Mushtaq Hussain, J.--This case has come up before me consequent upon a difference between my learned brothers Ataullah Sajjad and Shamim Hussain Kadri, JJ. It was heard by Khitab Khan their Lordships on 26-5- 1970. ^state
2. The facts of the case are that Khitab Khan s/o Khairati Mushtaq was convicted under section 302, P. P. C. by Malik Lehrasap Khan, Hussain, J Additional Sessions Judge, Gujrat at Gujranwala, on 16-5- 1967 and was sentenced to transportation for life for having, on the night between the 4tb and 5th of October 1965, committed the murder of his sister's husband, Moambar Khan at their house in Kacha Quarters Satellite Town, Gujranwala with a dagger Exh. P. 10.
3. The prosecution story is that the accused and the deceased, who were residents of Swat, had been living for about a year in the quarters mentioned above. The accused was a Chowkidar in the Satellite Town. Moambar Khan was an invalid and walked with the help of crutches. The two of them were at logger heads with each other because the deceased frequently demanded repayment of the loan advanced by him to the accused while the latter would always reply that the amount had been spent on the illness of the former. On the fateful evening, the two were quarrelling on the same score. Khushi Muhammad P. W.
13 and Maulvi Allah Rakha P. W. 14, neighbours, interceded.
Moamber Khan demanded repayment of Rs. 500 in their presence and said that he was not prepared to let his wife Zarina P. W. as a maid-servant in the house of others because that hurt bis sense of self-respect and the accused was all along insisting that she should be allowed to do so because the deceased, being an invalid, was not in a position to earn his living. They hurled abuses at each other, but the interceders separated them and assured them that they will have the matter settled before a day in the presence of the respectables of the locality. Khitab Khan accused said in their presence that on the one hand the invalid earned nothing for himself and on the other he was imputing immorality to his sister Mst. Zarina and that he was so much aggrieved on that account that he would not let the deceased remain alive. The two persons, who had come to intercede, went back to their houses.
4. Next morning, when Khushi Muhammad P. W. 13 came out of his house, he found the rooms of Khitab Khan and Moambar Khan locked. He went into the courtyard and found blood on the floor.
He became inquisitive and peeped through their doors. He saw the corpse of Moambar Khan lying in a pool of blood on a cot in the house. Khushi Muhammad immediately repaired to Police Post Satellite Town where his statement was recorded by Bashir Havat A.S.T., P. W. 17 on 5-10-1965. Bashir Hayat forwarded the statement through Ata Muhammad Constable to Police Station City, which is at a distance of half a mile, for registration of the case. This was done at 8-5 a.m. This document is Exh. P F. and on the basis of it the formal F.I.R. was recorded as Exh. P.F/1 on the samedate at Police Station City Gujranwala at 8-15 a.m. by Mirza Saeed Akhtar P. W. 18, S.H.O. of the police station. bLMinafba0Kt,han- He als deposed that Khitab Khan accused v- tnem-reil h.fi emenses for the treatment of Moambar Khan Khitah Khan 5. After recording the statement, he went to the spot anti took into possession the blood-stained earth from the courtyard of the house of the deceased vide Exh. P.D. He removed lock Mushtact Exh. P. 1 and took it into possession vide memo. Exh. P.A. He Hussain. J prepared the injury statement Exh. PN and inquest report Exh.
PN/2 and then despatched the dead body to the mortuary. When the post-mortem examination report wasreceived and afterthe usual investigation on 8-10-1965, the accused was produced before the Sub-Inspector by Abdur Rashid P. W., his person was searched and, inter alia, keys Exhs.
P. 7 and P. 8 were recovered from his person. These keys matched with lock Exhs. P. 1 and P. 4 which had been earlier broken open and removed from the houses of Khitab Khan and the accused and were taken into possession vide memo. Exh. P.K. On 15-10-65, Khitab Khan accused, while in custody, got the weapon of offence--a dagger--Exh. P. 10, recovered from the ceiling of the room where he lived. The same was found to be blood-stained and having been made into a sealed parcel was despatched by him. The dagger and the clothes of the accused were found to be stained with human blood by the Serologist. On searching through the contents of the suit-case lying in the room, he came across receipt Exh. P.B. purporting to have been executed by the accused in favour of the deceased witnessing the receipt of Rs. 500 as loan to the former.
6. The other accused Fazal Khan was not available as he had absconded and was declared a proclaimed offender. The case was then challaned by the Sub-Inspector.
7. The accused pleaded not guilty to the charge and submitted that he had been falsely involved while he had nothing to do with the matter at all.
