1. ' By this judgment I propose to dispose two Criminal Appeals Nos. 248 of 1980 and 249 of 1980 as both the appeals have been filed by the same appellant and have arisen from same transaction.
2. In appeal No, 248 of 1980, the appellant has challenged the judgment of the Sessions Judge, Mirpurkhas, dated 30th July, 1980 whereby he was convicted under section 304, Part II, P.P.C. And sentenced to R.I for seven years and pay compensation of Rs,5,000 or in default R.I. For six months under section 544-A, Cr. P.C. In Appeal No, 249 of 1980 the judgment, dated 30th July, 1980 of the same Judge has been called in question whereby the appellant was convicted under section 13(e), Arms Ordinance and sentenced to R .I. For one year.
3. ' The facts giving rise to above two appeals are these. The deceased Abdul and his brother Abdul Majeed (complainant) were doing the work of washing clothes and had their laundry on the main road near Sir Syed School in Mirpurkhas Town. On 4-11-1978 at about 8-30 a.m., the deceased lifted a bundle of dirty clothes from the laundry and left for his house. On seeing the accused Shami who had the reputation of being a Goonda of the locality, passing by their laundry shop just at that time, the complainant became apprehensive that he might cause harm to Abdul who had complained to him about 15 days ago that the accused had threatened to kill the deceased on his refusal to pay him Goonda tax of Rs,15. Within the complainant's sight the accused challenged the deceased to stop and while he was in front of Aziz Hotel, the accused overtook him. Taking out a big knife from folds of his trousers the accused stabbed the deceased just below his left nipple whereupon he raised a cry and fell unconscious. Besides the complainant, the occurrence was witnessed by his brother Noor Muhammad who was then coming from his house, Tajoo, Nawab Dhobi and several other persons. The deceased was rushed to the hospital where he expired before receiving any treatment. The complainant lodged F.I.R. At Town P.S. Mirpurkhas on the same day at 10-30 a.m.
4. ' The A.S.I. Waheeduddin on hearing about the death of the deceased on telephone received from the civil hospital, rushed there and left Amin P.C. To keep watch over the dead body. The complainant who met the A.S.I. In the hospital came with him to the police station where his F.I.R.
5. Was registered. Once again the A.S.I. Went to the hospital, and prepared Mashirnama as well as inquest report of the dead body (Exh.12 and Exh.13). He then made enquiries from Noor Muhammad who was available in the hospital. Thereafter he accompanied by the complainant went to the scene of offence. He secured blood-stained earth from there in presence of Mashirs Umerdin and Fakir Muhammad under memo. (Exh.14). The A.S.I. Then examined Abdul Aziz, Habib, Lal Muhammad and Nawab. On the same day at 6-30 p.m. The accused was arrested by him in front of Shaukat Hotel. The A.S.I. Prepared Mashirnama of his arrest (Exh.16). On 10-11-1978 the accused volunteered to produce the dagger and led the police party headed by the A.S.I. To a garden and from under the palm trees he procured the dagger which was blood-stained. The A.S.I. Secured and sealed the dagger and prepared Mashirnama (Exh.17). The dagger was later sent to the Chemical Expert and the report received from him was produced (Exh.25). The A.S.I. Registered a separate case in respect of recovery of unlicensed dagger. The papers of investigation were passed on to the S.H.O.
6. Who after due verification challaned the accused.
7. ' The autopsy on the dead body of deceased Abdul was performed by Dr. Muhammad Ibrahim (P.W.6). He found the following two surface injuries on the dead body:- "(1) Incised wound 34" x i" x 4" on the left lower chest.
(2) One abrasion 8" x 1/8" on ventral aspect of left forearm."
8. ' The first injury in the doctor's opinion was caused by sharp cutting weapon such as knife whereas the second injury according to him was the result of the deceased's coming into contact with some hard and blunt substance. The doctor opined that the injuries were ante-mortem and the death of the deceased was due to shock and hemorrhage caused by injury No, 1 which was sufficient in ordinary course of nature to cause death. It is not disputed by the accused that the deceased died of the injuries found on his person.
9. ' The crucial point to be determined is whether the accused had caused the fatal injury to the deceased. The prosecution have sought to prove this point by ocular evidence, recovery of dagger and evidence of motive.
10. ' The learned counsel for the appellant launched a severe attack on the ocular evidence relied upon by the prosecution. His contention was that the incident was witnessed. In support of his contention he first referred to the delay in lodging the F.I.R. No doubt the F.1.R. Was registered after two hours from the incident although the distance between the place of occurrence and the police station was only four furlongs. According to the complainant he went alone to the police station for lodging the F.I.R. He has further stated that the A.S.I. Left recording of the F.I.R. In the middle and went out of the police station and kept him waiting until 4-30 p.m. When the A.S.I. Returned with the accused. The evidence of the A.S.I. Waheeduddin (P.W.10) however, shows that he was informed on telephone at 9-30 a.m. By the R.M.O. Civil Hospital that some injured person who was brought to the hospital had died and, therefore, he was required to reach there. According to the A.S.I. He rushed to the hospital and after entrusting the dead body to the care of the police constable he brought the complainant who met him in the hospital to the police station and recorded F.I.R. From his dictation. It appears that the complainant's statement that he went to the police station on his own and the A.S.I. Kept him waiting there does not appear to be correct. I am inclined to agree with the argument of the learned counsel for the appellant that if the complainant had been present at the Vardat right from the time of the occurrence, it would have taken him not more than half an hour or so in not only having the deceased removed to the hospital but also in lodging the F.I.R. At the police station. Thus, the delay of two hours remains unexplained. It is indicative of the fact that perhaps the complainant had not witnessed the occurrence and had come to know about it afterwards.
