation that "it seems that having learned of the murder of his brother, the complainant made his own story for setting the machinery of law in motion" and that "What had been done by the complainant was not something uncommon because it is not infrequently that in this country, innocent persons are also involved in cases like the one before us and the Courts do endeavour to find out the real offenders and take them to task by letting of those whose involvement appears to be baseless or doubtful."
They held that "since in the F.I.R. Also the appellant is named as one of the culprits there is no inconsistency in the prosecution case, right from beginning till its conclusion, so far as the involvement of the appellant is concerned." On this view of the matter and relying on the ocular testimony as supported by the recoveries and the evidence of the appellant being last seen with the deceased, they maintained his conviction, confirmed his sentence and dismissed his appeal.
8. Leave was granted to reappraise the evidence in the light of the contentions that the complainant who happened to be a brother of the deceased and who had lodged the report on the information given to him by the eye-witnesses, had repudiated his own report, that the eye- witnesses did not appear to be natural witnesses, that the motive had not been consistently brought out in the evidence and that the recovery of the incriminating articles was not believable.
9. The discrepancy in the names and number of the accused does not deserve to be lightly dealt with. A first information report though per se not substantive evidence is nevertheless an important document inasmuch as it discloses the facts of the occurrence as initially known, lays foundation of the case and provides the clues for investigation by the police. Muhammad Ishaq complainant (P.W. 9) came to know of the occurrence from Muhammad Ismail P.W. He first himself visited the spot where Ibrahim, the other eye-witness, "narrated the entire story" to him. He then went to the police station and lodged the report in which he omitted the name of Yousaf and added that of Inayat, Ayub and another who could not be identified. These names, according to the F.I.R., had been furnished to him by Muhammad Ismail P.W. But the latter was categorical that he had told him that "his brother had been murdered by Mujahid and Yousaf", and denied having given the names of the accused as cited in the F.I.R. Ibrahim P.W. Also stated "I did not tell Ishaq P.W. That I had seen Inayat, Ayub, Mujahid and another un-identified accused while giving injuries to Abbas." It is to be noted that the complainant had also met Saleem P.W. Before leaving for the police station.
Yet all the said three witnesses are 'unanimous that the assailants were only to, namely, Mujahid and Yousaf. Why should the complainant then omit in the F.I.R. The name of Yousaf and' add that of others. He tried to explain by saying "When I reported the matter to the police I was under the impression that lnayat, Nazir and Ayub, wuo are inimical towards my brother must have joined Mujahid Shah during the occurrence. Therefore, I mentioned their names in the F.I.R." But this is not how he put it in the F.I.R. Where he made it clear that the names of the assailants given by him were as told to him by Ismail. The explanation is thus clumsy enough to be rejected out of hand. It casts doubt not only on the integrity of the complainant but also on the veracity of the ocular witnesses themselves. For, it is difficult to see which one of them was telling the truth. The inference possible is that the witnesses at the the of the first report were not certain as to the number and identity of the accused.
10. The contention that the eye-witnesses were themselves not natural is also not without substance. Ibrahim P.W. Stated "I simply do cultivation" but on the day of the occurrence he had come to Tasvir Mahal Cinema of Muhammad Ismail P.W. From where they both were going back to their houses. There is no plausible explanation for his having visited Ismail. His hesitation to answer a question in this regard as noticed by the trial Court, raises serious doubts as to his presence. He is also closely related to the complainant party, he being the first cousin of the father of the deceased and his son having been married to the real sister of the deceased. Ismail, the other eye- witness is contradicted by the maker of the F.I.R. In regard to the number and identity of the accused. In the circumstance the ocular testimony is not worthy of unstinted reliance.
11. The corroboratory material, to, is not deserving of much weight. Saleem stated that he had seen the to accused running away from the Ibrahim but, strange enough, he did not say anything himself, He stated "I did not tell Ishaq P.W. That I and Bashir has seen the accused while running from the place of occurrence. In fact I did not disclose this fact to anybody." The excuse for his happening on the scene is that he was going to meet a party of distributors who were present at the Gulistan Cinema and with whom he wanted to effect some bargain but although he was told at the party of distributors was present at the Cinema he did not contact them. Nor is the story of motive of any corroboratory value as it is self-contradictory. Serious enmity was alleged to exist between the deceased and Inayat and it was stated that Mujahid was a friend of Inayat. But strangely Mujahia was at the same the on such friendly terms with the deceased that on his asking, the deceased had accompanied him from his house to see a picture. This was in spite of the fact that the deceased had earlier reprimanded Mujahid for having illicit intimacy with a girl of the village, which Mujahid had resented.
12. In regard to the evidence of recovery of the incriminating articles, the contention that the appellant, who was not shown to have absconded and had thus the opportunity to get rid of the articles, would not keep the articles in his house for four days until 22-10-1975 when he was arrested, is not without some weight. The police officer has not even stated as to from where he had arrested the appellant and, therefore, it could be presumed that he had been arrested from the place of his ordinary residence. That being so, he had ample opportunity to have disposed of the articles.
13. In view of these discussions the prosecution has clearly failed to establish its case beyond every reasonable doubt. The gaps in the case which started with the very first report, left the case open to doubts and the doubts still remain in spite of the later improvements. On the whole the evidence cannot be considered to be sufficient to sustain a conviction on a capital charge. We, therefore, by giving the benefit of doubt allow the appellant's appeal, set aside his conviction and sentence and acquit him. He shall be set at liberty forthwith if not wanted in any other case.
M. B. A.