8. The police produced 18 witnesses in all to support the prosecution case. P. W. I Dr. Raja Sultan Mahmud, who was Medical Officer of the District Headquarters Hospital), Gujranwala on the fateful day, deposed that he had conducted the post-mortem examination on the dead body of Vloambar Khan at about 4 p.m. He found it to be the body of a thin emaciated young man with emaciated legs He found three incised, 3 punctured and 2 stab wounds on the body of the deceased. The stomach of the deceased contained semi-digested food. The bladder contained three ounces of urine and the right pleura was pierced and was full of blood. In his opinion, injuries 5, 6 and 7, each of which pierced the lung below, were collectively sufficient to cause death in the ordinary course of nature. He was also of the view that all the injuries were ante-mortem. It was thus proved that the deceased met a violent death at the hands of more than one assailant, one of whom carried a sharp-edged weapon while the other had a piercing one.
9. The story of the prosecution was narrated by Khushi Muhammad P. W. 13, the author of the F.I.R., and P. W. 14 Ch. Allah Rakha. P. W. 15 K.h. Khurshid Ahmad deposed that he had written receipt Exh.
P.B. on 19-2-1964 at the instance of Khitab Khan accused who had affixed his thumb-impression in his [VOL. V have faithfully 384 Pakistan Criminal Law Journal of them Khitab Khan V'.
State was revealed that the wife of Moambar Khan deceased used to work in the houses of other people to earn a living. The deceased did not like it while the accused who is her brother insisted that she should do so because that was the only way of sustaining Moambar Khan, the cripple. This was causing annoyance to Moambar Khan. P. W. 13 refers to this incident in his statement but P. W. 14 makes no mention of it whatsoever. In any case even the former did not say that the accused complained of any accusation of adultery by the deceased in respect of the former's sister as mentioned by the learned Sessions Judge in para. 6 of his judgment.
22. This part of the story about the motive sutlers from the same defect--afterthought--and cannot be believed.
23. The recovery of Exh. P.B., the receipt, purported to have been written by Khitab Khan in favour of Moambar Khan is witnessed by P. W. 10 Syed Habib Ullah. He has stated that it was recovered from the suit-case Exh. P.G. by the police. He is a signatory to the recovery memo. His testimony, however, does not inspire any confidence because in the cross-examination he has not given positive answers to the questions put to him. He did not remember if the suit-case from which Exh.
P.B. was taken out was locked when the receipt was recovered. He did not know whether the room was locked. He made it clear that in his presence no one had informed the police that Exh. P.B. was lying in the suit-case.
24. This recovery is supposed to have been elfected oil 5- 10-1965. It is interesting to note that P. W. 13 Khushi Muhammad who was present at the spot does not make any mention, whatsoever, of this recovery. In fact, he has categorically stated that "no other item wes seized from that room." P. W. 14 Allah Rakha, has deposed that the police took Exh. P.B. into possession from a suit-case lying in the room of Moambar Khan vide memo. Exh. P.C.
This witness admitted in the cross-examination that he had not stated before the police that Exh.
P.B. had been recovered in his presence from the suit-case. Mirza Saecd Akhtar P. W. 18 who was then S.H.O. City Police Station, Gujranwala deposed that he took receipt Exh. P.B. into possession vide memo. Exh. P.C. from a suit-case lying in the room of the deceased. Exh. P.B. docs not contain the addresses of the persons who signed it as witnesses. According to Mirza Saeed Akhtar P. W. 18 the statement of Khurshid Ahmad. P. W. 15 the scribe of the receipt, was recorded on 5-10-1965 at 9 a.m. The address of this witness is not given on the receipt and the accused was apprehended on the 8th of October 1965. It passes one's comprehension as to how the Investigation Agency found out the address of Khurshid Ahmad P. W. 15 who was the scribe of the receipt.
25. The marginal witness of the receipt Gulab Khan P. W. 11 is a resident of a different locality, i.e., Naushera Road and is just a labourer. It is, therefore, not intelligible to me as to how the Sub- Inspector was able to trace this particular labourer in the big town of Gujranwala which has a population of more than 500,000 people without any indication having been given on the receipt Exh. P.B, as to who he was. The receipt does, itself, there fore, is not beyond suspicion. In this state of the evidence, it is not possible for me to accept the recovery of memo. Exh. P.B. as genuine.
26. There is then have the recovery of a blood-stained loin cloth Exh. P. 2 and a blood-stained shirt Exh. P. 3 from the room of Khitab Khan, both of which were taken into possession vide memo. Exh.
P.G. This was witnessed by Khushi Muhammad P.W. 13.
27. These articles were found to be stained with human blood by the Serologist. The other witness Maulvi Allah Rakha P. W. 14 has stated that the police did not go inside the room of Khitab Khan accused in his presence. However, Exh. P.G. the recovery memo, for the clothes bears the signatures of Allah Rakha also. He has not deposed that any clothes were recovered from the room of Khitab Khan in his presence. In fact, he did not, as already stated, enter the room of Khitab Khan at all. The' recovery of the clothes is therefore, very doubtful and no reliance can be placed upon it.