11. ' As disclosed in the F.I.R., besides complainant and his younger brother Noor Muhammad Tajoo and Nawab Dhobi were eye-witnesses. But neither Tajoo nor Nawab has been produced in evidence. Instead Abdul Aziz (P.W.3) and Habib (P.W.4) are examined as eye-witnesses. However, they too have not implicated the accused. With the exclusion of their evidence the prosecution is left with the evidence of only two brothers namely the complainant and Noor Muhammad. The question arises if in absence of corroborative evidence their evidence can be safely made the basis for conviction. It is true that they have no direct animosity with the accused. If so then what made the accused take the extreme action of committing the murder of their brother.
12. ' The motive attributed to the accused is that he had demanded Goonda tax from the deceased and on the latter's refusal to pay the same the accused killed him. It was submitted by the learned counsel for the accused that the prosecution have failed to establish the aforesaid motive. In this connection the learned counsel invited reference to the complainant's admission inasmuch as that the accused and the deceased were fast friends and used to treat each other like brothers, If so the story of the accused's having demanded Goonda tax from the deceased does not seem to be credible. Moreover, if he was bent upon recovering the said tax, he should have rather addressed himself to the complainant, elder brother of the deceased. And if the deceased refused to pay the said tax, the accused should have taught him a lesson there and then. There was no reason for him to wait for 15 days. Even though the deceased was said to have complained to his brother namely the complainant against the accused, he did not say a word to him which in itself reflects adversely on the truth of the above motive. Of course precedents of motiveless murders are not lacking. But once the motive is set up it has got to be proved. The prosecution's failure to prove the motive set up by it is always held to react adversely on the whole case. It is hardly believable that the above could be the motive for the accused to have taken the life of the deceased.
13. ' It has been repeatedly held by the superior Courts that the absence of motive on the part of the witness would not automatically put such witness in the class of truthful witnesses. Whether any witness speaks truth or falsehood does not depend wholly upon whether he has motive or not. All surrounding circumstances have to be taken into consideration for deciding the credibility of the witness. First of all the two witnesses who have supported the case are not only brothers inter se but also are brothers of the deceased. No independent witness has come forward to support their evidence. The witnesses named in the F.I.R. Have not been examined and those examined as eye- witnesses have not supported the prosecution case. The said brothers have also not been able to prove motive advanced for commission of the murder. Their evidence is also in conflict with medical evidence. As mentioned above the medical evidence discloses two injuries, one incised wound and another abrasion, However, according to the complainant only one stab wound was caused to the deceased whereas Noor Muhammad saw the deceased being stabbed twice. The statements of the two brothers are also inconsistent in respect of other details of the occurrence. It appears from the evidence of the complainant that he saw the occurrence right from the beginning so much so that he even saw the accused passing his laundry shop but his brother Noor Muhammad states that even complainant was attracted on his cries.
14. ' Apart from above the medical evidence has rendered it doubtful that the occurrence took place at 8-30 a.m. As mentioned in the F.I.R. The medical evidence reveals that in course of the post- mortem examination of the deceased which was commenced at 12 noon, the food particles, were detected in the stomach and small intestine was found to contain semi-digested food. Clarifying further the doctor has stated that the deceased must have taken last meal 4 to 8 hours before his death. On the other hand the complainant has admitted that the deceased had taken dinner on the preceding night at 9 or 9-30 p.m. As regards breakfast he was not sure if he had eaten it or not before he came to the laundry shop in the morning of the occurrence. If the death had occurred at 8-30 a.m. As mentioned in the F.I.R. Eleven hours had passed after the deceased had taken his night meals. During this period the food must have completely digested and reached its end. But the presence of semi-digested food in the deceased's small intestine was indicative of the fact that the occurrence took place not at 8-30 a.m. But 4 to 5 hours earlier. This factor tends to support the argument of the learned counsel for the appellant that the evidence of the complainant and his brother Noor Muhammad that the incident had taken place at 8-30 a.m. And they had witnessed the same cannot be believed.
15. ' Last piece of evidence relied upon by the learned trial Court is the recovery of the blood-stained dagger. In this connection the A.S.I. Waheeduddin has stated in his evidence: "On 10-11-1978 the accused volunteered to- make discovery of the crime weapon. In presence of Mashirs Umardin and Fakir Muhammad he led me to that garden and from under the ground beneath the palm bushes he took out and produced a dagger which was blood-stained."
16. According to the A.S.I's. Own showing the accused was arrested at 6-30 p.m. On the day of occurrence i.e, 4-11-1978. Thus, it took the accused six days in police custody to make up his mind to point out the place from where the dagger was alleged to have been recovered. The six days' delay in itself is sufficient to cast a shadow of doubt on the recovery. Again the place of the recovery is not shown to be in exclusive possession of the accused. It is a garden which obviously seems accessible to otheRs, The dagger recovered from such place cannot be held to be in possession of the accused. He can at the most be saddled with knowledge of the dagger being buried at that place. Moreover, both the Mashirs have not supported the prosecution on the recovery of the dagger. In these circumstances the evidentiary value of the recovery is reduced almost to nil.
17. Consequently no reliance can be placed on such evidence.
18. ' For above reasons it cannot be held that the prosecution have proved their case beyond reasonable doubt. The benefit of doubt must go to the accused. Accordingly both the appeals are accepted and the appellant is acquitted.