28. The recovery of the locks Exhs. P. 1 and P. 4 from the doors of the deceased and the accused respectively has been disbelieved by the learned Sessions Judge and is of no avail because Allah Rakha, in whose presence they are said to have been recovered, failed to identify them. The statement of Khushi Muhammad P. W. 13 in respect of this lock can hardly be believed as the recovery of the clothes, i.e., the other item witnessed by the same recovery memo, has already been disbelived by me above.
29. Exhs. P. 7 and P. 8 are the keys which are supposed to have been recovered from the person of Khitab Khan and to have matched the locks on the rooms occupied by Khitab Khan and the deceased. Since the recovery of the locks has been disbelieved, it will not be safe to assume that the keys produced in Court matched the locks concerned. There was no reliable evidence before the learned Sessions Judge from which it could be concluded that the keys Exhs. P. 7 and P. 8 related to locks P. 1 and P. 4 particularly when this is also in evidence that the locks had been broken open. This piece of evidence has also, therefore, to be discredited.
30. I am now left with the reeovery of the dagger. The dagger in stained with human blood. It is said to have been recovered at the pointing out of the accused from the ceiling of the residential Kotha of the accused. The recovery was elfected on 15- 10-1965 and the recovery memo, which purports to bear the signatures of Ch. Abdur Rashid and Muhammad Aslam purports to have been written on 15-10-1965. Out of these witnesses Abdur Rashid has appeared as P. W. 16 while Muhammad Aslam was not produced. Abdur Rashid is the witness who is supposed to have produced the accused before the police at 3 p.m. on 8-10-1965.
Seven days after his arrest, on 15-10-1965, the accused is supposed to have got the recovery of the dagger effected in the presence of Abdur Rashid. This man lives in an entirely different abadi which is Khokharki, while the occurrence took place in the Satellite Town and it is from the latter locality that the recovery was made. This witness has categorically stated before the committing Magistrate that--"No recovery except the keys and locks took place" in his presence. This solitary witness of the recovery of the dagger thus made a definite improvement on his statement in the trial Court by testifying that he was present at the time of the recovery of the dagger although he had made a complete denial in that respect before the committing Magistrate. The recovery of the dagger is, therefore, not proved by any independent evidence and cannot be used as a piece of incriminating evidence against the accused.
31. The extra-judicial confession is said to have been made by Khitab Khan before Abdur Rashid P.
W.
16. Abdur Rashid, according to his own statement, is a stock witness of the police and it will be highly unsafe to base the conviction of the accused on the basis of a statement of a person who himself says, "if some offence is committed in my locality, I am made by the police to join the investigation being a B.D." A stock witness of the police has never been held to be a reliable witness and the extra judicial confession, therefore, goes by the board on this very ground. Moreover, this very witness after having stated before the committing Magistrate that no recovery except that of the keys and locks was made by the police in his presence, went on to perjure himself before the trial Court by stating on oath that he was also a witness to the recovery of the dagger. One hears a lot about the duty of the Court to separate the grain from the chaff. There is no material in this case on the basis of which even such an attempt could be made and I for one, am not aware of any occult process by which the same can be done. The condemnation of a citizen as a murderer and the deprivation of liberty can hardly be based on the testimony of untruthful witnesses.
32. The learned Sessions Judge has dealt with the circumstantial evidence under the following heads:-- "(1) Circumstantial evidence which consists of:--
(a) The mutual relations between the accused and the deceased being strained on account of repayment of loan and the deceased having falsely accused the sister of the accused, of adultery;
(b) an altercation between the accused and the deceased in the evening preceding the night of occurrence;
(c) the abscondence of the accused along with his sister and other family members from the house after the occurrence.
(d) absence from duty of the accused on the night of occurrence;
(e) keys which were recovered from the person of the accused at the time of arrest correctly worked in the locks removed by the police from the rooms of accused and the deceased; and The pieces of evidence classified under (e) and (/) have already been dealt with by me and have been rejected. The evidence regarding the strained relations between the deceased and the accus ed consist of the testimony of P. 13, P. 14 and P. 16; that of P. 16 has already been rejected. I have further found that Maulvi Allah Rakha P. W. 14 has made material improvements in his statement and has. perjured himself before the trial Court and to accept his testimony on such a matter would amount to accepting something less than flimsy evidence which I am not prepared to do.
33. I am, therefore, left only with the testimony of P. W.
13. This witness did not state that the deceased accused his wife, i.e., sister of Khitab Khan, of adultery. The witness only says that the deceased did not like his wife being asked to work as a maid servant. Even the alleged altercation which took place in the evening was in respect of the demand for reimbursement of the loan advanced by the deceased. The witness and Maulvi Allah Rakha, as he says, advised the accused to wait till the following morning when they would have the matter resolved through the intercession of the respectables of the locality. They seem to have accepted the advice and not even any expression of anger or the use of angry words after that has been attributed to the accused or the deceased in the evidence. There does not seem to be any earthly reason why the accused should have proceeded to kill the deceased when the matter was to be placed before the elders or the locality for being disposed of the next morning, a procedure to which both the parties had agreed.
34. The abscondence of the accused, his sister and other family members from the house is of no help to the prosecution either. There may have been any reason for it and in any case even in the alleged extra-judicial confession there is no explanation as to what happened to the members of his family when he is said to have presented himself to Abdur Rashid P. W. 16 so that he could be produced before the police.
35. As for the absence of the accused from duty on the . night of occurrence, suffice it to say that it can be given no more importance than his alleged abscondence. If he had to commit the murder, he could have done so and returned to duty and thus provided an effective alibi. The prosecution case, however, is that he remained absent throughout the night and did not return to duty. This cuts no ice.
36. The deceased was a married man. Khitab Khan's sister was his wife. She was living with her husband and was, therefore, the most natural witness of the occurrence. She has not been produced and no reason has been given for her non-production. To my mind, this weighs heavily against the prosecution. Some body may suggest that if she had appeared, she would not have deposed against her brother. This would, of course, have been no reason, in law, for not producing the best evidence regarding the incident.
37. In these circumstances, there is no evidence worth the name which could lead me to the conclusion that the charge had been proved against the appellant. Material pieces of evidence have been disbelieved and in such a state of investigation one has to proceed with extra-caution. I, therefore, find that the prosecution has failed to bring home the guilt to the accused and accepting the appeal set aside the conviction and sentence. The appellant shall be set at liberty if he is not wanted in any other case.
Ataullah Sajjad, J.--Khitab Khan appellant was tried by Malik Lehrasap Khan, Additional Sessions Judge, Gujranwala, under section 302, P. P. C. for committing the murder of Moambar Khan, the husband of his sister on the night between 4th and 5th of October 1965, in the kacha quarters of the Satellite Town, Gujranwala. He was convicted under section 302, P. P. C. and was sentenced to transportation for life. He has filed an appeal. Fazal Muhammad who was also named as an accused person along with Khitab Khan is still an absconder.
2. The F.I.R. Exh. P.F./l is based on the statement of Khushi Muhammad P. W. 13 which he made to A.S.I. Bashir Hayat, Incharge of Police Post Satellite Town, Gujranwala, at 8-05 a.m. on 5th of October 1965.
3. The evidence shows that the appellant used to run a vegetable shop but during the days of the occurrence he was working as a Chaukidar in the Satellite Town. Moambar Khan deceased also used to work as a Chaukidar but had become invalid and crippled and was, therefore, not doing any work. He was living with his wife in the house of the appellant. There was, however, bitterness between the appellant and the deceased for two reasons. Moambar Khan had, in his good days, advanced Rs. 500 to the appellant and he insisted on the return of that money. The appellant in reply would tell him that he had spent a lot during his illness and nothing more was payable by him. The deceased also objected to his wife's going out for doing small jobs in the houses of other people. The appellant, however, repelled this objection by Moambar Khan and told him that if his wife did not earn his livelihood by working in the houses of other people, :here was nothing for them to live on. An altercation took place oetween the appellant and the deceased about the return of the money which the deceased claimed from the appellant, on the evening preceding the night of occurrence. At that time, Khushi Muhammad P. W. 13 and Allah Rakha P. W. 14 were present. They are the neighbours of the appellant. Both of them advised the parties to keep quiet and suggested that in the morning they will send some respectables of the locality who would settle the dispute between them.
4. Next morning Khushi Muhammad passed in front of the house of the appellant and found complete silence there. He called the deceased and the appellant but there was no response. He went inside arid saw blood in the compound. He then peeped through the locked door of the room where the deceased lived and found that a dead body was lying there. He informed Maulvi Allah Rakha (P. W. 14) about what he had seen and after asking him to remain present at the spot himself went to the Police Post, Satellite Town for reporting the matter. The statement Exh. P.F. made by Khusbi Muhammad was sent to the Police Station City for registration of the case.
5. Mirza Saeed Akhtar S. H. O. Police Station City, Gnjranwala, proceeded to the spot after the receipt of the statement of Khushi Muhammad. He took blood into possession from the courtyard of the house of the appellant. The rooms of Moambar Khan deceased and that of the appellant were locked and there was nobody in the house. The two locks were opened and taken into possession.
Moambar Khan was found dead lying in his room. On a search of the suit-case which was lying in the room of the deceased the Sub-Inspector found a receipt Exh. P.B. which purported to have been executed by the appellant in favour of the deceased for payment of Rs. 500. A blood-stained loin cloth Exh. P. 2 and a blood-stained shirt Exh. P. 3 were found in the room of the appellant from underneath a bedding on a charpoy which were taken into possession and sealed into a parcel.
The body was sent for post-mortem examination after drawing up necessary document.
6. Raja Sultan Mahmood, Medical Officer of the District Headquarters Hospital, Gujranwala, performed the post-mortem examination on the dead body of the deceased on 5th of Octo ber 1965, at 4 p.m. He found three punctured and three incised wounds and two stab wounds on the dead body. Injuries Nos. 5, 6 and 7 which were on the chest were collectively sufficient to cause death in the ordinary course of nature. The right lung was pierced under injury No. 5. The time between injuries and death was about two hours and the time between death and post-mortem examination was about twenty-four hours.
7. The appellant went to Abdur Rashid (P. W. 16) a Member of the Basic Democracy on 8th of October 1965, and made a confession before him. He was produced before the Investigating Officer on the same day in the Police Post Satellite Town. He had injuries on his person and was sent for medical examination. The doctor found one lacerated wound on the index finger of his left hand and another lacerated wound on the inner side of index finger of the same hand. Two keys were recovered from the appellant at the time of his arrest and they were found to fit in the locks which had been removed from the residential rooms of the appellant and the deceased.
8. On 15th of October 1965, while in custody the appellant led to the recovery of a blood-stained dagger P. 10 from the ceiling of his room. This dagger was taken into possession vide memo. Exit. P.L.
The witnesses to this recovery are Abdur Rashid (P. W. 16) and one Muhammad Aslant who was examined before the committing Magistrate. Since he was not available at the trial, his statement before the committing Magistrate was transferred to the Sessions file under section 33 of the Evidence Act.
The dagger and the clothes recovered from the room of the appellant were found by the Serologist to have been stained with human blood.
9. There is no eye-witness and the entire evidence is of circumstantial nature. The circumstances of the bitter relations between the two brothers-in-law are narrated by Khushi Muhammad P. W. 13 and Allah Rakha P. W. 14 who are the neighbours of the appellant. Both of them stated that there was bickering between the appellant and the deceased and that there was an altercation in the evening preceding the night of the occurrence. It is in the evidence of Khushi Muhammad and Allah Rakha P.Ws. that the house of the appellant was found deserted on the next morning and blood was seen in the courtyard while the dead body was found in a locked room which used to be occupied by the deceased. Then there is the evidence of the extra-judicial confession and the recovery of the blood-stained dagger. Evidence has also been led to show that on the night of the occurrence the appellant was found absent from his duty.
10. The appellant, at the trial, denied the motive alleged by the prosecution. He also denied having made any confession before Abdur Rashid or having led to the recovery of blood-stained dagger.
He stated that he never executed receipt Exh. P. B. and further stated that clothes P. 2 and P. 3 did not belong to him. He denied the charge of absconsion.
11. The learned couusel for the appellant strenuously argued that there was not sufficient evidence to connect the appellant with the commission of the offence and that the evidence of extra judicial confession is false. In order to support this latter contention he referred to the statement of Khurshid Ahmad P.W. 15 who has stated that when on 6th of October 1965, he visited the Police Station he found the appellant in police custody. It was also urged that it was not certain that the recovery of the blood-staiucd clothes had been ellected from the room of the appellant. The learned counsel in this connection referred to the statement of Allah Rakha (P. W. 14) who said that the blood-stained shirt and chuddar were lying in the room of Moambar Khan and were seized by the police.
12. The evidence of motive in this case is provided by the statements of Khushi Muhammad (P. W.
13), Allah Rakha (P. W. 14) and Khurshid Ahmad (P. W. 15). Khushi Muhammad and Allah Rakha are the neighbours of the appellant and Khurshid Ahmad was his neighbour when he was running a vegetable shop aud there is nothing on the record to suggest that they had any motive to falsely involve him.
13. I have carefully examined the objection of the learned counsel to the extra-judicial confession but I find no substance in it. Khurshid Ahmad had stated that he had seen the appellant on 6th of October 1965, when he made the statement. I find that the statement of Khurshid Ahmad was recorded by the Sub-Inspector on 5th of October 1965, and it does not appear from the record that Khurshid Ahmad had gone to the Police Station on 6th of October 1965. This statement, therefore, appears to have been made either under some misconception of fact or is a wilful concession to the appellant. The evidence of Abdul Rashid P. W. was attacked on the ground that he was a B. D.
Member and had appeared in three or four police cases. I do not think that he can be termed as a stock witness of the police on account of this admission. He knew the appellant since about three years when the latter was running a vegetable shop. The appellant did not belong to Gujranwala.
He had left his house on account of the present incident and apart from having the weight of the crime on his conscience was in a condition of homelessness. Abdur Rashid was a Basic Democrat of Khokharki, which is a suburb of Gujranwala near the Satellite Town. There is, therefore, nothing improbable in the appellant's approach to this witness.
14. The evidence of the recovery of the dagger also conics out from the mouth of Abdur Rashid P. W.
The learned counsel submitted that there is some suspicion about the presence of this witness and that of Muhammad Aslam (whose statement was transferred to the Sessions record under section 33 of the Evidence Act) at the time of the recovery of the dagger. I do not agree with him.
Muhammad Aslam stated that on the first occasion he went to the Police Station on 8th of October 1965, in connection with a dispute in his mohallah and on 15th of October 1965, he went to the Police Station to pursue his application for the licence of a revolver. In any case, Abdur Rashid had been associated with the investigation from the very start and it was natural that he should continue that association till the conclusion of the investigation. 1, therefore, believe the evidence of the extra-judicial confession as well as the evidence of the recovery of the dagger.
15. I feel that the evidence of the recovery of the keys and that of the blood-stained clothes cannot be used against the appellant. The witnesses have stated that the locks were broken with bricks and it was not possible that the keys should lit in the locks after they had been thus broken.
According to Allah Rakha the blood-stained clothes Exhs. P. 2 and P. 3 were recovered from the room of Moambar Khan and not that of the appellant. There is not sufficient evidence on the record to show that these clothes belong to the appellant. This item of evidence is also, therefore, to be rejected.
16. A very strong circumstance appearing against the appellant in this case is Ins disappearance with his sister and the members of his family on the morning of the 5th of October 1965. The deceased was a cripple and the appellant lived with him jointly. His disappearance on the next morning along with the members of his family strongly points towards his criminality. It is not his case that he was not present in the house on the night of the occurrence nor is it his case that his family members were absent from the house on the evening preceding the night of occurrence. In my view, this circumstance coupled with the I recovery of dagger is sufficient to sustain a finding of guilty against him even if for the sake of argument we rule out the evidence of confession.
17. After giving my anxious thought to this case, I have come to the conclusion that the offence has been brought home to the appellant. He has been rightly convicted and sentenced. His appeal is dismissed.
Shameem Husain Kadri, J.--1 need not reiterate the facts mentioned by my learned brother in his judgment. The prosecution relies on the motive, extra-judicial confession, recoveries and the circumstance of absconsion of the appellant from his house after the crime in order to prove the charge against him.
2. The evidence of motive consists of Khushi Muhammad (P. W. 13) and Moulvi Allah Rakha (P. W. 14).
They stated that there was a quarrel between the appellant and the deceased on the payment of loan of Rs. 500.00, which the deceased had advanced to the appellant and that the deceased disliked his wife's going out for earning livelihood. This happened on the preceding night. | Khushi Muhammad is a Tonga driver while Moulvi Allah Rakha is a Peon in the P. W. D. Khushi Mohammad stated that when he passed in front of the house of the deceased he peeped through the door and saw a dead body lying in the bouse. He then deputed Moulvi Allah Rakha to remain at the spot and himself went to the Police Post Satellite Town for lodging the report. He admit ted that he did not tell the A. S. I. about the dispute between the deceased and Khitab Khan appellant over the repayment of loan. He further stated that at the back of the kotha of the deceased and the appellant there is the house of -Islam Din son of Abdul Ghani. He admitted that he did not hear any alarm during the night. The story told by Allah Rakha also included the dispute between the deceased and one Fazal Chowkidar regarding the demand by the latter from the former of the share out of the stolen property with Moambar Khan. These two persons arc alleged to have intervened between the appellant and the deceased asking them to abstain from quarrelling over the payment of money and assured to settle the dispute in the presence of few respectables of the locality on the following morning. In support of this motive receipt (Exh. P. B.) alleged to have been executed by the appellant was recovered by Mirza Saeed Akhtar S. I. (P.W. 18) on 5-10-1965 from the room of the deceased vide memo. Exh. P. C., which was attested by Syed Habibullah (P. W. 10), Moulvi Allah Rakha (P. W. 14) and Khawaja Khursliid Ahmad (P. W. 15). The document is alleged to have been executed on 19-2-1964 in the presence of Gulab and a person whose signature in English depict the name 'Khurshid'. It is strange that in the absence of any address of the witnesses how the crafty Investigating Officer found out both these persons. The Sub-Inspector seems to have some super-natural powers to find out the two attesting witnesses of this document without their addresses especially when one of them, namely, Khurshid Ahmad joined the investigation on 5-10-1965 and became the recovery witness of this document.
I have strong apprehension in my mind that the document in question has been forged in order to implicate the appellant: How Khawaja Khurshid Ahmad (P. W. 15), the scribe, who wrote this document on 19-2-1964 by a queer coincident happened to be present on the morning of 5-10- 1965 with the Investigating Officer to attest the recovery of this document. Syed Habib the other witness of recovery was unable to tell as to how the police came to know about this document lying in the suit-case. He was also unable to tell as to whether the room or the suit-case was locked at the time when this document was procured.
3. In the first place Khushi Mohammad (P. W. 13), while lodging the F. I. R., did not mention about the quarrel which ensued between the appellant and the deceased to the A. S. I. over the payment of loan, secondly Allah Rakha (P. W. 14) has introduced another quarrel between the deceased and Fazal Khan over the distribution of the stolen property and lastly the fabrication of the document (Exh. P. B.) and its recovery by the Sub-Inspector in strange circumstances clearly reflects that this motive at least is palpably false. There may have been dispute between the deceased and the appellant over the working of the deceased's wife in the houses of other people for earning her livelihood. It is possible that the deceased might not have liked working of his wife and the inability of the appellant in supporting his sister and the deceased in the days of his distress. But this could not motivate the appellant to kill the deceased and in any case this is not the motive alleged. The prosecution in my view has fabricated a false motive in this case.
4. The recovery of the two keys (Exh. P. 7 and Exh. P. 8) from the appellant, which were taken into possession vide memo. Exh. P.K. was effected on 8-10-1965 in the presence of Abdur Rashid (P. W.
16). These keys pertained to the locks (Exh. P. 1 and Exh. P. 4) removed from the room of the accused earlier on 5-10-1965. Lock Exh. P. 1 was removed from the outer door of. the room of the deceased and taken into possession vide memo. Exh. P. A. by the Sub-Inspector in the presence of Khushi Muhammad and Allah Rakha P. Ws.
5. Shirt (Exh. P. 3) and Cbaddar (Exh. P. 2) were taken into possession vide memo. Exh. P. G. on 5-10- 1965 attested by Khushi Muhammad and Allah Rakha. My learned brother has also discarded recoveries of keys and the clothes since these articles cannot connect the accused with the crime in any manner.
6. On 15-10-1965 dagger (Exh. P. 10) was got recovered from the roof of the appellant's quarter which was taken into possession vide memo. Exh. P. L. by the Sub-Inspector Mirza Saecd Akhtar (P.
W. 18). This was stained with blood. Its recovery was attested by Abdul Rashid (P. W. 16) and Muhammad Aslam. The latter appeared before the C. M. as a witness but at the trial he was not produced as his whereabouts were alleged to be unknown. Faiz Aslam F. C. (P. W. 12) appeared at the trial and deposed that he tried to search him but was unable to trace him out as he had left for some unknown destination. The statement of Muhammad Aslam was transferred to the Sessions file under section 33 of the Evidence Act. Muhammad Aslam was present on 8-10-1965 when the accused was produced before the police by Abdul Rashid P.W. and this witness attested the recovery of two keys Exh. P. 7 and Exh. P.8 and a small box of naswa r (Exh. P. 9) which was taken into possession vide memo. Exh.
P.K. It is again a coincidence that on 15-10-1965 when the appellant got recovered the dagger (Exh.
P. 10) this man was present in the police station and the Investigating Officer joined him in the investigation on that day as well. This witness visited the Police Station on 8-10-1965 in connection with a dispute of his Mohalla although he neither claimed to be a Lambardar nor a Member of the Basic Democracy. On 15-10-1965 he visited the Police Station again in connection with his revolver licence. He admitted that he was cited as a witness in a criminal case State v. Muhammad Hussain.
Be that as it may, it looks strange that a person who was an applicant for the grant of licence of revolver, who should obviously be a man of means, was not traceable at the time of trial and in any case his object to get recommendation by the police for the grant of licence would certainly make him to act according to the wishes of the Sub-Inspector for attesting the recovery. Abdul Rashid (P.
W. 16) is a basic democrat. He is also recovery witness of the two keys mentioned above. The recovery has not been relied upon by my learned brother. He stated before the committing Magistrate that except the keys and locks no other recovery was made in his presence. The witness also appeared in a number of cases on behalf of the prosecution at the request of the police.
Actually he stated that he was made by the police to join investigation regarding every crime which takes place in his locality. About the Investigating Officer I have already observed that he has fabricated receipt (Exh. P.B). 1 am, therefore, unable to rely on the statements of the recovery witnesses. The Investigating Officer having gone to the extent of forging a document will not abstain in planting the dagger on the appellant. The recovery of blood stained Chaddar (Exh. P. 2) and Shirt (Exh. P. 3) allegedly belonging to the accused was also effected by the Sub-Inspector. The recovery of these clothes in no way connects the accused and my learned brother has come to the same conclusion in his judgment.
7. Coming to the extra-judicial confession made by the accused before Abdul Rashid (P. W. 16), who produced the appellant on 8-10-1965. He is contradicted by Khawaja Khurshid Ahmad (P. W.
15) who admitted that when he went to the Police Station on 6-10-1965 he saw the appellant present at the Police Station. There was hardly any need for the appellant to have confessed his guilt before Abdul Rashid (P. W. 16). He is the person who remains at the ready call of the police to assist them in any of their ventures. He himself has admitted this position. His statement before the committing Magistrate was to the effect that only keys and locks were taken into possession in his presence and no other thing was recovered. This being his character he is hardly a person worth reliance. It is strange that the appellant made extra-judicial confession before him but did not point out the injuries which he is alleged to have received during the occurrence. Baz Khan F.C. (P.
W. 8) deposed that on the night between 4th and 5th of October 1965 he was on patrol duty in Satellite Town. He did not see Khitab Khan Chowkidar on that night on duty. He did not make any such report about the absence of Chowkidar. There are number of Chowkidars employed in the market whom he does not know. It is strange that he only knew the appellant working in the Satellite Town as Chowkidar. The absconsion of the appellant falls to the ground from the statement made by Khawaja Khurshid Ahmad (P. W. 15), who stated that he saw the appellant in the police station on 6-10-1965. My learned brother has observed that there was nothing on the record to show that Khawaja Khurshid Ahmad appeared before the police on 6-10-1965, his statement having been recorded by the S.l. on 5- 10-1965. He might have made the statement under misconception or it may be a wilful concession to the appellant. This witness is the scribe of document (Exh. P.B.) who came of his own accord to the place of occurrence to join the investigation on 5-10-1965 and got that document recovered from the room of the deceased. There is every possibility that if he of his own accord had appeared at the spot on 5-10-1965 be would he present with the police on 6- 10-1965. He is a person who has obliged the police in fabricating the document in support of the motive of the crime. He would thus make no concession in favour of the appellant. Even if the police file does not show his presence on 6th in the police station, I am afraid I cannot come to the conclusion that he was not in the police station on 6-10-1965. Whatever his statement is worth he did state at the trial that he saw the accused in the police station on the 6th October 1965.
Moreover, I cannot allow my mind to be influenced by looking into the police diaries in coming to the conclusion against the statement of Khawaja Khurshid Ahmad (P. W. 15). I am fortified in this view by a Full Bench decision reported as Queen-Express v. Mannu (1), wherein it was observed as under:-- "The special diary may be used by the Court to assist it in the inquiry or trial by suggesting means of further elucidating points which need clearing up and which are material for the purpose of doing justice between the Crown and the accused; but entries in the special diary cannot by themselves be taken as evidence of any date, fact or statement therein contained.
The special diary may also be used by the Court for the purpose of contradicting the police officer who made it, and the special diary may be used by the police officer who made it, and by no witness other than such officer, for the purpose of refreshing his memory."
4In Siraj Din v. Kala and another (2), it was observed by S.A. Rahman, J., as his Lordship then was, that the F. I. R. given by Siraj Din at the Police Post could however have been used only to contradict its maker, if he gave evidence at the trial. It could not be used as substantive evidence to belie the claim of the other P. Ws............................................................................... '
The position of the statement recorded under section 161, Cr. P.C. is not different than the F. I. R. recorded under section 154, [5] Cr. P.C. in this behalf. The appellant has, therefore, well explained Khitab Khan his innocence. He was on duty in the Satellite Town on the night siate of occurrence when the deceased was done to death in his quarter.________ The prosecution has also disclosed a quarrel between the deceased Shameem and the absconder. The liability of the crime in these 1iusJainj circumstances cannot be thrusted on the appellant's shoulders. Kadri>1 Absence of his sister and other family members from the quarter can in no way implicate the appellant in the crime. On the other hand after coming back from his night duty his first anxiety would be to find out the whereabouts of the inmates of the house before reporting the matter to the police. In any case assuming for the sake of arguments that he and his family members were not found in the house on the next morning that may be a circumstance only against the appellant, but that by itself is no proof of the commission of the crime by the appellant. I am afraid I cannot convict the appellant in mere suspicion.
The recoveries, the extra-judicial confession and the document (Exit. P.B.) are all pieces of fake and false evidence and no strong chain can be built out of these weak and false links. The Investigation Officer has left no stone unturned in manufacturing false evidence against the appellant. Whatever be the case 1 am not at all persuaded to hold the appellant guilty of the charge.
I would, therefore, accept his appeal, set aside his conviction and acquit him. .